By Jimmy Singh & Tayla Regan

Imagine being compelled by the courts to give evidence against your mum, dad, brother or sister. Regardless of the court outcome, consider the kind of potential damage this can cause to the relationship.

To avoid undue hardship of a witness and to protect the family unit, in some situations the law has allowed for exceptions to the general requirement for family members to be compelled to give evidence as witnesses against each other.

Compellability issues in court concern certain situations where you can actually object to giving evidence in court as a witness. Where you are a partner, spouse, de-facto, parent, child of the person accused of a crime, you are allowed to object to giving evidence against him/her.

The Case of LS v DPP (NSW) [2011] NSWSC 1016

The accused ‘LS’ was 15 years of age and living with his mum in the South Coast of New South Wales in November 2010.

LS had been attending only 2 hours of school each week day.

On 24 November 2010, while at home, his mum asked LS to do some chores around the house. She then left the house for a time before returning back home later that day- only to find that, instead of doing his chores, 15-year-old LS had been riding his motorbike.

His mum also found pieces of his motorbike gear all over the front veranda of the house.

As a result, his mum became upset and asked him to clean up the veranda. LS didn’t take this too well and became argumentative. LS began kicking the side of the fence.

The mother eventually picked up LS’s motorbike gear and threw it over the fence.

As the argument continued, the mum asked LS to leave for him to calm down.

When LS entered the house, he then threw an iron against a wall of the house causing 2 holes in the wall. This resulted in the iron smashing. Following this, LS then punched another part of the wall causing another hole.

The mum called police who attended the house.

When police attended, young LS began to struggle from police arrest-kicking out.

LS was arrested and charged for damaging property (the holes in the wall) under s195(1)(a) Crimes Act 1900, and resisting police under s58 Crimes Act 1900.

Click here to find out what is considered property damage.

Police also took out an apprehended domestic violence order (AVO) on behalf of the mum, against her son LS. The AVO was originally granted, but still allowed LS to live with his mum so long as he doesn’t assault, molest, threaten, harass or interfere with his mum, or destroy/damage or interfere with her property.

The mother ended up giving police a signed written statement of what her son did as evidence.

Was the Mother Compelled to Give Evidence in Court?

The prosecution needed LS’s mother as a witness to testify against her son in the Local Court proceedings.

Without her evidence in the witness box, the prosecution wouldn’t be able to prove the allegations, in which case the charges would be dismissed.

The mother raised an objection to giving evidence against her son. This objection by her was made when she entered the witness box.

The Local Court Magistrate incorrectly denied her right to object, and wrongly compelled her to give evidence against her son. Before she started giving evidence, the defence lawyer sought, and was granted, an adjournment so that the Magistrates ruling could be tested on an appeal.

The Local Court Magistrate believed that the right for the mother to object to giving evidence against her son was not available to her because section 19 of the Evidence Act 1995 didn’t just apply to spouses, but included other persons such as parent and child relationships.

What Happened on Appeal?

On appeal, the Supreme Court disagreed with the Local Court Magistrate’s interpretation of the law, and said that the right to the mother to object to giving evidence against her 15-year-old son was available to her under s18 of the Evidence Act 1995, and s19 of the Evidence Act 1995 only applied to spouses, not other relationships such as parent and child.

In summary, the mother is allowed to object as a witness to giving evidence for the police in these circumstances.

The law on Compellability

To ensure a just and fair legal system, it is vital to require witnesses to any criminal matter to come before the court and provide their account (or evidence) under oath.

Either the defence or prosecution may attempt to secure your attendance as a witness through the service of a subpoena document. This is a legal document which compels you to come to court and provide the parties with the opportunity to hear and test your evidence. Click here for what happens if you get subpoenaed in court.

There are certain circumstances in which the legal system realises that it may be undesirable to compel certain witnesses to testify against another person.

Circumstances You can Object to Giving Evidence in Court

You can object to giving evidence in court as a witness for the prosecution against your spouse, de facto partner, parent or child under section 18 of the Evidence Act 1995 (NSW).

After objecting, the court must then decide on whether it compels you to still give evidence.

