Crown v Accused

2 At trial, the prosecution intends to lead evidence from AG, DM's mother, of an admission alleged to have been made by DM to AG following the conclusion of DM's first police interview on 23 March 2022. AG had been present at the interview in accordance with Crimes Act 1958 (Vic) s 464E.

3 The admission the prosecution seeks to lead evidence of is expressed in AG's statement dated 23 March 2022. This evidence was the subject of an earlier ruling, in which I ruled that it should not be excluded under ss 90 or 138 of the Evidence Act 2008 (Vic) ('Evidence Act'), nor the Haddara discretion.[2]

4 As DM's mother, AG has a right to object to giving evidence as a witness for the prosecution under s 18 of the Evidence Act.

5 Section 18(6) of the Evidence Act provides:

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 accused, if the person gives the evidence; and

(b) the nature and extent of that harm outweighs the desirability of having the evidence given.

6 While s 18(7) provides a non-exhaustive list of matters which must be considered for the purposes of s 18(6), namely:

(a) the nature and gravity of the offence for which the accused 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 accused 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 accused.

7 The nature of the enquiry pursuant to s 18(6) is twofold: first, the Court must consider the likelihood of harm caused to AG and DM's relationship were AG to give evidence. Second, the Court must consider if the nature and extent of that harm outweighs the desirability of having AG give evidence in this trial.

8 During the pre-trial hearings, AG gave evidence on a voir dire and was cross-examined by DM's counsel. As required by s 18, the Court was satisfied that AG received independent legal advice as to the effect of this section but nonetheless chose to give evidence on the voir dire with the assistance of a Dinka interpreter.

9 AG was called by the prosecution during the trial - on 23 November 2023. AG again had the assistance of a Dinka interpreter. After the interpreter was affirmed and AG was sworn in, I confirmed that AG had received legal advice on her right to object the day before and AG indicated she did not want to give evidence. She referred to evidence she gave during the voir dire which was no longer being relied upon by the prosecution.

10 After a brief discussion with the parties in the absence of AG during which the prosecution queried whether an objection under s 18 had in fact been made, AG was recalled. I explained to AG that she would only be asked questions about the day she came to the police station with DM and what happened there and asked whether she objects to giving that evidence to which she responded:[3]

Yes, I don't want to give evidence. Ah, what happened, my son was, ah, ah taken from my house and I was, ah, also asked to give a statement. And I even don't know the meaning of the statement. I didn't know that it was going to bring me, ah, up to this stage - this stage.

11 When asked if she was concerned that giving evidence would damage her relationship with her son, AG responded:[4]

Yes. The relationship has been affected between me and my son. And before he would call me, ah, a lot, ah, in the prison, but now the time he call me is - is less. He can call me back once a week.

12 As AG was speaking through an interpreter it was decided prudent that she be given further legal advice on her rights under s 18. The Court is grateful to Mr Leigh Crosby of counsel who attended Court on short notice to give AG further advice and indicated that he was satisfied that AG had understood that advice.

13 After receiving that advice, AG was once again recalled, and I once again explained to AG that the prosecution's questioning will be limited to what she and DM spoke about after the police interview when they were alone as well as her rights under s 18. AG was then asked whether she objected to giving evidence to which she responded affirmatively. When asked why she wants to object to giving that evidence, AG explained:[5]

It has affected the trust in my family. Ah, the sisters to DM, all of them, are against me why I came to give evidence against their brother, and also my son, his relationship with me is not good. It has also affected my mental health, ah, because I think about this all the time, and if I come here and talk here, it affects my mental health.

14 The Court, as well as the prosecution and DM's counsel, were all satisfied at this point that AG understood her rights under s 18 and had exercised her right to make an objection to giving evidence in DM's trial.

15 The Court then heard oral submissions from the prosecution and DM's counsel as to whether AG should be required to give evidence notwithstanding her objection.[6]

16 The prosecution submit that the desirability of admitting AG's evidence is high and noted that this Court has already made a finding that AG's evidence holds significant probative value.[7] They also submit that there is no other evidence reasonably available to them of this admission.[8] Counsel for the prosecution took me to a number of cases which deal with objections made pursuant to s 18,[9] and submit that these cases 'speak of something more than a loss of trust or a fracture of the relationship'.[10] The prosecution make specific reference to the case of McKinnin v R,[11] which stands for the proposition that likelihood of harm to familial relationships may be outweighed in cases where the nature and gravity of offending are sufficiently high.[12]

