District Court New South Wales Medium Neutral Citation: R v B.O. [2012] NSWDC 195 Hearing dates: 4 September 2012 to 19 October 2012 Decision date: 24 September 2012 Before: Judge Haesler SC Decision: On Voir Dire: Applications s18 & s 65 Evidence Act 1995 Legislation Cited: Evidence Act 1995 Interpretation Act 1987 Cases Cited: DPP v Nicholls [2010] VSC 397 Project Blue Sky v ABA (1998) 194 CLR 355 R v Suteski (No 4) [2002] NSWSC 218; 128 A Crim R 275 Category: Procedural and other rulings Parties: Regina (Crown) Brendan David OVERTON (The Offender) Representation: Mr K McKay - Director Public Prosecutions - Crown Mr G Scragg - Frederick Jordan Chambers - for the Offender Ms P Jassey - Director Public Prosecutions - Crown Ms A Avouris -Legal Aid NSW - for the Offender File Number(s): 2010/132652 Publication restriction: Name/s of Deceased and Child witnesses Judgment - on Voir Dire Applications s 18 & s 65 Evidence Act 1995 s 18 Evidence Act 1995. 1B.O. is charged with manslaughter of his then partner's 11-month-old child, M. M died of head injuries on 12 February 2009. In February 2009 B.O. lived with his partner, and M and his two sons, D and J, who were then aged seven and eleven. D and J were interviewed by police and those interviews were recorded. The Crown propose to call the accused's two sons to give evidence at his trial using their interviews as their evidence in chief. He intended they would then be further examined and cross-examined using CCTV. 2There was a trial late last year, which did not conclude. At that trial both children, I am told, were separately represented. The older child, J did not object to giving evidence but D did. J did give evidence and his evidence and the transcript of the recording made with police on 23 February are before me as voir dire exhibits (VD EX H & Ex K). Judge Sorby, having heard an objection from D, ruled that he was not required to give evidence. I am also told, although I do not have his remarks, that Judge Sorby did not allow the evidence of the recording to be put before the jury pursuant to s 65 of the Evidence Act 1995 even though it would appear that technically D was an "unavailable witness". I presume that is because s 18 of the Evidence Act 1995 prohibits evidence in any form being given if proper objection is taken and a ruling is made pursuant to s 18(6) that there is a likelihood of harm. 3Today the Crown indicated an intention to call evidence from J and D. They were not represented. They attended court with their mother. Counsel had the opportunity of speaking to the children with their mother during a short adjournment. No issue was raised as to their competence. Both children were sworn before me and informed of their right to object to giving evidence in their father's trial. Both exercised that right. 4It would appear to me that although clearly distressed by the atmosphere of court and the presence of their father, the children had the requisite cognitive and emotional capacity to comprehend what was going on; to understand the potential consequences of their objection and of giving evidence. They were capable of autonomous decision-making but because they were not today represented they were not in the position to put evidence on their own behalf to address the issues raised in s 18(6) and 18(7). Neither party put such evidence before me other than the three voir dire exhibits (VD Ex H, Ex J, Ex K). I did not believe it was appropriate for me to attempt to elicit s 18 material when the boys were in the witness box. There is no psychiatric or other evidence which can assist me further. 5The Crown submit that it is appropriate in this case to compel both children to give evidence against their father. Addressing the matters in s 18(7) of the Evidence Act they point to the serious nature of the offence; manslaughter of a young child. They note that the evidence is important because it corroborates the Crown case that there was nothing at all wrong physically with the child, M, prior to both J and D leaving for school on the morning of M's death. 6They also note that the calling of the children will allow clear rebuttal of a suggestion made by the accused in telephone intercepts that it was possible that one of the boys in the house were responsible for the injuries to M. 7For the accused, Mr Scragg submits that the substance and importance of the evidence does not have the weight that Crown ascribe to it because it is all available from other Crown witnesses and what the accused himself says in his police interviews. He noted the obvious distress of both boys in court, their clear affection for their father and their reluctance to be involved in what could potentially damage what is a close relationship. 8It is not in dispute, and supported by evidence called so far at trial, that the accused has been a good father to his boys, and was until his arrest their principle carer. 9The point as to whether an alternative hypothesis for the injuries to M involving the two boys should be allowed to be put to them is one that concerns me. If it is raised by the defence then there will simply be no evidence to rebut it before the jury. But if it is raised with the witnesses in evidence then that could increase the possible harm that might result from the children being accused by their own father, either directly or obliquely of causing the injuries to M. This would exacerbate the potential for harm to the children's relationship with their father. It provides a further reason that the children not be exposed to such cross-examination. 10It would seem to me that the Crown's point can best be addressed by direction to the jury, should the issue arise at all. That direction would be that there is no evidence from the boys one way or the other and the Jury should not speculate what they might say. 11As to the nature of the relationship between B.O. and his sons, while it is not strictly in evidence on the voir dire, it is accepted by all the parties and I have gleaned from the evidence called so far at trial, that there is a close relationship between the proposed witnesses and their father and that relationship continues. Access has continued while he has been on remand. 12J did give evidence on the last occasion. There is no evidence, one way or the other, about whether it caused him distress or whether there was an untoward impact upon him from having given evidence, other than his demeanour in the witness box today and his clear indication that he did not wish to repeat the experience. There was no verdict on the last occasion. As I have indicated, my concern is that a verdict, if it is a guilty verdict, could exacerbate the harm that the child might suffer. J was relieved from that burden by the fact that no verdict was reached on the last occasion. 