R v Fernando & Ors

The evidence in support of the application

The young person swore an affidavit in support of the application. Neither the Crown nor any other party to the proceedings sought to cross-examine the young person. I will return to consider the content of that affidavit presently.
An affidavit of Mr James Clifford, a solicitor employed by the Aboriginal Legal Service in the position of Acting Managing Solicitor in the Children's Criminal Practice was also read without objection. Mr Clifford explains that he has been advising the young person about the operation of s 18 of the Evidence Act. Mr Clifford confirmed that he received materials from the Office of the Director of Public Prosecutions to enable that advice to be rendered and ultimately advised the young person that he could object to giving evidence but that the Court would decide if his objection would be upheld. Mr Clifford was also in receipt of advice from the young person's aunt and the sister of SG. She provided information concerning the young person's matrilineal and patrilineal lineage being respectively of the Gumbaynggir and Kamilaroi people. Finally, Mr Clifford explained that in taking instructions in conference for the preparation of the affidavit, the young person would on occasions when asked a question pause, sometimes for many minutes before answering, and on occasions appear to consider the question but not answer it at all. He explained that those silences were not unusual in his experience of communicating with Aboriginal young people who live in regional areas.
Affidavits from Mr Kevin Smith, a field officer with the Aboriginal Legal Service, and an affidavit from an aunt and God mother to the young person were also read without objection. Mr Smith gave evidence that he has known SG for many years and that her extended family have established connections to country in Northern New South Wales. He also knows the young person and JOS and spoke of the close relationship they share.
Mr Smith has worked in various capacities representing the interests of Aboriginal people including in their engagements with law enforcement over 20 years. His experience includes sitting as a respected community member on a local Court circle sentencing scheme and in other institutional capacities where Aboriginal people require representation. I gather from Mr Smith's evidence that he accepts and understands that the legal system in NSW, in particular the operation of the criminal justice system in this state is the "law", and that police have power and authority to enforce the law. However, he has also had direct experience of Aboriginal families being traumatised and fragmented when one family member makes a police report about another family member, irrespective of whether the complaint was or was not justified or any subsequent conviction and imprisonment notified under the law.
Mr Smith does not contend that the young person would be ostracised by either of his family members were he to give evidence in the trial. Rather, in his dealings with the young person, Mr Smith has concerns that the young person feels he is being pulled in opposite directions with loyalty to his family members in conflict with what he describes as "what the police want him to do". Mr Smith expresses concern that there is a potential for feelings of guilt at having betrayed his family impacting upon the young person for many years.
Mr Smith does not suggest that the young person's extended family would not support him in the event he is required to give evidence, but rather that the impact upon him as a young adolescent to give evidence in the trial of two family members on a charge of murder cannot, at this time, be readily or reliably gauged. Mr Smith tells me, "[the young person] has his head switched on but we don't know what is in his head". These insights are of particular resonance given what I have already noted were Mr Clifford's observations of the young person's demeanour from time to time in the course of taking instructions from him.
A report from Ms Dombrowski, a psychologist, was also tendered in support of the application. She interviewed the young person for the purposes of undertaking a psychological assessment to inform the question of harm that arises under the operation of s18 of the Evidence Act.
Ms Dombrowski notes that the young person identifies as Aboriginal of Dunghutti descent. Although he lived in Kempsey with his family, including two younger brothers, for significant parts of his life, in more recent times he has lived with family in Moree but maintains regular contact with his extended family and his younger siblings in other parts of NSW. He describes his family as loving and supportive with particularly strong paternal kinship connections. He identified his relationship with JOS and SG as extremely important. Despite their incarceration, he told Ms Dombrowski that he speaks with each of them regularly, sharing his experiences with his schooling and friendship circles with them.
Ms Dombrowski did not identify any features of vulnerability in the young person's medical or psychiatric history that were not generally consistent with his stage of maturation as a young adolescent. Those features included some self-consciousness due to his weight gain and acute self-consciousness when having to speak publicly. She did not understand him to be accessing any psychological treatment but noted that he had attended counselling sessions for anxiety at school which he found helpful. Ms Dombrowski did not identify (and the young person did not volunteer) any past or current suicidal ideation or symptoms of depression, trauma or psychosis. Standardised psychological assessment tools were administered which did not reveal any underlying difficulties with cognition or indicia of personality malfunction.
