Citation: R v Afu; R v Caleo (No 10) [2018] NSWSC 189
Court: Supreme Court of New South Wales
Date: 13 February 2018
Judge(s): R A Hulme J
Background
This decision arose in the course of a murder trial involving two accused charged in connection with the deaths of two individuals in Sydney in 1989 and 1990. A prosecution witness had been interviewed on multiple occasions by police, in some instances under inducements that his statements would not be used against him.
The witness objected to giving evidence at trial on the basis that his testimony could tend to prove he had committed a criminal offence under Australian law. This invoked the privilege against self-incrimination under section 128 of the Evidence Act 1995 (NSW). His objection extended not only to evidence about his involvement in events related to the two murders, but also to any questions about other criminal activity likely to be raised in cross-examination going to his credibility.
The court was required to determine whether the witness could be compelled to testify despite that objection, and on what terms.
Legal Issues
- Whether there were reasonable grounds for the witness's objection under section 128 of the Evidence Act 1995 (NSW)
- Whether it was in the interests of justice to require the witness to give evidence notwithstanding his privilege against self-incrimination
- Whether the compulsion to testify should extend to questions about other criminal activity raised in cross-examination on credibility
- Whether a certificate under section 128(5) should be granted, and on what terms
Decision
Hulme J first assessed whether the witness's objection had a proper foundation. Having reviewed the statements and interview transcripts, his Honour was satisfied there were reasonable grounds for the objection, meaning the privilege against self-incrimination was legitimately engaged.
The court then turned to the interests of justice. The witness's evidence was described as vital to the prosecution case against both accused. That significance alone satisfied the court that compelling his testimony was appropriate, notwithstanding the privilege.
The court also held that the interests of justice extended to compelling the witness to answer questions about other criminal activity in cross-examination. The importance of the witness's evidence to the Crown case correspondingly elevated the importance of allowing the defence full scope to test his credibility. Both considerations pointed in the same direction.
A certificate under section 128(5) was ordered. That certificate has the effect, under section 128(7), of preventing the compelled evidence, and any information derived from it, from being used against the witness in future NSW proceedings, except in proceedings concerning the falsity of that evidence. The court confirmed the witness had been informed of this protection and, being represented by experienced solicitor and Queen's Counsel, understood its effect.
Orders Made
- The witness is required to give evidence of his knowledge of and involvement in events relating to the two murders.
- The witness is also required to give evidence as to his involvement in any other criminal activity as required by questions in cross-examination or re-examination concerning his credibility and reliability.
- A certificate pursuant to section 128(5) of the Evidence Act 1995 (NSW) is to be provided by the Court.
Key Takeaways
- Under section 128 of the Evidence Act 1995 (NSW), a court must first be satisfied that there are reasonable grounds for a witness's self-incrimination objection before any further steps are taken.
- Where a witness's evidence is vital to the prosecution, the interests of justice threshold for compelling that testimony can be met even where the privilege against self-incrimination is legitimately engaged.
- The Supreme Court held that the interests of justice can require a compelled witness to answer credibility questions in cross-examination, not only questions directly related to the subject matter of the trial.
- A section 128(5) certificate provides the compelled witness with a form of use immunity: the evidence given, and anything derived from it, cannot be used against that person in NSW proceedings, except in prosecutions for giving false evidence.
- The decision confirms that the significance of a witness's evidence to the prosecution simultaneously increases the importance of permitting full cross-examination of that witness on credibility.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 128 (privilege against self-incrimination; certificate procedure; use immunity)
Cases cited: No cases were cited in the decision.