Citation: R v Hunter (No 12) [2014] NSWSC 1155
Court: Supreme Court of New South Wales
Date: 16 July 2014
Judge(s): Button J
Background
This decision arose as a short procedural ruling during an ongoing criminal trial in the Supreme Court. A witness, referred to in the proceedings by name, had given sworn evidence on one day and then, in testimony the following day, effectively admitted that portions of his earlier evidence had been lies.
His Honour Button J had granted the witness a certificate the previous day under s 128 of the Evidence Act 1995 (NSW). A s 128 certificate generally protects a witness from having their compelled testimony used against them in later proceedings, where that testimony might tend to incriminate them.
The question that arose for the court was whether that certificate, or any certificate under s 128, could shield the witness from consequences flowing from his admission that he had told lies under oath.
Legal Issues
- Whether the s 128 certificate already granted to the witness protected him in respect of his admitted false evidence
- Whether a s 128 certificate can ever protect a witness against the falsity of their sworn evidence
- Whether the court was required to inform the witness of any common law right to object before he was asked about the truthfulness of his prior sworn evidence
- Whether the court should take any further procedural step in light of these questions
Decision
Button J identified five reasons for declining to revisit the question or take any further steps with the witness.
First, neither party intended to revisit the witness's admission that his earlier evidence had been false. Second, the prospect of a perjury prosecution arising from the evidence was considered extremely unlikely in the circumstances, particularly given that the witness had not been prosecuted over apparently contradictory sworn evidence he had given at an earlier committal hearing without the benefit of any certificate.
Third, and most significantly as a matter of statutory construction, Button J expressed the view that a s 128 certificate simply cannot, as a matter of law, protect a witness in respect of the alleged falsity of their evidence. Fourth, if the witness should have been informed of a common law right to object before being asked whether his earlier evidence was a lie, Button J considered it highly likely that any such evidence given without that warning would be excluded at a later trial or hearing under either s 90 or s 138 of the Evidence Act.
Finally, Senior Counsel who had been engaged to assist the witness independently expressed the view that a s 128 certificate would not provide protection in these circumstances. Having regard to all five reasons, Button J determined that proceedings should simply continue without any further intervention.
Orders Made
No orders were made in this decision.
Key Takeaways
- Button J expressed the view that a certificate under s 128 of the Evidence Act 1995 (NSW) cannot, as a matter of statutory construction, protect a witness from consequences arising from the falsity of their sworn evidence.
- A s 128 certificate is designed to protect against self-incrimination through compelled truthful testimony; it does not extend to shielding a witness who has admitted to lying under oath.
- Where a witness is asked, without prior warning, to admit that sworn evidence was false, any resulting evidence may be liable to exclusion under s 90 or s 138 of the Evidence Act at a subsequent proceeding.
- The practical likelihood of prosecution for perjury was treated as a relevant contextual consideration, though not a decisive legal one, in the court's overall assessment.
- This ruling is a short ex tempore procedural decision and its observations on s 128 are not elaborated with detailed statutory analysis; the comments on the certificate's scope should be read accordingly.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 90, 128, 138
Cases cited:
No cases were cited in this decision.