Privilege against self-incrimination

Giles JA

2. The appellant was convicted on one count of murder and one count of manslaughter in connection with the shooting of two men on the evening of 5 April 1998. He was tried separately from and after a number of other men who were charged with similar offences in relation to the same shootings. In the appellant's appeal he seeks to argue that a miscarriage of justice was caused by the failure of his counsel to call as witnesses the participants in the events of 5 April 1998, or at least some of them, to support the case he maintained at his trial that he was not present when and where the shootings occurred. For that purpose the appellant seeks to place before this Court new evidence from the participants in the events of 5 April 1998 that he was not present, or that they did not see him, when and where the shootings occurred.

3. The Crown is entitled to cross-examine the witnesses so called with a view to undermining the acceptability of their evidence concerning the presence of the appellant, and further is entitled to cross-examine the witnesses so called with a view to undermining the attack made upon the decision of the appellant's counsel not to call those participants in the events of 5 April 1998 at the appellant's trial. In general terms, the Crown is entitled to seek to show in cross-examination, including by what is elicited and how it is elicited on subjects other than the presence of the appellant, that calling the participants as witnesses in the appellant's case at his trial would or may have been contrary to the appellant's interests. That, of course, opens up quite a wide area of cross-examination, including as to what the participants did on the evening of 5 April 1998.

4. The question arose when one of the participants, Mr Mackic, was called. He had been found guilty at a trial together with the participants other than the appellant on two counts of manslaughter in connection with the shootings. Before this Court he gave evidence in chief that he did not see the appellant on the evening of that day, and that he met the appellant's counsel and solicitor, by inference at the time of the appellant's trial or at some time before it, and said that he would be happy to give evidence on behalf of the appellant.

5. When the Crown began to cross-examine Mr Mackic he took an objection, one which at the time was not entirely clear but was later clarified. Passing over intermediate debate, in due course the Crown provided a document, now MFI 1, in which it indicated the areas on which the Crown proposed to cross-examine Mr Mackic. Mr Mackic was able to have legal advice in relation to his position with that document to hand, and objected to giving evidence in the areas 7, 13 and 14 as stated in that document on the ground of self incrimination.

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11. Mr Mackic has objected. The practical difficulty of identifying particular evidence has, I think, sufficiently been overcome by the Crown's identification of the areas on which it proposes to cross-examine. Subject to the qualification to which I will later come, it can be said that there has been an objection to giving particular evidence. The ground for the objection has not been fully elucidated. As explained by Mr Mackic, it came down to concern that the evidence might prejudice an appeal which he might bring in relation to his convictions. Mr Mackic has not yet appealed and is now out of time, but conceivably he could apply for an extension of time within which to appeal, obtain an extension of time and prosecute an appeal. I believe that what Mr Mackic was really saying was that the evidence he gives may tend to prove that he committed the offences for which he has been convicted, and thereby prejudice him in an appeal which he might hereafter be able to bring.

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14. The words used are similar to those found in the common law cases by which it was necessary that the court see that there are reasonable grounds to apprehend danger to the witness from his being compelled to answer. I have taken that phrase from R v Boyes (1861) 1 B & S 311 at 330; 121 ER 730 at 738, cited by Gibbs CJ as a frequently approved statement of the law in Sorby v The Commonwealth (1983) 152 CLR 281 at 289. Because that was the common law approach, a witness could not refuse to answer a question which tended to show that he had committed a crime for which he could not be convicted and punished, for example because he had received a pardon or a protective certificate or because he had already been convicted or acquitted of the crime, see the statement to that effect and supporting cases cited by Gibbs CJ in Sorby v The Commonwealth at 290.

15. In my view the same concept underlies the words in s128(2). Those words must, of course, be construed for their proper meaning and effect without being confined by pre-conceptions from the common law. But it seems to me to be a matter of commonsense that reasonable grounds for an objection must pay regard to whether or not the witness can be placed in jeopardy by giving the particular evidence.

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17. Drawing these matters together, it seems to me that where Mr Mackic has not appealed so that there are unimpugned convictions, the position as stated by Gibbs CJ in Sorby v The Commonwealth holds good for the purpose of s 128(2). The possibility of a late appeal does not alter the position because there will be no prejudice in any such appeal.