17 On behalf of DM, counsel submits that AG's objection should be upheld, and she should not be required to give evidence.[13] Counsel for DM noted that of the cases proffered by the prosecution, none involve a mother/child relationship, and none concern an accused of DM's age. It was put that AG has been placed in a unique position and to require her to give evidence in this trial amounts to the prosecution 'seeking to drive a wedge' between DM, his mother, and his sisters.[14]

18 Further, counsel submits that AG appears before this Court with an interpreter however at the time of making her statement to police she received no such assistance.[15]

19 Counsel referred to the decision of T Forrest and Kaye JJA in Director of Public Prosecutions v Thomas Fuller (pseudonym),[16] in which their Honours made specific reference to the policy considerations which underpin s 18:

The underlying policy of s 18, as identified by the Australian Law Reform Commission, is to provide a balance between, on the one hand, the public interest of having all relevant evidence available to the courts, and, on the other hand, the desirability of ensuring that the processes of the criminal law should not disrupt marital and family relationships to a greater extent than the interests of the community properly require.[17]

20 In order that I uphold the objection taken by AG pursuant to s 18 of the Evidence Act, I must be satisfied pursuant to s 18(6) that that there is a likelihood that harm would or might be caused to AG or her relationship with DM if she gave evidence, and second, that the nature and extent of that harm outweighs the desirability of having the evidence given by AG.

21 I accept that it is most likely that AG might sustain some emotional harm and stress by giving evidence that may be against her son's interests. Further, I accept that some harm will be caused to the relationship between herself and her son if she is required to give evidence in this trial.

22 The critical question is whether the nature and extent of the harm outweighs the desirability of AG giving evidence.

23 Section 18(7) of the Evidence Act identifies five factors which I must consider. It is a non-exhaustive list. Sub-paragraphs (a)-(c) of s 18(7) are relevant to an assessment of the desirability of having evidence given by AG. Sub-paragraphs (d) and (e) are more relevantly directed to the assessment of the factors that might outweigh the desirability of AG giving evidence. They require the Court to consider the nature of the relationship between DM and AG; and whether, in giving the evidence, AG would have to disclose the alleged admission that was received by her in confidence.

24 DM is charged with murder, the most serious offence in the criminal calendar.

25 Having heard AG's evidence in the voir dire, I consider it would be of the highest importance. The relevant evidence relates to an alleged admission by DM that he was present at the scene of the attack on the deceased which caused his death. It is not possible at this stage to gauge the weight that might be attached to the evidence, nevertheless if the evidence given by AG in respect of the alleged admission was accepted by the Court, it would be capable of having a significant impact on the outcome of the case against DM. Only AG can give evidence as to the alleged admission made by DM of his presence at the scene. While there may be other evidence relating to identity which will be led at the trial, there is no other evidence of admissions from DM. Furthermore, as the prosecution submits, there is no other admissible evidence available to the prosecution in relation to the making of this admission. I consider the prosecution's case would be harmed if AG were not required to give evidence relevant to DM being present at the scene.

26 The nature of the relationship in this case is of a young adolescent and his mother. It is a compelling and vulnerable relationship. Counsel for DM made a submission, which for the purpose of this application I accept, that there is no male father figure in DM's life and that AG is the matriarch of the family.

27 DM was 15 years old at the time he made the alleged admission to his mother at a police station shortly after he was arrested. DM maintained for the most part a 'no comment' interview. When alone with his mother, it is alleged that, in response to a question from her, he offered information to her that he did not disclose in the police interview. While it cannot be said this was a relationship of confidence protected by law such as solicitor-client, I accept that DM may have thought he could and should confide in his mother without being concerned that his mother would volunteer the information to the police. The protection of the relationship of an adolescent and their mother is undoubtedly an important matter. The ability for damage to that relationship is greater where, as here, the accused is a young person still reliant on their mother and not yet an adult.

28 Taken together, the matters which I have just discussed satisfy me, in terms of s 18(6)(b) of the Evidence Act, that there is a substantial desirability of having the evidence given by AG. The question is whether the potential harm which might be occasioned to AG, and to her relationship with DM, is such that it outweighs the desirability of having that evidence given by her.

29 AG identified that she would suffer stress and emotional harm because of the prospect of giving evidence. This is a relevant harm for the purposes of s 18.[18]

30 Giving evidence is undoubtedly stressful for any witness and much more so for a mother asked to give evidence in the prosecution of her own son. I accept that giving evidence will impact on AG's mental health.

31 Furthermore, in the present circumstances - given that the relationship in question is between a mother and her adolescent son - I can readily infer that there is potential for harm to be caused to the relationship, even if no particular harm can be readily identified.[19] The evidence suggests there has been some breakdown in the relationship between DM and AG after the voir dire, but they are still in communication on a weekly basis.

