Supreme Court New South Wales

• Medium Neutral Citation: LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016
• Hearing dates: 29 August 2011
• Decision date: 02 September 2011
• Before: Johnson J

Decision

The record of the proceedings of the Children's Court at Nowra against the Plaintiff on 3 February 2011 be removed into this Court.

Pursuant to s.69 Supreme Court Act 1970 , an order is made quashing the decision of the Children's Court at Nowra to the effect that, because of the operation of s.19 Evidence Act 1995 , s.18 Evidence Act 1995 did not apply to the application by the Plaintiff's mother to be excused from giving evidence against the Plaintiff in those proceedings.

The proceedings are remitted to the Children's Court at Nowra to be dealt with according to law and consistent with the judgment of this Court.

No order is made as to the costs of these proceedings.

A recommendation is made that a copy of this judgment be provided to the Attorney General for New South Wales for the purpose of consideration being given to amendment of s.19 Evidence Act 1995 .

• Catchwords: CRIMINAL LAW - claim for prerogative relief - summary prosecution in Children's Court - prosecution to call mother of defendant to give evidence - mother objects under s.18 Evidence Act 1995 - ruling that objection not available because of s.19 Evidence Act 1995 - construction of s.19 Evidence Act 1995 - error established - relief granted - recommendation for review of terms of s.19 Evidence Act 1995
• Legislation Cited: Crimes Act 1900; Crimes (Domestic and Personal Violence) Act 2007; Children (Care and Protection) Act 1987; Children and Young Persons Legislation (Repeal and Amendment) Act 1998; Children and Young Persons (Care and Protection) Act 1998; Criminal Procedure Act 1986; Director of Public Prosecutions Act 1986; Crimes (Appeal and Review) Act 2001; Supreme Court Act 1970; Evidence Act 1995; Evidence Act 1995 (Cth); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas)
• Cases Cited: Acuthan and Ors v Coates and Ors (1986) 6 NSWLR 472; Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402; Taikato v The Queen [1996] HCA 28; 186 CLR 454; Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458; 181 A Crim R 294; R v Steffan (1993) 30 NSWLR 633; R v EK [2009] NSWCCA 4; 75 NSWLR 302; Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531; Hoffenberg v District Court of New South Wales [2010] NSWCA 142; Re Don [2006] NSWSC 1125; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
• Texts Cited: Victorian Law Reform Commission, "Implementing the Uniform Evidence Act: Report", 2006
• Category: Principal judgment
• Parties: LS (Plaintiff); Director of Public Prosecutions (NSW) (First Defendant); Magistrate Graham Blewitt (Second Defendant)
• Representation: Ms CT Loukas (Plaintiff); Mr ID Bourke (First Defendant); Submitting Appearance (Second Defendant); Legal Aid New South Wales (Plaintiff); Solicitor for Public Prosecutions (First Defendant); Crown Solicitor (Second Defendant)
• File Number(s): 2011/14899

Judgment

1 JOHNSON J : By Further Amended Summons filed 18 August 2011, the Plaintiff, LS, seeks prerogative relief under s.69 Supreme Court Act 1970 with respect to a ruling made in criminal proceedings against him before the Children's Court.

2 The Plaintiff contends that the Second Defendant, Magistrate Graham Blewitt, erred in ruling on 3 February 2011 that, because of s.19 Evidence Act 1995 , it was not open to the mother of LS to object under s.18 Evidence Act 1995 to being called as a prosecution witness in the case against him.

Proceedings in the Supreme Court

3 Following the commencement of proceedings in this Court by the filing of a Summons on 3 May 2011, the Director of Public Prosecutions (NSW) gave notice, for the purpose of ss.9(1)(c) and 10 Director of Public Prosecutions Act 1986 , that the Director was conducting the present proceedings in this Court on behalf of the prosecution. The Director of Public Prosecutions has been substituted as First Defendant in place of the police officer who instituted proceedings in the Children's Court against the Plaintiff.

4 At the hearing of the Further Amended Summons on 29 August 2011, Ms Loukas of counsel appeared for the Plaintiff and Mr Bourke of counsel appeared for the First Defendant. A submitting appearance had been filed on behalf of the Second Defendant.

5 The Court was assisted by helpful written and oral submissions made by counsel for the Plaintiff and the First Defendant.

6 Counsel agreed in their submissions that the learned Magistrate had erred in his construction of s.19 Evidence Act 1995 and that a proper basis had been demonstrated for a grant of relief in the nature of certiorari in this case.

7 Of course, it remains a matter for the Court to determine whether a proper basis exists for the grant of relief sought by the Plaintiff.

The Alleged Offences

8 The Court Attendance Notices, and accompanying documentation, reveal the following prosecution case against the Plaintiff.

9 As at 24 November 2010, the Plaintiff was 15 years' old. He lived with his mother and elder brother at premises in a town on the south coast of New South Wales.

10 It is alleged that there had been some tension in the household between the Plaintiff and his mother. As at 24 November 2010, the Plaintiff attended school for two hours daily. On that day, his mother picked him up from school and asked him to perform some household chores. It is alleged that the mother went out for a period and returned home to find that the Plaintiff had been riding his motorbike, and gear was scattered over the front veranda of the house.

