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[2026] NSWSC 801
Supreme Court of NSW
2026-07-10
Campbell J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Lardner (No 3) [2026] NSWSC 801
Hearing dates: 6, 8 July 2026
Date of orders: 8 July 2026
Decision date: 10 July 2026
Jurisdiction: Common Law
Before: Campbell J
Decision: (1) The Court is satisfied, on the balance of probabilities, that the witness, Veronica Holten, is a child of the accused, Conrad Lardner, within the meaning of s 18(2) of the Evidence Act, as defined by Pts 1 and 2 and cl 10(1)(b) of the Dictionary to the Act.
(2) Pursuant to s 18(6) of the Evidence Act and having regard to the matters listed in s 18(7) thereof, the Court is not satisfied that the nature and extent of the harm that would be caused to Veronica Holten by giving evidence outweighs the desirability of having Veronica Holten give evidence in this trial.
(3) Veronica Holten’s objection to giving evidence is overruled.
Catchwords: EVIDENCE — witness evidence — compellability — spouses, parents and children — where witness is not a biological child of the Accused — whether witness is a ‘child’ of the Accused within the extended definition of the term — relevance of Indigenous identity of the witness and the Accused as to nature of the relationship between them — balancing exercise between likely harm and desirability of having evidence given
Legislation Cited: Evidence Act 1995 (NSW), ss 3, 18, Dictionary, Pt 2, cl 10
Cases Cited: R v Fernando & Ors (No 1); Re a young person [2022] NSWSC 1535 R v Lardner (No 2) [2026] NSWSC 786 R v Sinai (No 4) [2021] NSWSC 779
Category: Procedural rulings
Parties: Rex (Crown)
Conrad Peter Lardner (Accused)
Veronica Holten (Applicant)
Representation: Counsel:
B Costello (Crown)
D Stewart (Accused)
D Elston (Solicitor) (Applicant)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Ross Hill & Associates Solicitors (Accused)
Legal Aid NSW (Applicant)
File Number(s): 2023/ 00157957
Publication restriction: Nil
Ms Veronica Holten, the applicant, objected pursuant to s 18 of the Evidence Act 1995 (NSW) (“the Evidence Act”) to giving evidence as a witness for the prosecution in the trial of Mr Conrad Lardner, who is charged with the murder of Mr David Vale. I heard the matter over part of two days, 6 and 8 July 2026, and made the ruling consisting of the findings and orders appearing at the end of this judgment and reserved my reasons. These are them.
I interpolate that Ms Holten is currently part heard in evidence give on a Basha inquiry as she had not previously given an account to police or anyone else of what she saw, heard or otherwise perceived of the central events underpinning the Crown case against the Accused. From accounts given by other witnesses, Ms Holten was in the immediate vicinity when Mr Vale received the fatal stab wound. In preparing and finalising these reasons, I have put to one side the account she is actually giving under affirmation.
I should also say, however, that the hearing of the application took part of two days because I gave Ms Elston, solicitor, who appears for Ms Holten, leave to re-open her case to supplement the account relevant to s 18 as recorded in the report of the report of Ms Vanessa Edwige, a Registered Psychologist, dated 4 June 2025 (Exhibit VD 8) by affidavit. That leave was exercised and Ms Holten’s affidavit affirmed on 6 July 2026 was filed in court and read without objection. She was cross-examined on its contents. I have had regard to that evidence.
18 Compellability of spouses and others in criminal proceedings generally
…
(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.
…
(Section 3)
…
child means a child of any age and includes the meaning given in clause 10 (1) of Part 2 of this Dictionary.
…
Part 2 Other expressions
…
10 References to children and parents
(1) A reference in this Act to a child of a person includes a reference to—
(a) an adopted child or ex-nuptial child of the person, or
(b) a child living with the person as if the child were a member of the person’s family.
