Police v Matthew Jones (a pseudonym) [2025] ACTMC 10 (8 May 2025)

Summary

In the case of Police v Matthew Jones (a pseudonym) [2025] ACTMC 10 (8 May 2025), Chief Magistrate Walker exercised the Court’s implied power to control its own proceedings by setting aside subpoenas issued to child witnesses. The case establishes that Courts may take the extraordinary step of intervening in prosecutorial discretion to protect children from a special risk of psychological harm. 

Facts 

Subpoenas were issued at the request of the Director of Public Prosecutions for children aged 11, 10, 9 and 4 (the children). The subpoenas required the children to give evidence in a prosecution against the defendant, who was their father. The defendant was charged pursuant to section 26(2) of the Crimes Act 1900 (ACT) with three counts of common assault, aggravated by being in the family violence context, against his 9-year-old son.  

The children were subject to interim care and protection orders under which the Director-General of the Community Services Directorate (DG) has parental responsibility. The DG applied to have the subpoenas set aside pursuant to rule 6604 of the Court Procedure Rules 2006 (ACT) (CPR), which provides as follows: 

6604 Setting aside subpoena or other relief 

1. On the application of a party or someone else having a sufficient interest, the court may set aside a subpoena completely or partly, or grant other relief in relation to it. 

… 

The DG argued that the children were vulnerable and would suffer greater harm if required to attend to give evidence. The DG submitted that the subpoenas were oppressive, in that complying with them would be cruel and amount to unfair treatment. The DG submitted that the community expectation would be that the Court would act in the best interests of the children, which could be determined having regard to the Children and Young People Act 2008 (ACT) (in particular, the objectives as listed in section 7, as well as the “best interests” considerations outlined in section 349). 

The defendant also submitted that in exercising discretion pursuant to rule 6604, the Court should consider the application of sections 11(2) and 30 of the Human Rights Act 2004 (ACT), which provides that every child has the right to protection and for legislation to be interpreted consistently with human rights respectively. 

The DG relied on the following evidence to establish that the children would suffer harm if required to attend Court: 

a) Affidavits of Children, Youth and Families case workers; and 

b) Expert reports from a psychiatrist and forensic psychologist. 

The prosecution submitted that granting the application would be a substantial departure from fundamental criminal justice principles relating to prosecutorial discretion, noting the relevance of the children’s evidence to the prosecution’s case.  

Decision 

The Court acknowledged the discretion afforded to the prosecution in being able to conduct its case, including the responsibility in deciding whether a person will be called as a witness. The Court quoted the case of R v Vilayur (No 2) [2024] ACTSC 2, where Justice McWilliam observed at [18] that: 

The principle operates as a broader proposition, in that the court generally does not scrutinise how the prosecuting authorities investigate or conduct the case, such as by ordering further inquiries to be conducted about a particular topic or that further witnesses be called: see R v Apostolides (1984) 154 CLR 563 at 576. The court will intervene only in limited circumstances, such as to ensure that a person is not tried unfairly and that its processes are not abused. 

Equally, the Court also considered that Rule 6604 of the CPR vests a broad discretion in the Court to set aside a subpoena either partly or entirely or, alternatively, to grant other relief in respect to it. The Court went on to consider that the discretion is intentionally broad, reflecting the wide range of circumstances in which a subpoena may be set aside.  

The Court drew an analogy with the case of R v YL [2004] ACTSC 115, in which the Court declined to compel a 7-year-old child to give evidence in criminal proceedings against his step-mother. Chief Magistrate Walker noted that the Court in R v YL observed at [30]-[33]: 

I see no reason to doubt that the Court has power to refuse to take coercive measures against a child in order to protect him from the risk of psychological harm to which he is vulnerable by reason of his age and position as a child in a family … Whilst I accepted that the child fell within the class of witnesses amenable to compulsion, it would, in my opinion, have been inappropriate to have applied any of these coercive measures to him. A seven year old boy could not be sensibly threatened with contempt proceedings and, save perhaps in the most compelling circumstances, such a child should clearly not be arrested, forced into court or intimidated in order to require him to give evidence when he might suffer significant psychological harm as a consequence of doing so. Children of that age should be protected by the law; not harmed by it. 

(Emphasis added) 

The Court ultimately set aside the subpoenas and identified at [65] that it was “one of the very rare occasions upon which it is incumbent on the Court to make a decision which does impinge upon prosecutorial discretion”. Chief Magistrate Walker concluded that there was a real likelihood of harm to the children (if required to give evidence against their father) beyond that of child witnesses generally. 

The Court made several inferences from the available evidence, including: 

1. there is a likelihood that the trauma of giving evidence per se in these proceedings will add to the psychological harm already experienced by these children; and

2. giving evidence in these proceedings has the potential to further damage the children’s relationships with each other as well as with their parents. 

Commentary 

From a human rights perspective, this case highlights the fine balance courts must strike between not impinging on prosecutorial discretion and, at the same time, protecting child witnesses. The Court in Police v Matthew Jones indicated that intervening on the prosecution’s case is not a decision that should be taken lightly, and it ought to be undertaken only on rare occasions.  

Police v Matthew Jones emphasises the importance of protecting child witnesses who may be subject to further harm, particularly in the family violence context. It reinforces that an increased sensitivity ought to be afforded to protect a child witness and that the potential impacts of giving evidence are critical considerations for a court (i.e. the likelihood of trauma and further damage to the child’s existing relationships).  

This case note was prepared by Sashank Krishnamoorthy at Norton Rose Fulbright.  The full case can be accessed here.