11 It is alleged that the Plaintiff's mother became upset and told him to move his motorbike gear. The young person became argumentative towards his mother. It is alleged that the mother then threw the Plaintiff's motorbike gear over the side fence onto a grass nature strip.

12 It is said that the Plaintiff continued to abuse his mother, while kicking the side fence. It is said that the argument continued, with the mother asking the Plaintiff to leave and not return until he had calmed down.

13 The prosecution alleges that, once back inside the premises, the Plaintiff grabbed an iron and threw it against the wall, causing the iron to smash and putting two holes in the wall. It is further alleged that the Plaintiff punched the wall putting a hole in it.

14 The mother then contacted police who attended a short time later and spoke with her. Police entered the premises and observed two holes in the lounge room wall, apparently caused by the iron. A hole in the gyprock wall near the kitchen area was also observed. Police observed the broken iron on the floor.

15 It is alleged that police informed the Plaintiff that he was under arrest and he was cautioned. When told that he was required to come to the police station, it is said that the Plaintiff refused and walked away from police.

16 It is alleged that police attempted to take hold of the Plaintiff's arm, but he flung his arms around in an attempt to avoid arrest. The Plaintiff lifted his t-shirt up over his head and twisted his body, resulting in him falling onto the lounge. Police then took hold of the Plaintiff, lifting him from the lounge. The Plaintiff began to struggle and kick his legs out.

17 The Plaintiff was carried to the police vehicle and placed in the rear section of the vehicle. Police obtained a statement from the Plaintiff's mother, which was signed by her in a police officer's notebook. In addition, photographs were taken of the damage to the premises.

18 The Plaintiff was charged with two offences:

(a) intentionally or recklessly damaging property, being two walls in the property of his mother, contrary to s.195(1)(a) Crimes Act 1900 ;

(b) resisting Sonja Nielsen, a constable of police, in the execution of her duty, contrary to s.58 Crimes Act 1900 .

19 Court Attendance Notices issued for these offences, which were made returnable at the Nowra Children's Court on 20 January 2011. The Plaintiff was granted conditional bail. An apprehended violence order was applied for and was granted on behalf of the Plaintiff's mother as the protected person. It appears that the terms of the apprehended violence order permitted the Plaintiff to reside with his mother but required him, amongst other things, not to assault, molest, harass, threaten or otherwise interfere with his mother or destroy or deliberately damage or interfere with her property.

The Local Court Proceedings on 3 February 2011

20 The matter came before Magistrate Blewitt sitting at the Nowra Children's Court on 3 February 2011. The Court was informed that the Plaintiff's mother was a prosecution witness in the matter. His Honour indicated that she should remain outside the Court.

21 The Plaintiff's legal representative informed the Court that there was to be an application by the mother to be excused from giving evidence under s.18 Evidence Act 1995 . Thereafter, submissions were made by the prosecutor and the Plaintiff's legal representative on the topic, apparently in the absence of the mother.

22 Following submissions, his Honour made the following ruling (T4-5, 3 February 2011):

" HIS HONOUR: In these proceedings relating to the young person [LS] who is before the Court on a charge contrary to s 195(1)(a) of the Crimes Act, namely intentionally or recklessly destroy or d amaging property, domestic violence related. It appears that the mother who is, as I understand it, a witness for the prosecution, it would seem that she's taken legal advice and desires to make an application under s 18 of the Evidence Act that she not be compelled to give evidence against her son on the basis of the matters that are set out in s 18 and I will not go into that at the moment.

This Court is very familiar with s 18 and has on occasions excused a mother or a parent from giving evidence against their child on the basis that by giving evidence it was likely to harm the relationship between them and in the interests of justice the Court has ruled that the mother should not be compelled. In my experience a novel submission has been made by the prosecution, one that I have not encountered in the past, namely that s 19 of the Evidence Act applies in this case by reason of the fact that the young person is charged with an offence that is referred to in s 279 of the Criminal Procedure Act, that is a section that deals with the compellability of spouses to give evidence in certain proceedings. Section 19 of the Evidence Act provides that s 18 does not apply in proceedings for an offence against or referred to in the following provisions and it then sets out various sections and including s 279 of the Criminal Procedure Act. Section 279 of the Criminal Procedure Act applies to spouses giving evidence against a defendant but it also sets out the offences in respect of which s 279 applies, various offences are set out in subs (1). Subsection (1)(b) defines what a domestic violence offence is in this provision and subs (2) says that the spouse of an accused in proceedings in any court is compellable. Section 18 also speaks of spouses but subs (2) says, 'A person who...required to testify', et cetera. So clearly s 18 has a broader application to the persons who can claim the protection or rely on the provisions of the Act for not being required to give evidence and it is broader than just a spouse. Section 19 does, however, have the title Compellability of Spouses and Others in Certain Criminal Proceedings. So the mere fact that s 279 only refers to spouses I think it is quite clear that the provision of s 19 are meant to cover spouses and those other persons described in s 18(2). So the mere limitation in s 279 of the Criminal Procedure Act to spouses would, in my view, be sufficient to cover the mother of the defendant in this case.

