R v Giannasca [2011] NSWSC 1683

R v Giannasca [2011] NSWSC 1683

CV was the accused's stepdaughter, but she was not adopted by him and was not living with him as if she were a member of his family. The definition of child in the Evidence Act 1995, using the words means and includes, exhaustively enlarged the ordinary meaning only to the relationships identified in subclause 10(1). A stepchild who did not otherwise satisfy that definition was not a child of the defendant for s 18(2). CV therefore had no right to object and was required to give evidence for the prosecution.

Jurisdiction
Australia
Judgment Date
25 November 2011
Procedural Posture
Criminal Prosecution for Murder / Procedural Ruling on Objection Under S 18 Evidence Act 1995 to Giving Evidence
Outcome
CV's objection under s 18 of the Evidence Act 1995 was rejected.
Legal Topics
['objection to Giving Evidence' 'competence and Compellability of Family Members' 'meaning of Child Under Evidence Act 1995' 'stepchild' 'prosecution Witness']
['evidence' 'criminal Law' 'statutory Interpretation'] ['objection to Giving Evidence' 'competence and Compellability of Family Members' 'meaning of Child Under Evidence Act 1995' 'stepchild' 'prosecution Witness']

Case Brief

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Procedural Posture

Criminal Prosecution for Murder / Procedural Ruling on Objection Under S 18 Evidence Act 1995 to Giving Evidence

Legal Issues

  1. 1 ['Whether a stepchild is a person who may object under s 18(2) of the Evidence Act 1995 to being required to give evidence for the prosecution.' "Whether CV fell within the definition of a child of the defendant, including a child living with the person as if a member of the person's family." 'If CV had a right to object, whether the balancing test in s 18(6) would excuse her from giving evidence.']

Ratio Decidendi

CV was the accused's stepdaughter, but she was not adopted by him and was not living with him as if she were a member of his family. The definition of child in the Evidence Act 1995, using the words means and includes, exhaustively enlarged the ordinary meaning only to the relationships identified in subclause 10(1). A stepchild who did not otherwise satisfy that definition was not a child of the defendant for s 18(2). CV therefore had no right to object and was required to give evidence for the prosecution.

Court Disposition

CV's objection under s 18 of the Evidence Act 1995 was rejected.

Orders

  • ['CV is required to give evidence as a witness for the prosecution.']