R v Wright [2004] ACTSC 83 (3 September 2004)

Last Updated: 16 September 2004

R v WRIGHT

[2004] ACTSC 83 (3 September 2004)

CRIMINAL LAW - compellability - compellability of spouse - husband pleaded not guilty to charges of assault and assault occasioning actual bodily harm - domestic violence - whether spouse can be compelled to give evidence in these proceedings as a witness - s 18 Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth) ss 8(4)(a), 18, 18(2), 18(6), 19

Crimes Act 1900 (ACT) ss 3,4,26

Protection Orders Act 2001 (ACT) s 9(1), 9(2), 9(3)

Domestic Violence Act 1986 (ACT) s 27

Evidence Act 1971 (ACT) s 66(3)

Acts Interpretation Act 1901 (Cth) s 10A

Magistrates Court Act 1930 (ACT)

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT)

Protection Orders (Reciprocal Arrangements) Act 1992 (ACT)

Debates of the Legislative Assembly for the Australian Capital Territory (Hansard), 15 June 2001

Day v Adam; Ex Parte Day [1989] 2 Qd R 9

No. SCC 101 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 3 September 2004

IN THE SUPREME COURT OF THE )

) No. SCC 101 of 2003

AUSTRALIAN CAPITAL TERRITORY )

R

v

PETER GLENN WRIGHT

ORDER

Judge: Higgins CJ

Date: 3 September 2004

Place: Canberra

THE COURT RULES THAT:

1. The accused's spouse is, in this case, a competent and compellable witness.

1. On 21 June 2004, the accused, Peter Glenn Wright pleaded not guilty to charges alleging that on 29 March 2003 he assaulted his spouse Toni Kelly, occasioning actual bodily harm and, alternatively, that he assaulted her.

2. At trial, a question arose as to whether Ms Kelly was a compellable witness. Evidence was given following arraignment and empanelment of a jury that the accused and Ms Kelly had been lawfully married on 9 June 2002. That fact is conceded by the Crown.

3. Ms Kelly, in her evidence, avowed her intention, relying on the spousal privilege, apparently conferred by s 18(2) of the Evidence Act 1995 (Cth) ("Evidence Act 1995"), to decline to give evidence in the proceedings against her husband. The question is whether she can, in the circumstances, be compelled to give evidence in these proceedings.

4. First, I am satisfied that Ms Kelly is the accused's spouse and that she has objected to giving evidence in the proceedings prior to commencing to give such evidence. Thus s 18(6) of the Evidence Act 1995 is activated -

(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.

5. Section 19 qualifies the application of s 18. It states -

Section 18 does not apply in proceedings for an offence against or referred to in the following provisions:

(c) an offence that is a domestic violence offence within the meaning of the Domestic Violence Act 1986 of the Australian Capital Territory or an offence under section 27 of that Act.

6. The offences charged against this accused are offences against sections 24 and 26 of the Crimes Act 1900 (ACT) ("Crimes Act"). There is a definition of "domestic violence offence" in s 9(2) of the Protection Orders Act 2001 (ACT) ("Protection Orders Act"). It includes in s 9(2)(b) "a provision of the Crimes Act mentioned in schedule 1 (which deals with domestic violence crimes)".

7. Subsection 9(3) of the Protection Orders Act provides -

For this section:

Offence includes behaviour, wherever engaged in, that would be an offence if it were [sic] engaged in within the ACT.

8. Schedule 1 includes offences against sections 24 and 26 of the Crimes Act.

9. The submission for the accused relies upon the proposition that the Domestic Violence Act 1986 (ACT) ("Domestic Violence Act") has been repealed. Section 19 of the Evidence Act 1995 repeated the provisions of s 66(3) of the Evidence Act 1971 (ACT). It therefore, continued that provision in force without the need to include s 66(3) within the saving provisions of s 8(4)(a) of the Evidence Act 1995.

10. Further, by enacting the provision as part of a Commonwealth Act the interpretive assistance of the Acts Interpretation Act 1901 (Cth) ("Acts Interpretation Act") is attracted to the interpretation of sections 18 and 19 of the Evidence Act 1995. Section 10A is particularly relevant. It provides -

Where an Act contains a reference to a short title or other citation that is or was provided by the law of a State or Territory for the citation of a law of that State or Territory as originally enacted or made, or as amended, then except so far as the contrary intention appears -

(a) the reference shall be construed as a reference to that law as originally enacted or made, or as amended from time to time; and

(b) where that law has been repealed and re-enacted or re-made, with or without modifications, the reference shall be construed as including a reference to the re-enacted or re-made law as originally enacted, or made and as amended from time to time and, where, in connection with that reference, particular provisions of the repealed law are referred to, being provisions to which provisions of the re-enacted or re-made law correspond, the reference to those particular provisions shall be construed as including a reference to those corresponding provisions.