The prosecution submits s 19 relates to proceedings for an offence against or referred to in s 279. Clearly s 279 does refer to a domestic violence offence. I am satisfied the offence charge [d] , at least the first sequence, is a domestic violence offence and it would seem a clumsy piece of drafting perhaps from one point of view, but on a question of legal interpretation I agree with the prosecution that s 18 does not apply in circumstances where the mother of a child is being prosecuted in respect of a domestic violence offence. SO I UPHOLD THE PROSECUTION'S SUBMISSION THAT S 18 DOES NOT PROVIDE AN OPPORTUNITY FOR THE MOTHER TO RELY ON S 18. I MAKE THAT RULING."

23 It is appropriate to bear in mind that his Honour's reasons constituted an unedited and unpunctuated record of ex tempore remarks in a busy Magistrate's Court: Acuthan and Ors v Coates and Ors (1986) 6 NSWLR 472 at 479A, 485C-D. Such a judgment should not be picked over, and appropriate allowance should be given to the pressures under which Magistrates are placed by the volume of cases coming before them: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at 407-408 [15].

24 After this ruling was made, on application by the Plaintiff's legal representative, the Children's Court proceedings were adjourned to permit the ruling to be tested in proceedings ultimately brought in this Court.

25 The Children's Court proceedings remain adjourned pending the decision of this Court.

26 Proceedings were commenced in this Court on 3 May 2011. The Plaintiff presses the claim for relief in the nature of certiorari under s.69 Supreme Court Act 1970 contained in the Further Amended Summons.

The Magistrate's Decision

27 Mr Bourke, in his written submissions, distilled the Magistrate's reasoning in the following useful way:

"The Magistrate's reasoning (effectively adopting the argument put by the Prosecutor) appears essentially to have been this:-

a) Section 18 creates a right in certain persons (including a Mother of a defendant) to object to being required to give evidence as a witness for the prosecution.

b) Section 19 however, provides that s.18 (the right to object) does not apply in 'proceedings for an offence against or referred to' in the provisions quoted in s.19.

c) One of the provisions quoted in s.19 is s.279 Criminal Procedure Act.

d) Section 279 Criminal Procedure Act applies to spouses giving evidence against a defendant, but it also sets out 'the offences to which s.279 applies'.

e) Section 279(1)(b) defines what a domestic violence offence is, and s.279(2) says that the spouse of an accused is compellable.

f) Section 18 also speaks of spouses, but subs (2)...(refers to others including a parent). So s.18 has a broader application to the persons who can 'rely on the provisions of the Act for not being required to give evidence and it is broader than just a spouse'.

g) (Although) s.279 only refers to spouses...it is quite clear that the provisions of s.19 are meant to cover spouses and those other persons (ie including a Mother) described in s 18(2)).

h) Section 279 refers to a 'domestic violence offence'. The offence charged (under s.195 of the Crimes Act) is a domestic violence offence.

i) I therefore uphold the Prosecution's submission that s.18 does not provide an opportunity for the Mother to rely on s.18."

Relevant Statutory Provisions

28 It is appropriate to set out the terms of ss.18 and 19 Evidence Act 1995 and s.279 Criminal Procedure Act 1986.

29 As at 3 February 2011, ss.18 and 19 Evidence Act 1995 were in the following terms:

"18 Compellability of spouses and others in criminal proceedings generally

(1) This section applies only in a criminal proceeding.

(2) 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.

(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.

(6) 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.

(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.

(8) If an objection under this section has been determined, the prosecutor may not comment on:

(a) the objection, or

(b) the decision of the court in relation to the objection, or

(c) the failure of the person to give evidence.

19 Compellability of spouses and others in certain criminal proceedings

Section 18 does not apply in proceedings for an offence against or referred to in the following provisions:

section 25 (Child abuse), 26 (Neglect of children), 51 (Endangering children in employment) or 52 (Certain employers of children to be authorised) of the Children (Care and Protection) Act 1987

section 279 (Compellability of spouses to give evidence in certain proceedings) of the Criminal Procedure Act 1986.

Note. This section differs from section 19 of the Commonwealth Act."

30 As at 3 February 2011, s.279 Criminal Procedure Act 1986 provided as follows:

"279 Compellability of spouses to give evidence in certain proceedings

(1) In this section:

(a) a reference to the spouse of an accused person includes a reference to the de facto partner of an accused person, and

Note. 'De facto partner' is defined in section 21C of the Interpretation Act 1987.

(b) a reference to a domestic violence offence is a reference to a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, and

(c) a reference to a domestic violence offence committed on the spouse of an accused person includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which the spouse was the protected person, and

(d) a reference to a child assault offence is a reference to:

(i) a prescribed sexual offence committed on a child under the age of 18 years, or

(ii) an offence under, or mentioned in, section 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 42, 43, 44, 46, 47, 48, 49, 58, 59 or 61 of the Crimes Act 1900 committed on a child under the age of 18 years, or

(iii) an offence that, at the time it was committed, was a child assault offence for the purposes of this section or section 407AA of the Crimes Act 1900, or

(iv) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in subparagraph (i), (ii) or (iii), and

(e) a reference to a child assault offence committed on a child includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which that child was the protected person.

