Citation: R v Lui (No 2) [2025] NSWSC 1107
Court: Supreme Court of New South Wales
Date: 23 September 2025
Judge(s): McNaughton J
Background
A murder trial was listed to commence on 29 September 2025, with the accused alleged to have killed a man who was beaten in a stairwell of a Sydney CBD apartment building in December 2022. The Crown's case relied heavily on CCTV footage and witness testimony, but no footage captured what occurred inside the stairwell itself.
The Crown subpoenaed an alleged co-offender to give evidence at the accused's trial. That co-offender had already stood trial for the same murder before the same judge, but the jury was unable to reach a verdict and was discharged. His retrial had been listed for scheduling. He remained charged with murder, and that charge was unresolved at the time of the application.
The co-offender sought an advance ruling under s 192A of the Evidence Act 1995 (NSW) on whether, if called, he could be compelled to answer questions about the events of 4 December 2022. He argued that requiring him to testify while his own murder charge remained pending would fundamentally compromise the accusatorial system of criminal justice, and that the protection afforded by a s 128 certificate was insufficient.
Legal Issues
- Whether a person who remains charged with a serious criminal offence, whose own trial ended in a hung jury, is compellable as a witness in a co-accused's trial before the finalisation of their own charge
- Whether, on an advance ruling under s 192A of the Evidence Act 1995, the court would be satisfied that the interests of justice required the co-offender to give evidence notwithstanding his privilege against self-incrimination under s 128
- Whether the protections afforded by a s 128 certificate are adequate in circumstances where an accused faces an unresolved murder charge
Decision
Issue 1: Compellability and the s 128 framework
McNaughton J accepted that the co-offender, as a witness rather than a defendant in this proceeding, was technically compellable under s 17 of the Evidence Act. The question therefore turned on whether the court would exercise its discretion under s 128(4) to require him to give evidence despite a valid self-incrimination objection. That discretion requires the court to be satisfied that the interests of justice outweigh the witness's right to claim the privilege.
Issue 2: Adequacy of a s 128 certificate
The court acknowledged the co-offender had already given evidence at his own trial and that his account was largely consistent with earlier statements to police. However, McNaughton J was not persuaded that a s 128 certificate would provide adequate protection. The co-offender's answers could expose him to additional jeopardy in the retrial, and the ambiguous wording of s 128(9), although aimed at a different scenario identified in Cornwell v The Queen, arguably extended to his situation.
Issue 3: Balancing the interests of justice
The court weighed the Crown's interest in calling what could be important evidence against the fundamental rights of the co-offender to be prosecuted fairly. McNaughton J noted that the co-offender's evidence, though potentially valuable to the Crown, could be regarded as self-serving and unreliable, reducing its probative weight. The court also noted that an alternative pathway existed: the Crown could apply to adjourn the accused's trial until the co-offender's own proceedings were finalised. On the balance of all these considerations, McNaughton J was not satisfied that the interests of justice required the co-offender to give evidence while his own murder charge remained unresolved.
Orders Made
- Pursuant to ss 192A and 128(4) of the Evidence Act 1995 (NSW), the co-offender is not required to give evidence at the accused's trial if that trial proceeds before the finalisation of the co-offender's own murder charge.
Key Takeaways
- Under ss 128 and 192A of the Evidence Act 1995 (NSW), a court may make an advance ruling on whether it would compel a witness to give evidence over a self-incrimination objection, and the Crown's agreement to seek such a ruling was accepted as appropriate where the issue had significant consequences for the upcoming trial.
- The court confirmed that a technically compellable witness may still resist being required to answer if the court is not satisfied that the interests of justice outweigh the privilege, particularly where that witness faces serious unresolved charges arising from the same events.
- A s 128 certificate does not automatically provide sufficient protection in all circumstances. Where the evidence given could directly affect an ongoing or pending prosecution of the witness for the same subject matter, the adequacy of that protection is a live and significant question.
- The inherent limitations on the probative value of evidence from a witness with outstanding charges, including the risk that the evidence is self-serving or unreliable, are relevant to the interests-of-justice balancing exercise under s 128(4).
- The existence of a procedural alternative, namely an application to adjourn the co-accused's trial until the witness's own proceedings are resolved, was treated as a factor weighing against compelling testimony in advance of that resolution.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 17, 128, 165, 192A
- Crimes Act 1914 (Cth), s 16AC
- Criminal Appeal Act 1912 (NSW), s 5DA
Cases
- Cornwell v The Queen (2013) 231 CLR 260; [2007] HCA 12
- Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22
- DPP v Peters (2019) 59 VR 203; [2019] VSCA 193
- Gedeon v R [2013] NSWCCA 257; (2013) 237 A Crim R 326
- Pathways Employment Services v West [2004] NSWSC 903
- R v Bikic [2001] NSWCCA 537
- R v Booth [1982] 2 NSWLR 487
- R v Collisson [2003] NSWCCA 212; (2003) 139 A Crim R 389
- R v Martin (No 10) [2017] NSWSC 1401
- Rank Film Distributors Ltd v Video Information Centre [1981] 2 All ER 76; [1982] AC 380
- Sorby v Commonwealth (1983) 152 CLR 281; [1983] HCA 10
- X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29