Citation: [2026] NSWSC 366
Court: Supreme Court of New South Wales
Date: 16 April 2026
Judge(s): Hamill J
Background
This ruling arose during the ninth day of a murder trial in which three accused persons stood trial for the fatal shotgun shooting of a man at Hamilton South on 6 September 2022. The shooting occurred at the deceased's front door after a dispute over a fraudulent firearm transaction in which a gel blaster was sold to a fourth participant (referred to as "Witness A") in place of a genuine pistol.
Witness A was one of four men present at the deceased's door when the fatal shot was fired. He was not charged but was called by the prosecution as a witness. Approximately nine months after the killing, Witness A had provided an induced statement to police after a senior officer promised the information would not be used against him in criminal proceedings. Witness A objected to giving evidence at trial on the basis that his answers could incriminate him, invoking the privilege against self-incrimination.
The prosecution, and all three accused through their counsel, jointly submitted that Witness A should be compelled to answer questions under the protection of a certificate issued pursuant to s 128 of the Evidence Act 1995 (NSW). Hamill J expressed significant misgivings about granting the certificate in these circumstances but was ultimately persuaded by the joint position of all parties.
Legal Issues
- Whether Witness A had reasonable grounds to object to giving evidence on the basis of self-incrimination under s 128 of the Evidence Act 1995 (NSW).
- Whether it was "in the interests of justice" to require Witness A to answer questions over his objection, with the protection of a s 128 certificate.
- Whether a certificate should be granted retrospectively under s 128(6) for incriminating evidence Witness A had already given without objection, in circumstances where he plainly intended to object but failed to do so.
- Whether the court's power under s 128 was an appropriate mechanism to compel testimony from a witness whose own evidence, combined with propositions the prosecution intended to put to him, was consistent with his culpability for murder or manslaughter, in circumstances where the Attorney General had not granted an indemnity or undertaking under ss 32 or 33 of the Criminal Procedure Act 1986 (NSW).
Decision
Hamill J found that there were clearly reasonable grounds for Witness A's objection. Witness A was present at the scene of the shooting, was aware that a shotgun was being carried, and stood approximately one metre from the front door when the fatal shot was discharged. The case against two of the three accused rested on evidence very similar to the evidence Witness A was expected to give about his own role.
Hamill J expressed considerable discomfort with the exercise of the s 128 power in these circumstances. His Honour observed that compelling Witness A to testify with a certificate effectively provided him with something resembling immunity from prosecution for his involvement in a homicide. Ordinarily, that type of decision is a matter for the executive government. The Attorney General may grant indemnities under s 32 or undertakings under s 33 of the Criminal Procedure Act 1986 (NSW) if "of the opinion that it is appropriate to do so." No such indemnity or undertaking had been granted in this case. The court's function under s 128, which requires it to consider "the interests of justice," is a different exercise from the executive's policy-driven decision to "allow one offender to skate by" to establish a case against others.
Despite those misgivings, Hamill J was ultimately persuaded by the joint and forceful submissions of all parties that it was in the interests of justice to grant the certificate. The evidence was of central significance to the murder trial. As to the evidence Witness A had already given without objection (concerning seeing the shotgun in the car and events at the deceased's unit complex), Hamill J granted a retrospective certificate under s 128(6). His Honour was satisfied that Witness A had plainly intended to object, had taken legal advice, and may have believed his earlier objection covered all of his evidence. It would have been unjust not to protect him retrospectively.
Orders Made
- Witness A's objection on the ground of self-incrimination was upheld as having reasonable grounds.
- Witness A was directed to answer questions over his objection in the interests of justice.
- A certificate under s 128(5) of the Evidence Act 1995 (NSW) was granted to Witness A protecting his evidence from use against him in criminal proceedings.
- A retrospective certificate under s 128(6) was granted in respect of incriminating evidence Witness A had already given without objection during the trial.
Key Takeaways
- Reasonable grounds for claiming the privilege against self-incrimination under s 128 of the Evidence Act were established where the witness was present at the fatal shooting, aware a shotgun was being carried, and standing approximately one metre from the victim when the shot was fired.
- Hamill J acknowledged that compelling a witness to testify about their potential involvement in a homicide under a s 128 certificate raises concerns about the court effectively conferring a form of immunity, a function that ordinarily belongs to the executive through the Attorney General's powers under ss 32 and 33 of the Criminal Procedure Act 1986 (NSW).
- Under s 128, the "interests of justice" assessment was recognised as a distinct exercise from the executive's policy decision to permit a participant in offending to avoid prosecution in order to secure evidence against co-offenders.
- A retrospective certificate under s 128(6) was held to be appropriate where a witness plainly intended to object on the basis of self-incrimination but gave incriminating evidence without formally objecting, particularly where the witness had received legal advice and may have misunderstood the scope of an earlier objection.
- Despite significant judicial misgivings, the joint submission of the prosecution and all three accused that the certificate should be granted proved ultimately persuasive, given the centrality of the witness's evidence to the trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38, 128, 128(4), 128(5), 128(6), 132
- Criminal Procedure Act 1986 (NSW), ss 32, 33
Cases:
- R v Simmons (No 6) [2015] NSWSC 418; (2015) 250 A Crim R 65
- R v Simmons; R v Moore (No 3) [2015] NSWSC 189