Ms Dombrowski reported that the young person was concerned that his evidence will result in family members receiving a lengthy period of incarceration and that he would blame himself. However, he was unable to explain how if that happened it might affect him other than that he thought it would be "just bad" for his mental health. The young person told her that he had been encouraged by other family members not to tell people that he was being asked to give evidence and he should not tell his younger brothers. He was fearful that he would not be able to sleep before giving evidence in court and that he would struggle to contain his anxiety. Ms Dombrowski regarded the young person's fears and concerns as not sourcing from any psychological vulnerability or predisposition that would make his experience of testifying against family members any more onerous than the stress inherent in that scenario for any young person.
The affidavit from the young person was also read in support of the application. He confirms having been served with the subpoena to give evidence at the Moree police station. He reports that he went to the police station with his Nan to enable the subpoena to be served on him personally. He said it was only the third time he had ever been to a police station. He said when he received the subpoena, he was "pretty worried" and suffered a migraine which deprived him of sleep.
He said that one of the other occasions he went to a police station was when he was interviewed. He said: When I did the interview, I knew we were going to be interviewed, but I didn't see much of the situation at the time. We were told we were going there. We were told they might have a talk with us. I didn't know I could be a witness by talking to police… I didn't have anyone with me in the interview.
He went on to say that he could not remember very much of the interview, but he accepted that what is recorded is what he told police. He said he was pretty sure he looked at "some media" before the interview. He said that he would not have remembered the detail of what he told police solely from his conversations with JOS. He went on to say that JOS "doesn't go into depth about stuff. He keeps it short and simple". The young person said that he does not think he would have remembered all of what he told police from what JOS said to him. As I understand his evidence, he is expressing some concern that information he has attributed to JOS was or might have been sourced from media reports or news articles he had read.
He confirms the ongoing nature of his relationship with each of SG and JOS including, importantly, that despite each of them being bailed refused since June 2020 he maintains regular contact with them.
On the question of giving evidence, what he says in his affidavit is in my view both honest and courageous. I set it out in full: 40 If [JOS and SG] lose their trial, I think they will get locked up for a pretty long time. I'm not sure how long it will be. I hope it doesn't happen. But if it is the worst outcome, it is what it is. 41 If my evidence was part of the prosecution case and [JOS and SG] were convicted, I would feel pretty bad. Something from me that gets my family locked up… I'd think about what evidence I gave a lot if they got convicted… I wouldn't feel proud about giving evidence… It's hard to talk about. 42 I think [JOS] would still talk to me if I gave evidence… I mean, I hope he would. I'm not sure if he wouldn't. It would be something I would have to live with. IT would take a toll on my mental health and such… anxiety 43 If [JOS and SG] were convicted, I would visit them. I would keep in touch with them. Videos, phone calls, whatever I could do. I would not stop talking to them because of my evidence. 44 It would feel the same to me if my statement was just read out or played on the video instead of me going to court. It's still me. It's just not me present. It's my words being used. 45 If I have to give evidence, I will, I'm not going to withhold it; But I don't want to go to court and give evidence.
In the event that I am satisfied that the balancing exercise required by the exercise of the discretion under s 18 of the Evidence Act is struck in favour of the young person not being required to give evidence as a witness in the trial, in oral submissions the Crown confirmed its intention not to seek to tender the interview pursuant to s 65 of the Evidence Act. That section operates as an exception to the hearsay rule in criminal proceedings where a witness who has made a previous representation about an asserted fact is unavailable. The approach taken by the Crown avoided the need for me to consider the apparent conflict between authorities in New South Wales and Victoria concerning the interrelationship between ss 18 and 65 of the Evidence Act, [3] and whether, in the circumstances of this case, I was bound by either approach.
The position taken by the Crown also avoided the need for me to give further consideration to the detailed submissions advanced by Ms Climo of counsel who appears for JOS. She submitted that in the circumstances of this trial where the manner in which the young person was questioned by police was improper, raising questions about the reliability of his answers, that despite the young person's age, otherwise rendering him a "vulnerable person" for the purposes of ss 306U and 306V Part 6 Division 3 of the Criminal Procedure Act, if he is required to give evidence in the trial, the Crown should not be permitted to avail itself of those provisions by the tender of the recorded interview of the young person as his evidence in chief but he should give his evidence viva voce. [4]
The complaint Ms Climo makes about the propriety of the circumstances in which the young person was questioned, were also advanced in support of the young person's application that he should not be required to give evidence.
It was submitted that the circumstances in which the young person was interviewed where the interview was conducted without an adult support person being present; without the young person being provided with the opportunity to seek legal advice addressing his right to refuse to participate in the interview and, where neither the interviewing police officer nor the investigating police who arranged for the interview made it clear to the young person, or his aunt, that by participating in the interview he would, or might be called as a witness in the trial of two close family members, were circumstances properly to be taken into account amongst the range of statutory considerations expressly provided for s 18(7) of the Evidence Act when undertaking the balancing exercise in s 18(6) of the Evidence Act.

