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This was an interlocutory ruling in a criminal trial in the Supreme Court of the ACT. The charge alleged that Stewart Barry John Mayhew assaulted the complainant and occasioned her actual bodily harm on 29 June 2008. The application concerned a separate, earlier event: an allegation that the complainant had taken five ecstasy tablets when she and the accused left Canberra to attend a rave party in Sydney on the night before the incident charged. The judgment does not decide whether that allegation was true. It records it as the subject of the proposed questions (paragraph 1).

The complainant declined to answer questions about the alleged drugs on the ground that an answer might tend to incriminate her. The accused then applied under s 128(4) of the Evidence Act 1995 (Cth) for an order requiring her to give evidence on that topic (paragraph 1). The accused's stated purpose was to put before the jury a possible explanation for the complainant's behaviour, reactions, perceptions and ability to recall events. In particular, the accused wanted the jury to be able to consider whether ecstasy consumed in the period of about 16 hours before the alleged assault affected her ability to recall or give accurate evidence (paragraph 3).

Rares J dismissed the application. The central reason was that the judge was not satisfied, on the material then available, that requiring the complainant to answer would be in the interests of justice. The judge considered both the proposed evidential value and the importance of the privilege against self-incrimination. The ruling was not a finding about whether the complainant had possessed or consumed ecstasy, nor a finding about the reliability of her evidence overall.

The case metadata identifies the judgment as R v Stewart Barry John Mayhew [2010] ACTSC 41, dated 28 April 2010. The final certification text states that the judgment was given on 28 April 2009, which conflicts with the heading, order, case citation and hearing date. The supplied text does not explain that discrepancy.

Why the court decided this way

The judge treated the question as whether the interests of justice justified overriding the complainant's privilege. Rares J described the privilege as a “very important right” and said it could be overridden in the circumstances only if the court were satisfied for the purposes of s 128(4)(b) that compulsion was in the interests of justice (paragraph 6). That framed the discretion as a balancing question, not as an automatic consequence of the accused identifying a potentially relevant line of questioning.

The accused's argument was that knowledge of possible ecstasy use might help the jury assess the complainant's memory and reliability. Rares J acknowledged that the proposed evidence might have “some capacity to inform the jury of a potential circumstance that may be relevant” (paragraph 4). But the judge identified an important evidential gap: the accused did not propose to lead evidence about the pharmacological or other effects of ecstasy on a person's mind, memory or understanding, or the period during which those effects might influence recall (paragraph 4).

The judge also addressed the limits of generalised evidence. Referring to Acama Pty Ltd v Ellis [2010] HCA 5 at [62] and State Government Insurance Commission v Laube (1984) 37 SASR 31 at 32–33, Rares J observed that general evidence about the effects of drugs or alcohol is not a particularly good or accurate guide to the impact on a particular individual (paragraph 5). The judgment invokes those authorities for that stated proposition. It does not discuss their facts or set out a broader account of their holdings.

A further consideration was the complainant's circumstances. She was an assistant in nursing and, as the judge understood it, pursuing a nursing career. Rares J was not satisfied that all possible consequences for her future career could be prevented if she were required to answer questions about alleged possession and use of illegal drugs (paragraphs 4 and 7). The reasons do not specify what those consequences might be, or determine that any particular professional consequence would follow.

Finally, the judge considered whether the issues could be put before the jury without requiring the complainant to answer. On the material then available, Rares J considered that the issues could be presented in a way that did not require the conclusion that the privilege should be overridden (paragraph 8). The judgment adds that the jury had already observed the complainant exercising her right not to answer, and that any use of that circumstance would be a matter for address (paragraph 9). The judge did not decide how counsel might address it or what use the jury could ultimately make of it.

Before and after state of the law

The judgment's legal discussion is limited to the application of s 128(4) and (5) of the Evidence Act 1995 (Cth) to the circumstances before Rares J. It is not a comprehensive account of the statutory privilege, its procedural steps, or the full effect of a certificate. The reasons state that the relevant statutory question was whether the interests of justice justified requiring the complainant to give evidence despite her claim that answers might tend to incriminate her (paragraphs 1, 3 and 6).

On the territorial point, the judge was satisfied that an answer would not tend to prove an offence or civil-penalty liability under a foreign country's law. The events were said to have occurred in the ACT and New South Wales. Rares J stated that a certificate under s 128(5) would protect the complainant from exposure to prosecution or civil penalty in either jurisdiction (paragraph 2). Having dealt with that point, the judge identified the “real question” as whether compulsion was in the interests of justice (paragraph 3).

The ruling's contribution is therefore case-specific. It illustrates that the existence of a possible connection between alleged drug use and a witness's recollection does not itself resolve the statutory question. The judge examined what evidence was actually proposed to establish that connection, including whether there would be evidence about effects and timing, and weighed that against the witness's privilege and the potential consequences identified in the material.

