R v A1 (No. 2)

1. [1]

   JOHNSON J: In advance of the trial of the Accused, A1, upon a charge of murder, the wife of the Accused, C1, objected to being required to give evidence as a witness for the prosecution under s.18 Evidence Act 1995.

2. [2]

   It should be noted that pseudonyms are being used to describe the Accused, his wife and others as a result of orders made by the Court on 22 May 2019: R v A1 (No. 1) [2019] NSWSC 611.

3. [3]

   At the same time as the s.18 objection, I heard an associated application by the Crown that, if C1 was required to give evidence in the trial, she do so by means of audio-visual link.

Rulings Made on 23 May 2019

1. [4]

   At the conclusion of submissions on 23 May 2019, I made the following rulings concerning these issues (Pretrial T95, 23 May 2019):

2. [5]

   I indicated that I would publish my reasons for these orders at a later time. This judgment contains my reasons for these rulings.

Hearing of the s.18 Application

1. [6]

   As noted in R v A1 (No. 1) at [13]-[15], C1 appeared unrepresented on 20 May 2019 with respect to her objection under s.18 Evidence Act 1995. The Court was informed by the Crown that C1 had obtained legal advice through Legal Aid NSW prior to that date on the s.18 issue. When it became apparent that C1 wished to have the assistance of an interpreter, I stood over the s.18 application until 10.00 am on 22 May 2019 and requested that [language redacted] interpreter attend to assist C1. The Court also requested the Crown to make contact with the Public Defenders Chambers with a view to C1 receiving advice and representation at the continuation of the s.18 application.

2. [7]

   On 22 May 2019, Mr Wilson, Public Defender, appeared for C1 instructed by Legal Aid NSW. I record the Court’s gratitude for the considerable assistance provided by Mr Wilson at short notice in the hearing of the s.18 application.

3. [8]

   I was satisfied that C1 was aware of the effect of s.18 in accordance with the requirement in s.18(4): Tran v R [2017] NSWCCA 93 at [26]-[30].

4. [9]

   In support of the s.18 objection, Mr Wilson relied upon the evidence tendered by the Crown on the application for orders under the Court Suppression and Non-publication Orders Act 2010 which gave rise to my judgment in R v A1 (No. 1). This evidence comprised an affidavit dated 17 May 2019 of Samuel Amvrazis, the Crown’s instructing solicitor, which annexed to it a statement dated 11 December 2018 of [name and rank redacted], the Officer-in-Charge, and a report dated 17 January 2019 of Professor Karl Roberts. In addition, Mr Wilson relied upon the transcript of 20 May 2019 where C1 informed the Court of certain matters (by way of submissions) concerning the s.18 objection (Pretrial T31-38).

5. [10]

   Neither the Crown nor the Accused sought to adduce evidence on the s.18 objection.

6. [11]

   Mr Wilson provided helpful written submissions dated 22 May 2019 (Pretrial MFI3) and additional case references by email on 23 May 2019 (Pretrial MFI4).

7. [12]

   The Accused was given an opportunity to make submissions with respect to the s.18 objection in accordance with his entitlement to do so: Tran v R [2018] NSWCCA 145 at [28]-[41].

8. [13]

   Oral submissions were made on the s.18 objection by Mr Wilson, the Crown and Mr Chapple SC for the Accused (Pretrial T62-75; 78-95).

9. [14]

   As will be seen, the s.18 objection was argued initially by Mr Wilson upon the basis that there was a complete objection by C1 to giving any evidence in the trial of her husband, A1. The Crown joined issue on that application and submitted that the Court should determine that C1 ought be required to give evidence as a witness for the prosecution at the trial.

10. [15]

    Upon resumption of the pretrial hearing on the morning of 23 May 2019, I raised with counsel the question whether an objection under s.18 (and a ruling with respect to the objection) could relate to part of the evidence which the objecting person would give at trial, and not the whole of the evidence. In effect, the question raised was whether a s.18 ruling required an all-or-nothing determination.

