Compellability of Family Members in Domestic Violence or Child Assault ProceedingsStephen Dayeian
On 21 June 2018, s 279 of the Criminal Procedure Act 1986 (NSW) (“CPA”) was amended to make a child or parent of an accused person (if the accused person is over 18), in addition to a spouse or de facto partner of an accused person, compellable to give evidence for the defence or prosecution in proceedings in any court for:
- a domestic violence offence committed on the accused person’s child, parent, spouse or de facto partner; or
- a child assault offence committed on:
- a child living in the same household of the accused, or
- a child not living in the same household of the accused but is the child of the accused.
Prior to this recent amendment, and since 18 April 1983, this presumption of compellability only extended to a spouse or de facto partner of an accused person.
The reason why the application of s 279 of the CPA was broadened to cover an accused person’s parent or child was because it was recognised by Parliament that close family members are just as vulnerable to pressure from an accused person not to give evidence for the prosecution as the accused person’s spouse or de facto partner may otherwise be.
Notwithstanding this presumption of compellability, a child, parent, spouse or de facto partner of an accused person can make an application to the court to be excused from giving evidence against the accused person. However, the court will only grant this application if satisfied that:
- the application was made freely and independently of threat of any other improper influence by any person; and
- their evidence is relatively unimportant in establishing the facts to which they are being asked to give evidence, or there is other evidence available to establish those facts; and
- the offence with which the accused person is charged is of a minor nature.
Further, this application must be made in the absence of the accused person, for obvious reasons. Although, the Australian legal practitioner of the accused person may be present.