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Supreme Court 14 April 2015

R v Simmons (No 6)

[2015] NSWSC 418

Homicide
CRIMINAL LAW EVIDENCE PRIVILEGE AGAINST SELF INCRIMINATION DECISION NOT FINAL RELEVANT CONSIDERATIONS

Citation: R v Simmons (No 6) [2015] NSWSC 418
Court: Supreme Court of New South Wales
Date: 14 April 2015
Judge(s): Hamill J

Background

The accused was on trial for murder. On the eleventh day of the trial, the Crown called a former co-accused as a witness. That former co-accused had originally been charged with murder, with the charge later reduced to accessory after the fact. Shortly before being called to give evidence, he was discharged from the indictment after the Director of Public Prosecutions (DPP) ordered no further proceedings against him.

When called, the witness declined to answer questions, invoking his right against self-incrimination. His former counsel was granted leave to appear on the limited question of whether the witness should be required to give evidence over that objection, pursuant to section 128 of the Evidence Act 1995 (NSW).

The central tension was whether compelling the witness to testify, with the protection of a section 128 certificate, adequately safeguarded his interests given the realistic possibility that proceedings against him could be revived.

  • Whether the witness had reasonable grounds to object to giving evidence under section 128(2) of the Evidence Act 1995 (NSW)
  • Whether the DPP's decision to discontinue proceedings was final, such that the risk of future prosecution was negligible
  • Whether the protection afforded by a section 128 certificate was sufficient in light of the High Court's reasoning in X7 v Australian Crime Commission (2013) 248 CLR 92
  • Whether it was in the interests of justice to require the witness to give evidence under section 128(4)

Decision

Hamill J found that there were reasonable grounds for the witness's objection. Even apparently innocuous questions about his place of residence in 2009 had some potential to be used against him if prosecution were later revived. The core of the evidence the Crown sought was plainly capable of tending to incriminate him.

On the question of finality, the court accepted that the DPP's decision to discontinue was not final. Consistent with Beckett v State of New South Wales [2013] HCA 17, a nolle prosequi and discharge from an indictment does not bar a subsequent prosecution. While the court assessed a revival of proceedings as unlikely in practice, that possibility could not be dismissed.

The court engaged closely with the High Court's analysis in X7 v Australian Crime Commission, which had identified significant forensic disadvantages for an accused who had previously been compelled to answer questions. Those disadvantages were real even where evidence is given in open court rather than before an investigative tribunal, and even where the certificate covers both direct and derivative (indirect) use of the evidence.

Despite those risks, Hamill J concluded that the interests of justice required the witness to give evidence. The deciding factors were the seriousness of the murder charge, the potential significance of the evidence to the trial, the absence of any pending charges against the witness, and the court's assessment that the DPP was unlikely to revisit the discontinuance decision. A section 128 certificate was granted accordingly.

Orders Made

  • Pursuant to section 128(2) of the Evidence Act 1995 (NSW): reasonable grounds found for the objection taken by the witness.
  • Pursuant to section 128(4) of the Evidence Act 1995 (NSW): the witness required to give evidence.
  • Certificate granted to the witness under section 128(6) of the Evidence Act 1995 (NSW).

Key Takeaways

  • A DPP decision to discontinue proceedings by nolle prosequi is not final and does not bar a subsequent prosecution, meaning a discharged former co-accused retains a live basis to object to giving evidence on self-incrimination grounds.
  • Under section 128(4) of the Evidence Act 1995 (NSW), the "interests of justice" test requires the court to weigh multiple competing factors, including the seriousness of the charge, the significance of the evidence, the currency of any pending proceedings against the witness, and the realistic likelihood of future prosecution.
  • The High Court's reasoning in X7 v Australian Crime Commission applies to section 128 proceedings: compelled testimony creates forensic disadvantages for a witness that a certificate's use-immunity may not fully overcome, even when evidence is given in open court rather than before an investigative commission.
  • A section 128 certificate protects against both direct and derivative use of the evidence in any NSW court proceeding, with the exception of proceedings for the falsity of that evidence.
  • Where no charges are pending and prosecution is assessed as unlikely, those factors can tip the interests-of-justice balance toward requiring a witness to testify, notwithstanding the genuine forensic risks the witness faces.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), particularly section 128
- Criminal Procedure Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Australian Crime Commission Act 2002 (Cth)

Cases
- X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
- Beckett v State of New South Wales [2013] HCA 17
- Lee v Australian Crime Commission [2013] HCA 39; 87 ALJR 1082
- Lee v The Queen [2014] HCA 20
- R v X [2014] NSWCCA 168
- X7 v R [2014] NSWCCA 273
- R v Seller & McCarthy [2013] NSWCCA 42
- R v Burrell [2004] NSWCCA 185
- R v Ohar [2004] NSWCCA 83
- R v Filimoehala [2003] NSWCCA 37
- R v BWM (1997) 91 A Crim R 260
- R v Mellifont (1992) 64 A Crim R 75
- Prior rulings in the same matter: R v Simmons; R v Moore (No 2) [2015] NSWSC 143; (No 3) [2015] NSWSC 189; (No 4) [2015] NSWSC 259; R v Simmons (No 5) [2015] NSWSC 333