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Parties: Rex (Crown)
Conrad Peter Lardner (Accused)
Leearna Davis (Applicant)

Representation: Counsel:
B Costello (Crown)
D Stewart (Accused)
P Tatarov (Solicitor) (Applicant)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Ross Hill & Associates Solicitors (Accused)
Aboriginal Legal Service (Applicant)

File Number(s): 2023/ 00157957

Publication restriction: Nil

ex tempore JUDGMENT (REVISED)

1. HIS HONOUR: Ms Leearna Davis is giving evidence before me as a witness called by the prosecution. She was brought to court yesterday under a warrant issued by me on 3 July 2026 for her non-appearance pursuant to a subpoena: R v Lardner (No 2) [2026] NSWSC 786 (“Lardner (No 2)”). She commenced giving her evidence by way of Basha inquiry on the voir dire this morning. By reason of what appeared to me to be the nature of her personality, she was a little difficult to elicit evidence from, at least as I observed. It emerged very early on in her evidence that she asserted a child‑parent-like relationship with the Accused, Mr Lardner. She said, “he’s like a father to me”. It is fair to say she volunteered that almost straightaway in the second and third questions she was asked.

2. Quite properly, Mr Costello, the learned Crown Prosecutor, took that matter up and she continued to assert, if I may put it this way, a lifelong relationship with Mr Lardner. Although it was difficult to elicit the details, mainly because of her own personality, she seemed convincing in that regard. Although, as I remarked to Mr Tatarov, solicitor, who appears for her, the evidence led from her probably would have been insufficient to discharge the onus of proof, notwithstanding that the relevant standard is the balance of probabilities. In any event, the matter was stood down to enable Mr Tatarov to obtain instructions, and he has now on behalf of Ms Davis made the objection available to a child of an accused under the provisions of s 18(2) of the Evidence Act 1995 (NSW) (“the Evidence Act”).

3. In advancing the objection he reads, without objection, the affidavit of Kerry Leanne Natasha Donovan affirmed on 15 July 2026. Ms Donovan is the natural or biological child of the Accused, Mr Lardner. I have also had regard to some references in the statement of Cyril Davis dated 26 April 2023 in which he identified Ms Davis as being a person whom he had known all of his life and whom he said, I think at two points in the statement, lived with Mr Lardner.

4. I have dealt with the question of the availability of this objection in relation to another witness, Ms Holten, in my decision in R v Lardner (No 3) [2026] NSWSC 801 (“Lardner (No 3)”). I will not fully rehearse the considerations which, in my view, engage the definition of child in the Evidence Act for the purpose of s 18. Suffice it to say that Mr Tatarov relies upon the extended definition of child in Pt 2 of the Dictionary to the Evidence Act at cl 10(1)(b) which extends the definition to a child living with the accused as if the child were a member of the accused’s family.

5. In the balance of the judgment in Lardner (No 3), I identified three elements of the definition (at [9]) and offered my analysis of the considerations which are relevant to a determination of that question in the balance of that judgment which I will apply here.

6. From Ms Donovan's affidavit, there remain chronological uncertainties, but I am satisfied on the balance of probabilities that the requisite relationship between Ms Davis and Mr Lardner was formed while she was still a child. It seems to me that although no dates are put upon this, from Ms Donovan's affidavit Ms Davis was probably living in Mr Lardner's household as a member of his family at a time when she was under the age of 18. In particular I am satisfied that Ms Davis lived as part of the Lardner household while at primary and junior high schools. Those periods seem to have been relatively long and in the life of a child would have seemed relatively permanent. I am satisfied that there is a sufficient critical mass of living in the requisite sense to engage that aspect of the definition.

7. I am also satisfied from Ms Donovan's affidavit that Mr Lardner treated Ms Davis as a member of his family, as Ms Donovan put it in pithy but telling terms at paragraph 15: "Growing up, Conrad treated [Ms Davis] the same as he treated the rest of us siblings". Ms Donovan then goes on to set out in detail what she means by that, and I am satisfied that her description of the family circumstances and Ms Davis participation in the family meet the requirements, as I identified them, of care, support and authority that the father naturally exercises over his dependant child.

8. For these reasons, I am satisfied that the three salient points that I identified needed to be considered and satisfied in my previous judgement are satisfied here. I rule that Ms Davis is entitled to raise the objection to giving evidence against Mr Lardner provided for by s 18. That, of course, is not the end of my role. It remains necessary for me to determine in accordance with the requirements of s 18(6)-(7) whether I should require Ms Davis to give evidence notwithstanding her relationship with and to the accused.