(2) The spouse of an accused person in proceedings in any court:

(a) for a domestic violence offence (other than an offence arising from a negligent act or omission) committed on the spouse, or

(b) for a child assault offence (other than an offence arising from a negligent act or omission) committed on:

(i) a child living in the household of the accused person, or

(ii) a child who, although not living in the household of the accused person, is a child of the accused person and the spouse,

is compellable to give evidence in the proceedings, either for the prosecution or for the defence, without the consent of the accused person.

(3) The spouse of an accused person is not compellable to give evidence for the prosecution as referred to in subsection (2) if the spouse has applied to, and been excused by, the court.

(4) A court may excuse the spouse of an accused person from giving evidence for the prosecution as referred to in subsection (2) if satisfied:

(a) that the application to be excused is made by that spouse freely and independently of threat or any other improper influence by any person, and

(b) that it is relatively unimportant to the case to establish the facts in relation to which it appears that the spouse is to be asked to give evidence, or there is other evidence available to establish those facts, and

(c) that the offence with which the accused person is charged is of a minor nature.

(5) When excusing the spouse of an accused person from giving evidence under subsection (4), the court:

(a) must state the reasons for doing so, and

(b) must cause those reasons to be recorded in writing in a form prescribed by the regulations.

(6) An application under this section by the spouse of an accused person to be excused from giving evidence is to be made and determined in the absence of the jury (if any) and the accused person, but in the presence of the accused person's Australian legal practitioner.

(7) A court may conduct the hearing of an application under this section in any manner it thinks fit, and is not bound to observe rules of law governing the admission of evidence but may obtain information on any matter in any manner it thinks fit.

(8) The fact that the spouse of an accused person in proceedings for an offence has applied to be excused, or has been excused, from giving evidence in the proceedings is not to be made the subject of any comment by the court or by any party in the proceedings."

The Operation of ss.18 and 19 Evidence Act 1995

31 The prosecution wished to call the Plaintiff's mother as a witness in the prosecution case in the Children's Court. The Plaintiff's mother wished to object to this course.

32 Issues of compellability arose for consideration. Section 12 Evidence Act 1995 provides:

"12 Competence and compellability

Except as otherwise provided by this Act:

(a) every person is competent to give evidence, and

(b) a person who is competent to give evidence about a fact is compellable to give that evidence."

33 Prima facie, a parent is competent to give evidence for the prosecution in criminal proceedings against his or her child.

34 The Dictionary to the Evidence Act 1995 defines "child" as being "a child of any age including the meaning given in Clause 10(1) of Part 2 of the Dictionary" . "Parent" includes the meaning given in Clause 10(2) of Part 2 of the Dictionary. Clause 10 of Part 2 of the Dictionary states:

"10 References to children and parents

(1) A reference in this Act to a child of a person includes a reference to:

(a) an adopted child or 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.

(2) A reference in this Act to a parent of a person includes a reference to:

(a) an adoptive parent of the person, or

(b) if the person is an ex-nuptial child - the person's natural father, or

(c) the person with whom a child is living as if the child were a member of the person's family."

35 Section 18 gives a parent a right to object to being required to give evidence as a witness for the prosecution in a criminal proceeding brought against the parent's child. Where objection is taken, the Court is required to rule on it, applying the balancing test contained in s.18(6) and (7) of the Act.

36 Section 19 provides, relevantly, that the right of a parent to object under s.18 does not apply "in proceedings for an offence against or referred to in" certain specified provisions.

37 As originally enacted in 1995, s.19 was in the following terms:

"19 Compellability of spouses and others in certain criminal proceedings

Section 18 does not apply in proceedings for an offence against or referred to in the following provisions:

section 25 (Child abuse), 26 (Neglect of children), 51 (Endangering children in employment) or 52 (Certain employers of children to be authorised) of the Children (Care and Protection) Act 1987

section 407AA (Compellability of spouses to give evidence in certain proceedings) of the Crimes Act 1900."

38 In the second reading speech of the Hon JW Shaw, the Attorney General and Minister for Industrial Relations, concerning the Evidence Bill 1995 , reference was made to Clause 18, but not Clause 19 of the Bill (Hansard, Legislative Council, 24 May 1995, page 114):

"Clause 18 of the bill makes it clear that members of families of a defendant in a criminal proceeding are competent and compellable witnesses. However, such persons may object to giving evidence as a witness for the prosecution and, in certain circumstances, will not be required to give evidence. In this regard members of a family include spouses, de facto spouses, parents, natural and adoptive children and children living in the household of a de facto as though they are the children of the defendant. The approach which has been adopted in the bill offers the best means of ensuring the achievement of the underlying policy objectives of protection of the family unit and the avoidance of undue hardship of the witness."

39 The Explanatory Note to the Evidence Bill 1995 referred to both Clauses 18 and 19:

"Clause 18 provides that a person who is the spouse, de facto spouse, parent or child of a defendant in a criminal proceeding when he or she is required to give evidence may object to being required to give evidence, or to being required to give evidence for the prosecution of a communication between the person and the defendant. 'Child' is defined in the Dictionary to include not only a natural or adoptive child, but also a child living in the household of a defendant as if the child is a child of the defendant.

