R v Manuel (No 2) [2015] NSWSC 1563

Supreme Court New South Wales

Medium Neutral Citation: R v Manuel (No 2) [2015] NSWSC 1563 Hearing dates: 12 – 14 October 2015 Date of orders: 14 October 2015 Decision date: 14 October 2015 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: Discretion under s 18 (6) Evidence Act 1995 (NSW) not engaged. Catchwords: EVIDENCE – compellability of the mother of the accused to give evidence – mother does not object to giving evidence Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Office of the Director of Public Prosecutions (Crown) Mr Dinky Gordon Manuel (Accused) Representation: Counsel: Mr P Lynch (Crown) Mr C Smith SC (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (Accused) File Number(s): 2013/138360

ex tempore Judgment (revised) 1. The Crown has called the mother of the accused, Mrs June Airs, to give evidence. I anticipate that her evidence will substantially consist of an admission by Mr Manuel to her of him striking Mr Rien, the deceased, and a belief on the part of Mr Manuel that he may have killed Mr Rien. 2. It is not in issue in this case that Mr Manuel struck Mr Rien more than once with a length of timber, nor is it in issue that the striking caused Mr Rien's death. That is to say, from the outline of the issues given by his counsel, Mr C Smith SC, that much is at least tacitly admitted. 3. Ms Airs has not objected to giving evidence and I record that she gave evidence at the first trial of this matter. Accordingly, as she has not objected, although she prevaricated a little at one stage, no occasion arises for me to exercise the discretion arising under s 18(6) Evidence Act 1995 (NSW). 4. I record, however, had she objected I would not have been persuaded that I should rule that she not be required to give evidence. From the evidence that she has given she has a good and loving relationship with her son, Mr Manuel, and notwithstanding the evidence that she gave on the last occasion that relationship continues to be a loving and good one. She is naturally reluctant to play a role in the trial of her son for murder, because she is concerned, I say this without disrespect, for her own sake, that she does not want to be directly involved in the process that might see him convicted of that most serious offence and sentenced to a long period of imprisonment. 5. It seems to me that is not the type of harm to the relationship which the subsection contemplates. That is just a natural outcome which depends not upon anything Ms Airs might do, or I might do, but depends upon the verdict of the jury. There must be some chance that giving the evidence might adversely affect the currently good relationship, but it seems to me that, at least on one view of it, the evidence she is likely to give can be used to Mr Manuel's advantage by learned senior counsel in defence of his client. For that reason I am of the view that the nature and extent of any harm to the relationship, which I regard as highly theoretical, does not outweigh the desirability of the evidence being given. 6. In any event, having had the situation fully explained to her, Ms Airs does not object to giving the evidence.