18. It follows, in my view, that at this point in the application of s 128 Mr Mackic must give evidence despite his objection, that is, that the embargo in s 128((2) in the words "the court is not to require the witness to give that particular evidence" does not apply. It does not apply because the pre-condition that there are reasonable grounds for the objection has not been satisfied.

Sully J

22. I agree with the ruling

David Levine J

23. I agree

Ipp JA

1. This is an appeal against convictions on seven counts of committing offences under s 596(b) of the Corporations Law as it existed prior to 15 July 2001. The criminal conduct alleged in each count was that the appellant, as an officer of a nominated company, with the intent to defraud the company, caused property belonging to it to be transferred to another. Each count was based on allegations that the appellant caused a cheque, in a particular amount, to be drawn by the nominated company and the proceeds to be paid to the payee (a third party). In counts 1, 2 and 3 the nominated company was Lawnkin Pty Limited and in counts 4, 5, 6 and 7 the nominated company was Nambucca Investments Pty Limited. The payee in each case differed. The aggregate amount so transferred was $162,500.

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89. The third ground of appeal is that his Honour erred in making the appellant aware, in the presence of the jury, of the effect of s 128 of the Evidence Act when granting a certificate under that section.

90. The appellant testified that he observed a management agreement between Nambucca and Austwide being executed at a meeting on 29 September 1994. He also testified that that agreement was authorised by the directors in a minute of 25 October 1994. However, such a management agreement was not produced at the trial.

91. During committal proceedings, the appellant produced a document purporting to be a minute of 25 October 1994. At the trial the Crown led unchallenged evidence of a handwriting expert to the effect that the minute was a forgery. The forged minute contained four paragraphs whereas the genuine minute contained three. The fourth paragraph on the forged minute related to the management agreement.

92. When the appellant gave evidence the crown prosecutor said to the Court:

"The person from whom that document [the forged minute] emanated was Mr Parkes at the committal proceedings, and I propose to explore where it came from".

Counsel for the appellant rose and said "Your Honour, I have an application I would like to make without the jury present". In the absence of the jury, counsel foreshadowed that he would make an application under s 128(2) for a certificate which, by s 128(7), would have the effect that the evidence given could not be used against the appellant in any proceeding in an Australian court.

93. Dodd DCJ pointed out that the crown prosecutor had not asked the appellant any question that could give rise to the need for such a certificate. The prosecutor said that he proposed to put to the appellant that he, the appellant, had produced the minute for the first time at the committal proceedings, and remarked that he might well ask a question "that might be suggestive of the fact that Mr Parkes either knows or has some knowledge as to how the signature got on there". He accepted that that "could give rise to a problem".

94. Dodd DCJ then said:

"That means I will have to give him a warning and to go through the procedure under s 128. If we get there that is what I will do. I am to do that in front of the jury".

95. His Honour, in making these remarks, had lost sight of s 132 of the Evidence Act which provides:

"If it appears to the Court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the Court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision".

Neither counsel alerted the judge to s 132.

96 Later, the crown prosecutor began questioning the appellant about who created the forged minute. Dodd DCJ interrupted and said, in the presence of the jury:

"Before you answer that, Mr Parkes, you have the right to object to answer that .... question on the ground the evidence may tend to prove that you have committed an offence against or arising under an Australian law, and if you do object then there are certain procedures that I should go through".

His Honour went on, in front of the jury, to describe the content of s 128 and to explain its import. He said:

"I am satisfied under s 128 sub-section (5) that the evidence may tend to prove that this witness has committed an offence against or arising under an Australian law. I am satisfied that the evidence does not tend to prove that this witness has committed an offence against or arising under or is liable to a criminal penalty under a law of a foreign country and I am satisfied that the interests of justice require that the witness give the evidence, and therefore I require you, Mr Parkes, to answer the question. However, under s 128 sub-section (6) of the Evidence Act because I so require I am to cause you to be given a certificate under that section in respect of the evidence. And the effect of that certificate is that in any proceeding in an Australian court evidence given by you in respect of that certificate and evidence of any information document or thing obtained as a direct or indirect consequence of you having given that evidence cannot be used against you except in relation to a criminal proceeding in relation to the falsity of the evidence, that is the falsity of any evidence that you may give now".