A court which considers that a person might have a right to object under the proposed section will be required to satisfy itself that the person is aware of the effect of the section.

An objection will be upheld if the court finds that:

· there is likelihood that harm would or might be caused to the person or to the relationship between the defendant and the person if the person gives the evidence, and

· the nature and extent of that harm outweighs the desirability of the evidence being given.

Clause 18 further provides that the court must take into account a number of matters including the nature and gravity of the offence charged, and the substance and importance, and the weight likely to be attached to, any evidence that the person might give.

The clause prohibits comment by a prosecutor on an objection, the decision of the court in relation to the objection or the failure of the person to give evidence.

Clause 19 provides that clause 18 does not apply in proceedings for certain offences under the Children (Cure and Protection) Act 1987 and domestic violence offences and child assault offences under the Crimes Act 1900. As a result a spouse, de facto spouse, parent or child of a defendant must (unless excused under a provision such as section 407AA of the Crimes Act 1900) give evidence in such proceedings."

40 It will be observed that s.19, as enacted in 1995, referred to s.407AA Crimes Act 1900 . Section 407AA is the statutory predecessor to s.279 Criminal Procedure Act 1986 . The purpose of s.407AA may be gleaned from the second reading speech of the Premier, Mr Wran, concerning the Crimes (Domestic Violence) Amendment Bill 1982 (Hansard, Legislative Assembly, 9 November 1982, pages 2366-2367):

"Schedule 1 relates to the compellability of spouses to give evidence in domestic violence proceedings. The main aim of this reform, embodied in the proposed new section 407AA of the Crimes Act is to take the onus off the woman in deciding whether or not to give evidence. Honourable members will understand that the evidence of the victim is often critical to the success of a case.

In all criminal courts, witnesses can, in all cases, generally be compelled to give evidence. The rule about spouses not being compellable against other spouses in criminal cases relates to the intimacy of the marriage relationship. However, it is now recognized that where women are themselves the victims of assault by their husbands, it is harsh and unfair to put upon them the burden of making the decision about whether or not the case should proceed. Moreover, up until now a great discouragement to the police against pursuing cases of domestic violence has been the repeated situation of victims who are key witnesses withdrawing from giving evidence. Victims are often subjected to a great amount of undue pressure and threats to not give evidence. Accordingly, this bill will alter the law so as to provide a presumption of compellability. As well, it will provide in item 3 for a judge or justice to excuse the huband [sic] or wife of the accused person from being compelled to give evidence. The judge or justice must be satisfied that the application is made freely and independently of threat or any other improper influence. The judge or justice must have regard also to the importance to the case of the victim's evidence and the seriousness of the offence. These are fair and reasonable tests of whether the court should give effect to the presumption of compellability, or excuse the witness from giving evidence."

41 Counsel drew attention to a curious feature of s.19. The first category of provisions contained in s.19 comprises ss.25, 26, 51 and 52 Children (Care and Protection) Act 1987 . These four offence provisions were repealed by the Children and Young Persons Legislation (Repeal and Amendment) Act 1998 . The Children (Care and Protection) Act 1987 was replaced by the Children and Young Persons (Care and Protection) Act 1998 .

42 Clause 2.1 of Schedule 2 of the Children and Young Persons Legislation (Repeal and Amendment) Act 1998 provided for the following amendment to be made to s.19 Evidence Act 1995 :

 

"2.14 Evidence Act 1995 No 25

Section 19 Compellability of spouses and others in certain criminal proceedings

Omit the matter relating to the Children (Care and Protection) Act 1987.

Insert instead:

section 222 (Endangering children in employment), 223 (Certain employers of children to be authorised), 227 (Child and young person abuse) or 228 (Neglect of children and young persons) of the Children and Young Persons (Care and Protection) Act 1998."

43 It seems clear that it was intended to amend s.19 Evidence Act 1995 to remove the repealed offence provisions from the Children (Care and Protection) Act 1987 , and to insert references to offence provisions contained in ss.222, 223, 227 and 228 Children and Young Persons (Care and Protection) Act 1998 . However, for reasons that are not clear, Clause 2.14 of Schedule 2 has not commenced. Accordingly, s.19 Evidence Act 1995 , in the first category of provisions which are mentioned, refers to repealed provisions.

44 Although it was not this first category of provisions mentioned in s.19 which played a part in the construction adopted by the Magistrate, it seems clear that s.19 is ripe for further consideration. I will return to this topic later in the judgment.

45 I turn to the second category of provisions contained in s.19, namely the reference to s.279 Criminal Procedure Act 1986 . The argument put by the prosecutor in the Children's Court, and adopted by the Magistrate, was that the charge under s.195 Crimes Act 1900 constituted "proceedings for an offence referred to ... in section 279" and, as a result, s.19 operated to remove the mother's right to object under s.18 of the Act.

46 Mr Bourke made the following points in relation to the argument advanced by the prosecutor and accepted by the Magistrate.

47 Firstly, it is to be noted that s.279 is not an offence-creating provision. It refers to certain offences, but it does not create offences. Therefore, the proceedings in the Children's Court cannot be regarded as proceedings for an offence "against" s.279. Accordingly, the first limb of s.19 can be put to one side.

