R v Giannasca [2011] NSWSC 1683

Supreme Court New South Wales

Medium Neutral Citation: R v Giannasca [2011] NSWSC 1683 Hearing dates: 17 November 2011 Decision date: 25 November 2011 Jurisdiction: Common Law - Criminal Before: Price J Decision: Catchwords: EVIDENCE - s 18 of the Evidence Act 1995 - whether stepchild has a right to object to giving evidence Legislation Cited: Evidence Act 1995 s 10(1), s 10(1)(b), s 18, s 18(2), s 18(6), s 18(7) Cases Cited: BHP Biliton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45; (2008) 236 CLR 145 Brotherhood of Locomotive Firemen and Enginemen v Hogan (1934) 5 Fed Supp 598 McGaughey v Grand Lodge AOUW of State of Minnesota (1921) 180 NW 1001; R v Cook; Ex parte C [1985] HCA 47; (1985) 156 CLR 249 Texts Cited: Australian Concise Oxford Dictionary, 4th ed DC Pearce and RS Geddes, Statutory Interpretation in Australia 7th ed, (2011) Category: Procedural and other rulings Parties: John Charles Giannasca Crown Representation: G Corr (CV) D Dalton SC (John Giannasca) E Balodis (Crown) File Number(s): 2009/779

Judgment 1HIS HONOUR: CV made an objection under s 18 Evidence Act 1995 to giving evidence in the trial. John Charles Giannasca, has pleaded not guilty to the charge that he, on or about 12 January 2002, at Gladesville or elsewhere in the State of New South Wales, did murder Carmel Giannasca. She is CV's mother. The Crown intends to call CV in its case. 2I determined on 17 November 2011, that CV was not a person to whom s 18 applied, and stated that reasons would be provided at a later stage. I now provide my reasons for rejecting CV's objection. 3The evidence discloses that CV was a child of the relationship between Carmel Giannasca and SV. She was born in 1992 and is 19 years old. Carmel Giannasca separated from Mr Valentine when CV was two years old. 4Carmel Giannasca and CV then lived with Oscar Leal until CV was 5 years old. 5When CV was 6 years old, her mother met the accused and at a later stage, Carmel Giannasca and CV commenced living with him. Carmel Giannasca and the accused married, but Mrs Giannasca disappeared in January 2002. SV returned to his daughter's life and obtained a Family Court order for her custody in January 2003. Until that time, CV had been living with the accused. She has not lived with him since 2003. 6CV is currently living with her natural father. She lived with him after 2003, save for a period of about three years when she stayed with the family of Rebecca Lawler, a friend. During this time, the accused paid her expenses. CV returned to live with SV, when she was about 16 years old. The accused had, by then, been charged with Carmel Giannasca's murder and the conditions of his bail, prohibited contact between the accused and CV. 7CV gave evidence that, but for the bail conditions, she wished to live with the accused. Her preference was to live with him rather than her natural father. 8The accused did not adopt CV. Their relationship, it seems, is one of step-parent and stepchild. In R v Cook; Ex parte C [1985] HCA 47; (1985) 156 CLR 249, Deane J explained (at 674): "The relationship between step-parent and stepchild is one of affinity as distinct from consanguinity. The basis of the relationship is the marriage of the step-parent with the natural parent". 9His Honour observed (at 674): "If the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between step-parent and stepchild will continue: see, eg. McGaughey v Grand Lodge AOUW of State of Minnesota (1921) 180 NW 1001 ; Brotherhood of Locomotive Firemen and Enginemen v Hogan (1934) 5 Fed Supp 598 at 603-604". 10The marriage between Carmel Giannasca and the accused remains undissolved at the present time. It is the Crown case that the accused murdered Carmel Giannasca, whose body has never been found. 11CV is the accused's step daughter. 12Section 18(2) Evidence Act , in which the right to object to giving evidence is found, provides: "A person, who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required: (a) to give evidence; or (b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution." 13The term "child" is defined in the Dictionary to the Evidence Act as follows: "Child" means a child of any age and includes the meaning given in subclause 10(1) of Part 2 of this Dictionary." 14Subclause 10(1) provides: " (1) A reference is this Act to a child of a person includes a reference to: (a) an adopted child and an ex-nuptial child of the person; or (b) a child living with the person as if the child were a member of the person's family." 15On the application, CV was represented by Mr Corr, of counsel. He submitted that s 18 was intended to protect familial relationships and, the lack of reference to a stepchild in the subclause, permitted the definition of "child" to be extended to a stepchild. Mr Corr argued that the term "child" should be given a broad interpretation. Another submission was that subclause 10(1)(b) should be interpreted so as to include a child, who intended living with the defendant. 16The Crown contended that the term "child" in s 18(2) did not embrace a stepchild and CV's objection should be rejected. 17Neither counsel brought to the court's attention any authority on the question of construction of s 18(2) and the debate on this issue, was notably sparse. 