Jurd v R [2020] NSWCCA 91

Jurd v R [2020] NSWCCA 91 · Read the judgment on AustLII

Catchwords: Evidence Act – Procedure – Compellability of spouses and other family members

The Court of Criminal Appeal (‘CCA’) has determined where spouses and other family members have a right to object to giving evidence for the prosecution, the procedure needs to be followed carefully – especially since (contrary to some older authority) it has the capacity to affect the rights of the defendant in a trial.

The applicant was convicted of two counts of aggravated indecent assault on a 6-year-old. Because the conviction appeal related only to a limited part of the evidence, the full Crown case was not really summarised in the appeal. The issue here was whether the evidence of a single witness was correctly admitted in the trial, given that the witness may have had a right to object to giving evidence pursuant to s18 of the Evidence Act.

Section 18 gives spouses and some other family members the right to object to giving evidence as a witness for the prosecution. It provides that the objection is to be made before they give evidence, or as soon as practicable after they become aware of the right to object. Where the court becomes aware that a person might have a right to make an objection, it must satisfy itself that the person knows of the effect of the section. Assuming that the person has a relevant relationship with the defendant, and in fact makes the objection, then there is then a balancing test in the section which requires the court to weigh the likely damage to the relationship between the witness and the defendant, as against the desirability of admitting the evidence.

Here, there was also an antecedent question of whether witness was the de facto partner of the defendant. At the beginning of her evidence she was asked in front of the jury whether she was the partner of the applicant and whether they had been living together at the relevant time (the answer in each case was yes). She went on to give evidence damaging the defendant. The day after that damaging evidence the trial judge raised that he had proceeded on the assumption that the Crown had conferenced the witness in advance (they hadn’t), and that she had been advised of her right to object to giving evidence (she hadn’t). The defendant applied for the jury to be discharged. The judge proposed to call the witness on the voir dire to grapple with the question. In the meantime, it appears the witness may have received independent legal advice about her (erstwhile) right to object to giving evidence – although that in itself was a question which arose on appeal. On the voir dire the witness was asked about the kinds of things which bear upon the existence of a de facto relationship (which are to be found in the Dictionary to the Evidence Act, at Part 2, cl.11). She said they had been together for about 19 months and living together for a significant proportion of that time. The defendant’s clothes and all his other possessions were at her house, and he had no other address although he sometimes stayed at his parents’ house when she was working. They had separate bank accounts, but the defendant contributed to shopping and bills, even though the bills were not in his name. They would go out socially together and she referred to him as her partner. In answer to questions about whether harm would be done to their relationship if she gave evidence against the defendant, she replied ‘potentially’, and that it could potentially cause stress and strain to the relationship in the future if her evidence harmed his case.

The trial judge concluded that there was a de facto relationship. He found that the witness was stressed and emotional about giving evidence against the defendant, but there was no evidence that there would be long-term effects of the stress, and to date there had been no impact. His Honour found that the witness’ oral evidence [which, remember, would not normally have been given at the point when this determination was being made, the determination ordinarily coming before the evidence] was as damaging or more damaging than her police statement. For those and other reasons, he determined that she was compellable and allowed the evidence.

The CCA (Price J; Campbell J agreeing with supplementary remarks, Hoeben CJ at CL agreeing with each) held that the evidence was wrongly admitted before the jury. From the outset it should have been apparent to the judge and counsel from both sides that the witness was giving evidence of her relationship with the applicant not only at the time of the alleged offences, but also at the time she was giving evidence (at [72]). When the witness gave evidence of her relationship with the applicant, the jury should have been asked to retire so that the judge could determine if she was a witness who could object. If, after that evidence, it was apparent that she may have such a right, the trial judge was obliged to satisfy himself that she was aware of the effect of the section. It was procedurally unfair to the witness that she was not made aware of her right to object to giving evidence before she continued giving evidence before the jury. From the evidence on the voir dire, it is clear she would have exercised that right (at [73]-[74]). An important factor distinguishing this case from a previous authority in which a similar error occurred but was held not to be an error (Mulvihill v R [2016] NSWCCA 259 – ‘Mulvihill’) was that in the earlier decision the witness appeared to be very willing to give evidence for the prosecution, whereas here the witness’ evidence was that she would object (at [76]).

In order for the appeal to be successful, it was also necessary to determine whether this issue actually affected the rights of an accused, given that the section cannot be invoked by the defendant (or the prosecution), but can only be invoked by the witness. Here, the court determined that whilst it is true that only the witness can object, the rights of an accused person are plainly affected by the decisions made under the section by a trial judge (at [78]). In making that decision, the court here appears to have preferred the subsequent authority of Tran v R [2018] NSWCCA 145 over Mulvihill, possibly because they considered the point to have been obiter in Mulvihill – but there is no expansion on the topic.

The trial judge had been told by the Crown Prosecutor before the voir dire started that the witness had been given legal advice in relation to the section. The trial judge made no inquiries about who had given the advice or the extent of it. The judge was obliged to inquire of the witness from whom she had obtained legal advice and to confirm that she was aware of the relevant matters under s18 (at [92]). His Honour failed to do that and could not have been satisfied that the witness was aware of the effect of the section (at [93]).

There was also a brief examination about whether the legislative intent can be retrospectively fulfilled. That is, given the intention is apparently to avoid damaging intimate familial relationships, once the evidence has been given and the damage accordingly already done to the relationship, what would be the purpose of revisiting the topic? The Court having received no argument on the topic, it made no final decision – but it appeared to cast doubt that it could be retrospectively complied with (at [80]-[87]).

For those and other reasons the evidence was incorrectly admitted, and this ground of appeal was upheld. However, the Court determined that upon the evidence correctly admitted, the applicant had not been denied a chance of acquittal, there was no substantial miscarriage of justice, and it therefore dismissed the appeal in the exercise of the proviso.