Supreme Court New South Wales Medium Neutral Citation: R v Martin (No 10) [2017] NSWSC 1401 Hearing dates: 11 October 2017 Date of orders: 11 October 2017 Decision date: 11 October 2017 Jurisdiction: Common Law Before: Hamill J Decision: (1) Pursuant to s 128(2) Evidence Act, determine that there are reasonable grounds for the objection made by the witness Jessica Fallon. (2) The witness is not required to give evidence pursuant to s 128(4) Evidence Act on the grounds that the interests of justice do not require that she be so required. Catchwords: CRIMINAL LAW – evidence – privilege against self-incrimination – whether witness should be compelled to give evidence – where witness has criminal trial for same offences pending – fundamental alteration of accusatorial system – where admissions made by witness tending to exculpate accused adduced in defence case – interests of justice – where Crown does not seek hearsay direction – where counsel concerned that witness may prejudice accused's trial – where steps to quarantine evidence undesirable Legislation Cited: Evidence Act 1995 (NSW), s 128 Cases Cited: Gedeon v The Queen [2013] NSWCCA 257; 237 A Crim R 306 Lee v R (2014) 253 CLR 455: [2014] HCA 20 R v Mujuevic, Saliba, Rymer, Cusens [2017] NSWDC 215 R v Qaumi & Ors (No 31) [2016] NSWSC 674 R v Simmons (No 6) [2016] NSWSC 418 R v X [2014] NSWCCA 168 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Texts Cited: S Odgers, Uniform Evidence Law (12th Ed, 2016, Thomson Reuters) Category: Procedural and other rulings Parties: Regina (Crown) Micheal Phillip Martin Representation: Counsel: Mr B Campbell (Crown) Mr G D Wendler (M P Martin) Mr P O'Connor (for the witness intervening) Ms A Moen (written submissions for the witness) Solicitors: Director of Public Prosecutions (Crown) Stuart Percy & Associates (M P Martin) Blair Criminal Lawyers (J H Fallon) File Number(s): 2015/78236; 2015/120687 Publication restriction: No publication until the conclusion of trial EX TEMPORE Judgment (REVISED) 1. Jessica Fallon has been called as a witness by the accused who is charged with attempted murder of his father (count 1) and causing grievous bodily harm to an Ed or Eddie Manning with intent (count 2) in April 2014, and with the murder of his father in June 2014 (count 3). 2. The parties agreed that Ms Fallon should initially give evidence on the voir dire. She is represented by counsel today and her trial counsel has provided written submissions on the issue that arose today. 3. Ms Fallon was called to give evidence on the voir dire, took an oath and, after one or two anodyne introductory questions, raised an objection to giving evidence. This objection had been foreshadowed by her legal team from an early stage of the proceedings. Ms Fallon relies on the privilege against self-incrimination, both at common law and under s 128 of the Evidence Act 1995 (NSW). 4. On the Crown case, Ms Fallon may have been involved in the attempted murder of Michael Martin Senior on 6 and 7 April 2017 and the infliction of grievous bodily harm of Mr Manning on the same date. The defence is running a positive case that Ms Fallon was involved in those offences. The Crown case is that if Ms Fallon was involved, she was involved along with the accused. The defence case is that Ms Fallon was involved, and was involved with other offenders, some of whom she may have nominated to police in the course of the police's investigation. 5. Both parties have, in the course of the first six weeks of the trial, elicited through various police officers, evidence of statements and admission made by Ms Fallon in which she said that she was involved in the April offences. 6. Initially, the prosecutor objected to the accused adducing the hearsay evidence of Ms Fallon's admissions on the basis that it had not been established that Ms Fallon was "unavailable" to give evidence. That is, the accused had not established that "all reasonable steps [had] been taken …to find [Ms Fallon] or secure her attendance" or that "all reasonable steps [had] been taken to compel [Ms Fallon] to give the evidence, but without success." [1] 7. That prompted the accused to issue a subpoena and to seek short service. The subpoena was served upon Ms Fallon, who dutifully appeared in court, represented by counsel, and indicated that she would object to giving evidence in the trial. She was subsequently arrested for unrelated matters and appeared here today in custody. 8. In any event, after the accused had taken the steps to compel her attendance and [now] to compel her to give evidence, the prosecution withdrew its objection to the hearsay evidence. 9. Ms Fallon stands charged with the two April offences and is due to stand trial in the District Court of New South Wales next year. Having considered the information provided to me, and with the concurrence of counsel appearing in the trial, I formed the view that Ms Fallon's objection was based on reasonable grounds and so I ruled pursuant to s 128(2) of the Evidence Act. 10. I then heard from each counsel as to whether it was in "the interests of justice" to direct her to give evidence, with or without the benefit of a certificate under s 128 of the Evidence Act. None of the three counsel who made submissions urged a submission that it was in the interests of justice to direct her to give evidence. Nevertheless, it is a matter upon which I must reach a decision and I adjourned very briefly to consider the submissions, the evidence and the importance of Ms Fallon's evidence in the trial. 11. Ultimately, I accept the joint position put by counsel that it is not in the interests of justice to direct Ms Fallon to give evidence, with or without a certificate that her evidence could not be used against her in future proceedings. I have reached that acceptance, in brief terms, for the following reasons. 12. First and most important, to require her to give evidence would "fundamentally alter the accusatorial judicial process" concerning her trial proceedings. [2] I agree with the statement made in Odgers Uniform Evidence Law: [3] "If the witness is a defendant in pending criminal proceedings, it would be most unlikely that the interests of justice would require the witness to give evidence." 1. The learned author goes on to cite the now famous passage of Hayne and Bell JJ from X7 v Australian Crime Commission. Mr Odgers statement is not, and cannot be, an absolute proposition and each future case of similar kind will have to be considered on its own facts and merits. [4] But I think Mr Odgers' general proposition is a reasonable point from which to commence. 