11. The opposing contentions are, from the accused, that the link between the "domestic violence offence" as defined by s 27 of the Domestic Violence Act and the same term as defined by s 9(2) of the Protection Orders Act has been broken. The Director of Public Prosecutions contends that the connection remains intact, having regard to s 10A, Acts Interpretation Act.

12. The two legislative provisions make reference to the same offences under the Crimes Act. The victim of the offences, to qualify as a "domestic violence offence" under the 1986 Act was defined as a "relevant person" (s3) that is -

(a) a spouse of the person;

(b) a child of a spouse of the person;

(c) a relative of the person; or

(d) a person who normally resides, or was normally resident in, the same household as the person (other than as a tenant or boarder).

13. Under the Protection Orders Act the domestic violence provisions also relate to a "relevant person" (see s 9(1)). A "relevant person" is defined as -

(a) a domestic partner of the original person; or

(b) a relative of the original person; or

(c) a child of a domestic partner of the original person; or

(d) someone who normally lives, or normally lived, in the same household as the original person (other than as a tenant or boarder).

14. The change from "spouse" to "domestic partner" clearly does not significantly alter the meaning of "relevant person" for the purposes of defining the person who is the victim of an alleged "domestic violence offence".

15. The Protection Orders Act has not only re-enacted the provisions of the Domestic Violence Act 1986 (ACT), it has incorporated those provisions with provisions, previously in the Magistrates Court Act 1930 (ACT), relating to the making of apprehended violence orders in respect of persons not in a domestic relationship. It has also incorporated provisions enabling "workplace orders" to be made to similarly protect employees at a workplace.

16. That the Protection Orders Act goes beyond mere re-enactment of the Domestic Violence Act is quite clear. However, the provisions previously included in the Domestic Violence Act are now found, substantially the same in that form in the Protection Orders Act.

17. The accused's counsel submits that the amalgamation of two (or more) enactments dealing with different, albeit related, subject areas, does not constitute a re-enactment or re-making of either of those prior enactments. Indeed, some provisions from the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) and the Protection Orders (Reciprocal Arrangements) Act 1992 (ACT) were also incorporated in the Protection Orders Act.

18. It is instructive to note portions of the Second Reading Speech (Debates of the Legislative Assembly for the Australian Capital Territory (Hansard), 15 June 2001, p 1818-9 -

The Government was keen that the review should simplify the current legislation in addition to fixing the technical defects. To this end, the Protection Orders Bill consolidates the protection order provisions of the Domestic Violence Act 1986 and the restraining order provisions in Part 10 of the Magistrates Court Act 1930 ... . The Protection Orders Bill provides a single consistent process for dealing with both restraining orders and protection orders ... . The Bill also contains a new definition of behaviour that under the current Magistrates Court Act provisions could be referred to as "restraining-order-type-violence" ... and the Bill uses a new term "personal violence" ... [and in relation to workplace restraining orders] the Bill takes a different approach to the current provisions of the Magistrates Court Act ... with the employer able to make an application on behalf of [an] employee ... Under the provisions of the Bill, the focus is on the workplace rather than the individual employees, with the employer becoming the aggrieved person for the purpose of making an application.

19. It is clear to me that, in repealing the provisions of the Domestic Violence Act, the ACT Legislature intended that the operative parts of that Act would be reproduced in the Protection Orders Act. The effect of the provisions of the Domestic Violence Act have been so reproduced and are to the same substantive effect. I have no doubt that the ACT Legislature intended that the offences charged in these proceedings should remain "domestic violence offences" for the purposes of the Crimes Act and the Evidence Act 1995.

20. However, the relevant legislative intent is that of the Parliament of the Commonwealth. The Commonwealth Evidence Act s 19 clearly, by excepting the "domestic violence" offences referred to, intended to remove the (qualified) spousal immunity provided generally in s 18 from those particular offences. The rationale is clearly that, in the case of domestic violence offences, there is a significant risk that the victim will be unduly influenced by the offender to withhold testimony necessary for conviction even though that is not the victim's true wish. Further, to remove the discretion from the spouse (no other witness, even if a related person can decline to give evidence) also removes a possible area of contention between the spouses. If the alleged victim has no privilege to assert, the alleged offender cannot blame the victim for submitting to the giving of evidence when validly summoned to do so.

21. It does not seem to me that, even having regard to the statements in Day v Adam; Ex Parte Day [1989] 2 Qd R 9, it can be concluded that the relevant provisions of the Protection Orders Act "expose a completely new statutory scheme and approach". (p.11)

22. I do not suggest that the representations made by the accused's spouse and her concerns as to the continuation of the prosecution are other than genuine but, in the absence of an application for and proper grounds being established for a stay of proceedings, I can only address the question before me.

23. I rule that the accused's spouse is, in this case, a competent and compellable witness.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 3 September 2004

Counsel for the Applicant: Mr R Thomas

Solicitor for the Applicant: Garry Bates & Co

Counsel for the Respondent: Mr J Lundy

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 21 June 2004

Date of judgment: 3 September 2004