LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016

Supreme Court New South Wales

Medium Neutral Citation: LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016 Hearing dates: 29 August 2011 Decision date: 02 September 2011 Before: Johnson J Decision: The record of the proceedings of the Children's Court at Nowra against the Plaintiff on 3 February 2011 be removed into this Court. Pursuant to s.69 Supreme Court Act 1970 , an order is made quashing the decision of the Children's Court at Nowra to the effect that, because of the operation of s.19 Evidence Act 1995 , s.18 Evidence Act 1995 did not apply to the application by the Plaintiff's mother to be excused from giving evidence against the Plaintiff in those proceedings. The proceedings are remitted to the Children's Court at Nowra to be dealt with according to law and consistent with the judgment of this Court. No order is made as to the costs of these proceedings. A recommendation is made that a copy of this judgment be provided to the Attorney General for New South Wales for the purpose of consideration being given to amendment of s.19 Evidence Act 1995 . Catchwords: CRIMINAL LAW - claim for prerogative relief - summary prosecution in Children's Court - prosecution to call mother of defendant to give evidence - mother objects under s.18 Evidence Act 1995 - ruling that objection not available because of s.19 Evidence Act 1995 - construction of s.19 Evidence Act 1995 - error established - relief granted - recommendation for review of terms of s.19 Evidence Act 1995 Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Children (Care and Protection) Act 1987 Children and Young Persons Legislation (Repeal and Amendment) Act 1998 Children and Young Persons (Care and Protection) Act 1998 Criminal Procedure Act 1986 Director of Public Prosecutions Act 1986 Crimes (Appeal and Review) Act 2001 Supreme Court Act 1970 Evidence Act 1995 Evidence Act 1995 (Cth) Evidence Act 2008 (Vic) Evidence Act 2001 (Tas) Cases Cited: Acuthan and Ors v Coates and Ors (1986) 6 NSWLR 472 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 Taikato v The Queen [1996] HCA 28; 186 CLR 454 Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458; 181 A Crim R 294 R v Steffan (1993) 30 NSWLR 633 R v EK [2009] NSWCCA 4; 75 NSWLR 302 Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Hoffenberg v District Court of New South Wales [2010] NSWCA 142 Re Don [2006] NSWSC 1125