32 As I stated, I am satisfied that there might be some harm to the relationship between AG and DM if her evidence were unfavourable to him. In such a situation, if DM were convicted, it would be natural to expect some potential difficulty in their mother-son relationship. It may be hoped that the decrease in contact between AG and DM, as DM's counsel expressed, is explainable by the fact that AG is to be called as a witness for the prosecution and DM has been told to be careful communicating with witnesses, rather than any serious or permanent fracture in their relationship.

33 AG expressed that giving evidence will harm her relationship with DM as well as with his siblings. She stated that giving evidence at the voir dire has affected the trust in her family. However, the level of that damage to the relationship between AG and DM must be considered in circumstances where DM will understand that AG gave evidence in this case under the compulsion of a court order. While not directly relevant, hopefully AG's daughters will also understand and appreciate that their mother has given evidence under compulsion of a court order.

34 Accordingly, I accept that if AG gives evidence there is a 'likelihood that harm would or might be caused (whether directly or indirectly)' to AG and to her relationship with DM.

35 While s 18 seeks to avoid harms of these kinds, it nonetheless envisages that evidence can be of such import that the desirability of it being given outweighs the nature and extent of harm.

36 DM is facing trial for murder. The murder was of a teenager in a group attack in a residential street. The nature and gravity of the alleged offending is extremely high, so that this aspect operates strongly in favour of the prosecution.

37 The primary issue in DM's trial is identity. That is, whether DM was one of the individuals involved in the fatal attack upon the deceased. DM denies being present at the scene at all.[20] The substance of the evidence of the alleged admission is that DM said that he was in fact present at the scene and involved in the fatal assault upon the deceased. The evidence is thus of the highest importance to the trial.

38 It can be inferred that DM did not expect his mother to disclose the contents of this conversation. However, s 18 does not present a bar against the compellability of a mother in their child's trial. This is but one factor to be weighed.

39 In weighing all the relevant matters, I have had regard to DM's age and the fact that he is still reliant on his mother.

40 However, I do not accept that in the present circumstances the nature and extent of the harms to AG and her relationship with DM outweigh the desirability of having the evidence of the alleged admission given by AG at DM's trial. The evidence to be given by AG will be limited to evidence of the making of the alleged admission. Considering the importance of this evidence and the seriousness of the charge, this is a case where the public interest of having relevant evidence available to the Court outweighs the undesirability of compelling a mother to give evidence against her own son, notwithstanding his youthful age.

41 While giving evidence in her son's trial will no doubt be extremely stressful and emotionally difficult for AG, I am not of the view that it will impact her psychological health to such an extent which would outweigh the desirability of the evidence being given. That AG would be compelled to give evidence will minimise the emotional impacts on her compared to had she given evidence at trial without objecting.

42 While AG being required to give evidence in DM's trial will undoubtedly harm her relationship with him, it can be hoped that such harm is repairable and that, despite his youthful age, DM will understand that she has been required to give evidence under legal compulsion.

43 I am well satisfied that the desirability of AG giving evidence significantly outweighs the nature and extent of harm to AG or her relationship with DM. In those circumstances, I reject the objection made by AG under s 18(2) of the Evidence Act, to being required to give evidence. For the above reasons, AG will be required to give evidence at DM's trial notwithstanding her objection under Evidence Act s 18.

[1] Where necessary or appropriate pseudonyms have been used throughout this ruling in accordance with Children, Youth and Families Act 2005 (Vic) s 534.

[2] DPP v SA & Ors (Ruling No 4) [2023] VSC 661.

[6] Counsel for DM was given the opportunity to make submissions on the issue. See R v A1 (No 2) [2019] NSWSC 663, [12] (Johnson J).

[7] See DPP v SA & Ors (Ruling No 4) [2023] VSC 661.

[8] AG's prior representations in relation to the admission all being second hand hearsay and therefore inadmissible under the Evidence Act s 82.

[9] See McKinnin v R [2019] VSCA 114; R v Jacobson [2014] VSC 188; R v A1 (No 2) [2019] NSWSC 663.

[11] [2019] VSCA 114

[16] [2023] VSCA 121.

[17] See Fletcher v R [2015] VSCA 146; (2015) 45 VR 634 , 644 [55] (Dixon AJA, Weinberg JA agreeing); [2015] VSCA 146 ; R v A1 (No 2) [2019] NSWSC 663 [35]-[36] (Johnson J).

[18] R v Rogerson [2015] NSWSC 592, [84].

[20] Defence Response (DM) dated 30 October 2023, [2].