97. The crown prosecutor proceeded to question the appellant who denied any knowledge as to the person who had created the forged document and denied that he had himself done so.

98. Plainly, there was no need for the issue of a s 128 certificate to have been raised by counsel for the defence, as the appellant did not intend to give any evidence that disclosed the commission of an offence.

99. In my opinion, the procedure that was adopted contravened s 132 and the question arises whether a miscarriage of justice occurred. I deal with this below.

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125. In the light of the strength of the Crown case, I do not think that individually or cumulatively the errors in question resulted in the appellant losing a chance which was fairly open to him of being acquitted: Mraz [1955] HCA 59; (1955) 93 CLR 493 at 514. I consider that the proviso under s 6(1) of the Criminal Appeal Act applies as no miscarriage of justice occurred.

126. In the circumstances I would dismiss the appeal against the conviction.

Hulme J

133. I agree with the orders proposed by Ipp JA and, subject to the following remarks, with His Honour's Reasons.

Bell J

141. I agree with Ipp J

Tobias JA

1. On 26 February 2002 David Leonard Collisson (the appellant) was found guilty by a jury of the murder of Shahab Kargarian on 8 October 2000 at Greenwich in the State of New South Wales. On 26 March 2002 the appellant was sentenced by Whealy J to imprisonment for 24 years to commence on 8 October 2000 and to expire on 7 October 2024 with a non-parole period of 18 years to expire on 7 October 2018.

2. The appellant appeals to this Court only against his conviction. Five grounds of appeal were originally advanced when the Notice of Appeal was filed on 26 March 2002. The appeal was later refined to three grounds and, ultimately, to one, namely, that the trial judge was in error when he failed to grant an application by the Crown in which the appellant joined that a Mr Simon Bradley be examined on the voir dire with the intention that he give evidence in the trial. At the hearing before us this ground was further refined in accordance with the appellant's oral submissions to which I refer below.

3. The Crown case was that at or around 12.45 am on 8 October 2000 the deceased and his girlfriend, Shabnam Faiz, parked at Greenwich Peninsula to watch the city lights. They were standing in front of the deceased's Toyota and eating when a man demanding the deceased's wallet accosted them. Another, shorter, man was present but not in the immediate area. The deceased said he did not have a wallet at which point the taller of the two men shot him twice and then both men absconded. The police responded quickly and shut down Greenwich Point. At 2.45 am the appellant and a Simon Bradley (Bradley) were found by police in a reserve not far from the crime scene. Later that morning various items were found linking the appellant to the shooting including a sports bag which the appellant and, later, the other man, had been seen carrying which contained the weapon which, so the evidence established, was used in the shooting.

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5. The critical issue in the case was the question of identity. After the Crown had opened to the jury counsel for the appellant also opened in which he confirmed that the pivotal issue in the case was one of identification. The evidence proposed to be called by the Crown was that the shooter was the taller of the two men who was the appellant, the shorter man being Bradley. There was no issue but that the appellant was taller than Bradley.

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7 It was a reasonable inference from this statement of counsel for the appellant that the latter's defence was that it was not he who was the shooter but Bradley. This became more apparent as the trial proceeded.

8. Representatives of both the Crown and the appellant had attempted to interview Bradley without success. The police had interviewed him but he had refused to make a statement, as was his right. By the time of the trial Bradley, who with the appellant was arrested in October 2000, had been charged with the commission of a criminal offence, namely, the offence of concealing a serious crime which carried, as a possible consequence, a term of imprisonment if he was convicted. He had pleaded not guilty to that charge and, at the time of the trial of the appellant, no date for hearing of that charge had been set.

9. It would appear that from the commencement of the trial the Crown had indicated to counsel for the appellant and the latter had agreed that Bradley would at some point of time during the Crown case be called as a witness in what is referred to as a Basha inquiry. The intention was that Bradley would be called to give evidence on the voir dire in the absence of the jury in order to enable the parties to ascertain the evidence that he was able to give. This was necessary as Bradley had refused to make a statement and to be interviewed by either representatives of the Crown or the appellant with the consequence that neither party was aware of the evidence that might be elicited from him. In particular, no one knew as to whether such evidence, if and when given, would favour the Crown or the appellant.