11. [16]

    Mr Wilson (Pretrial T80), the Crown (Pretrial T82-83) and Mr Chapple SC (Pretrial T86-87) each accepted that the construction of s.18 left open the prospect of a ruling concerning objection to part of the evidence only, whilst stressing that it was a matter for the Court to determine this issue. I heard further submissions on this aspect and determined ultimately to make the rulings set out at [4] above.

The Crown Case and Evidence Concerning the Objection

1. [17]

   The Crown alleges that the Accused shot the deceased, C5, [redacted] at C5’s then place of residence at [location redacted] in [time and date redacted]. The deceased was shot [details redacted]. The Crown alleges that the shooting was premeditated and that the gunman lay in wait for C5 to return [time and location redacted] and shot him as he was entering [time and location redacted].

2. [18]

   The Accused, C1 and C5 were all immigrants from [redacted]. The Accused and C1 had resided in Australia for [redacted]. C5 was [redacted]. The Accused and C1 had sponsored C5 to come to Australia in [date redacted] in the expectation that C5 would marry C6, the daughter of C1 and the Accused. This did not occur. Rather, there was an altercation between the Accused and C5 at the Accused’s residence in [location redacted] on [date redacted] (for which there are rival explanations provided by the Accused and C5). This incident resulted in C5 permanently leaving the Accused’s address. C5 did not inform the Accused of his new address at [location redacted].

3. [19]

   It is the Crown case that the Accused [accused’s belief about deceased’s conduct redacted] It is the Crown case that the Accused considered that the [conduct of the deceased redacted] dishonoured the Accused and his family and, as a consequence, the Accused took retributive action. The Crown says that the Accused’s [accused’s belief about deceased’s conduct redacted] coupled with his cultural background, constituted the motive for the killing.

4. [20]

   It was C5 who attended the [location redacted] Police Station on [date redacted] complaining about the incident involving the Accused. On [date redacted], C5 was concerned that [redacted]. C5 made a “000” call and attended the [location redacted] Police Station that evening to report his concerns to police. On [date redacted], C5 made an application at the [location redacted] Local Court for apprehended violence orders against the Accused. This application had not been heard at the time of C5’s death on [date redacted].

5. [21]

   The Crown case against the Accused may be described as a multi-faceted circumstantial case.

6. [22]

   C1 has made five statements to police (between [dates redacted]) during the course of the investigation of the murder of C5. However, she has refused to provide a statement concerning [conduct of the deceased redacted], expressing a fear to police of being killed by [identity of third parties redacted] if she did so.

7. [23]

   Detective [name and rank redacted] has concerns for the safety of C1 and has offered witness protection to her, but C1 has declined as she is reluctant to move her children away from their schools.

8. [24]

   Against this background, Detective [name and rank redacted] sought advice from Professor Roberts of the School of Social Sciences and Psychology at the Western Sydney University. Professor Roberts is an expert in the field of honour killings. Put shortly, Professor Roberts indicated that the matter appeared on its face to involve the murder of C5 as a form of honour violence or honour killing. Professor Roberts indicated that culturally such a practice serves to regain honour publicly in response to perceived wrongdoing. Professor Roberts stated that this practice occurs in a number of communities including the [redacted] community. He stated that the practice is not limited to a man killing a woman and it is seen across a multitude of family and community relationships.

9. [25]

   It was evidence of this type which provided the foundation for the Crown application for orders under the Court Suppression and Non-publication Orders Act 2010 which were made on 22 May 2019: R v A1 (No. 1).

10. [26]

    In addition to the evidence placed before the Court by the Crown and relied upon by Mr Wilson in support of the s.18 objection, it is appropriate to refer as well to fears expressed to the Court directly by C1 on 20 May 2019 (Pretrial T38).

Relevant Statutory Provisions

1. [27]

   A number of provisions in the Evidence Act 1995 are relevant to this objection.

2. [28]

   Section 12 provides:

3. [29]

   Section 18 states:

4. [30]

   Section 20 is in the following terms:

5. [31]

   Section 19 Evidence Act 1995 has no application to this case. Nor does s.279 Criminal Procedure Act 1986 as the alleged murder of C5 by the Accused does not fall within the terms of a “domestic violence offence” for the purpose of that provision.

