Citation: R v Ronald Edward Medich (No. 42) [2018] NSWSC 379
Court: Supreme Court of New South Wales
Date: 26 March 2018
Judge(s): Bellew J
Background
The decision arose in the course of a murder trial in which senior counsel for the accused called a witness, a convicted prisoner then serving a sentence for murder and drug supply. The witness had been brought to court not by subpoena but pursuant to an order made under s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW), which empowers a court to direct that a prisoner be produced for the purposes of legal proceedings.
The witness was expected to be questioned about matters connected to allegations that the Crown's principal witness had conspired to defraud the accused of a substantial sum of money. The witness had not himself been charged with any offence, but references to his alleged involvement in the relevant events had already been made during the trial.
When asked in examination-in-chief whether he knew the Crown's principal witness, the prisoner-witness immediately objected to answering, thereby invoking s 128 of the Evidence Act 1995 (NSW), which codifies the privilege against self-incrimination. The Crown raised a question, without pressing a positive submission, as to whether the privilege was available to a witness who had come to court under a production order rather than a subpoena.
Legal Issues
- Whether a witness produced pursuant to a court order under s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) attends court "under compulsion" for the purposes of s 128 of the Evidence Act 1995 (NSW).
- Whether s 128 of the Evidence Act is available to a witness who objects to questions asked in examination-in-chief, as opposed to only questions asked in cross-examination.
Decision
Bellew J noted an acknowledged tension in the authorities on whether s 128 can be invoked in response to questions asked in chief, as distinct from questions in cross-examination. His Honour resolved that tension by following the Court of Appeal's decision in Song v Ying (2010) 79 NSWLR 442, which held that where a witness attends under compulsion, the privilege is available regardless of whether the objectionable question arises in chief or in cross-examination.
The key principle drawn from Song v Ying is that the relevant inquiry is not whether evidence is being given in chief or in cross-examination, but whether the witness is otherwise compellable to give that evidence. A witness who attends and gives evidence because of actual compulsion, or because of the availability of such compulsion, may invoke the privilege under s 128.
Bellew J held that the s 77 production order constituted compulsion for these purposes. The prisoner-witness could not have responded to a subpoena from inside custody without such an order being made in any event, meaning the order was the operative mechanism compelling his attendance. His Honour also confirmed that the witness was both competent and compellable, satisfying the threshold requirements for s 128 to apply.
Accordingly, the court ruled that the witness was entitled to avail himself of the protections in s 128 of the Evidence Act.
Orders Made
No orders were made in this decision.
Key Takeaways
- A prisoner produced before a court under a s 77 order of the Crimes (Administration of Sentences) Act 1999 (NSW) attends under compulsion, satisfying the precondition for invoking the privilege against self-incrimination under s 128 of the Evidence Act 1995 (NSW).
- Under s 128 of the Evidence Act, the privilege against self-incrimination is not confined to questions asked in cross-examination. It extends to questions asked in examination-in-chief, provided the witness is attending under compulsion.
- The Supreme Court applied and affirmed the Court of Appeal's reasoning in Song v Ying (2010) 79 NSWLR 442, which focuses the relevant inquiry on whether a witness is compellable, not on which stage of examination gives rise to the objection.
- The Full Federal Court's endorsement of Song v Ying in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4 was noted as further support for the same principle.
- Where a prisoner cannot respond to a subpoena without a production order, the production order itself functions as the instrument of compulsion, and it would be anomalous to treat such a witness as attending voluntarily.
Legislation and Cases Referenced
Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), s 77
- Evidence Act 1995 (NSW), ss 12, 128
Cases
- Song v Ying (2010) 79 NSWLR 442; [2010] NSWCA 237
- Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4
- Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178