10. It would also seem that Bradley was at all material times represented by counsel who advised the legal representatives of both the Crown and the appellant that her client, if called, would refuse to answer any questions on the ground that such evidence may tend to prove that he had committed an offence against or arising under an Australian law. On 18 February 2002, being the eleventh day of the trial, the Crown Prosecutor informed his Honour that it was proposed to call Bradley in the absence of the jury; that it was anticipated that when asked to give particular evidence he would refuse to give that evidence on the ground referred to and that the Crown and the appellant would apply to his Honour pursuant to s 128(5) of the Evidence Act 1995 (NSW) (the Act) to exercise his discretion under that provision to require Bradley to give the evidence sought upon the basis that the witness would be given a certificate under s 128(6) in respect of that evidence. The consequence of such a certificate would be that Bradley's evidence could not be used against him in an Australian court: see s 128(7). At the time it was foreshadowed by counsel for Bradley that such a course would be opposed upon the basis that it would not be in the interests of justice to require Bradley to give such evidence given that there were outstanding charges against him which had not been finally resolved.

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13. The issue which was then debated between the Crown Prosecutor and counsel for the appellant on the one hand and counsel for Bradley on the other was whether the Court could be satisfied, within the meaning of s 128(5)(c) of the Act, that the interests of justice required Bradley to give the evidence sought. At the end of the argument his Honour delivered judgment in which he concluded that he should not make an order under s 128(5). He identified the critical issue as being whether he was satisfied that the interests of justice required that Bradley give the evidence sought. Having noted that the subject provision did not compel the making of an order thereunder and that the making of an order requiring a person facing unresolved charges to give evidence would result in a situation where incriminating evidence must be provided, his Honour determined that Bradley should not be required to give the evidence in question.

14 His Honour's reasons for refusing the order were set out in the following paragraphs of his judgment:

"13. First, it is well-established that the evidence of an accomplice is "inherently suspect".

14. Secondly, this is even more so where the accomplice, although charged, has not finally been dealt with.

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18. Nevertheless, the reasons underlying this practice, including notions related to the instability and the unreliability of such evidence, especially in the context of the present trial, are compelling considerations for not making an order under sub-s 5. This is precisely because the Crown has no idea what the witness will say, nor, as I have been told, does the accused. For example, in purely hypothetical terms, the witness might volunteer that he saw the accused shoot the deceased: such a statement might be virtually worthless since he is an accomplice awaiting trial. On the other hand, he might suggest that neither he nor the accused were, at the relevant time, anywhere near the crime scene. In theory, he might say he was the shooter and the accused was entirely innocent: or he might say he has no recollection whatsoever of the events of the evening. Again for varying reasons these statements, were they to be made, would be virtually worthless.

19. Fourthly, there is the broader consideration of the position of the witness himself. As I have said, he is implicated and charged in relation to the very criminal act with which the accused is charged. It would only be, in my view, in the most compelling of circumstances that the should be required prior to the resolution of the charge against him to give evidence of his involvement, if any, in that act, notwithstanding the apparent protection afforded by the certificate."

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28. Accordingly, the outcome of this appeal centres on whether his Honour was entitled, when determining that he was not satisfied that the interests of justice required Bradley to give the evidence, to apply to Bradley the well-established principle of the common law that the evidence of an accomplice was "inherently suspect". In this respect, the nub of the appellant's argument was that his Honour had erred in finding that Bradley was an unreliable witness simply because he fell within the class or category of witnesses referred to in s 165(1)(d) of the Act whose evidence "may be unreliable". It was submitted that his Honour could not opine that the evidence of Bradley would in fact be unreliable without first ascertaining the nature of the evidence that he was prepared to give. It was contended that it was necessary to ascertain and then assess that evidence before his Honour could determine that it would be so unreliable that, in the interests of justice, Bradley should not be required to repeat that evidence, one assumes, before the jury.