…
Ms Holten is a Dunghutti woman. Her mother and Deborah Donovan, the partner of the Accused, are cousins (see Exhibit 1). Ms Holten calls Ms Donovan, “Aunty Deb” and the accused, “Uncle Con”, although Ms Holten’s relation to Aunty Deb is as second cousin. Her relation to the Accused is of second cousin by marriage. Significant reliance was placed on the kinship bonds in Indigenous communities as explained in Ms Edwige’s report. This aspect of Ms Edwige’s evidence was relied on to advance the contention that Ms Holten should be regarded as the “child” of the Accused by dint the extended definition in Part 2 Cl 10(1) of the Dictionary and therefore eligible to object to giving evidence against the Accused.
It is important to bear in mind that the determination of an objection under s 18 involves a two-step process. First, the objecting witness must bring himself or herself within a relationship with the defendant specified in s 18(2). Secondly, he or she must persuade the court that the balancing exercise required by s 18(6) (see [25] below) favours upholding the objection. In the vast majority of cases the first issue decides itself because the family relationship will be obvious. Not so in a case like this which depends upon the application of Pt 2 cl 10(1)(b). At a practical level, even if I find that she is a child of the Accused in the extended sense, I must then make a determination in accordance with s 18(6), which requires me to balance the risk of harm of having Ms Holten give the evidence and its nature and extent, against the desirability of having that evidence given.
From Ms Edwige’s report and the affidavit of Ms Holten, I accept fully that kinship relationships within Indigenous communities may differ from what might otherwise be commonly understood in a Western sense. However, in order to qualify as a person to whom the benefit of objecting to give evidence under s 18 is afforded under the extended definition of “child”, the language of Part 2 cl 10(1)(b) of the Dictionary to the Evidence Act (s 3) must be satisfied. That is to say, while the existence of that kinship relationship may provide the necessary factual basis, it will only do so if the content of the relationship satisfies the elements of cl 10(1)(b). Any determination will be highly fact-sensitive and will usually, as here, require evidence as to the nature of the relationship itself in specific, rather than general, terms.
The extended definition under cl 10(1)(b) really has three constituent parts:
a person must be a “child”;
who is living with the defendant; and
as if the child were a member of the defendant’s family.
As a preliminary point, it should be observed that the general aspect of the definition, “child of any age”, makes clear the full scope of the definition is concerned with the nature of the relationship between the witness and the defendant; it does not turn on the witness’s legal status as a minor. Once the relationship of child of a person is established within one or other of the categories of “child” covered by the whole definition, it is taken to inure beyond the child attaining his or her majority. A defendant’s adult child, “when required to give evidence”, is “a child of any age” and accordingly entitled to make an objection, whatever category of the definition covers the particular relationship between the witness and the defendant.
Having said that, the requisite relationship between the witness and the defendant can only be formed during the witness’s minority. “Child” in this context plainly means a person under the age of 18 years when the relationship is formed. The relationship of child-parent cannot develop after a person has attained his or her majority. Clearly for a child born within the defendant’s existing domestic relationship, such as a marriage, the s 18 relationship is fully formed at birth, and so too with an ex-nuptial child even if the future witness and defendant are unknown to each other at the witness’s birth. In the case of an adoptive child, the relationship is not formed for the purposes of cl 10(1)(a) until the pronouncement of the order of adoption or other applicable legal process. (There may be many cases of prospective adoptive children who would qualify under cl 10(1)(b) while abiding legal formalisation.) Each of these aspects of the relationship will be capable of more or less certain and ready identification. But the cl 10(1)(b) relationship when, as here, disputed will require fairly cogent evidence establishing each of the three elements identified above (at [9]). The evidence will need to establish that the requisite relationship was formed while witness was a child (a person under the age of 18 years) living with the defendant as if the witness were a member of the defendant’s family.