The operation of s 18 of the Evidence Act

Section 18 provides as follows: Compellability of spouses and others in criminal proceedings generally (1) This section applies only in a criminal proceeding. (2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required: (a) to give evidence; or (b) to give evidence of a communication between the person and the defendant; as a witness for the prosecution. (3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later. (4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person. (5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury. (6) 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 defendant, if the person gives the evidence; and (b) the nature and extent of that harm outweighs the desirability of having the evidence given. (7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following: (a) the nature and gravity of the offence for which the defendant 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 defendant 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 defendant. (8) If an objection under this section has been determined, the prosecutor may not comment on: (a) the objection; or (b) the decision of the court in relation to the objection; or (c) the failure of the person to give evidence.
For the purposes of this case, s18(6) is concerned with both an assessment of both the likelihood of harm to the young person should he be required to give evidence and the harm that would or might be caused directly or indirectly to the relationship between the young person and JOS (and by necessary implication to his relationship with SG were that to result). In undertaking that assessment, the concept of harm should be given a broad interpretation. [5]
For present purposes, that must include what I am satisfied is the potential harm to the young person resulting from the destruction to, or a breakdown in, his relationship with each of the two accused, and potentially with members of his extended family, were he required to give evidence. The fact that the young person hopes that his family relationships will remain intact even were he to give evidence implicating JOS in the murder of the deceased, those hopes do not eliminate the risk of harm to those relationships in the future as the young person matures into adult hood. Although I note that his courage and balanced sense of purpose is to his credit, in circumstances where the young person identifies as Aboriginal and each of the two accused also identify as Aboriginal, all sharing the same cultural connection to country by reason of their family relationship, the potential harm to the complex of family relationships cannot be discounted or underestimated.
In undertaking the assessment of harm in the sense I have identified as material to this application, in particular, in the context of the relationship the young person shares with the two accused, the evidence of Mr Smith carries particular weight.
The matters to be taken into account in the balancing exercise required by s 18(6) are not, as the chapeau to the section makes clear, limited to those set out in ss 7(a)-(e). In my view, the age of the young person at the time the interview was conducted, and the circumstances in which the interview was conducted, are also deserving of weight in the balancing exercise. I have been provided with no explanation by the Crown, or by investigating police, for the young person's guardian being refused her reasonable request to be in attendance during the course of the interview, or for that matter why the young person was not given the opportunity to speak with her about whether he should participate in the interview at all. While Ms Kelly's absence from the interview does not, as a practical measure, undermine the weight that is likely to attach to the young person's account of his conversations with JOS in proof of the Crown case, it is clear from the young person's affidavit that he is now aware that he was without any support or guidance on the occasion that he was interviewed, including not being aware (because he was not told) that by talking to police he could become a witness against his close family members.
Finally, I note that at the time of hearing the application by the young person under s 18 of the Evidence Act, [6] it was the Crown case that JOS had made admissions to police in February 2020 which would generally have satisfied the description in ss 7(c) of "other evidence concerning the matters to which the evidence of the young person would relate". Since the hearing of the application, I have ruled that evidence inadmissible. [7] That does not however, operate, in all of the circumstances, to weigh in the balance in favour of the desirability of the young person giving evidence.
In my view, having regard to the evidence before me, I am satisfied that the nature and extent of the harm (or potential harm) to the young person were he required to give evidence in the trial outweighs the desirability of him giving evidence. In short, I consider the potential burden of responsibility on the young person entailed in giving evidence against a close family member in a murder trial, to be considerable, a burden that is exacerbated by his Aboriginality and the risk that he will be traumatised by the experience of giving oral evidence against JOS, and the associated trauma of being separated from JOS (and SG) for many years were they convicted after a trial in which he was a witness.

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