18The meanings of the term "child" in the Macquarie Dictionary, 4 th ed include : " 1. a baby or infant 2. a boy or girl 3. Law a young person within a certain age determined by Statute... 4. a childish person 5. a son or daughter 6. any descendant." 19The Australian Concise Oxford Dictionary, 4 th ed includes for the term "child": "1a a young human being below the age of puberty b. an unborn or newborn human being 2. one's son or daughter (at any age) 3. a descendant, follower, adherent or product of (children of Israel; child of God; child of nature). 4. a childish person." 20A stepchild does not fall within the ordinary meaning of the term "child" nor does a child living with a person, who is not the natural son or daughter of the person. It is less clear whether an adopted child or an ex-nuptial child is embraced by the ordinary meaning of the term. 21It is of importance to observe that the term "child" as defined in the Dictionary to the Evidence Act , means a child of any age and includes the meaning given in subclause 10(1) of Part 2 (emboldening added). 22Generally, as a matter of statutory construction, the use of the expression 'means' is used if the definition is intended to be exhaustive. In contrast, the expression 'includes' is used to enlarge the ordinary meaning of the word. Although the use of the composite expression 'means' and 'includes' has been criticised as using expressions incompatible with one another, it is well recognised that these terms can be used together. As the High Court of Australia (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ) said in BHP Billiton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45; (2008) 236 CLR 145 at [159]: "As a general proposition, the adoption of the defitional structure 'means and includes' indicates an exhaustive explanation of the content of the term which is the subject of the definition, and conveys the idea both of enlargement and exclusion. In doing so, the definition also makes it plain that otherwise doubtful cases do fall within its scope." 23DC Pearce and RS Geddes in their work, Statutory Interpretation in Australia (7 th ed, 2011) state at [6.65]: "This is not to say that 'means' and 'includes' cannot be used together. To say that 'X' means ABC and 'includes' DEF is an acceptable format as it indicates that X has a limited meaning but that to avoid doubt certain matters are to be taken to fall within the scope of that designated meaning." 24The use of the words 'means' and 'includes' in the definition of the term 'child' indicates that its meaning, although enlarged beyond its ordinary meaning, does not extend further than the relationships between a defendant and the child that are identified in subclause 10(1) of Part 2 of the Dictionary. Subclause 10(1) makes it clear, that the otherwise doubtful cases of an adopted child or an ex-nuptial child of a defendant, or a child living with the defendant, as if the child were a member of the defendant's family, fall within the ambit of the term. An exhaustive explanation of the meaning of a "child of a defendant", for the purposes of the Evidence Act , is provided by the definition. 25As a consequence of the ruling that CV was not a person, who has a right to make an objection under s 18, the balancing test under s 18(6) was neither argued nor considered. Section 18(6) is as follows: "A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and (b) the nature and extent of that harm outweighs the desirability of having the evidence given." 26Section 18(7) mandates: "Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following: (a) the nature and gravity of the offence for which the defendant is being prosecuted, (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it, (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor, (d) the nature of the relationship between the defendant and the person, (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant." 27I wish to make it plain that, even if I had found that CV had a right to object and there was a likelihood that some harm might be caused to the relationship between CV and the accused, if CV gives evidence, I would not have been satisfied, carrying out the balancing test that the nature and extent of that harm outweighs the desirability of having the evidence given. 28The accused is charged with murder, the gravest of crimes. The court is well aware of the evidence that CV might give and the weight that is likely to be attached to it: see Giannasca v R (No 2) [2011] NSWSC 1681, at [14] and [119]. Her evidence is not only relevant to the accused's motive to kill his wife, but also as to the plausibility of his account that she left the home on her own accord. The evidence has significant probative value. 29There is no other evidence that is reasonably available to the Crown concerning the matters to which Cv's evidence relates. In giving the evidence, CV will not disclose any matter that was received by her in confidence from her stepfather. Whilst CV told me that she wishes to live with the accused, she is 19 years of age and has not lived with him for about 8 years. Any harm to their relationship is, in my view, greatly outweighed by the desirability of CV's evidence being given in the trial of the accused, who is charged with the murder of her mother. 30CV is required to give evidence, as a witness for the prosecution.