48 It is necessary to consider whether the proceedings in the Children's Court were proceedings for an offence "referred to in" s.279, this being the basis for his Honour's ruling in the Children's Court.

49 Section 279(1)(b) refers to a "domestic violence offence" and defines it by reference to the definition in the Crimes (Domestic and Personal Violence) Act 2007 . Sections 4, 5 and 11 Crimes (Domestic and Personal Violence) Act 2007 are pertinent:

"4 Meaning of 'personal violence offence '

In this Act, personal violence offence means:

(a) an offence under, or mentioned in, section 19A, 24, 26, 27, 28, 29, 30, 31, 33, 33A, 35, 35A, 37, 38, 39, 41, 44, 46, 47, 48, 49, 58, 59, 61, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 65A, 66A, 66B, 66C, 66D, 66EA, 80A, 80D, 86, 87, 93G, 93GA, 195, 196, 198, 199, 200, 562I (as in force before its substitution by the Crimes Amendment (Apprehended Violence) Act 2006) or 562ZG of the Crimes Act 1900, or

(b) an offence under section 13 or 14 of this Act, or

(c) an offence of attempting to commit an offence referred to in paragraph (a) or (b).

5 Meaning of 'domestic relationship '

For the purposes of this Act, a person has a domestic relationship with another person if the person:

(a) is or has been married to the other person, or

(b) is or has been a de facto partner of that other person, or

(c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or

(d) is living or has lived in the same household as the other person, or

(e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987), or

(f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person, or

(g) is or has been a relative of the other person, or

(h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person's culture.

Note. 'De facto partner' is defined in section 21C of the Interpretation Act 1987.

...

11 Meaning of 'domestic violence offence '

In this Act, domestic violence offence means a personal violence offence committed by a person against another person with whom the person who commits the offence has or has had a domestic relationship."

50 The term "personal violence offence" in s.4 includes an offence under s.195 Crimes Act 1900 and the Plaintiff and his mother had a "domestic relationship" under s.5 as they lived in the same household (s.5(d)) and they were relatives (s.5(g)).

51 Thus, the Magistrate found that the charge brought against the Plaintiff under s.195 Crimes Act 1900 is a "domestic violence offence" . Taking a literal approach, it can be said therefore (as the Magistrate also found) that the proceedings relating to the s.195 offence are "proceedings for an offence ... referred to in ... section 279" . It was on this basis that the Magistrate upheld the prosecutor's argument and found that s.19 applied so as to remove the mother's right to object to giving evidence under s.18 Evidence Act 1995 .

52 Having identified this contrary argument (in a manner which assisted the Court), Mr Bourke submitted that the Court should not accept it. He submitted that application of relevant principles of statutory construction should lead to acceptance of the construction advanced by the Plaintiff.

53 The objective of statutory construction is to give to the words of the statute the meaning which the legislature is taken to have intended them to have: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 384 [78].

54 Ms Loukas submits, and Mr Bourke accepts, that the reference in s.19 Evidence Act 1995 to s.279 Criminal Procedure Act 1986 is a reference to a domestic violence offence committed by a spouse, and not a domestic violence offence generally within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 . I accept these submissions.

55 Counsel submit, and I agree, that this construction is supported by the logic and structure of s.19. If the intention of Parliament was to remove the s.18 right to object in relation to all "domestic violence offences" , then it could have done so, easily and clearly, by inserting in s.19 a reference to the definition of "domestic violence offence" in s.11 Crimes (Domestic and Personal Violence) Act 2007 . The contrast between the direct reference to several offences against provisions of the Children (Care and Protection) Act 1987 (in the first category in s.19) and the indirect reference (in the second category) to offences "referred to" in s.279 Criminal Procedure Act 1986 , suggests that the reference to s.279 was intended to be substantive and not merely incidental.

56 I accept the submission that the reference to an "offence ... referred to ... in section 279 of the Criminal Procedure Act 1986" can only be to cover the specific offences dealt with by s.279 involving the compellability of the spouse of an accused person.

57 I accept that the Plaintiff's construction of s.19 is also supported by the relationship between the Evidence Act 1995 and the Criminal Procedure Act 1986 provisions concerning compellability of witnesses. As mentioned earlier (at [40]), s.279 was first enacted in 1982 as s.407AA Crimes Act 1900 . It created an exception to the non-compellability of spouses that predated the introduction of the Evidence Act 1995 . Thus, when s.18 was enacted, the reference to s.407AA Crimes Act 1900 in s.19 was intended to preserve the status of s.407AA as a limited exception to the right now embodied in s.18.

58 The history of the relationship between ss.18 and 19 Evidence Act 1995 and s.279 Criminal Procedure Act 1986 and its predecessors, supports the submission that s.19 refers only to domestic violence offences committed by a spouse, as opposed to domestic violence offences in general.

59 Ms Loukas submitted, and Mr Bourke accepted, that the construction of s.19 adopted by the Magistrate in this case would lead to anomalies. I accept this submission. For example, a spouse of an accused person could apply to be excused under s.279(4) Criminal Procedure Act 1986 but (presumably) a parent of an accused child could not, because s.279(4) only permits a court to excuse a "spouse" . This consequence does not appear to reflect the intention of the legislation.

