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District Court 19 April 2017

R v MUJUEVIC, SALIBA, RYMER, CUSENS

[2017] NSWDC 215

Assault & violenceFirearms & weapons
CRIMINAL EVIDENCE "INTERESTS OF JUSTICE"

Citation: R v Mujuevic, Saliba, Rymer, Cusens [2017] NSWDC 215
Court: District Court of New South Wales
Date: 19 April 2017
Judge(s): Judge S Norrish QC

Background

Four accused stood trial on charges arising from a shooting and assault at a motorcycle club's premises in Western Sydney. A fifth person, Timothy Rolfe, had originally been charged alongside them but was ordered to stand trial separately, with the Crown electing to try the four accused first.

The Crown sought to call Rolfe as a witness in the current trial. Because Rolfe had not yet faced his own trial and had not been offered immunity, he objected to giving evidence on the basis that it might incriminate him. The Crown could only compel his testimony by obtaining a certificate under section 128 of the Evidence Act 1995, which would prevent his answers from being used against him in future proceedings (subject to the exception for false evidence).

Rolfe had given two substantially inconsistent accounts to police: a denial of any knowledge in March 2015, and an exculpatory account in March 2017 that the Crown considered to be largely false. The Crown intended, if Rolfe were called, to immediately seek leave under section 38 of the Act to cross-examine him as an unfavourable witness.

Legal Issues

  • Whether there were reasonable grounds for Rolfe's objection to giving evidence under section 128(2) of the Evidence Act 1995.
  • Whether the "interests of justice" required Rolfe to give evidence under section 128(4) and (5), such that a certificate should be issued.
  • Whether the potential unfairness to Rolfe as an untried co-accused, and the potential unfairness to the four accused on trial, were relevant considerations under the interests of justice test.
  • Whether the Crown's undertaking not to use Rolfe's evidence against him adequately addressed concerns about investigative use of that evidence by police.

Decision

Issue 1: Reasonable grounds for objection

The court found, for obvious reasons given Rolfe's status as an untried co-accused facing related charges, that there were reasonable grounds for his objection to giving evidence (at [7]). This threshold question was resolved quickly, making the "interests of justice" question the central issue.

Issue 2: Whether the interests of justice required the certificate to be issued

The court refused to issue the certificate. Applying the principles from R v Collisson [2003] NSWCCA 212, the court observed that an accomplice who has not yet been dealt with by the courts is inherently suspect as a witness, and that established practice favours disposing of an accomplice's own criminal liability before calling that person to give evidence (at [33]-[34]). The court treated this as a significant factor weighing against granting the certificate.

Issue 3: Rolfe's reliability and the effect on a fair trial

The court found that Rolfe's reliability was objectively compromised. His exculpatory 2017 account was given with considerable knowledge of the Crown's physical evidence, particularly CCTV footage, in contrast to his 2015 denial made without that knowledge (at [41]-[42]). The Crown itself did not accept his 2017 account as wholly truthful, yet sought to rely on parts of it selectively. The court held that Rolfe's self-evident unreliability, arising from the same inconsistencies that had justified his separation from the other accused, would be infectious to the fairness of the current trial (at [48]-[49]).

Issue 4: The certificate as an instrument of unfairness

The court found that granting a certificate would give Rolfe, in practical terms, nothing to lose by giving evidence, allowing him to exculpate himself at the expense of the accused on trial (at [43]-[45]). The Crown's intended cross-examination under section 38 would permit allegations implicating the co-accused to be put before the jury, even though the Crown had no reasonable basis to expect Rolfe would adopt those allegations (at [40]). The court also found that the Deputy Director's undertaking, while genuine, did not bind the NSW Police Force in relation to further investigative use of Rolfe's evidence (at [25]-[28]). Taking all interests into account, including those of the Crown, the witness, and the four accused, the court concluded it was not in the interests of justice to issue the certificate (at [50]).

Orders Made

  • Application for a certificate under section 128 of the Evidence Act 1995 refused.

Key Takeaways

  • Refusing the certificate, the District Court applied the principle from R v Collisson that an accomplice who has not yet been dealt with by the courts is inherently suspect as a witness, and that the interests of justice under section 128 will generally disfavour compelling such a witness to give evidence before their own trial is resolved (at [33]-[34]).

  • The "interests of justice" test in section 128(5) of the Evidence Act 1995 requires a wide-ranging balancing exercise: relevant factors include the importance of the evidence, the likelihood of unreliability, the potential unfairness to the witness, and the potential unfairness to the accused at trial (at [35]-[36]).

  • Where a Crown witness's unreliability stems from the very matters that warranted their separation from co-accused, that unreliability can render their compelled evidence infectious to the fairness of the joint trial (at [48]-[49]).

  • An undertaking by the Director of Public Prosecutions not to use a witness's evidence against them does not, without more, bind the Commissioner of Police in relation to further investigative steps that might flow from that evidence, and this limitation is relevant to assessing the adequacy of protections offered to a witness under section 128 (at [25]-[28]).

  • Under section 17(3) of the Evidence Act 1995, an associated accused who is being tried separately from other accused is compellable to give evidence in those other accused's trial, but the court retains the power to decline to issue a section 128 certificate where the interests of justice do not support compelling that evidence (at [13], [50]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- R v Collisson [2003] NSWCCA 212
- Lee v The Queen [2015] HCA 20
- Gedeon v The Queen [2013] NSWCCA 257
- X7 v Australian Crime Commission [2013] HCA 29
- Lee v New South Wales Crime Commission [2013] HCA 39
- R v Booth [1982] NSWLR 847
- Turco v HP Mercantile Pty Ltd (No 2) [2009] NSWCA 209
- Wilde v The Queen (1988) 164 CLR 365