Background
Conrad Lardner stands accused of murdering David Vale. Veronica Holten, a key witness, was in the vicinity when the fatal stabbing occurred and may have observed critical details. Holten objected to giving evidence for the prosecution under s 18 of the Evidence Act 1995 (NSW), which allows spouses, parents, and children of the accused to refuse to testify. Holten is not a biological child of Lardner but is a second cousin by marriage through his partner. She argued that she should be protected from testifying because she qualifies as a “child” under the Act’s extended definition.
The court heard the application over two days (6 and 8 July 2026), receiving psychological evidence and Holten’s affidavit concerning the nature of her relationship with Lardner and the potential harm of testifying. Holten is Dunghutti (Indigenous Australian), and the extended kinship structures within Indigenous communities formed a key part of her argument.
The Court’s Holding
Justice Campbell found that Holten satisfies the statutory definition of “child” under Part 2, clause 10(1)(b) of the Evidence Act Dictionary. This provision extends the definition beyond biological children to include a person “living with the person as if the child were a member of the person’s family.” The court established that three elements must be satisfied: (1) the person must be a child; (2) who is living with the defendant; and (3) as if a member of the defendant’s family. Critically, this relationship must form during the witness’s minority (before age 18), though it continues to afford protection into adulthood. The court found Holten lived with Lardner from approximately age 11 to 16, with Lardner and his partner providing shelter, education, parental guidance, and emotional support—including attending athletics carnivals, providing gifts, and teaching her to ride a motorcycle.
However, establishing that Holten is a “child” for purposes of s 18 was only the first step. The court then applied the mandatory balancing test under s 18(6), weighing the likelihood and extent of harm to Holten against the desirability of having her evidence. The court acknowledged genuine psychological, cultural, and spiritual harm: testifying against Lardner could violate Dunghutti community obligations of loyalty and damage her family relationship. However, the court found that the desirability of her evidence outweighed these harms. Holten was present at the scene, witnessed the confrontation between Lardner and Vale, may have heard significant admissions when she drove Lardner away from the scene, and possesses knowledge unavailable elsewhere. The court also noted that Lardner would understand that Holten testified under legal compulsion, not freely, thereby protecting the integrity of their relationship.
Key Takeaways
- The Evidence Act’s extended definition of “child” protects close family-like relationships formed during a person’s minority, even without biological or legal ties, if the person lived with the defendant as a family member.
- Indigenous kinship structures and cultural norms are relevant context for determining whether this relationship exists but must still satisfy the statutory elements of continuous co-habitation and family-like treatment.
- A witness compelled to testify despite family objections can still invoke s 18 protection; the court must balance real harms (psychological, relational, cultural) against the public interest in obtaining evidence.
- The fact that a compelled witness knows the defendant will understand her testimony is not voluntary provides some protection to the family relationship.
Why It Matters
This decision clarifies that the Evidence Act’s family privilege protections extend beyond traditional Western family structures and can accommodate Indigenous kinship systems without requiring formal legal recognition. Courts must take seriously both the existence of culturally significant family relationships and the real harm that compelled testimony can cause. However, the decision also establishes limits: even where a genuine and close family relationship exists, if the witness possesses material evidence in a serious criminal matter (here, murder), the public interest in truth-seeking may override family protection. The judgment provides detailed guidance on the three-part test for the extended definition of “child,” instructing that significant, continuous co-habitation with parental-level responsibilities and care are necessary—not mere occasional visits or casual boarding arrangements.