13I also have to have regard to what I believe to be the policy behind the section which is set out in ALRC Report 26 Volume 1, Evidence Act (1985) at para 529; that is the undesirability of procedures for enforcing the criminal law being allowed to disrupt family relationships to a greater extent than the interests of the community really require and the undesirability that the community should make unduly harsh demands on its members by compelling them, where the general interest does not require it, to give evidence that will bring punishment upon those they love. 14When I apply the test in s 18(6) and take into account the matters in s 18(7) I have to bring to bear my own experience of the relevant matters. I must take into account the distress felt by the two boys when they came into the witness box today: distress which was palpable. It is impossible to predict what the impact upon a child of giving evidence against their father will be. In many respects that impact will be determined by the result of the trial. If the children do give evidence or are compelled to give evidence and their father is convicted then one can readily anticipate that they may blame themselves no matter what the reality of the situation is; even if, as the Crown submits, their evidence is quite neutral. This risk is real and substantial. 15On the other hand if they do give evidence and their father is acquitted they may see themselves as having assisted their father. It is however the first possible consequence that I must put to the forefront; that is, the real possibility that should their father be convicted it will interfere with the relationship between father and son. The test is not expressed as high as "will", in s 18(6); the section speaks of the "likelihood" that harm "would" or "might be" caused and whether the nature and extent of that harm outweighs the desirability of having the evidence given. 16I am quite satisfied on the material before me, including the demeanour of the children, that there is a likelihood that harm might be caused if I compelled the boys to give evidence. While their evidence is important corroborative evidence in the Crown case it is not the only evidence in relation to M's health, wellbeing and general demeanour or what occurred in the house immediately in the days and hours prior to his death. It's absence could not, as far as I can discern, weaken the Crown case to any great extent, if at all. As the potential for harm to the children outweighs the desirability of having the evidence given I will not compel the accused's son's to give evidence. s 65 Evidence Act 1995. 17 Following my s 18 Evidence Act 1995 determination the Crown submitted that the recorded JIRT interview of D (VD Ex J) and the interview and transcript of J (VD Ex H & Ex K) could be admitted pursuant to s 65 Evidence Act 1995. He notes that the definition of "unavailable witness" in clause 4 of the Dictionary to the Evidence Act 1995 contemplates that a person is unavailable if steps have been taken to compel the person to give evidence but without success: Dictionary Part 2 clause 4(1)(g). He submits that if because of a ruling pursuant to s 18 a witness is unavailable s 65(2)(b) and s 65(4) would allow for tender at this trial of the boy's previous representation, both their JIRT interviews and the transcript of J's evidence at the earlier trial. The Crown did not give notice as required by s 67, but in all the circumstances this could not be the sole impediment to admissibility, as leave would inevitably be given. 18I accept that a reason for including clause 4(1)(g) in the definition of "unavailable witness" is to cover a situation where the witness is present but refuses or declines to give evidence: an example can be found in R v Suteski (No 4) [2002] NSWSC 218; 128 A Crim R 275. I also accept that the word "compel" in the clause is of wider import than that in s 18 and that it does include a situation where an order is made pursuant to s 18 that a witness will not be compelled to give evidence. 19The Crown submit that the combined affect of s 65 and clause 4(1)(g) is that where a witness takes the objection available to them in s 18 and the court upholds it, their prior representation can be put into evidence. 20I do not disagree but there is an important proviso. Section 18 still has important work to do. 21Clause 4 speaks to situations where a person is "taken not to be available to give evidence about a fact". 22Section 65 applies where a person who "made a previous representation is not available to give evidence about an asserted fact". 23Section 65(2) notes "the hearsay rule does not apply to evidence of a previous representation that is given by a person ... if certain conditions are met". 24Section 18 allows a child of a defendant to object to being required to give evidence. That evidence is generally given in recorded form pursuant to s 306V Criminal Procedure Act 1986. 25As I understand it the Crown submit that to tender a witnesses' prior representation as evidence does not involve the giving of evidence by the witness. 26Here I do disagree. It appears to me the clear words of the sections noted above mean that when evidence is allowed pursuant to the exception in s 65 it is still evidence given by the witness whose prior representation it is. 27This point becomes even plainer when applied to evidence from the previous trial by J (VD Ex H & Ex K). The words of s 65(3) are clear: " ... evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding ... ". 28If there were any ambiguity a purposive approach to the interpretation of section 18 would compel an interpretation which allowed the section work to do whenever a child's evidence was sought to be given against a parent no matter the form it took or whether as direct or hearsay evidence: s 33 & s 34 Interpretation Act 1987 and Project Blue Sky v ABA (1998) 194 CLR 355. This is because, as here, no matter in what form the evidence is given, the community interest in full exposition of available evidence may not be worth the risk to the relationship between a parent and a child should they believe their evidence brought punishment upon their parent. 29When s 18 is considered at this stage, separate consideration would need to be given to the balancing process required by s 18(6) and different weight might be given to the s 18(7) factors required to be considered. One example is the children would not be subject to the rigours of being at court or in a remote CCTV room and would not be cross-examined by their father's counsel. However, in this matter, when I consider the nature of the proceedings, the substance and importance of the evidence and the nature of the relationship between the boys and their father I am still of the view that the likelihood that harm would or might result means that the nature and extent of the harm outweighs the desirability of the evidence being given. POSTSCRIPT 30When revising these remarks I became aware of the decision of Justice Beach in DPP v Nicholls [2010] VSC 397. There His Honour held that s 65 could apply to make prima facie admissible a prior representation by a witness after a s 18(6) order had been made. It does not appear to me that the point about the continued operation of s 18 was argued, and although persuasive, I do not believe I am bound to follow a decision that does not address the specific point raised here. Amendments 17 January 2013 - typographical errors Amended paragraphs: 17, 24, 25, 30 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 January 2013