Citation: R v Sigalla (No. 4) [2016] NSWSC 1920
Court: Supreme Court of New South Wales
Date: 10 November 2016
Judge: Adamson J
Background
The accused was on trial in the Supreme Court on an indictment that included a count (count 5) concerning alleged payments to so-called "market makers" from TZ Limited. The accused had given evidence in his own defence and was subject to Crown cross-examination.
During the proceedings, the accused applied for a certificate under s 128 of the Evidence Act 1995 (NSW). Such a certificate is a statutory protection that, in certain circumstances, prevents self-incriminating evidence from being used against the person who gave it. The accused sought the certificate in relation to evidence he had already given and evidence he apprehended the Crown would elicit from him in cross-examination, including an explanation that a payment was a non-recourse loan to directors for the purpose of affecting TZ Limited's share price.
Legal Issues
- Whether the accused was entitled to a certificate under s 128 of the Evidence Act 1995 (NSW) to protect him from the use of self-incriminating evidence he had given, or anticipated giving
- Whether s 128(10)(b) operated to exclude the accused's application, because the evidence in question related to a state of mind that was a fact in issue in the criminal proceedings
Decision
Section 128(10) of the Evidence Act 1995 (NSW) provides that, in criminal proceedings, s 128 does not apply to evidence given by a defendant where that evidence concerns either an act the defendant did, where the doing of that act is a fact in issue, or a state of mind the defendant had, where the existence of that state of mind is a fact in issue.
Adamson J found that the principal issue in the trial was whether the accused had acted dishonestly in making, or causing to be made, certain payments from TZ Limited to himself or others. The evidence for which the accused sought a certificate bore directly on that question, including any explanation the accused may have offered for the payments.
Because the evidence fell squarely within s 128(10)(b), the protective mechanism in s 128 simply did not apply. The court was satisfied that the material went to a state of mind that was itself a fact in issue, and accordingly refused the application.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 128(10)(b) of the Evidence Act 1995 (NSW), a defendant in criminal proceedings cannot obtain a self-incrimination certificate in respect of evidence that relates to a state of mind that is itself a fact in issue in the trial.
- The Supreme Court held that where dishonesty is the central issue in a criminal trial, evidence bearing on the defendant's mental state in relation to the impugned conduct falls within the s 128(10)(b) exclusion.
- Refusing the application, the court treated the accused's explanations for the disputed payments as directly relevant to the very question of dishonesty the jury would be required to determine.
- The s 128 certificate mechanism, while ordinarily available to protect witnesses from self-incrimination, has a specific and significant carve-out for defendants whose evidence goes to conduct or states of mind that are facts in issue in the proceedings against them.
- The decision was delivered ex tempore (that is, given orally from the bench without a reserved written judgment), which reflects the procedural urgency of the issue arising mid-cross-examination.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 128 (certificate protecting against self-incrimination), s 128(10)(b) (exclusion for defendants in criminal proceedings)
Cases:
- No cases were cited in the judgment.