Consideration of s.18 Evidence Act 1995

1. [32]

   The effect of the Evidence Act 1995, in particular ss. 12 and 18, is to create a statutory scheme concerning the compellability of a spouse and the procedure for a Court to undertake where the prosecution seeks to call the spouse of the Accused to give evidence at the criminal trial of the Accused and the spouse objects to giving evidence. It has been said that there is no room to read down the clear meaning of these provisions by the application of any earlier common law presumptions: R v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83 at 475-476 [47]-[54].

2. [33]

   In LS v Director of Public Prosecutions (NSW) (2011) 81 NSWLR 551; [2011] NSWSC 1016 at 559-560 [38], reference was made to the second reading speech for the Evidence Bill 1995 concerning what is now s.18 of the Act (emphasis added):

3. [34]

   Reference has been made in the authorities to the Report of the Australian Law Reform Commission which forms an important part of the background to the Evidence Act 1995.

4. [35]

   In Fletcher v R (2015) 45 VR 634; [2015] VSCA 146, Dixon AJA (Weinberg JA agreeing) said at 644 [55]:

5. [36]

   In R v Rogerson; R v McNamara (No. 1) [2015] NSWSC 592, Bellew J said at [98]:

6. [37]

   As might be expected, the construction and operation of s.18 have been considered largely in decisions of single trial Judges.

7. [38]

   In R v A2 and Others (No. 4) (2015) 253 A Crim R 574; [2015] NSWSC 1306 at 580 [143]-[145], I said with respect to s.18(6):

8. [39]

   After considering the non-exhaustive list of mandatory factors under s.18(7), I said in R v A2 (No. 4) at 582-583 [168]-[169]:

9. [40]

   In R v Rogerson; R v McNamara (No.1), Bellew J said at [78]-[81] with respect to s.18:

10. [41]

    Bellew J continued at [82]-[85] to consider the two separate kinds of harm referred to in s.18(6), being the likelihood of harm to the person and harm to the relationship between the family member and the Accused. After considering the mandatory factors contained in s.18(7), Bellew J at [97] referred to other factors which were relevant to the balancing exercise:

11. [42]

    In R v Barakat; R v Younes (No. 3) [2016] NSWSC 1256, N Adams J said at [26]-[28]:

12. [43]

    Other decisions on s.18 objections have focused upon the second leg in s.18(6)(a) concerning likelihood of harm to the relationship between the witness and the Accused: R v Khan (Hidden J, unreported, 22 November 1995) (objection by wife upheld); R v Jacobson (No. 1) [2014] VSC 188 (objection by daughter overruled) and R v Quinn (No. 1) [2016] NSWSC 1101 (objection by mother upheld).

13. [44]

    Although the first leg in s.18(6)(a) concerning harm to the witness has been invoked in cases of psychological harm (usually associated with harm to the relationship as well), the risk of physical harm to the witness appears to have been relied upon only in R v Barakat; R v Younes (although associated, once again, with harm to the relationship).

14. [45]

    The present s.18 objection is unusual in that it focuses on the first leg of s.18(6)(a) in the form of physical harm to C1 if she gives evidence on one discrete topic.

Submissions With Respect to the s.18 Objection

1. [46]

   Mr Wilson submitted that the Court should not require C1 to give evidence over her objection because the Court would find, for the purposes of s.18(6), that:

2. [47]

   Mr Wilson submitted that the evidence that the murder was an honour killing is strong and comprises evidence in various forms apart from any potential evidence which would flow from C1 on this issue.

3. [48]

   It was submitted for C1 that there was evidence that there is a likelihood that harm might come to C1 if she was required to give evidence concerning [conduct of the deceased redacted]. Reliance was placed upon the Crown evidence used successfully to obtain non-publication and pseudonym orders.

4. [49]

   Counsel submitted that the Crown case concerning the motive alleged against the Accused was based upon his belief [conduct of the deceased redacted], and that it was neither necessary nor relevant to issues in the trial that C1 be asked to give evidence [conduct of the deceased redacted].

