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Supreme Court 4 August 2017

R v Walker (No 3)

[2017] NSWSC 1025

Public order & justice offences
CRIMINAL LAW EVIDENCE SELF INCRIMINATION EVIDENCE ACT 1995 (NSW) S 128 CERTIFICATE

Citation: R v Walker (No 3) [2017] NSWSC 1025
Court: Supreme Court of New South Wales
Date: 4 August 2017
Judge(s): Schmidt J

Background

During a criminal trial, the Crown called a witness, Mr Smith, who in the course of his evidence referred to having assaulted the accused. This prompted Schmidt J to raise the operation of s 128 of the Evidence Act 1995 (NSW), which protects witnesses from being compelled to give self-incriminating evidence without certain safeguards.

Defence counsel indicated that cross-examination would also put to Mr Smith that he had made a false statement to police and given false evidence during committal proceedings in the Local Court. Mr Smith objected to giving evidence on both topics but indicated he was willing to do so if granted a s 128 certificate.

A dispute then arose between the parties about whether a s 128 certificate could lawfully be granted in respect of alleged perjury committed at committal proceedings. The court adjourned to allow Mr Smith independent legal advice and for the Crown to consider its position.

  • Whether s 128 of the Evidence Act 1995 (NSW) permits a court to issue a certificate in respect of evidence that may tend to prove the witness committed perjury at an earlier committal proceeding.
  • Whether the concluding words of s 128(7), which carve out "a criminal proceeding in respect of the falsity of the evidence," prevent a certificate being granted for alleged earlier perjury.
  • How the competing public interests underlying s 128 are to be balanced in construing the section.

Decision

Schmidt J held that a s 128 certificate could be granted in respect of alleged perjury committed at committal proceedings, and ultimately this became the common view of all parties. The court's reasoning began with the straightforward proposition that perjury is an offence under Australian law, meaning s 128(1) plainly entitles a witness to object to answering questions about it.

The Crown had initially argued that the carve-out at the end of s 128(7), which preserves the use of certificated evidence in "a criminal proceeding in respect of the falsity of the evidence," prevented a certificate being issued for alleged prior perjury. Schmidt J rejected that construction. The effect of the Crown's initial reading would have been to deny the certification mechanism entirely for prior perjury, meaning a witness could be compelled under s 128(4) to give self-incriminating evidence with no counterbalancing protection. Her Honour found that such a significant exception, if intended, would have been expressed plainly in the legislation.

Her Honour also noted that the Crown's initial approach would undermine the evident purpose of the section: to obtain co-operation from witnesses with relevant evidence, without coercion, in a manner consistent with the interests of justice. The provisions of s 128(8), which preserve the effect of a certificate despite any challenge to its validity, were also considered to support this broader reading.

Applying ss 128(3) and 128(4), Schmidt J was satisfied there were reasonable grounds for Mr Smith's objection and that the interests of justice required him to give the evidence. Accordingly, the court granted Mr Smith a second certificate covering his evidence about the police statement and the alleged perjury at committal.

Orders Made

  • Mr Smith was granted a s 128 certificate in respect of evidence concerning the assault.
  • Mr Smith was granted a second s 128 certificate in respect of evidence concerning his police statement and alleged perjury committed during the committal proceedings in the Local Court.

Key Takeaways

  • Section 128 of the Evidence Act 1995 (NSW) permits a court to issue a protective certificate where a witness's evidence may tend to prove the witness committed perjury at prior committal proceedings.
  • The carve-out at the end of s 128(7), which preserves the use of certificated evidence in proceedings concerning the falsity of evidence given in the current proceedings, does not operate to prevent a certificate being granted for alleged perjury committed in earlier proceedings.
  • A construction of s 128 that would allow compulsion of self-incriminating evidence under s 128(4) while denying the counterbalancing certificate mechanism was found to be inconsistent with the section's purpose and would require clear legislative expression to be adopted.
  • The certificate granted to Mr Smith means his evidence in the trial, and anything obtained as a consequence of it, cannot be used against him in other proceedings, including any perjury prosecution arising from his evidence at the committal. The certificate does not, however, prevent that same evidence being used in proceedings alleging he gave false evidence in the trial itself.
  • "Criminal proceeding" in the Evidence Act 1995 (NSW) Dictionary includes committal proceedings, a definition that informed the court's analysis throughout.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 128 (including ss 128(1), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14)) and the Dictionary definition of "criminal proceeding"

Cases
No cases were cited in the judgment.