There can be instances where the prosecution requires witnesses to give evidence against family members. It should be noted that no witness needs to attend Court unless they have been served with a subpoena. If the witness is competent and does come to court, the Court must then determine whether or not they can be compelled to give evidence.

A family member can make an objection to give evidence pursuant to section 18 Evidence Act 1995 (NSW). The section provides that a witness can make an objection to give evidence against their spouse, de facto, parent or child. Section 18(6) Evidence Act 1995 (NSW) provides that a witness must not be required to give evidence if:

(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.

In considering the above the court is to consider section 18(7) of Evidence Act 1995 (NSW):

(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.

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

“The policy behind  section 18  is to be found in the Australian Law Reform Commission’s Report 26 Vol 1, Evidence Act [[1985] ALRC 26 at [59]];

A right to seek exemption is generally supported on two policy grounds:

(a) the undesirability that the procedures for enforcing the criminal law should be allowed to disrupt marital and family relationships to a greater extent than the interests of the community really require;

(b) the undesirability that the community should make unduly harsh demands on its members by compelling them where the general interest does not require it to give evidence that will bring punishment upon those they love, betray their confidences, or entail economic or social hardships.”

Generally speaking, the Courts may not compel witnesses to give evidence if it may lead to breakdown of the relationship between family members.

Pannu Lawyers are located conveniently close to Blacktown Local Court and appear daily in Local Court of NSW, District Court of NSW and the Supreme Court of NSW. If you are charged with criminal offences and/or traffic offences, call our office on 02 9920 1787 to make an appointment.