R v Quinn (No 1) [2016] NSWSC 1101

Supreme Court New South Wales

Medium Neutral Citation: R v Quinn (No 1) [2016] NSWSC 1101 Hearing dates: 9 August 2016 Date of orders: 09 August 2016 Decision date: 11 August 2016 Jurisdiction: Common Law Before: Beech-Jones J Decision: Witness not required to give evidence Catchwords: CRIMINAL LAW – evidence – objection to witness giving evidence – Evidence Act 1995, s 18 – compellability of a parent as a prosecution witness – witness is the mother of the accused – evidence given would affect relationship between mother and son – accused has quadriplegia – witness provided a number of statements to police immediately after killing – statements able to be tendered by Crown – objection upheld Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW), s 18 Category: Procedural and other rulings Parties: Regina Michael James Quinn Representation: Counsel: Mr M Hobart SC (Crown) Ms J Manuell SC (Accused) Mr T Jones (Mrs Quinn)

Solicitors: Ms K Speirs, Solicitor for Public Prosecutions (Crown) Mr C Cole, William O'Brien and Ross Hudson Solicitors (Accused) File Number(s): 2013/275908 Publication restriction: Nil

Judgment 1. On 9 August 2016, being the second day of the trial, I upheld an objection under s 18 of the Evidence Act 1995 (NSW) made by the accused's mother, Joanne Quinn, to giving evidence as a witness for the prosecution. This judgment constitutes the reasons for upholding the objection. 2. On 8 August 2016, the accused, Michael James Quinn, was arraigned on an indictment that charged him with murdering Cherie Lyn Vize on 22 July 2013. He pleaded not guilty. The trial is by Judge alone (Criminal Procedure Act 1986 (NSW), s 132). 3. Sub-section 18(2) of the Evidence Act enables any person who is required to give evidence and who is, inter alia, the parent of an accused, to make an objection to being required to either give evidence, or to give evidence of a communication between themselves and the accused, as a witness for the prosecution. Sub-section 18(6) provides that the person who makes the objection is not required to give evidence if the Court finds that there is a likelihood that harm would or might be caused to, inter alia, the relationship between the person and the accused if the person gives evidence (s 18(6)(a)) and the nature and extent of that harm outweighs the desirability of the evidence being given (s 18(6)(b)). 4. Sub-section 18(7) provides: "(7) 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." 1. The Crown alleges that at about 10.30am on 22 July 2013, the accused murdered Ms Vize, by stabbing her in the neck. It does not appear to be in serious dispute that, prior to her death, the accused and Ms Vize had been in a relationship for a number of years, although its status as at the date of her death is likely to be disputed. Ms Vize was stabbed at the accused and Mrs Quinn's home. The Crown alleges that the accused was upset at discovering messages on Ms Vize's phone indicating that she had formed another relationship. It is not in dispute that immediately after Ms Vize's throat was cut the accused stabbed himself in the chest and neck resulting in him experiencing quadriplegia. It is apparent from the opening statement of Senior Counsel for the accused, Ms Manuell SC, that the accused contends that the cutting of Ms Vize's throat was accidental and that he otherwise raises a defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW). 2. Mrs Quinn was present at the house on the day of the killing. It does not appear to be in dispute that she came to the courtyard at the front of her home at about the time or in the instant after Ms Vize's throat was cut, that she rendered assistance to Ms Vize and witnessed, or at least heard, the accused stab himself. Clearly, she is an important witness in that she was the first person to arrive in the front yard after Ms Vize and the accused. 3. Mrs Quinn cooperated fully with the police in the immediate aftermath of the killing such that a significant amount of material concerning what she observed and heard has been and will be tendered even if she does not give oral evidence. In particular, Mrs Quinn was briefly interviewed by the police at 11:46am on 22 July 2013 at the scene. The interview was recorded on a mobile phone. The DVD and transcript of that interview have been tendered (Ex B). After that interview Mrs Quinn was taken to Lake Illawarra Police Station where she signed a six-page statement. On 24 July 2013, Mrs Quin participated in a video "walk-through" at her home which occupied some 40 minutes. A DVD and a transcript of the walk-through have already been tendered (Ex C). During the walk-through she answered various questions put by the investigating police as to both the layout of the premises and what she observed. Further, on 22 October 2014, Mrs Quinn gave evidence at the committal proceedings. 4. Mrs Quinn gave evidence on a voir dire in support of her objection. She was represented by counsel. Mrs Quinn was asked to state the basis for her objection and answered as follows: "I believe I gave evidence immediately after the incident. I did a follow‑up statement at Lake Illawarra Police Station within an hour of it happening. I did a walkthrough two days later. I provided evidence at the committal hearing. And my relationship with my son suffered because of that. And I place high importance on holding that relationship with him, because I have to care for him for the rest of his natural, and my life." 1. Mrs Quinn explained that her relationship with the accused has not been the same since she gave evidence at the committal hearing. She was asked how the relationship had been affected and stated: "It's been difficult to talk to him about things. I [continued] to see him every day at Coledale Hospital for approximately eight hours a day, I have visited him at Long Bay twice a week, and it's becoming more and more difficult to have a relationship with him." 1. In support of the objection, Mrs Quinn's counsel, Mr Jones, contended that in circumstances where Mrs Quinn had already provided a number of statements concerning what she saw and heard which were available to the Crown and given the above evidence the objection should be upheld. 