The court will then not compel you to give evidence, after having raised an objection if:

  • By compelling you to give evidence, there’s a likelihood that harm might be caused to the relationship or to the person; and
  • The desirability of getting you to give evidence is outweighed by the nature and extent of that harm.

This is reflected in s18(2) of the Evidence Act 1995.

How does the court decide this? It looks at the nature and seriousness of the alleged offence, how important you will likely give the evidence and strength of the evidence, whether there is alternative evidence the prosecution can use, the nature of your relationship with the other person, and whether, in giving the evidence, the person would have to disclose matters that was given in confidence from the defendant. This is reflected in section 18(7) of the Evidence Act 1995.

Alternatively, if the court believes that the evidence you’re required to give is more important than the extent and nature of the harm caused in giving that evidence against the person accused, you will not be protected under section 18. This means that in some circumstances, the court will be able to compel you to give evidence against your family member.

Circumstances You Will Still Be Compelled to Give Evidence Against a Family Member

There are certain circumstances that the court will still compel you to give evidence regardless of the harm it may cause.

These are stipulated in section 19 Evidence Act 1995 (NSW).

Where you’re a witness for the prosecution, you will be compelled by law to give evidence regardless of your relationship to the defendant accused of the crime, and regardless of s18 of the Evidence Act, where:

  • You are the spouse of the defendant accused of a domestic violence offence committed on you; or you are the spouse of the defendant accused of a child assault offence committed on a child who lives in the same home (s279(2) of the Criminal Procedure Act 1986); or
  • It’s proceedings for an offence regarding any of the below sections to the Children and Young Persons (Care and Protection) Act 1998:
  • Section 222 – Endangering children in employment;
  • Section 223 – Certain employers of children to be authorised;
  • Section 227 – Child and young person abuse;
  • Section 228 – Neglect of children and young persons.

Circumstances the Court Can Still Excuse You From Giving Evidence Against Your Spouse

Even if the above (s19) applies to you as a witness for the prosecution, if you ask the court to be excused from giving evidence- the court may still excuse you from giving evidence against your spouse if the court is satisfied that each of the following 3 points are met:

  • That you asked to be excused out of your own free will and independent from any threat or improper influence by anyone; and
  • Your evidence is relatively unimportant in the prosecition case, or there is other evidence available for the prosecution to establish the alleged facts; and
  • The alleged offence is of a minor nature

This is reflected in s279(4) of the Criminal Procedure Act 1986.

Can You Claim Spousal Privilege?

Spousal Privilege is not a lawful reason to refuse to testify against your partner.

Therefore, you are not provided with any additional grounds of privilege (other than those stipulated in section 18) simply because the accused person of a crime is your husband or wife.

This was determined in the High Court ruling of Australian Crime Commission v Stoddart back in 2011.

The case involved a matter in which the wife of a man accused of tax fraud was compelled to appear in the Federal Court to give evidence against him. The wife refused to testify against her husband on the grounds that it was spousal privilege.

The High Court considered this claim, however found that spousal privilege is not an exemption within the law, and therefore not a valid excuse.

Can Any Other Witness Refuse to Give Evidence?

The law provides further exceptions, where other types of witnesses cannot be compelled to give evidence in a criminal case. A list of witnesses of which privilege apply include the following:

  • Under section 15, a Sovereign, Governor-General, Governor, Administrator of a Territory and a foreign Sovereign cannot be compelled to give evidence. A member of the Australian Parliament will also not be forced to give evidence if it would prevent this person from sitting or attending a parliamentary meeting.
  • Under section 16, Judges and Jurors in a hearing are not compellable to give evidence. Jurors may only be required to give evidence if it is on a matter affecting the conduct of the case.
  • Under section 17, an accused person or co-offender will not be compelled to give evidence. A co-offender can only testify if their matter is being tried separately from the accused person.

Unless you fall under an exemption to the compellability rule, you will be required to give evidence in any court proceedings by which you are a witness called upon by the prosecution.

Independent advice should be obtained by a witness who finds him or herself in these types of situations.

For more information on AVO proceedings, click here to see how to get an avo dropped.

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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