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.
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.
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."
R v Lewis [2018] NSWDC 261 | Case summary | Zoe
This provision has been recently authoritatively considered in Decision Restricted [2017] NSWCCA 93. The principal relevant judgment was delivered by Macfarlan JA, with whom Schmidt J concurred. Wilson J on the relevant point dissented. Of the provisions of s 18 currently in question his Honour said this:
"26. [Appellant] had a right under s 18(2) of the Evidence Act to object to giving evidence as a witness for the prosecution because the prosecution was of his daughter. In accordance with s 18(3), he was given timely notice of this right. The point at issue is however whether the trial judge satisfied himself that [appellant] was "aware of the effect of [the] section" as it applied to [appellant]. This step was important because [appellant] was entitled to lead evidence and make submissions relevant to the Court's decision as to whether to overrule his objection and require him to give evidence. In making that decision the Court was required to take into account the five factors identified in s 18(7), all of which were capable of being addressed by evidence and submissions.
27. In my view, to be "aware of the effect" of the section in accordance with s 18(4) the prospective witness needs to be aware not only of his or her right to object but also:
(1) That the court will decide whether or not the objection should be overruled and the person required to give evidence.
(2) That that decision will be based upon the court's findings concerning the matters referred to in subsection (6), of which the judge should apprise the witness.
(3) That in making its decision the court will take into account at least the five matters referred to in subsection (7), of which the judge should again apprise the witness.
28. Unless the prospective witness is aware of these matters, he or she will not know to what issues his or her evidence and submissions should be directed in an attempt to persuade the court of the force of the objection to giving evidence. Where the prospective witness is represented by a solicitor or counsel it will usually be sufficient for the judge to ask the representative to confirm that the person is aware of the relevant matters. Where, as here, the person is unrepresented, an explanation of the matters to which I have referred will need to be given.
29. Usually it would not be sufficient for the judge to have counsel acting for the accused confirm that the prospective witness is aware of the relevant matters if the counsel is not also acting for that person. However not even that happened in the present case as the judge simply asked [appellant] (not counsel) whether he had spoken to either of the lawyers (the representatives of the Crown and the accused). The judge did not ask [appellant] what explanation, if any, he had been given about the effect of the section (see [8] above).
30. Moreover, the judge's open-ended question to [appellant], "Why don't you want to give evidence against your daughter?", did not specifically bring to [appellant's] attention the factors that might have been relevant to the judge's decision. Certainly, the evidence thereafter revealed a number of matters that were relevant, but the course the proceedings took was not capable of satisfying the judge that [appellant] was "aware of the effect" of the section.
31. In these circumstances, s 18(4) was not complied with. That non-compliance vitiated his Honour's requirement that [appellant] give evidence. That result is what I consider to be the legislative intent (see Project Blue Sky Inc. & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93]). Both applications for leave should accordingly be granted and the appeals upheld.
32. It is unnecessary in these circumstances to consider a further respect in which it was alleged that s 18 was not complied with, namely, that his Honour did not, but should have, considered whether harm might be caused to [appellant] by reason of him giving evidence, separate from his Honour's consideration of whether giving evidence would or might harm [appellant'] relationship with his daughter (see s 18(6)). Nor is it necessary to deal with [appellant's] contention that he was denied procedural fairness."
In order to comply with the section as interpreted by the Court of Appeal, Ms Fauvette gave sworn evidence, which was led from her by me, in which I drew her attention to the provisions of s 18(3), (6), and (7). She maintained her right to object to giving evidence against her de facto spouse. The harm which she wishes to guard against is emotional harm and hurt that would be suffered not only by her but also by their children. Ms Fauvette spoke tearfully about the lengths to which she and the accused have gone to re-establish their relationship in light of the devastating events that occurred to them since 29 December 2015. The fear of emotional and financial harm that she gave evidence about is, in my view, real. I lay no particular emphasis on financial harm, but I do believe that the harm that would be done not only to Ms Fauvette but also to their children would be very real and inimical to the perpetuation of a family structure that she and the accused have re-established.
One of the matters that I have to bear in mind is the nature and gravity of the offence for which the defendant is being prosecuted. He is being prosecuted for manufacturing a large commercial quantity of the prohibited drug, methylamphetamine. The maximum penalty for that offence is imprisonment for the term of the accused's natural life, and Parliament has fixed a standard non‑parole period of 15 years' imprisonment. This is a very serious charge and therefore the law would consider that it is more important that she give evidence than that she not give evidence, if she be able to give evidence on any relevant issue.
Another matter that I am required to consider is the substance and importance of any evidence which she might give, and the weight that is likely to be attached to that evidence. Essentially the Crown can prove, through telephonic records, the movement of the accused between, as I understand it, until about 7pm on 28 December 2016, and can establish by other records the likely movements of the accused from about 9.30am on 29 December 2015, but has no direct corroborative evidence of the whereabouts of the accused between those hours other than through the evidence of Mr Michael Patrick Stewart, who has already given evidence. In essence, the accused initially sought to set up an alibi that he remained at home overnight with the witness, Ms Fauvette, during the period in question, but no alibi notice has been served by the defence and the defence no longer seeks to set up the alibi. The only real significance of Ms Fauvette's evidence is to prove a lie, that is setting up of a false alibi, which the Crown maintains would be evidence of consciousness of guilt.
However, the evidence is not crucial to the Crown case. There is the evidence of Mr Stewart directly on point and there is some DNA evidence of the accused on a glove found in the shed, where the illicit drugs were being manufactured and where an explosion occurred early after dawn on 29 December 2015. There is other circumstantial evidence linking the accused to the explosion. Therefore the evidence which Ms Fauvette might give is not particularly important to the Crown case and there is other evidence to prove the matters which the witness could be called to prove.
Under s18 (7)(d) I have to consider the nature of the relationship between the defendant and the witness, and I have. They are essentially man and wife, albeit not at law. Furthermore, even though at the time that the events now in question occurred there was still a co‑parenting arrangement and the sharing of a house between the witness and the accused, which raises questions of intimacy, albeit not physical intimacy but of the intimacy of at least friendship and relationship in which they were making disclosures to each other, which might be caught by s 18(7)(e) of the Act.
Bearing in mind all the matters now in question, it appears to me that it would be improper for me to direct the witness to give evidence against the accused, and therefore I uphold her claim to be entitled to object to giving evidence against the accused. I may have not directly used the words of s 18(6)(b) but I hold that the nature and extent of the harm outweighs the desirability of the witness giving evidence.
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Decision last updated: 26 September 2018