60 I accept the submission of counsel that s.19, by referring to s.279, operates simply to preserve the operation of s.279, which makes a spouse compellable in proceedings for a domestic violence offence committed against the spouse, and in proceedings for a child assault offence committed on specified children (but subject to being excused under s.279(4)).

61 This conclusion is given further support by the fact that s.279(4) creates a different test to that created by s.18(6) and (7) Evidence Act 1995 . In other words, one of the intended effects of the legislation is that, in cases where s.279 applies, the principles set out in that section should apply, rather than the more general principles set out in s.18.

62 I accept Mr Bourke's submission, that a correct reading of s.19 (insofar as it applies to this case) includes one or (probably) both of the following formulations:

(a) s.18 does not apply in proceedings "referred to" in s.279 Criminal Procedure Act 1986 - namely, proceedings "referred to" in s.279(2) against a "spouse" for a "domestic violence offence" committed on the spouse, or proceedings for a "child assault offence" committed on specified children; or

(b) s.18 does not apply in proceedings for an offence "referred to" in s.279 Criminal Procedure Act 1986 - namely, proceedings for an offence referred to in s.279(2) against a "spouse" for a "domestic violence offence" committed on the spouse, or proceedings for a "child assault offence" committed on specified children.

63 I accept Mr Bourke's submission that reading s.19 in this way would appear to preserve the apparent legislative intention behind the provision - namely, that s.18 should not apply in those proceedings to which s.279 applies, and that in the type of proceedings referred to in s.279, the different statutory considerations set out in that discrete provision should apply, rather than those in s.18 Evidence Act 1995.

Suggested Review of s.19 Evidence Act 1995

64 It will be apparent from this judgment that the Magistrate in this case was confronted with a difficult question of statutory construction which fell to be determined on the day. This Court has had the considerable assistance of written submissions, supplemented by oral submissions, from experienced counsel appearing for the Plaintiff and the First Defendant. Those submissions have undertaken, for the purpose of construction of s.19, a textual analysis of relevant provisions against the background of the legislative history of ss.18 and 19 Evidence Act 1995 and s.279 Criminal Procedure Act 1986 and the intention behind the enactment of those provisions. With the considerable advantage of detailed submissions from counsel, I have reached a different conclusion to that reached by the Magistrate.

65 The wording of s.19 Evidence Act 1995 is less than ideal.

66 Firstly, the provision continues to include references to repealed provisions of the Children (Care and Protection) Act 1997 (see [41]-[44] above). This is, to say the least, unsatisfactory.

67 Secondly, the present provision involves a mixture of concepts which have a tendency to deflect the reader from a clear understanding of the provision. It is self evident that s.19 ought state, with clarity and precision, the provisions in relation to which s.18 is not to apply. The operation of the criminal law should be as certain as possible: Taikato v The Queen [1996] HCA 28; 186 CLR 454 at 466.

68 It is useful to refer to versions of s.19 which exist in other Australian jurisdictions where the Uniform Evidence Act has been adopted. Section 19 Evidence Act 1995 (Cth) relates to offence provisions in the Australian Capital Territory. That section provides:

"19 Compellability of spouses and others in certain criminal proceedings

Section 18 does not apply in proceedings for an offence against or referred to in the following provisions:

(a) an offence against a provision of Part 2, 2A, 3, 4 or 5 of the Crimes Act 1900 of the Australian Capital Territory, being an offence against a person under the age of 16 years;

(b) an offence against section 374, 375, 376 or 389 of the Children and Young People Act 1999 of the Australian Capital Territory;

(c) an offence that is a domestic violence offence within the meaning of the Domestic Violence and Protection Orders Act 2001 of the Australian Capital Territory.

Note: This section differs from section 19 of the NSW Act."

69 Section 19 Evidence Act 2001 (Tas) contains a provision which restricts s.18 in the following terms:

"19. Compellability of spouses and others in certain proceedings

Section 18 does not apply in proceedings if -

(a) the defendant is charged with incest; or

(b) the defendant is charged with a crime under section 124, 125, 125A, 125B, 126, 127, 127A, 128 or 129 of the Criminal Code against a person who, at the time the alleged crime was committed, had not attained the age of 16 years; or

(c) the defendant is charged with a crime under section 298, 299 or 300 of the Criminal Code in relation to a crime referred to in paragraph (b) or (d); or

(d) the defendant is charged under any provision of Chapter XIX or XX of the Criminal Code with a crime against a person who, at the time of the alleged crime, had not attained the age of 16 years; or

(e) the defendant is charged with an offence under the Police Offences Act 1935 involving an assault on, or the threat of violence to, a person who, at the time of the alleged offence, had not attained the age of 16 years; or

(f) the defendant is charged with assault against, or any other offence involving violence or the threat of violence to, his or her spouse or a parent or child of the defendant; or

(fa) the defendant is charged with family violence, within the meaning of the Family Violence Act 2004; or

(g) the proceedings were instituted as the result of a complaint by the spouse for an offence alleged to have been committed by the defendant against or in relation to the property of his or her spouse.

Note: This section differs from section 19 of the Evidence Act 1995 of the Commonwealth."

