Evidence – Privilege – Spousal privilege – Witness summonsed pursuant to s 28(1) of Australian Crime Commission Act 2002 (Cth) (“Act”) to give evidence regarding “federally relevant criminal activity” involving her husband – Witness declined to answer examiner’s questions by claiming spousal privilege – Whether spousal privilege exists at common law and, if so, whether spousal privilege extends to non-curial proceedings – If spousal privilege exists at common law, whether Act restricts or abrogates spousal privilege.
Words and phrases – “compellability”, “competence”, “spousal privilege”.
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 .
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
 SASC 242
CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – COMPETENCE AND COMPELLABILITY – CHILDREN – GENERALLY
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – ABUSE OF PROCESS – IN GENERAL
CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – BURDEN OF PROOF – GENERALLY
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF-DEFENCE AND OTHER FORMS OF DEFENCE
Appeal against finding of guilt – appellant charged with assault against complainant, his step-son, pursuant to former section 39(1) Criminal Law Consolidation Act 1935 (SA) – complainant was 12 years old at the time of the alleged offence – appellant claimed that his conduct was necessary to protect his wife, the complainant’s mother, and relied on defence of “defence of another” in section 15 Criminal Law Consolidation Act – prosecution called three witnesses at trial: the complainant, the complainant’s cousin and the complainant’s cousin’s wife who were both eyewitnesses to the incident – defence called three witnesses: the appellant, the complainant’s mother also the appellant’s wife, and the complainant’s sister also the appellant’s step daughter – complainant became upset and distressed at the commencement of his evidence – magistrate undertook an inquiry pursuant to section 21(2) of Evidence Act 1929 (SA) and excused complainant from giving evidence on the ground that there was a substantial risk of serious harm to the relationship between the complainant and the appellant – appeal made application for a permanent stay of proceedings as an abuse of process – magistrate refused submissions on the application and refused to grant stay – appellant found guilty but no conviction recorded – on appeal, appellant complained that the magistrate erred in (i) refusing to hear submissions on the defendant’s application to permanently stay the proceedings on the grounds of abuse of process, and in refusing to grant the permanent stay; (ii) applying the onus and standard of proof; (iii) applying section 15 of the Criminal Law Consolidation Act; and (iv) excusing JS from giving evidence – an extension of time within which to appeal was also sought.
Held, allowing the appeal and dismissing the complaint: extension of time granted – period of delay is very short, explanation for delay is reasonable, and there is no obvious prejudice to other party – magistrate’s failure to hear submissions on the stay application denied the appellant procedural fairness – magistrate did not err in refusing to grant stay – magistrate erred in her application of the burden and standard of proof – magistrate erred in her application of section 15 Criminal Law Consolidation Act – magistrate erred in excusing the complainant from giving evidence – section 21 Evidence Act should be narrowly and strictly to promote the certainty of the criminal trial process – section 21 Evidence Act is restricted in its application to biological and adopted children of accused, and does not extend to step-children – complaint should be dismissed in all of the circumstances.
 ACTSC 115
COURTS AND THE JUDICIAL SYSTEM – whether discretion to refuse to exercise coercive powers to compel 7 year old child to enter court and give evidence against his will – evidence by psychiatrist that forcing the child to do so could cause significant harm – application by Crown to discharge jury in order to test rulings of trial judge – attempt to enter nolle prosequi in order to test rulings – general principles – relevance of rights guaranteed by Human Rights Act 2004 (ACT).
EVIDENCE – objection under s 18 of the Evidence Act 1995 (Cth) to giving evidence – whether s 19 precludes the application of s 18 to “domestic violence offences” mentioned in s 9 of the Protection Orders Act 2001 (ACT) – application of s 10A of the Acts Interpretation Act 1901 (Cth) – whether 7 year old child compellable – whether discretion to refuse to exercise coercive powers to force child to enter court and give evidence against his will – relevance of rights guaranteed by Human Rights Act 2004 (ACT).
EVIDENCE – whether child an “unavailable” witness when court refuses to compel him to enter court and give evidence – whether evidence of prior representations by the child admissible under s 65 of the Evidence Act 1995 (Cth)- whether rejection of such evidence required by s 137 of the Evidence Act 1995 (Cth).
Evidence Act 1995 (Cth), ss 18, 137, 19, 8, 65, 67, 63(2), 64(2), 65(2,3,8)
 ACTSC 83
CRIMINAL LAW – compellability – compellability of spouse – husband pleaded not guilty to charges of assault and assault occasioning actual bodily harm – domestic violence – whether spouse can be compelled to give evidence in these proceedings as a witness – s 18 Evidence Act 1995 (Cth).