Citation: R v Coss (No 7) [2022] NSWSC 797
Court: Supreme Court of New South Wales
Date: 7 June 2022
Judge: Dhanji J
Background
The accused stood trial for the murder of Darren Willis, before Dhanji J sitting as a judge alone. The Crown called a witness, Robert Stonestreet, whose evidence related directly to the events immediately surrounding the acts alleged to constitute the murder.
In the course of giving evidence, it became apparent that some of Mr Stonestreet's testimony would tend to establish that he had committed offences under Australian law. Specifically, the evidence touched on the possession, use, and potential supply of cannabis among those present on the night in question.
The court identified that these matters potentially exposed Mr Stonestreet to liability under the Drug Misuse and Trafficking Act 1985 (NSW). This raised a question about whether he could be required to continue giving evidence without some protection from self-incrimination.
Legal Issues
- Whether there were reasonable grounds for the witness to object to giving the evidence under s 128 of the Evidence Act 1995 (NSW)
- Whether the court was required to inform the witness of his right to object and the consequences of doing so
- Whether a certificate under s 128 should be granted to the witness
Decision
Dhanji J determined that the evidence Mr Stonestreet was being asked to give did tend to incriminate him with respect to drug offences under the Drug Misuse and Trafficking Act 1985 (NSW). On that basis, the court found there were reasonable grounds for the witness to object, satisfying the threshold requirement under s 128(3) of the Evidence Act 1995 (NSW).
Mr Stonestreet was informed of his right to object, which he exercised. The court then informed him, in accordance with s 128(3), that he need not give the evidence unless compelled under s 128(4), and that a certificate would be available if he gave the evidence willingly or if he were required to do so. The court was satisfied that Mr Stonestreet understood the nature and effect of the certificate after it was explained to him.
Mr Stonestreet ultimately elected to give the evidence voluntarily rather than be compelled. In those circumstances, Dhanji J determined it was appropriate to grant the certificate under s 128. The certificate provides the witness with protection from having that evidence used against him in other proceedings.
Orders Made
- A certificate under s 128 of the Evidence Act 1995 (NSW) was granted to the witness Robert Stonestreet.
Key Takeaways
- Under s 128 of the Evidence Act 1995 (NSW), a court must inform a witness of the right to object to giving evidence where that evidence may tend to prove the commission of an offence against Australian law.
- Where reasonable grounds for objection are established, the court is not to require the witness to give the evidence without first explaining the availability of a certificate and the consequences of proceeding.
- A s 128 certificate can be granted where a witness, having been properly informed of the privilege and the effect of the certificate, chooses to give the evidence voluntarily rather than under compulsion.
- The Supreme Court was satisfied that the witness's understanding of the certificate's effect was a relevant consideration before granting it, indicating that courts will attend carefully to whether the explanation was genuinely received.
- The decision is procedural and interlocutory in nature, forming one step in an ongoing judge-alone murder trial rather than resolving any substantive question about the charge itself.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 128 (privilege against self-incrimination; certificate procedure)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases cited: No cases were cited in the judgment.