I accept, however, that while the cl 10(1)(b) is cast in a present, active voice it should be given an ambulatory interpretation, picking up relationships formed in the past that continue such that the relationship, once formed, as I have said, inures even after the child attains his or her majority. That is to say, the relationship formed during minority will be characterised as a continuing one of parent-child even when the child is an adult, just as the child born into the defendant’s permanent domestic relationship remains the defendant’s child for the purpose of s 18 into adulthood (“a child of any age”).
Secondly, “living” imposes, in context, a residential requirement. I consider that this requires some significant, continuous co-habitation in the defendant’s home with a degree of permanence at least for the foreseeable future. A few weeks here and there, or, for example, a summer break or school holiday, spent in the home or with a member of the child’s extended family such as a favourite aunt or uncle, would not be sufficient. That is not to say that it must be entirely continuous, for example a split custody arrangement might suffice, but it has to rise to something more than a casual residence or boarding or lodging arrangement.
Finally, the living arrangement must be as if the child were a member of the person’s family. Whereas the other two elements will tend to be more obvious, this element requires more of an evaluative task in characterising the nature of the relationship itself.
The relationship of parent-child is not one that will be easily inferred. It is a defining relationship in the lives of both parties and comes with social obligations that persist for the balance of their lifetimes. A parent has obligations of care and responsibility to their child that exceed that which a decent person might otherwise wish to volunteer. Merely feeding or housing a child on a temporary basis is not sufficient. A parent’s obligations include lawful discipline, care and education, for example, and the authority which goes with it. A child, in turn, reposes trust and dependence on their parent and acknowledges their parent’s authority over them. The definition does not impose these requirements in terms, but it does require that the child be “treated as if they were a member of the person’s family”. In this case, given that the Accused has biological children, their relationship with him and the applicant’s relationship to their putative “siblings” may also inform whether this condition is met.
In the course of argument, I was taken to the decision of Fullerton J in R v Fernando & Ors (No 1); Re a young person [2022] NSWSC 1535 (“Fernando”), which stands as some of the only guidance on the interpretation of the extended definition of ‘child’. Her Honour found in Fernando that the Young Person in those proceedings, while not a biological child of the accused was a ‘child’ within the meaning of the extended definition. Similarly to these proceedings, the Young Person in Fernando was Indigenous.
However, out of respect for the Young Person’s privacy and having regard to the possibility that detailed discussion of the evidence may tend to identify them, her Honour did not make specific reference to the facts that supported the relationship. The decision’s assistance, therefore, in determining what factors are relevant to determining that relationship, is somewhat limited in its application to these proceedings. Somewhat Delphically, her Honour contented herself by expressing satisfaction that the relationship was “filial”, without addressing cl 10(1)(b) in terms or the evidence which engaged it.
I now turn to the application of these principles to this case. These facts are derived from the history recorded by Ms Edwige and the evidence of Ms Holten on the application. Ms Holten is, as I have said above, a second cousin of Deborah Donovan, the partner of the Accused (Exhibit 1). Ms Holten lived with her biological parents until the age of around 10 or 11 when their relationship broke down: Holten Affidavit [19]. Thereafter, the critical and formative years of early adolescence were characterised by a series of changes in living situation for Ms Holten. The precise dates, as is not uncommon, remain somewhat obscure. Variously, Ms Holten lived with her biological father, her biological mother (residing in the house belonging to Ms Donovan’s parents), her grandparents, and ultimately from around year 6, with the Accused and Ms Donovan: Holten Affidavit [20]; 388.50-389.5T; 389.30-50T.
Ms Holten lived with the Accused and Ms Donovan for some time thereafter. For a short time when Ms Holten was in year 8, she went to a school outside Coffs Harbour while living with her grandmother: 387.1-10T. She returned prior to the completion of that year to live with her mother and thereafter resumed living the Accused and Ms Donovan: 388.36-389.5T. Ms Holten remained living with the Accused and Ms Donovan until towards the end of her first pregnancy at the age of around 16: Holten Affidavit [32], [37].