29. In my opinion, the appellant's submission should be rejected. It is, of course, essentially circular. It makes no sense to suggest, as does the submission, that although it would be in the interests of justice to require Bradley to give incriminating evidence in the absence of the jury notwithstanding that the charges against him have not been finalised, it would (or, at least, may) not be in the interests of justice to then require him to give the same evidence in the presence of the jury.

30. As I have observed, it was not contested that his Honour was correct in stating the "well-established principle" that the evidence of an accomplice is "inherently suspect". Equally, it was not contested that Bradley was a witness who fell within the class or category of witnesses referred to in s 165(1)(d) of the Act whose evidence may be unreliable and in respect of which a warning to the jury, if requested, may be necessary pursuant to s 165(2). Accordingly, I do not understand why his Honour was not entitled to describe any evidence that Bradley might relevantly give as inherently unreliable. It seems to me that it was not necessary for his Honour to know the exact details of the evidence which Bradley would give before he could come to that conclusion.

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33. In any event, in the light of the other independent and objective evidence that had been given, one would not need to be too prescient to conclude that any such evidence would simply have been unbelievable and, therefore, disbelieved. In these circumstances, I can see no error in his Honour's first reason as to why he could not be satisfied that the interests of justice required Bradley to give evidence, namely, that that evidence would be unreliable.

Whealy J

1. Izhar Ul-Haque (“Ul-Haque”) was committed for trial on 7 March 2005. On 1 April 2005 he was arraigned before Barr J on an indictment which charged him that, between 12 January 2003 and 2 February 2003, in Pakistan, he intentionally received training in respect to combat and the use of arms from a terrorist organisation, Lashkar-e-Taiba (“LeT”) knowing that LeT was a terrorist organisation. This offence is provided by s 102.5(1) of the Criminal Code (Cth) as it stood in January 2003.

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17. Although I have not seen specific evidence on the point, certain information has been provided to me on behalf of the accused without demur from the Crown. This is said to show a connection between the accused and Ul-Haque, which is reflected in the course of proceedings originally instituted against each man. The starting point is the arrest and deportation of Willie Brigitte in October 2003. It is proper to infer that this led to a spate of intensive investigative actions in Australia. One possible corollary of the situation may have been the commencement of the interviews with Ul-Haque in November 2003. On 26 October 2003 a Search Warrant was executed at the accused’s home and it appears that he had already been under surveillance in October 2003. There were Questioning Warrants issued under the ASIO legislation against the accused and he was detained for questioning. This compulsory interrogation began on 30 October 2003 and continued until some time late in November 2003. The accused was arrested and charged with terrorism offences on 22 April 2004. I have not been provided with the precise times of the initial charges against Ul-Haque and the accused. It appears, however, that they were probably charged at about the same time, or, at least as I understand it, at times not far apart. Ul-Haque was charged with intentionally receiving training from LeT; the accused was initially charged with an offence under the Criminal Code of “recruiting” Mr Ul-Haque to participate in training with LeT in Pakistan. The brief of evidence that was served on the accused at the time that he stood charged with that offence was the same brief of evidence that remained served up to the time of committal for trial in relation to the charges, or the predecessors of the charges, that now appears in the indictment.

18. There appears little doubt that the “recruitment” charge brought against the accused was originally based upon what Mr Ul-Haque had said to the police in the three records of interview. There was no other evidence in the brief of evidence served upon the accused prior to the committal hearing, which would have sustained a charge of recruiting Mr Ul-Haque for terrorist related training. At the committal hearing, however, the charge of recruiting Mr Ul-Haque was discontinued against the accused. It has never been revived.

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21. There is no need for me to set out the evidence in detail. In summary, however, it appears that Mr Ul-Haque made an number of statements in relation to the role played by the accused in encouraging and recruiting him to travel to Pakistan for the purpose of Ul-Haque’s training with LeT, in order to participate in Jihaad. That has been described as the first category of evidence. The second category is Mr Ul-Haque’s evidence in relation to his travel to Pakistan and his training with LeT in 2003. It includes evidence that Ul-Haque met or at least saw the accused at the LeT centre in Lahore and that it appeared to him that the accused was known to the people who ran this centre.

