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Supreme Court 4 April 2018

R v Blackman (No 2)

[2018] NSWSC 406

HomicideDrugsFirearms & weapons
CRIMINAL LAW COUNT OF MURDER AND ALTERNATIVE COUNTS INCRIMINATION

Citation: R v Blackman (No 2) [2018] NSWSC 406
Court: Supreme Court of New South Wales
Date: 4 April 2018
Judge: Button J

Background

This judgment arose from a special hearing (a trial conducted before a judge alone where the accused is found unfit to be tried in the conventional sense) on a count of murder. A key Crown witness gave evidence that implicated himself in a range of criminal conduct, including drug activity, firearms offences, and potentially the murder itself.

The witness retained a solicitor to advise him about his rights under s 128 of the Evidence Act 1995 (NSW), which protects witnesses from having self-incriminating evidence used against them in subsequent proceedings, provided the court issues a certificate. As the witness's evidence developed across several days, the scope of that certificate was progressively extended.

Button J issued this judgment to provide a clear chronological account of how and why the certificate came to take its final, detailed form.

  • What process governed the issuing and expansion of a s 128 certificate for a Crown witness in a murder special hearing?
  • How broadly should the concept of evidence that "may tend to prove" that a witness has committed an offence be construed for the purposes of s 128?
  • What conduct and subject matter fell within the certificate's proper scope as the cross-examination raised new lines of potential self-incrimination?

Decision

Button J explained that the certificate was not issued in a single step but was expanded repeatedly, first during examination-in-chief and then during cross-examination, as new areas of potential criminal exposure emerged. The initial certificate covered the witness's admitted involvement in cannabis cultivation, then was broadened to encompass all prohibited drug offences, then firearms matters within a defined period, and then the possibility that the witness was an accessory after the fact to murder or had concealed a serious offence under s 316 of the Crimes Act 1900 (NSW).

The most significant expansion arose during cross-examination, when defence counsel put directly to the witness that he, not the accused, had committed the murder. The witness objected through his solicitor under s 128. Button J considered whether reasonable grounds existed for the objection, concluded they did, and expanded the certificate liberally to cover evidence going to that proposition.

His Honour briefly addressed the breadth of the statutory phrase "may tend to prove" the commission of an offence, describing it as a broad concept. He drew on High Court authority in Sorby v Commonwealth, the House of Lords decision in Rank Film Distributors, a NSW Supreme Court judgment, and leading evidence law texts in forming that view. He did not resolve the question exhaustively but noted the breadth of the concept as sufficient to justify generous expansion of the certificate in the circumstances.

Button J also clarified that although the certificate ultimately extended backwards and forwards in time to cover the period from when the witness began living at the relevant property, it did not protect evidence the witness had given before any objection was raised and upheld. The final certificate was settled with input from the witness's solicitor and both legal teams acting as friends of the court.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A s 128 certificate under the Evidence Act 1995 (NSW) may be expanded incrementally during the course of a witness's evidence as new areas of potential self-incrimination emerge, including during cross-examination.
  • The statutory concept of evidence that "may tend to prove" a witness has committed an offence is a broad one, consistent with the approach taken in Sorby v Commonwealth (1983) 152 CLR 281 and related authorities.
  • Where defence counsel directly puts to a Crown witness that the witness committed the charged offence, a court may have reasonable grounds to uphold a s 128 objection and expand the certificate to cover that subject matter.
  • A certificate's temporal and subject-matter scope can extend broadly, but Button J confirmed that evidence given before an objection was raised and upheld falls outside the certificate's protection.
  • This judgment serves a largely procedural and explanatory function, recording the chronology of an unusual and complex certification process rather than resolving a contested point of law.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 128
- Crimes Act 1900 (NSW), s 316
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281
- Rank Film Distributors Ltd v Video Information Centre [1982] AC 380
- Application concerning Section 80 of the Supreme Court Act and Sections 119 and 128 of the Evidence Act [2004] NSWSC 614

Secondary Sources:
- J D Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths)
- Stephen Odgers, Uniform Evidence Law (12th ed, 2016, Thomson Reuters)