R v Fernando & Ors (No 1); Re a young person [2022] NSWSC 1535

R v Fernando & Ors (No 1); Re a young person [2022] NSWSC 1535

The court held that the nature and extent of the harm (or potential harm) to the young person, including psychological and relational impacts, outweighed the desirability of his evidence. This was informed by the evidence of close family connections, Aboriginal cultural context, the circumstances of his police interview, and the serious burden placed on a young person in testifying against family members in a murder trial.

Jurisdiction
Australia
Judgment Date
19 July 2022
Procedural Posture
Criminal / Interlocutory Application (s 18 Evidence Act 1995)
Outcome
Application upheld; young person excused from giving evidence in the trial of close relatives.
Legal Topics
['compellability of Witnesses' 'spousal and Family Privilege' 'section 18 Evidence Act Objection']
['criminal Law' 'evidence Law'] ['compellability of Witnesses' 'spousal and Family Privilege' 'section 18 Evidence Act Objection']

Case Brief

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Procedural Posture

Criminal / Interlocutory Application (s 18 Evidence Act 1995)

Legal Issues

  1. 1 ['Whether the young person, closely related to two accused, should be excused from giving evidence for the prosecution under s 18 Evidence Act 1995 (NSW)']

Ratio Decidendi

The court held that the nature and extent of the harm (or potential harm) to the young person, including psychological and relational impacts, outweighed the desirability of his evidence. This was informed by the evidence of close family connections, Aboriginal cultural context, the circumstances of his police interview, and the serious burden placed on a young person in testifying against family members in a murder trial.

Court Disposition

Application upheld; young person excused from giving evidence in the trial of close relatives.

Orders

  • ['The young person is excused from giving evidence in the trial of close relatives.']