22. The third category of evidence relates to the relationship between the two men when Ul-Haque returned to Australia in early 2003. The evidence relates to arrangements made between Ul-Haque and the accused requiring Ul-Haque to use confidential or secretive means of communication if he wished to speak to the accused.

23. Not surprisingly, Mr Ul-Haque has indicated that, if called, he will refuse to answer any questions, which are put to him on the grounds that the answers would tend to incriminate him. Mr Toner SC appeared on his behalf on the present application to resist any order that Ul-Haque be required to give evidence at trial. This was done essentially on the two bases arising under s 128(5)(b) and (c) of the Evidence Act 1995.

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29. I have come to the conclusion that Ul-Haque should not be required to give evidence in the trial of the accused. There are two essential factors in terms of the legislation that lead me to this conclusion. The first is that I am not satisfied that the evidence sought to be adduced does not tend to prove that the witness has committed an offence against or arising under a law of a foreign country. The second is that I am not satisfied that the interests of justice require that the witness give the evidence. Indeed, upon a consideration of all relevant matters that have been argued before me in relation to this discretionary exercise, I am positively satisfied that I should not require the witness to give the evidence.

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46. The point is, however, that while the evidence of Ul-Haque would admittedly add further dimension to the mosaic of the Crown case, as I have described it, it would not add to it in a significant or critical way. Conversely, the omission of the Ul-Haque evidence will not significantly diminish the overall nature of the Crown case. Importantly, the evidence does not directly bear on the commission of the acts namely, the physical elements of the offence.

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50. For the reasons I have outlined, I think that it is highly likely that if he is required to give evidence it will really mean that either he or the cross-examiner will traverse the bulk of the three interviews including the evidence in all three categories. Moreover, there is every possibility that a forceful cross-examination will tend to expose, or at least may expose, that his involvement in the LeT training camp in 2001 was at a higher level than he has indicated in the records of interview. Certainly that will be aim of the cross-examiner who will seek to secure that position as part and parcel of an attack upon the witness’s credibility, his reliability and the truthfulness of the material in the interviews so far as it impacts upon the accused.

51. It is of course true that Ul-Haque has the benefit of an indemnity certificate from the Director of Public Prosecutions. Moreover, if required to give evidence, he would have the benefit of a certificate issued by the Court. But, in the unusual circumstances of Mr Ul-Haque’s trial, I am not satisfied that that protection will be sufficient.

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55.But the certificate does not give absolute protection. There are, for example, the indefinable but no doubt real prejudices that may result where a witness has given evidence of the kind dealt with in s 128 which may as a consequence bring him into disfavour with some sections of the community or people who have previously held the witness in high regard. Secondly, the protection may not extend to the consequences that may be involved in disciplinary proceedings instituted against professional persons or even, at a wider level, against members of the general community. In the present case, particularly, there is the subtle but real damage that can be done to the rights of Ul-Haque if the entirety of the Crown case against him, in effect, becomes the material evidence he is required to give against the accused. The position is made the worse, I consider, in the particular circumstances where he is seeking to overturn those very records of interview and have them excluded from his trial. It is not inconceivable that a successful cross-examination by Mr Boulten SC in the present matter may disrupt and indeed, shatter the professional bond of confidence existing between Ul-Haque and his counsel of choice. The very substance of the questioning envisaged by Mr Boulten SC might well lead to a question whether the matters to be put to Ul-Haque fall into the category of material that is “oppressive and unjust” in the sense mentioned by Toohey J in Hamilton’s case.

56.There is one further issue that needs to be mentioned: this is the aspect of the reliability of the material evidence to be adduced from Ul-Haque. This issue was raised and dealt with by the New South Wales Court of Appeal in R v Collisson [2003] NSWCCA 212 paras 28-33. Here, for the reasons mentioned by Mr Boulten in argument there is likely to be an issue concerning the reliability of Ul-Haque’s evidence. It seems almost inevitable that a direction would have to be given under s 165 of the Evidence Act. Although I do not think that this is a determinative factor in the present matter, it is a matter that needs to be brought into the scales and, on balance, it also favours the result that seems appropriate to me in relation to the present application.