(After receiving further submissions from the parties on the matters arising from s 18(6)-(7), his Honour continued)

9. To the extent to which one needs leave to rely upon this matter, given the Harman undertaking, I grant leave to the prosecution to tender the agreed facts, dated 10 September 2024, for the purpose of the prosecution of Ms Davis in the Local Court on the charge of hinder the apprehension of Mr Lardner, to which she pleaded guilty.

10. I have ruled that Ms Leearna Davis is entitled to raise the objection referred to in s 18(2) of the Evidence Act on the basis of her relationship as a child of the accused within the extended definition of "child" referred to in the dictionary to the Evidence Act, Pt 2 cl 10(1)(b).

11. I have now heard argument and received additional evidence in relation to the discretionary question, about whether, notwithstanding the objection, I should require Ms Davis to give evidence, dealt with in s 18(6)-(7) of the Evidence Act.

12. The consideration of each matter is very factually intense to the situation of the particular witness. To the extent to which I set out the observations of other judges in cases of authority in Lardner (No 3), I adopt those for present purposes.

13. Section 18(6) provides that a person who makes an objection under s 18 to giving evidence must not be required to give evidence if I find (I will paraphrase the provisions of the statute) there is a likelihood of harm to the person or to her relationship with the accused, and the nature and extent of the likely harm outweighs the desirability of having the evidence given. Subsection (7) sets out mandatory but not exhaustive considerations to which I must have regard in assessing the sub-s (6) question. I have had the benefit of argument from Mr Tatarov in this respect.

14. It is not determinative, but it is significant to say that the nature and gravity of the offence for which Mr Lardner is being prosecuted, being that of murder, is very serious indeed, and as I have remarked, short of treason, is the most serious offence on the criminal calendar.

15. Although Ms Davis exercised the right that we all have in common to decline to make a statement to investigating police about the matter, from the evidence before me I can say that evidence that she is likely to be able to give is of substance and of importance. That is because, as I have explained in my previous decision in Lardner (No 2), I am satisfied that Ms Davis was in fact an eyewitness to the interaction between Mr Lardner and Mr Vale which resulted in the latter's death.

16. I am also satisfied that she was there during the immediate aftermath and assisted Mr Lardner into a vehicle driven by a Ms Holten, who has given evidence in the case, by which means he left the scene of the stabbing. Even though Ms Davis has not given a statement to police, it does appear that she is in the position to see what happened, and although I have received a good body of evidence in this particular trial, I have not really received any detailed evidence from any eyewitness. This is somewhat critical because from Mr Stewart's opening and from his conduct of the case on behalf of Mr Lardner, it is quite apparent that the fact that by his act of stabbing Mr Vale, Mr Lardner caused Mr Vale's death, the substantial defence that has been opened on is one of self-defence.

17. No-one who has given evidence so far, and we are getting very near the end of the Crown case, has actually given what might be referred to as a “chapter and verse” description as far as anyone can of what happened between Mr Lardner and Mr Vale. Obviously, the nature of a relationship between parent and child is one which our community, including the Aboriginal community, values greatly, and one does not wish to interfere with family relationships unnecessarily. I accept that Ms Davis is finding this very hard and that may explain her apparent non-appearance pursuant to the subpoena, and there was always a risk, of course, which I accept that being required to give evidence against a close family member, including a parent, can cause significant harm to that relationship, which often will be detrimental to the whole community, quite apart from to the family.

18. Having said that, I think Mr Lardner, who has been present in court, of course, the whole time the trial has been running, will fully appreciate the reluctance to being required to give evidence as a prosecution witness that Ms Davis has demonstrated. He will understand that if she gives evidence, it is because I have required it of her, not because she has done so as a volunteer. Moreover, I accept the argument advanced by the Crown that given what Ms Davis has told me, that is to say that although she assisted Mr Lardner into Ms Holten's car, she has had no communication with him since that time, and there is no evidence on the voir dire that the requirement that Ms Davis give evidence will require her to divulge anything said in confidence to her by the accused which may be adverse to his case.

19. Weighing these matters up as I must under s 18(6) of the Evidence Act, I am not satisfied on the balance of probabilities that the nature and extent of the harm which I have identified outweighs the desirability of having Ms Davis' eyewitness account being given. I will direct that she should give evidence in the trial.

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Amendments

17 July 2026

First paragraph - third sentence. The word "of" is added between the words "nature" and "her personality".