Citation: R v Coss (No 5) [2022] NSWSC 795
Court: Supreme Court of New South Wales
Date: 2 June 2022
Judge(s): Dhanji J
Background
The accused was standing trial in a judge-alone proceeding for the murder of a named deceased. The Crown called a witness whose evidence related directly to the events surrounding the alleged killing.
During the course of giving evidence, it became apparent that some of the witness's testimony would tend to prove he had committed offences under Australian law. Specifically, the evidence touched on the possession and use of cannabis by the witness and others present on the night in question, raising potential exposure to prosecution under the Drug Misuse and Trafficking Act 1985 (NSW), including for supplying prohibited drugs between those present.
The witness was informed of his right to object to giving self-incriminating evidence under s 128 of the Evidence Act 1995 (NSW), and he exercised that right.
Legal Issues
- Whether there were reasonable grounds for the witness's objection to giving evidence on the basis that it might incriminate him.
- Whether the court should require the witness to give the evidence under s 128(4) of the Evidence Act 1995 (NSW).
- Whether a certificate under s 128 should be granted to protect the witness from the use of his evidence in subsequent proceedings.
Decision
Dhanji J found that there were reasonable grounds for the witness's objection to giving the evidence. The potential for the testimony to expose the witness to liability for drug possession, use, and supply offences under the Drug Misuse and Trafficking Act 1985 (NSW) satisfied the threshold under s 128.
Having made that finding, the court explained to the witness the operation of s 128(3): that he was not obliged to give the evidence unless required under s 128(4), but that if he chose to give it willingly, a certificate would be available to him. The certificate operates to prevent that evidence being used against the witness in subsequent proceedings.
The witness, having been given a full explanation of the certificate's effect and confirming his understanding of it, elected to give the evidence willingly rather than under compulsion. Dhanji J was satisfied that the witness understood the nature and effect of the certificate.
On that basis, the court determined it was appropriate to grant the witness a certificate under s 128 of the Evidence Act 1995 (NSW).
Orders Made
• A certificate be issued to Scott Marle pursuant to s 128 of the Evidence Act 1995 (NSW)
Key Takeaways
- Under s 128(3) of the Evidence Act 1995 (NSW), once a court determines there are reasonable grounds for a witness's objection, the court must inform the witness of the option to give evidence willingly and receive a certificate, rather than being compelled under s 128(4).
- The Supreme Court found that evidence touching on possession, use, and potential supply of cannabis among a group of individuals provided a sufficient basis for reasonable grounds of objection under s 128.
- A s 128 certificate is available whether a witness gives evidence willingly or after being required to do so by the court, but the procedural pathway differs between those two situations.
- The court must be satisfied that the witness understands both the nature and effect of the certificate before granting it. Here, the judge was affirmatively satisfied of the witness's understanding before proceeding.
- Nothing in the decision required the court to prevent the witness from giving evidence altogether. The s 128 mechanism balances the interests of the trial against the witness's privilege against self-incrimination.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 128 (privilege against self-incrimination in other proceedings)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases cited: None cited in the provided text.