5. [50]

   It was submitted that it was inevitable that C1 would suffer harm flowing from genuine and ongoing fear for her life should she be required to give evidence and that it was likely that actual physical harm might be caused to her if required to give evidence.

6. [51]

   By reference to the factors in s.18(7), Mr Wilson conceded that the nature and gravity of the offence being prosecuted is of the most serious kind: s.18(7)(a). With respect to s.18(7)(b) and (c), Mr Wilson submitted that the substance and importance of the evidence, and the weight likely to be attached to it, was not significant in this case and that other evidence of the relevant matters is available to the Crown. He submitted that s.65 Evidence Act 1995 may be relied upon for the admission of C1’s statements in evidence at the trial.

7. [52]

   With respect to s.18(7)(d), Mr Wilson accepted that there is no evidence about the present nature of the relationship between C1 and the Accused. He submitted, however, that this is not a case where potential harm to the relationship is relied upon in support of the objection. Rather, the objection is based upon the potential for actual physical harm to C1, being the first limb of s.18(6)(a) of the Act.

8. [53]

   Mr Wilson acknowledged that the evidence does not involve disclosure of a matter received in confidence by C1 from the Accused so that s.18(7)(e) provided no assistance to the objection.

9. [54]

   Counsel for C1 submitted that the grave nature of the harm outweighed what was said to be limited probative value of the evidence of C1, in circumstances where there is other clear and direct evidence of the Accused’s belief upon which the Crown may rely to establish motive.

10. [55]

    With respect to the all-or-nothing construction issue concerning s.18, Mr Wilson acknowledged that there was evidence which C1 was able to give on a range of topics relating to the Crown’s circumstantial case which did not give rise to the risk of harm advanced on her behalf. It was accepted that the concerns in this case related directly to any requirement that C1 give evidence of [conduct of the deceased redacted]. Accordingly, Mr Wilson accepted that, should the Court accept that it was open to sever that part of C1’s evidence for the purpose of a s.18 objection, then a ruling which did not require her to give evidence on that topic would effectively meet the basis of the objection in this case (Pretrial T 79-82, 85-86, 91-92).

11. [56]

    The Crown initially contested C1’s objection to the extent that it was, at that stage, an objection to her being required to give any evidence in the trial of the Accused (Pretrial T 67-73, 74-75). The Crown emphasised that there were a number of areas of evidence which would be sought from C1, as part of the Crown circumstantial case, which did not require questions to be asked of her as to [conduct of the deceased redacted]. It was submitted that these areas were important to the Crown case and that, without the evidence of C1, these parts of the evidence may not be placed before the jury in a complete and coherent way. The Crown accepted that, if an order was made which was confined to that part of her evidence, then the prejudice to the Crown if not being able to call her as a witness would be effectively removed (Pretrial T 83-85, 92).

12. [57]

    Mr Chapple SC, for the Accused, accepted that it was open to the Court to sever the area of evidence which was of particular concern for the purpose of the s.18 objection. He accepted that the Accused would not be prejudiced if the Court did not require C1 to give evidence concerning [conduct of the deceased redacted] (Pretrial T 90-91).

Decision on s.18 Objection

1. [58]

   In the present case, the emphasis of the objection relates solely to the likelihood of physical harm to C1 if she is required to give evidence at the trial of her husband with respect to [conduct of the deceased redacted]. No reliance is placed upon the second leg of s.18(6)(a), being likelihood of harm to the relationship between C1 and her husband, the Accused. I approach the matter upon the basis that C1 holds real and genuine concerns about harm which may be visited upon her if she was required to give evidence as to [conduct of the deceased redacted]. The risk of harm to her lay at the heart of the Crown application under the Court Suppression and Non- publication Orders Act 2010 which led to orders being made in R v A1 (No. 1).

