It’s no news flash to mention the increased State (and national) emphasis on family violence.

But it seems this focus is resulting in changes that the legal system was traditionally reluctant to embark on.

Victims as offenders

You might remember a few years ago the notorious case of R v Osland (1998) 197 CLR 316. Heather Osland and her son David Albion planned to kill Frank Osland, Heather’s husband and David’s step-father. On 30 July 1991 they dug a grave for him, and that evening Heather Osland put sedatives in his food. When he went to bed, David fatally hit him over the head with an iron pipe, and mother and son later buried Frank.

Heather Osland was convicted of murder; David Albion was acquitted of murder by a separate jury. Both Heather and David gave evidence of many years of violent behaviour by Frank Osland, and relied on that to support their case of self-defence and provocation.

Osland’s case was the one that brought ‘battered woman syndrome’ to the public consciousness, though it wasn’t accepted in her particular case.

Following a Queensland Law Reform Commission review of accident and provocation, the Queensland Parliament decided to take a different tack from that recommended by the Commission, and has just introduced the Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Bill 2009.

The Bill provides for a new s 304B in the Queensland Criminal Code, which will provide that a person in an abusive relationship who unlawfully kills another person in circumstances that would constitute murder will instead be guilty only of manslaughter.

Although not a complete defence, it goes some way to recognising the effect of continuing violence, especially in those cases where accident or provocation might not be available to a charge of murder. (The provision will not apply to lesser assault charges.)

I’m not aware of any suggestions this change is planned for Victoria, but given Rob Hulls’ reformist zeal, I won’t be surprised if something similar is considered.

Victims as unwilling witnesses

Sometimes, for various reasons, family violence witnesses decide they no longer wish to be a prosecution witness.

This happened in DPP v Nair [2009] ACTCA 17. (You might remember Dr Manhattan commented on it briefly in cross-examination of own witnesses.)

Edwin Nair was charged with assaulting his then girlfriend, Janelle Smith, and her friend Shannon Cooke. Shannon Cooke made a four-page statement to the police with a fair bit of detail about the alleged assaults.

At the trial, her evidence was much more vague and unhelpful to the prosecution.

The prosecutor applied to cross-examine her, relying on Evidence Act s 38 — which is the same as our Evidence Act 2008 s 38.

The judge rejected that application, and the DPP appealed.

[28] The Director submits that the trial judge erred in law in considering whether to grant leave under s 38(1) of the Evidence Act in that he required the prosecution to show that the witness was unwilling to tell the truth. In other words, he imposed a requirement relevant to the common law principles dealing with hostile witnesses, but not relevant to an application under s 38 of the Evidence Act.

[29] The trial judge was satisfied that Ms Cooke’s evidence fell within the terms of s 38(1)(a). In other words, he was satisfied that Ms Cooke’s evidence was unfavourable to the prosecution. The trial judge was also satisfied that Ms Cooke’s statement made on 8 October 2006 was a prior inconsistent statement within s 38(1)(c). The trial judge did not address the factors in s 38(6). He said, in the course of the second exchange, that the factors in s 192 were not relevant. Precisely what he meant by this is not entirely clear. At all events, he did not address the factors in s 192(2). The trial judge appears to have proceeded on the basis that he was not at the stage of considering the discretionary factors relevant to whether to grant leave because a necessary element to a successful application under s 38 of the Evidence Act was not present. The prosecution submitted that the necessary element imported into the exercise by the trial judge was the common law requirement of an unwillingness to tell the truth or at least the whole truth. That may be so, or it may be that the trial judge had in mind a variation of the common law requirement such as a motive in the witness or a reason for the witness to give untruthful evidence. It does not matter which of these alternatives is correct. Either way, the trial judge has imported into s 38 a requirement (as distinct from a relevant factor in a particular case) that is not justified by the terms of the section.

Besanko J considered the purpose of s 38:

[34] There is no doubt that s 38 was intended to, and does, relax the common law principles as to the circumstances in which a party may cross-examine his or her own witness.

His Honour then considered cases interpreting ‘unfavourable’, and noted a court considering an application under s 38 to cross-examine needed to consider sections:

• 38(6)
• possibly 135 and 137 (general discretion to exclude, and excluding prejudicial evidence), and
• 192 (leave given on terms)

Here, because the trial judge was satisfied the witness gave evidence unfavourable to the prosecution and made a prior inconsistent statement, leave to cross-examine should have been granted.

[43] In this case, the trial judge was satisfied that the requirements of paras (a) and (c) of s 38(1) were satisfied. In my respectful opinion, the trial judge erred in law in not then proceeding to consider the factors relevant to whether he should grant leave under the section including those set out in s 38(6) and s 192(2) of the Evidence Act. In my respectful opinion, the trial judge erred in law in imposing, as a necessary element of a grant of leave, a requirement that there be evidence of a motive or reason for the witness to give untruthful evidence.

We can probably expect to see s 38 applications feature in quite a few summary family violence cases come 1 January 2010.