70 Victoria has determined not to have any exception in s.19 to s.18 Evidence Act 2008 (Vic) : Victorian Law Reform Commission, "Implementing the Uniform Evidence Act: Report" , 2006, paragraphs 2.27-2.38.

71 In due course, I will recommend that a copy of this judgment be furnished to the Attorney General for New South Wales with a view to consideration being given to amendment of s.19 of the New South Wales Act so that it provides clearly and simply, and by reference to current legislation, the areas of exception which are to apply to the availability of s.18 of the Act.

Appropriate Relief

72 I am satisfied that clear error has been demonstrated in this case in the manner contended by counsel for the Plaintiff and accepted by counsel for the First Defendant.

73 The Summons originally filed on 3 May 2011 in the proceedings advanced an appeal under the Crimes (Appeal and Review) Act 2001 . The Further Amended Summons filed 18 August 2011 confines the claim for relief to a claim for prerogative relief under s.69 Supreme Court Act 1970 .

74 In Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458; 181 A Crim R 294, I observed at 310 [45]:

"The Court may decline to exercise its jurisdiction to grant relief under s.69 Supreme Court Act 1970 where a statutory appeal is available: Meagher v Stephenson (1993) 30 NSWLR 736 at 738-9; Hill v King (1993) 31 NSWLR 654 at 656, 658-9. However, such a course is not mandatory. Even where a statutory avenue of appeal was available and may have been preferable, the Court has granted prerogative relief: Australian Securities and Investment Commission v Farley (2001) 51 NSWLR 494 at 500-501 (paragraph 24)."

75 Mr Bourke submitted that the statutory appeal provisions in the Crimes (Appeal and Review) Act 2001 do not appear to apply to the decision of the Magistrate under challenge in this case. Section 53(3)(b) Crimes (Appeal and Review) Act 2001 provides for an appeal, by leave, on a question of law against an "interlocutory order" made against a person in summary proceedings. It has been held that a ruling on evidence is not an "interlocutory order" : R v Steffan (1993) 30 NSWLR 633; R v EK [2009] NSWCCA 4; 75 NSWLR 302 at 304-306. It has also been observed that s.53(3)(b) does not confer jurisdiction on the Supreme Court to grant leave to appeal against an "interlocutory decision" , only an "interlocutory order" : Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392 at 396 [32].

76 It is difficult to characterise the Magistrate's decision in this case as an "order" . Rather, it appears to have been an interlocutory ruling or decision made in advance of the prosecution calling the Plaintiff's mother as a witness, and the mother making a s.18 application. It was in the nature of a determination of the threshold question as to whether the procedure in s.18 Evidence Act 1995 was available, in the face of s.19 of the Act: cf R v EK at 305 [15].

77 In my view, the Magistrate's decision is not an "interlocutory order" so that the appeal provisions in s.53(3) Crimes (Appeal and Review) Act 2001 do not apply.

78 The appropriate avenue to challenge the Magistrate's ruling is the claim for prerogative relief now advanced by the Plaintiff.

79 Both the Plaintiff and the First Defendant contend, and I accept, that the Magistrate fell into jurisdictional error in this case in that there has been misconstruction of the relevant statute, thereby misconceiving the nature of the function which the Children's Court was performing and the extent of the powers of that Court in the circumstances of the case: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 573-574 [72]; Hoffenberg v District Court of New South Wales [2010] NSWCA 142 at [21].

80 It has been demonstrated that the learned Magistrate misconceived the nature of the power he was required to exercise in hearing and determining an objection by the Plaintiff's mother to the giving of evidence under s.18 Evidence Act 1995 .

81 Even if the circumstances of this case did not reveal jurisdictional error, I am satisfied that error of law on the face of the record has been established for the purpose of relief in the nature of certiorari under s.69 Supreme Court Act 1970 : Re Don [2006] NSWSC 1125 at [18]; s.69(3), (4) Supreme Court Act 1970 .

82 The Plaintiff has made good the claim for discretionary relief in the nature of certiorari and it is appropriate that relief be granted. It will be a matter for the Children's Court to determine, in the exercise of discretion under s.18 Evidence Act 1995 , whether the Plaintiff's mother ought be required to give evidence in the prosecution case against the Plaintiff.

83 Counsel informed the Court that it was agreed that each party was to pay their own costs of the proceedings in this Court.

Orders

84 I make the following orders:

(a) I direct that the record of the proceedings of the Children's Court at Nowra against the Plaintiff on 3 February 2011 be removed into this Court;

(b) pursuant to s.69 Supreme Court Act 1970 , I make an order quashing the decision of the Children's Court at Nowra to the effect that, because of the operation of s.19 Evidence Act 1995 , s.18 Evidence Act 1995 did not apply to the application by the Plaintiff's mother to be excused from giving evidence against the Plaintiff in those proceedings;

(c) I order that the proceedings be remitted to the Children's Court at Nowra to be dealt with according to law and consistent with the judgment of this Court;

(d) I make no order as to the costs of these proceedings;

(e) I recommend that a copy of this judgment be provided to the Attorney General for New South Wales for the purpose of consideration being given to amendment of s.19 Evidence Act 1995 .

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Decision last updated: 05 September 2011