I mean no disrespect to Ms Holten when I observe that her evidence, even by way of affidavit, was at times confusing, particularly with respect to matters of chronology. The constant changes of living situation as a young person, coupled with the length of time that has elapsed since these events, make that confusion understandable. However, the relative paucity of that information does make an assessment of a filial relationship (to adopt the language of Fullerton J in Fernando) more complicated.
Notwithstanding that observation, there were aspects of Ms Holten’s evidence that I found particularly compelling. The evidence established that the Accused and Ms Donovan took Ms Holten to school, counselled her about being too young to date when she entered her first relationship, and provided her with the essentials of life of clothing, sustenance and shelter: Holten Affidavit [23]-[27], [34]. They attended her athletics carnivals, bought her Christmas and birthday presents, and taught her to ride a motorcycle: Holten Affidavit [26], [29], [31]. Those latter facts are important context in characterising the closeness of the relationship at an emotional level. In general terms, it is apparent on the balance of probabilities that the Accused and Ms Donovan treated Ms Holten like one of their own children during most of the period of five years between the ages of eleven and sixteen. It is also apparent the mutual relationship inured. When she had trouble in her domestic relationship Ms Holten returned, and was welcomed back, to the Accused’s home.
It may be said that to some extent the lines of kinship for the Dunghutti people may be a little confounding, in that the close bonds within extended families do not necessarily measure up to the legal elements required for satisfaction of cl 10(1)(b). I am satisfied that those lines of kinship provide a foundation to a close and affectionate relationship across extended families, the particular matters to which I have referred in the relationship between the Accused and Ms Holten establish the requisite relationship.
I am satisfied on the evidence that the relationship shared between Ms Holten and the Accused is one of parent-child with the meaning of cl 10(1)(b). Specifically, I am satisfied that the relationship was formed when Ms Holten was a child, and I am satisfied that she lived with the Accused, although, as I have said, the evidence, while tolerably clear for present purposes, was not entirely one way. That living arrangement was, I am satisfied, as if Ms Holten was the child of the Accused. Clearly, the Accused exercised serious and ongoing parental responsibility for her, which, combined with material provision for her, militates in favour of a finding that the living situation was beyond what one might term a boarding or even extended family relationship.
I would note here that the report of Ms Edwidge, once the Holten Affidavit was read, became of less importance on this aspect of the application. As I have said above, this stage of the application is a factual enquiry about whether the relationship can be properly characterised as falling within the extended definition. Expert psychological evidence, however, will be relevant, to the harm question, and I will return to Ms Edwidge’s report in that context below.
18 Compellability of spouses and others in criminal proceedings generally
…
(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.
…
The harm which was said might be caused by the giving of evidence is twofold. First, it is harm to herself, in a psychological, cultural and spiritual way, through a compulsion to give evidence. Second, it is harm to her relationship with the Accused.
I accept that giving evidence against a family member under compulsion is a distressing prospect. Indeed, completely separate from my findings above about whether their relationship is one of “parent-child”, I fully accept that they share a very close relationship and giving evidence against the Accused would be particularly distressing. I also accept that the cultural norms of the Dunghutti people may mean that someone who gives evidence in breach of their obligation of “loyalty” faces the prospect of alienation. Giving evidence against the Accused may possibly lead to a deterioration in their relationship and a loss of standing in her community
I would, however, make some remarks about that harm. Ms Holten has left the local community and now resides elsewhere. As a condition of the Accused’s bail, she has not had any contact with him for the nearly two and a half years since bail was granted. Any harm to her relationship needs to be understood in that context. I would also remark, as R A Hulme J made some reference to in R v Sinai (No 4) [2021] NSWSC 779, that the Accused could plainly observe from the application that Ms Holten, if she was to give evidence, was doing so under compulsion. That is to say, he would not be labouring under any misapprehension that Ms Holten freely gave evidence against his interests at trial, and that provides some level of protection to the integrity of the relationship.