2. [59]

   Although the policy reasons underlying s.18 have been expressed more in terms of the risk of harm to the relationship between the spouse and the Accused, the clear words of s.18(6) refer to a separate category of “harm” to the person. The word “harm” should be construed widely and not constrained artificially. It is not to the point that it may be possible for a person in C1’s position to obtain a measure of protection by agreeing to give evidence on behalf of the Crown and being subject to the Witness Protection Act 1995. As the evidence indicates, C1 has understandable concerns as to how the Witness Protection Act 1995 could apply to her and her family commitments and responsibilities with children. The Crown did not submit that the theoretical availability of the Witness Protection Act 1995 was a factor to be taken into account in overruling C1’s s.18 objection.

3. [60]

   In the unusual circumstances of this case, I accept that there are real and genuine concerns as to harm being caused to C1 if she was required to give evidence at the trial of the Accused as to [conduct of the deceased redacted]. I am satisfied that the relatively low threshold in s.18(6)(a) has been met in this case.

4. [61]

   In undertaking the balancing exercise which arises next, it is necessary to have regard to the non-exhaustive list of mandatory factors in s.18(7) for the purpose of considering whether the nature and extent of the harm outweighs the desirability of having C1 give evidence in the trial of the Accused.

5. [62]

   Section 18(7)(a) requires the Court to consider the nature and gravity of the offence which the Accused has been prosecuted. The crime of murder is very grave so that this aspect operates strongly in favour of the Crown.

6. [63]

   With respect to s.18(7)(b) and (c), it is necessary to consider the substance and importance of any evidence that C1 might give and the weight that is likely to be attached to it, together with the question whether any other evidence concerning the matters to which C1’s evidence would relate is reasonably available to the Crown. The real issue in the trial is whether the Crown can prove that it was the Accused who killed C5. I accept that the principal relevance of [conduct of the deceased redacted] concerns the Accused’s motive. The alleged motive is based upon the Accused’s belief [conduct of the deceased redacted]. I accept Mr Wilson’s submission that the truth or otherwise of what the Accused believed (other than it was a genuine belief) is of minimal additional probative value.

7. [64]

   In any event, there is abundant evidence of the Accused’s belief [conduct of the deceased redacted] in other evidence which the Crown proposes to rely upon at the trial. There are text messages from the Accused to [redacted] demonstrating his belief [conduct of the deceased redacted] and text messages from the Accused to [redacted] referring to “honour themes”. In addition, there are references in the Accused’s interviews with police to what could be described as “honour themes”, and the consequences for someone [conduct and consequences redacted] The Crown proposes to adduce evidence from Professor Roberts concerning the honour culture which operates with respect to the Accused [redacted].

8. [65]

   Apart from this, there is also evidence [details of other evidence of conduct of deceased redacted].

9. [66]

   To the extent that the Crown seeks to rely upon [conduct of deceased redacted], as opposed to the Accused’s belief that [conduct of deceased redacted], there is a substantial body of evidence available to the Crown already without any direct evidence from C1 as to [conduct of the deceased redacted].

10. [67]

    There are, however, a number of areas where the evidence of C1 will be significant to the Crown case. It explains C5’s arrival in Australia and a number of events, including the location of [redacted] persons at different times and relevant addresses and vehicles (and other areas) where the direct evidence of C1 is important to the Crown case. The Crown relies upon a circumstantial case with many components and some of these components may only be linked in an effective way by the evidence of C1 herself. Evidence in these areas may be given by C1 without her being asked [conduct of the deceased redacted].

11. [68]

    For the purpose of s.18(6)(a), I was satisfied that there was a real risk of harm to C1 if she gives evidence at the trial of [conduct of the deceased redacted]. I was not satisfied that there was a risk of harm to the relationship between C1 and the Accused.

12. [69]

    Having undertaken the balancing exercise under s.18(7), I was satisfied that the oral evidence of C1 was important to the Crown case in a range of areas apart from [conduct of the deceased redacted]. I did not consider that the availability of the mechanism contained in s.65 Evidence Act 1995 constituted a satisfactory way to present the evidence of C1. Accordingly, the Crown case would be harmed if C1 was not required to give evidence in those areas.

Can a s.18 Ruling Operate to Sever Questions Concerning Particular Topics?

