R v Yl [2004] ACTSC 115 (27 October 2004)

[2004] 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)