R v Lewis

Judgment

1. HIS HONOUR: Ms Priscilla Carren Fauvette has attended court today in obedience to a subpoena to give evidence issued at the request of the Director of Public Prosecutions. The Crown wishes to call Ms Fauvette to give evidence in the Crown case.
2. Ms Fauvette made a statement to the police on 19 January 2016. A copy of that statement is exhibit VD6. The third paragraph of the statement commences thus: "I have known Mark Lewis for about 20 years. We had been in an intimate relationship since 2009 and have two children together. Mark and I separated in mid-2013. Mark and I still live together and co-parent." The couple have been at all material times living at 7 Bradman Road, Shalvey. Mark Lewis is the accused. Ms Fauvette and the accused have two sons, Caden, born 26 December 2010, who is currently seven years old, and Beau was born on 7 April 2014, who is currently four years old. Ms Fauvette told me on oath, and I wholly accept, that she and the accused reconciled some 18 months ago and that they have since that time been living together as man and wife.
3. The witness has objected to being compelled to give evidence. The issue is governed by s 18 of the Evidence Act 1995 which is in the following terms: "18 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."