The supplied judgment does not establish a change in the law before or after this decision. It cites Acama and Laube for the limited proposition about the shortcomings of generalised evidence when assessing an individual person's response (paragraph 5). It does not describe the earlier state of the law, nor cite any later legislation or judgment. A reliable account of subsequent legal development would require sources beyond this judgment, which are not included in the supplied material.

Key passages with plain-English translation

At paragraph 3, the judge said that the “real question” was whether the interests of justice required the complainant to give evidence about alleged possession of an illegal drug. In plain English, the court did not treat the existence of the privilege as the only issue. It had to decide whether the case for compelling an answer was strong enough, in the circumstances, to justify overriding that privilege.

At paragraph 4, the judge accepted that the evidence might have some capacity to inform the jury, but recorded that no evidence was proposed about the effects of ecstasy on memory or the relevant period of those effects. Put simply, the proposed question was meant to support an argument about impaired recall, but the identified evidentiary material did not explain how the alleged drug use could have produced that impairment or how long any effect might have lasted.

At paragraph 5, Rares J stated that generalised evidence about drug or alcohol impacts was not a particularly good or accurate guide to the effect on a particular person. This is an important qualification in the reasons: a general proposition about substances does not, without more, demonstrate their effect on this complainant in the circumstances alleged.

At paragraph 6, the judge described the privilege against self-incrimination as a “very important right”. In plain English, the judge gave substantial weight to the fact that the complainant was not ordinarily compellable to answer questions that might expose her to criminal liability or a civil penalty. The judgment does not say that the privilege can never be overridden; it explains that, in this case, the statutory interests-of-justice threshold was not met on the material available.

At paragraphs 7 and 8, the judge considered possible effects on the complainant's future nursing career and whether the jury could be addressed on the issues without compulsion. These passages show that the decision took account of both the possible consequences for the witness and the possibility of presenting the defence's point without requiring the disputed answers.

What fact patterns trigger this precedent

The ruling is most relevant to applications seeking to compel a witness to answer questions that may tend to incriminate them, where the application is based on a proposed connection between the answers and the witness's ability to recall or perceive events. The particular setting here was a criminal trial, alleged drug use before the charged incident, and an argument that the jury should be able to assess the complainant's reliability with that information.

The reasoning is especially pertinent where the asserted relevance depends on an assumed effect of a substance on a specific person's memory or behaviour, but the proposed evidence does not address the nature or duration of the effect. Rares J did not say that questions about drug use are always irrelevant, or that such evidence can never justify compulsion. Rather, the judge assessed the proposed evidence in this application and found the evidential foundation insufficient to satisfy the interests-of-justice test.

The judgment may also be relevant where a witness identifies potential consequences beyond prosecution or civil penalty, such as possible effects on a professional career. Rares J considered that concern in the circumstances described, but did not make a general ruling about professional consequences or establish a general rule that such concerns prevent compulsion.

A lawyer or researcher applying the decision would need to distinguish cases with materially different proposed evidence, such as cases where specific evidence about timing, effects or an individual witness is available. The supplied judgment does not determine how such evidence would affect the balance.

How later courts have treated it

The supplied judgment contains no later decisions discussing R v Mayhew and provides no account of how subsequent courts have treated it. It is therefore not possible, from this source alone, to say whether later courts followed, distinguished, applied or questioned the decision.

Within its own reasons, Rares J cited Acama Pty Ltd v Ellis [2010] HCA 5 at [62] and State Government Insurance Commission v Laube (1984) 37 SASR 31 at 32–33 for the observation about the limits of generalised evidence on individual effects (paragraph 5). The judgment does not state that either authority decided the s 128(4) question raised in this case. It uses them for the narrower evidentiary observation.

The ruling itself is an interlocutory decision on the material then available. Its express qualification, “at this point” and “on the material before me” (paragraph 9), indicates that the conclusion was reached on the application and material presented at that stage. The source does not report any later ruling in the trial or any appeal.

Still-open questions

Several questions are left unresolved by the judgment. First, it does not set out the complete statutory procedure under s 128 or explain every circumstance in which an order under s 128(4) may be made. Its stated focus is the interests-of-justice requirement in s 128(4)(b) and the protection described under s 128(5).

Second, the reasons do not determine whether ecstasy was possessed or consumed, whether the complainant was affected by it, or whether her evidence was accurate. Those were not questions decided on this application. The judgment addresses the proposed questioning and the material said to support it.

Third, the reasons do not determine what use the jury could make of having observed the complainant decline to answer. Rares J said only that this would be a matter for address (paragraph 9). Nor does the judgment specify what submissions were made or what evidential rulings might govern any such use.

Fourth, the potential consequences for the complainant's nursing career are described at a high level. The judgment does not identify a particular regulatory, employment or registration consequence, and it does not set out what evidence supported the concern. It records the judge's lack of satisfaction that all possible consequences could be prevented (paragraph 7).

Finally, the source does not reveal whether further evidence could later be proposed about the effects of ecstasy, or whether a renewed application was made. The decision should therefore be read as the ruling on the material available at that time, rather than as a determination of every possible application concerning the complainant's evidence.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.