1. [70]

   It was because of this analysis that I considered the question as to whether a ruling on a s.18 objection could require a witness to give evidence on some areas, but not others. This was of particular importance in this case as the s.18 objection was argued upon the basis that it was one confined area of evidence only which gave rise to the likelihood of harm to C1. It was not submitted that this was, in effect, an all-or-nothing situation where the likelihood of harm arose from the fact that C1 gave evidence at all.

2. [71]

   As noted earlier, each counsel accepted that the proper construction of s.18 permitted the Court to effectively sever part of the proposed evidence of a witness and not require the witness to give evidence in that area, but to otherwise require the witness to give evidence at the trial of the Accused. Counsel made clear that it was a matter for the Court to consider the proper construction of s.18 to determine whether this course was open. It is to that issue which I now turn.

3. [72]

   It does not appear that there is any authority which bears on this question. In “Uniform Evidence Law”, Law Book Co, 13th edn, Mr Odgers SC expresses the view that, apart from an objection under s.18(2)(b), to giving evidence of a communication between the person and a defendant, the objection must be made and ruled upon with respect to all the evidence the witness may give. Mr Odgers SC said at [EA.18.90] (emphasis added):

4. [73]

   In Williams, Anderson, Marychurch and Roy, “Uniform Evidence in Australia”, LexisNexis Butterworths, 2nd edn, 2018, the authors state at [18-5]:

5. [74]

   It appears that the authors base this statement on the terms of s.18(2).

6. [75]

   It may be taken that s.18(2)(b) constitutes an express category of evidence which may be the subject of an objection for the purpose of the provision. Beyond that, it is necessary to consider the terms of the section, and its statutory purpose and object, for the purpose of determining whether an objection requires an all-or-nothing ruling apart from a s.18(2)(b) objection: s.33 Interpretation Act 1987.

7. [76]

   Although it be the case that the likelihood of harm to the relationship between the person and the accused may be activated by the giving of any evidence by the person against the particular accused, it must be kept in mind that there is a separate category of harm referred to in s.18(6)(a), namely likelihood of harm to the person.

8. [77]

   It may be taken that there is a wide, if not infinite, variety of circumstances which may give rise to a likelihood of harm (whether physical or emotional) to a spouse so that the adoption of an all-or-nothing approach to a s.18 objection may not serve the purpose or object of the provision. If, as in the present case, it may be seen that there is one specific area of evidence that gives rise to the likelihood of harm to the person, but that there are other areas of significant evidence which that person can give if called as a witness for the Crown, how does it serve the purpose or object of s.18 to require a ruling that the witness must give evidence on all topics or not on any topics at all?

9. [78]

   It may be seen that s.18(7)(b) refers to "the substance and importance of any evidence" and that s.18(7)(c) refers to "whether any other evidence concerning the matters" is available to the Crown. The language of s.18 does not appear to be intractable in requiring an all-or-nothing approach with respect to evidence which the witness may give. If an all-or-nothing approach was taken in this case, then a requirement that C1 gives evidence on all topics would give rise to a likelihood of harm to her. On the other hand, a ruling that she not be required to give evidence at all would cause significant prejudice to the Crown, and be contrary to the public interest in having evidence available to be given in the trial of the Accused on a very serious charge.

10. [79]

    There is nothing in the extrinsic material bearing upon s.18 which supports an all-or-nothing approach to the issues. I do not think that the language of s.18(2)(b) is such that it ought be concluded that the subject matter of that provision is the only severable category of evidence which is open to the Court in determining a s.18 objection.

11. [80]

    It is true that there are other provisions in the Evidence Act 1995 concerning objections on the grounds of privilege which make it clear that an objection may relate to particular evidence. For example, s.128(1) applies "if a witness objects to giving particular evidence, or evidence on a particular matter" on the grounds of self-incrimination or exposure to a civil penalty. The language used in s.128 is understandable given that an area of self-incrimination is likely to arise from a particular matter or part of a witness' evidence only, so that the section recognises this feature expressly. I do not think the language of s.128 provides any assistance in the proper construction of s.18. Consideration of provisions concerning other areas, such as client/legal privilege (ss.117-126) and other forms of privilege in Part 3.10 Evidence Act 1995, do not assist the resolution of the present objection.