2. Second, extremely experienced counsel for the accused Mr Martin, has expressed concern that if Ms Fallon is called before the jury she may refuse to co-operate and the impression may be gained by the jury that she is attempting to assist the accused in some way. This would, as Mr Wendler submits, have a capacity to prejudice Mr Martin's right to a fair trial. 3. Third, the Crown has indicated that it will not seek a warning under s 165 that her hearsay evidence or admissions may be unreliable, although no doubt submissions will be made by the Crown that they (or some of them) are unreliable. However, no direction or warning will be sought and this means that the accused will not be disadvantaged forensically in his attempt to rely on the out of court statements of Ms Fallon. (I would indicate that, even if application was made for a s 165 warning, there are "good reasons for not" giving a warning, [5] those reasons being that the accused has taken steps to require the witness to give evidence, notwithstanding the position it ultimately takes (and takes very responsibly) on the question of the interests of justice. 4. Fourth, the Crown has indicated that there may be steps that could essentially quarantine the evidence given by Ms Fallon, so that the prosecution and investigating police with carriage of her trial would not know the content of her evidence. However, those steps themselves are undesirable and expensive and, even if taken, there is always a risk or, at least, the perception of a risk that those involved in the prosecution or investigation of both Mr Martin and Ms Fallon will be aware of evidence that she has given or that there may have been some derivative use of that evidence. [6] The situation is that the Crown Prosecutor who appears in the present trial is also briefed to appear in Ms Fallon's trial. The investigators who have conducted the investigation into the accused's alleged involvement are also common investigators to the Fallon case. That is why I say that the steps that would need to be taken to attempt to quarantine the evidence are themselves undesirable and tend towards a finding that it is not in the interests of justice. 5. Fifth, there is evidence before me, both in the form of statements made by her Honour Adamson J in granting Ms Fallon bail, and also in the written submissions prepared by Ms Fallon's trial counsel, in which the opinions of a Dr Olav Nielssen are quoted. His opinions suggest that Ms Fallon has various difficulties, which I will not embarrass her by going into, but they are psychological in nature so as to justify the submission (and my finding) that she is a vulnerable person [7] and a person who should not be compelled to give evidence when her trial is pending unless there are genuinely compelling reasons. 6. That same body of evidence and material gives rise to the sixth reason, which is that the psychiatric material raises the possibility that any evidence Ms Fallon may give in the trial, particularly if she is compelled to give it over her objection, and even with the benefit of a certificate, may be quite unreliable. Mr Odgers refers to that as a relevant factor. [8] It is also one of the factors that motivated Judge Norrish QC to refuse to issue a certificate in a trial conducted in the District Court. [9] 7. The seventh reason is that neither party in the current trial urges me to direct Ms Fallon to give evidence. Neither suggests that they cannot have a fair trial in the absence of her giving evidence. Each has sufficient evidence in the form of the hearsay or admissions that have been elicited through the police sfficers to go to the jury and to put their case fairly and squarely. The accused will rely on her admissions of being involved and the lack of any evidence whatsoever to connect Mr Martin with Ms Fallon, and the Crown will rely on the evidence it suggests that at least some of Ms Fallon's statements to the police, and in particular statements as to who she was associated with if and when she committed the crimes, are provably and demonstrably and palpably false. 8. The eighth and final matter (which I have added since delivering this judgment ex tempore) is that the terms of the statute provide a relatively high hurdle before a witness should be required to give evidence over a valid objection based on the right against self-incrimination. The test is whether the interest of justices "requires" ("as opposed to a less demanding term like 'favour'"). [10] 9. I have, of course, considered the countervailing matters militating in favour of compelling Ms Fallon to give evidence. These include the seriousness of the allegations against Mr Martin, the prominence that Ms Fallon's admissions have taken in the course of the proceedings, and the consequent potential that her evidence may be of real importance in the trial of the present accused. 10. But even considering those matters, overwhelmingly the relevant factors lead to a conclusion that the interests of justice do not require an order that this young woman be directed or required to give evidence in Mr Martin's trial. 11. Accordingly, I decline to make an order under s 128(4) of the Evidence Act requiring her to give evidence. ********** Endnotes 1. Dictionary to the Evidence Act 1995, 4(f) and (g); and see s 65. 2. X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [124] (Hayne & Bell JJ); Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [46] (French CJ, Crennan, Kiefel, Bell & Keane JJ). 3. S Odgers, "Uniform Evidence Law" (12th Ed, 2016, Thomson Reuters) ("Odgers"), [EA128,540], p 1068. 4. See for example, R v Simmons (No 6) [2016] NSWSC 418 and R v Qaumi & Ors (No 31) [2016] NSWSC 674. 5. Evidence Act, s 165(3). 6. See for example R v X [2014] NSWCCA 168 at [24] (Hidden J) and [69]-[70] (Hamill J). 7. I am using the phrase "vulnerable person" in the vernacular sense, rather than in accordance with definitions in various statutes. 8. Odgers at [EA 128,540], p 1070 citing R v Collison [2003] NSWCCA 212; (2003) A Crim R 389 at [28]-[33] (Tobias JA). 9. R v Mujuevic, Saliba, Rymer, Cusens [2017] NSWDC 215 at [47]-[48]. 10. Odgers, [EA 128,540, p 1048); Gedeon v The Queen [2013] NSWCCA 257; 237 A Crim R 306 at [285]-[286] (Bathurst CJ). 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: 27 October 2017