Citation: R v Hunter (No 11) [2014] NSWSC 1154
Court: Supreme Court of New South Wales
Date: 14 July 2014
Judge: Button J
Background
This decision arose during a criminal trial before Button J in the Supreme Court. A witness, referred to by his role as a prospective trial witness, was expected to object to giving evidence on the basis that it might incriminate him. That objection would be made under section 128 of the Evidence Act 1995 (NSW), which allows a court to grant a certificate protecting a witness from having their compelled testimony used against them in future proceedings.
The same procedure had already been applied to a previous witness in the same trial, who had been granted a section 128 certificate and whose jury had been briefly informed of that fact and its effect.
The question before the court was a procedural one: if the anticipated section 128 certificate were granted to the incoming witness, should the jury be told about it?
Legal Issues
- Whether the jury should be informed of the grant of a section 128 certificate under the Evidence Act 1995 (NSW) and its general effect
- Whether any existing appellate authority provided guidance on this question
- Whether consistency with the prior treatment of another witness in the same trial was a relevant consideration
Decision
Button J indicated, by way of ex tempore ruling, that he would inform the jury if a section 128 certificate were granted. His Honour offered four reasons for this approach.
First, the court considered it "highly artificial" for the jury to remain ignorant of such a significant aspect of a witness's evidence. Second, the same procedure had already been adopted for a previous witness in the trial, and departing from it without explanation could create an inconsistency that might itself invite jury speculation.
Third, the court observed that the objection itself would be taken in the jury's presence. It would be unusual to then return the jury to court and say nothing about the outcome. Fourth, given the evidence on the voir dire (a hearing conducted in the jury's absence to resolve a legal question) about the witness's history of inconsistent statements, the existence of the certificate was likely to emerge in evidence anyway through the operation of sections 38, 55, 103, and 137 of the Evidence Act.
Button J acknowledged there was no explicit appellate guidance from the Court of Criminal Appeal or the High Court on this precise question, and accepted that the discussion in R v Macarthur [2005] NSWCCA 65 at paragraphs 37 to 41 could be read as pointing modestly against disclosure to the jury. Nonetheless, the circumstances of this particular trial led his Honour to conclude that brief disclosure to the jury was appropriate.
Orders Made
No orders were made in this decision.
Key Takeaways
- Button J held that, in the particular circumstances of this trial, the jury should be briefly informed of the grant of a section 128 certificate and its general effect, rather than kept uninformed.
- No binding or explicit appellate guidance existed on whether juries should be told about the grant of a section 128 certificate, leaving the matter to the trial judge's discretion in context.
- Consistency within a single trial was treated as a relevant consideration: having informed the jury about one witness's certificate, departing from that approach for a subsequent witness without explanation risked generating speculation.
- Under sections 38, 55, 103, and 137 of the Evidence Act, a witness's prior inconsistent statements, including those made on oath, may be admissible, making it likely that the existence of the certificate would surface in evidence regardless.
- The discussion in R v Macarthur [2005] NSWCCA 65 was noted as providing some support for non-disclosure to the jury, but Button J distinguished its application on the facts of this trial.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38, 55, 103, 128, 137
Cases
- R v Macarthur [2005] NSWCCA 65