12. [81]

    This is a highly unusual example of a s.18 objection. I was satisfied that it is open to the Court to excise evidence on a particular topic, and not require C1 to give evidence on that topic, where it is that topic which is the source of a likelihood of harm to the person in the circumstances of the case. This aspect was recognised readily by Mr Wilson in the course of his able submissions on behalf of C1.

13. [82]

    I was satisfied that the balancing exercise required in determining the s.18 objection should lead to the objection being overruled except for evidence as to [conduct of the deceased redacted].

14. [83]

    Being satisfied that it is open to the Court to sever the area of evidence in this way for the purpose of a ruling on a s.18 objection, I determined on 23 May 2019 to make the ruling set out at [4] above.

Comment to the Jury Concerning the s.18 Objection and Ruling

1. [84]

   In light of the foreshadowed ruling which would uphold the s.18 objection in part only, I invited counsel to assist the Court with submissions concerning the operation of ss.18(8) and 20 Evidence Act 1995 in the circumstances of this case.

2. [85]

   In my view, when C1 is called to give evidence by the Crown, but is not asked a question as to [conduct of the deceased redacted] (and with no cross-examination on this topic either), there is a prospect that the jury may enquire as to why this topic was not the subject of her evidence in the trial.

3. [86]

   Section 18(8) makes clear that the prosecution may not comment in the manners identified in that provision.

4. [87]

   Section 20(3) and (4) provide that the Judge or the Accused (but not the Crown) may comment on a failure to give evidence by a person who, at the time of the failure was the Accused's spouse. However, a comment of the kind referred to in s.20(3) must not suggest that the spouse failed to give evidence because the Accused was guilty of the offence concerned, or that the spouse believed that the Accused was guilty of the offence concerned: s.20(4).

5. [88]

   It seems to me that it is open to the Court to inform the jury that C1 was not required to give evidence as to [conduct of the deceased redacted] because of a ruling by the Court on that issue. In the course of his helpful submissions, Mr Wilson submitted that it would be open to the Court to deal with the matter neutrally and to inform the jury that C1 "had taken an objection to giving evidence in this particular [redacted] area" and that "there are legal reasons why [the Court] upheld that objection" so that the jury will not hear from C1 on that topic (Pretrial T85-86).

6. [89]

   It was accepted by the Crown and Senior Counsel for the Accused that a comment of that type would be appropriate in the circumstances of this case (Pretrial T86-92).

7. [90]

   I accept that the formula of words suggested by Mr Wilson is appropriate and does not contravene any provision in ss.18 or 20 of the Act.

8. [91]

   Before saying anything to the jury on this issue, however, I will hear counsel on the question of what may (and may not) be said to the jury.

Evidence of C1 by Audio-Visual Link

1. [92]

   As C1 is to give evidence in the trial, and the Crown had applied that she give evidence by means of audio-visual link, it was necessary for the Court to consider s.5B Evidence (Audio and Audio Visual Links) Act 1998 in that respect.

2. [93]

   For the purpose of s.5B(2) of that Act:

3. [94]

   As the parties to the proceedings (the Crown and the Accused) did not oppose the making of a direction for the use of audio-visual link, it was not necessary to consider the additional factor arising under s.5B(3) of the Act.

4. [95]

   I was satisfied that it was appropriate that C1 give evidence by means of audio-visual link in the presence of the jury at the trial of the Accused. Mr Wilson indicated that it may be that C1 will elect, in light of the ruling on the s.18 objection, to give evidence in person in the courtroom. If that course is adopted, then it will not be necessary to utilise the audio-visual link facilities. If, however, C1 wishes to give evidence by audio-visual link before the jury at the trial, then an order has been made for that purpose and it may be acted upon when the time comes.

Conclusion

1. [96]

   It was for the reasons contained in this judgment that I made the orders on 23 May 2019 as set out at [4] above.