Edit: Because of the case of DPP v Easwaralingam & Anor [2010] VSC 437 I’ve read through Darmody again recently. It is impossible to reconcile this magistrate’s reasoning with the Court of Appeal’s decision and the wording of cl 4(c) of Pt 2 the Dictionary of the Evidence Act 2008.

In the pointed words of the NSW Court of Criminal Appeal in Brown, Barwick, Brown v R [2006] NSWCCA 69,

There are a number of errors in her Honour’s reasons …, the subject of this ground. A theme which runs through some of them is her Honour’s lack of attention to what the Evidence Act actually says.

Yesterday the Supreme Court delivered its judgment in DPP v Nicholls [2010] VSC 397.

The facts

The police evidence was that a woman attended the Pakenham Police Station in December 2008 and reported being assaulted by her de facto partner, the respondent. A statement was taken from her and she signed it. Her partner was arrested and interviewed.

He was later charged with offences under the Crimes Act 1958:

• making a threat to kill, contrary to s 20;
• intentionally causing injury, contrary to s 18;
• recklessly causing injury, contrary to s 18; and
• unlawful assault, contrary to s 22 of the Summary Offences Act 1966.

The case

A contested hearing occurred at the Dandenong Magistrates’ Court in February 2010. The complainant applied for and was granted an exemption from giving evidence under s 18 of the Evidence Act 2008.

When the complainant was excused from giving evidence the prosecutor sought to tender her statement under the exception to the hearsay rule at s 65. The magistrate refused to admit the statement and dismissed the charges at the ‘no-case’ stage of proceedings.

The magistrate gave the following reasons [recounted in the appeal at 14],

I have had a look at the Evidence Act. Effectively, in relation to this matter, section 18(7) allows me, which I already have done, that:

If there’s a likelihood that harm would or might be caused to the person or the relationship between the person and the accused if the person gives evidence, and the nature and extent of that harm outweighs the desirability of having the evidence given, then I must grant the exemption.

And clearly in relation to this matter [the complainant] has sought that exemption, and given public policy really requires me to grant it. In relation to section 65, the prosecutor put that given that she is not available to give evidence, her statement should be tendered through that section. I think that that is, although a clever argument, not one that is going to be sustainable. The reality is section 18 is in the legislation for a reason and that reason is to prevent both spouses and partners from being forced or compelled to given (sic) evidence against their husbands or partners. I have been using section 65 to circumvent that public policy consideration, is not an appropriate use for that section. And on a completely simple level the witness is available and sitting in court, and is simply refusing to give evidence.

That is not a situation where she is unavailable because she is overseas, which is where that section would often apply. Public policy is, therefore, on [the complainant]’s side in this matter. In relation to the no case submission, the prosecution case at its highest, has evidence of the informant and photos of [the complainant]. The problem is there is no evidence attached to the photos as to how the injuries occurred. The record of interview, although there are some admissions to grabbing and pushing, effectively denies all of the allegations put to me by the informant and corroborator. No evidence can be now led by the prosecution to support how [the complainant] sustained injuries to her arms in the photograph. Accordingly, I have been left with the position of no choice, but to grant the no case submission in this matter.

The appeal

The appeal by the DPP (on behalf of the police informant) advanced a number of grounds, which stated in different ways that the magistrate had erred in her refusal to admit the complainant’s statement, based on the finding that she was not unavailable.

The meaning of unavailable under the Evidence Act has been posted about here, here and here. It was discussed in R v Suteski (2002) 56 NSWLR 182; (2002) 137 A Crim R 371 and first received Victorian judicial consideration in R v Darmody [2010] VSCA 41. The Evidence Act 2008 provisions represent a substantial shift from the previous common law position.

Clause 4 of Schedule 2:

4 Unavailability of persons

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—

(a) the person is dead; or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence about the fact; or

(c) it would be unlawful for the person to give evidence about the fact; or

(d) a provision of this Act prohibits the evidence being given; or

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(g) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.

(2) In all other cases the person is taken to be available to give evidence about the fact.

The Supreme Court held there was no basis for distinguishing the legal availability from the physical availability of a witness.

Beach J [at 21]:

21 In my view, nothing in s 18 (or the policy underlying it) operates to limit the application of s 65 or the operation of clause 4 of Part 2 of the Dictionary. Section 18 permits a family member to be relieved of the obligation of giving evidence because of a possible likelihood that harm would be caused to the family member or to the relationship between that person and the defendant. However, the section says nothing about the use by the prosecution of a statement already given by the family member. The resolution of this appeal falls to be determined by construing the terms of clause 4 of Part 2 of the Dictionary.

22 Notwithstanding the identified difference between the circumstances of the authorities I have referred to and the circumstances of the present case, in my view, there is no relevant point of distinction. There is no relevant difference, for the purposes of s 65, between a refusal to give evidence that is without legal foundation and a refusal to give evidence that is authorised by an order of the Court. Further, in Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976, Hamilton J specifically accepted the possibility that clause 4(1)(f) had operation where a witness declined to give evidence on the ground of privilege. Whilst what Hamilton J said was only obiter, it is, in my view, correct and should be followed.

The matter was remitted to the Magistrates’ Court, to be dealt with by a different magistrate.