One of the aspects of harm to the relationship with the Accused propounded was harm to the relationship between Ms Holten and the Accused’s children. Her evidence was that she considered them to be her own siblings: 386.40-45T. On cross-examination, she gave evidence that she had not spoken to the siblings for some time: 386.45-387.30T. By way of re-examination, Ms Holten gave evidence that this was due to these criminal proceedings: 390.30-45T.
The problem, of course, with this explanation, is that the prospect of giving evidence in these proceedings is not relevant to that absence of contact. While the absence of any contact between Ms Holten and the Accused is explicable by the Accused’s bail conditions, that same restriction does not apply as between Ms Holten and the Accused’s other children. These criminal proceedings may have, as one would expect, placed strain upon family bonds. However, the circumstance of their apparent estrangement is not relevant to the prospect of giving evidence.
From her affidavit and from Ms Holten’s appearance on the screen during the hearing of the application, I formed the view, consistent with Ms Edwidge’s opinion, that her potential involvement in these proceedings as a witness was the cause of some not insignificant personal stress and strain. However, this is not unusual for witnesses required to give evidence in consequential litigation of personal importance. Nonetheless, I factored this in, to a degree, in my assessment of potential harm.
I turn then to the desirability of having Ms Holten give evidence and I bear in mind the mandatory s 18(7) considerations. Something was made on behalf of Ms Holten of the consideration that because (with justification) she had not given any account to investigating police and there was no other extant record of evidence she could give, no assessment could be sensibly made of the likely probative value of any evidence she might be required to give. I do not agree with this submission. There are a number of objective factors which strongly suggest that she may well be in a good position to give cogent evidence touching upon the question of the guilt or innocence of the Accused.
First, while currently residing there, she was the lawful tenant of the premises at 74 M Street, outside of which the fatal confrontation occurred. As it happened, she was driving past those premises as that confrontation was coming to a climax. From the CCTV evidence (Exhibit 10), it is clear that her car was approaching while the Accused and the Deceased grappled with each other. Obviously, her focus may be on the road ahead, but the fight was occurring right beside the carriageway. From a statement made by her sometime partner, Mr Lesley Dean Davis, she was on the phone to him at the time and described the Accused and Deceased fighting. If this is correct, she clearly witnessed the confrontation.
Second, her cousin, Ms Leearna Davis-Gatt was at the scene and she appears to have flagged Ms Holten down. Exhibit 10 shows Ms Holten’s vehicle approaching slowly, and Ms Davis-Gatt running towards it. Ms Holten may well be able to say what her cousin said about the matter, under exceptions to the hearsay rule. I record here that Ms Davis-Gatt appears to be evading attempts to enforce a subpoena of which she is aware (see R v Lardner (No 2) [2026] NSWSC 786).
Third, perhaps more importantly, after Mr Vale had been stabbed, the Accused was ushered into the vehicle Ms Holten was driving, and she conveyed him to the Burnt Bridge area near South Kempsey. They were obviously alone together in the car for a period of time, and one’s experience of life would suggest that the Accused could have said something of significance to her explaining what happened.
On the balance of probabilities, I am satisfied that the desirability of having evidence given outweighs the nature and extent of the harm she may suffer by being required to give evidence.
For these reasons, on the application of Veronica Holten under s 18 of the Evidence Act 1995 (NSW), the Court makes the following findings and orders:
The Court is satisfied, on the balance of probabilities, that the witness, Veronica Holten, is a child of the accused, Conrad Lardner, within the meaning of s 18(2) of the Evidence Act, as defined by Pts 1 and 2 and cl 10(1)(b) of the Dictionary to the Act.
Pursuant to s 18(6) of the Evidence Act and having regard to the matters listed in s 18(7) thereof, the Court is not satisfied that the nature and extent of the harm that would be caused to Veronica Holten by giving evidence outweighs the desirability of having Veronica Holten give evidence in this trial.
Veronica Holten’s objection to giving evidence is overruled.
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First Paragraph: The word "as" added after the word evidence.
Anonymisation
R
Lardner (No 3)