Citation: Kaddour v R [2013] NSWCCA 243
Court: Court of Criminal Appeal, NSW
Date: 31 October 2013
Judges: Latham J, Harrison J, Garling J
Background
The appellant faced a single charge in the Sydney District Court of conspiring to manufacture a prohibited drug in a large commercial quantity. The Crown's case rested almost entirely on intercepted telephone calls, some of which the appellant argued revealed other serious criminal activity on his part.
The appellant sought to have those intercepted calls excluded under s 137 of the Evidence Act 1995, which permits a court to exclude prosecution evidence whose probative value is outweighed by the danger of unfair prejudice. To support that application on the voir dire (a preliminary hearing conducted in the absence of the jury to determine an evidentiary question), the appellant indicated he would need to give evidence himself but would object to answering questions that might incriminate him in relation to the other conduct disclosed by the calls.
Counsel for the appellant applied in advance for a certificate under s 128 of the Evidence Act, which protects a witness from having their compelled testimony used against them in other proceedings. The trial judge, Bennett DCJ, refused to grant the certificate. The appellant appealed that refusal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912, and the Crown raised a preliminary challenge to the competency of that appeal.
Legal Issues
- Whether the trial judge's refusal to grant a s 128 certificate constituted an "interlocutory judgment or order given or made in proceedings" within the meaning of s 5F(3) of the Criminal Appeal Act 1912, so as to be susceptible to appeal.
- Whether an accused person who is not compellable to give evidence can properly "object" to giving evidence within the meaning of s 128(1) of the Evidence Act, so as to be entitled to seek a certificate.
- Whether the trial judge erred in refusing to grant the certificate.
Decision
On jurisdiction: Harrison J, with whom Latham J and Garling J agreed, held that the appeal was competent. The refusal to grant the certificate was characterised as an interlocutory judgment or order within s 5F(3). Unlike a ruling on the admissibility of evidence, which can be revisited as a trial evolves, the refusal to grant a s 128 certificate in this case was final in character. The Crown's evidence was fixed and would not change, and accordingly the basis for the appellant's objection would remain unaltered throughout the trial.
On whether s 128 applied: The court rejected the appellant's substantive arguments. Section 128 protects a witness who "objects" to giving evidence on the ground that it may tend to prove they committed an offence. Critically, however, that protection is available only to a witness who is being compelled to give evidence. An accused person in a criminal trial is not a compellable witness; they cannot be required to give evidence, and no sanction attaches to a refusal to do so.
The court held that the appellant's sense of being "pressured" by tactical or strategic circumstances did not equate to compulsion in the legal sense. He retained complete control over the decision whether to give evidence. Because no court or external authority could require him to testify, he was not in a position to "object" in the manner contemplated by s 128, and the precondition for granting a certificate was therefore not met.
The court found support for this conclusion in the Court of Appeal's decision in Song v Ying and the High Court's analysis in Cornwell v The Queen, both of which treated compellability as a relevant precondition to the operation of s 128. The appeal was dismissed.
Orders Made
• The appeal is dismissed.
Key Takeaways
- Section 128 of the Evidence Act 1995 operates only in favour of a witness who is compellable to give evidence. A witness who cannot be required to testify, and who faces no sanction for declining, cannot engage the section by claiming to "object."
- An accused person in a criminal trial is not a compellable witness. Tactical or strategic pressure to give evidence does not transform a voluntary decision into compelled testimony within the meaning of s 128.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the distinction between compulsion and self-induced tactical necessity is a substantive one, not a matter of form.
- A trial judge's refusal to grant a s 128 certificate can, depending on the circumstances, constitute an "interlocutory judgment or order" under s 5F(3) of the Criminal Appeal Act 1912 and therefore be susceptible to appeal. The key factor was the finality of the ruling in circumstances where the evidentiary landscape was unlikely to change.
- Rulings that explore legal doctrine or determine questions of law as a precursor to admissibility decisions do not automatically fall outside s 5F, though the Court noted the importance of confining interlocutory appeals within strict limits to prevent incremental erosion of the principle that admissibility rulings are not individually appealable.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 26
- Evidence Act 1995 (NSW), ss 128, 137
Cases:
- Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260
- Song v Ying [2010] NSWCA 237; (2010) 79 NSWLR 442
- Hall v The Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423
- R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296
- Sasterawan v Morris [2010] NSWCCA 91; (2010) 201 A Crim R 302
- R v Marchione [2002] NSWCCA 131; (2002) 128 A Crim R 574
- R v Steffan (1993) 30 NSWLR 633
- W O v Director of Public Prosecutions [2009] NSWCCA 275
- Michael v R [2012] NSWCCA 164
- Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281
- Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486