2. The Crown Prosecutor submitted that the objection should be overruled. He contended that one matter not addressed by the interviews and statements of Mrs Quinn noted in [7] was the relationship between the accused and the deceased in the immediate period prior to the killing. It is said that may be of relevance to an assessment of whether the accused deliberately stabbed Ms Vize and, if so, whether any defence of substantial impairment is made out. However, the Crown Prosecutor fairly conceded that there are other witnesses available to the Crown who can be asked about that topic (and, in any event, Mrs Quinn's statement addresses that topic at least in part). Otherwise the Crown accepted that the materials noted in [7] covered the various topics upon which the Crown sought to question Mrs Quinn except that the Crown submitted that, at the committal hearing, Mrs Quinn had recanted one part of her statement to the police in which she said that when she came to the front of the house on the morning of 22 July 2013 she saw "Michael with a knife". The characterisation of Mrs Quinn as having "recanted" one aspect of her evidence at the committal was contested by Ms Manuell SC. In the end result the Crown Prosecutor accepted that if the entirety of the material noted at [7] was tendered, including Mrs Quinn's evidence at the committal hearing, then that the Crown "would have the evidence it needs", save for evidence concerning the relationship between the accused and the deceased in respect of which it would call other persons to give evidence. 3. Ms Manuell SC submitted that the objection should be upheld. Ms Manuell SC submitted that the DVD of Mrs Quinn undertaking the "walk-through" was likely to be more reliable than any oral evidence that she might give three years later. She also confirmed that, if Mrs Quinn's objection was upheld, she would not object to the tender of Mrs Quinn's statement or her evidence at the committal hearing (and in any event see s 65 of the Evidence Act). 4. It is necessary to first address the criteria in s 18(7) of the Evidence Act. First, the nature and the gravity of the offence for which the accused is being prosecuted is very serious (sub-section 18(7)(a)). There is a strong public interest in ensuring that the Crown has available to it as many witnesses as it wishes to call when prosecuting a person for murder. Second, the criteria in sub-section 18(7)(b), namely the substance and importance of any evidence that a person might give and the weight that is likely to be attached to it, should be considered with the criteria in sub-section 18(7)(c), namely whether there is any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor. As I have stated Mrs Quinn is clearly an important witness. However, in this case not only is there other evidence available, it is evidence from Mrs Quinn herself, namely the material noted in [7]. Although I express no final view on the weight to be attached to the statements made in the immediate period after the killing compared to oral evidence given at a much later time there is at least a reasonable basis for considering that the former is likely to be more reliable than the latter. 5. In relation to sub-section 18(7)(d), the nature of the relationship between the accused and the person in question, namely mother and son, is of particular significance in this matter given that the accused has quadriplegia. Irrespective of whether he continues to be detained in custody, the relationship between the accused and his mother is likely to be of central importance to both of them for the remainder of their lives. It seems likely that the accused's parents will be the principal source of support that he looks to and they will reciprocate. In the accused's case the consequences of damaging that relationship could be especially severe. 6. In relation to sub-section 18(7)(e), the statement of Mrs Quinn taken by the police recounts various matters conveyed to her by the accused about his relationship with Ms Vize. It was not suggested that there is some further disclosure made to her by the accused that was to be the subject of oral evidence. 7. In relation to sub-section 18(6)(a) I am satisfied that there is a likelihood that harm would or might be caused to the relationship between Mrs Quinn and her son if she gives evidence. Mrs Quinn is deeply anxious about the welfare of her son, and believes that the necessity for her to maintain a relationship with him is of the utmost importance both to his welfare and to her own well-being and that may be damaged, or damaged further, if she is required to give evidence. I accept her assessment. 8. I am also satisfied that the nature and extent of that harm outweighs the desirability of compelling Mrs Quinn to give evidence as a witness for the prosecution. I am conscious of the strong public interest in allowing the prosecution to call all material witnesses to give evidence on oath and expose themselves to cross-examination at a trial of a person on a charge of murder. However, Mrs Quinn has provided a number of statements and three of them were given in the immediate period after the events occurred. The result is that material addresses all the topics upon which the Crown Prosecutor proposes to question Mrs Quinn, possibly save for the relationship between the accused and the deceased in respect of which the Crown can call other witnesses. Given the unique circumstances of this case, I am satisfied that the adverse consequences for the relationship between the accused and his mother if she gives oral evidence outweigh the desirability of her being compelled to testify for the prosecution on the charge that he murdered Ms Vize.