Gleeson CJ, Gummow, Heydon and Crennan JJ (would allow the crown appeal and remit the matter to the NSWCCA)

1. This case involves two appeals and an application for special leave. They arise out of two trials of Richard Bruce Cornwell ("the accused") on a drug conspiracy charge. The charge was laid under federal law and prosecuted in the name of the Crown by the Commonwealth Director of Public Prosecutions ("the DPP"). The first trial was conducted in the Supreme Court of New South Wales before Howie J and a jury. At that trial the jury failed to agree on the charge against the accused. The second trial was conducted in the District Court of New South Wales before Blackmore DCJ and a jury. At the second trial the accused was convicted.

2. The first appeal is brought by the Crown against orders of the Court of Criminal Appeal of New South Wales (McClellan CJ at CL, Hulme and Adams JJ) upholding an appeal by the accused against his conviction at the second trial and ordering a new trial.

3. The second appeal is also brought by the Crown. It is an appeal against the Court of Criminal Appeal's failure to allow a Crown appeal against Howie J's grant of a certificate under s 128 of the Evidence Act 1995(NSW) ("the NSW Act").

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6. The charge. On 17 February 2003 the DPP charged the accused on an indictment that he conspired (with eight other defendants, three other named persons "and divers others") to "import into Australia prohibited imports to which section 233B of the Customs Act 1901 [(Cth)] applied, namely, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine". The period alleged was the period between about 1 January 2001 and about 6 August 2001. The provision allegedly contravened was s 233B(1)(cb)[2]. The quantity of cocaine allegedly involved was approximately 120 kilograms. The commercial quantity applicable to cocaine was two kilograms. The maximum sentence was a fine not exceeding $825,000 and/or imprisonment for life. The accused was sentenced to 24 years imprisonment, with a non-parole period of 14 years and six months.

7. Howie J admits recorded conversations. The first trial began on 4 February 2003. On 20 February 2003, Howie J decided to admit into evidence certain listening device recordings of conversations between the accused and one of the defendants, Mr Diez, and between the accused and another of the defendants, Mr Lawrence ("the Diez-Lawrence conversations"). Howie J did so on the basis that the Diez-Lawrence conversations revealed that the three persons were involved in the business of supplying drugs to buyers in Australia, and that this was "highly probative evidence" of their participation in the alleged conspiracy to import drugs into Australia. Howie J said:

"A person involved in the drug trade has to obtain his supplies from somewhere. When that trade is as substantial as appears to be that in which the accused was involved, it is well open to the jury to find that the accused would be a participant in a conspiracy to obtain a substantial amount of drug for the purpose of carrying out the trade in which he was involved."

8. Howie J rejected various contentions advanced on behalf of the accused which are not now pressed, for example, that the evidence was tendency evidence which was not admissible under s 97 of the NSW Act, that the evidence was so unfairly prejudicial that the Court should exercise its discretion under s 137 of the NSW Act to exclude it, and that it was inadmissible because it did not comply with s 138 of the NSW Act.

9. The accused foreshadows an application for a s 128 certificate. On 30 April 2003 counsel for the accused said that he expected his client would give evidence, but that he would wish to object to testifying about the Diez-Lawrence conversations. Counsel said that he would be seeking a certificate under s 128 of the NSW Act in relation to the accused's testimony on that subject. He said that Howie J would need to consider what procedure should be adopted.

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14. Howie J's judgment of 5 May 2003. After Howie J heard submissions from counsel (including counsel appearing for other defendants) he delivered a detailed judgment. First, he rejected the DPP's argument that testimony about what the Diez-Lawrence conversations revealed of the accused's involvement in selling drugs in Australia was evidence of a "fact in issue" within the meaning of s 128(8), that hence s 128 did not apply and that no certificate could be granted. Secondly, Howie J indicated that he would require the accused, under s 128(5), to answer questions about selling drugs in Australia, and would grant him a certificate under s 128(6). He required the legal representatives of the accused to present a draft certificate within three weeks, but this was not done. He did not give, or cause to be given, any certificate to the accused in the course of the first trial.

15. The outcome of the first trial. On 23 June 2003 the jury convicted some of the defendants and acquitted others. However, the jury members were unable to agree on the charge against the accused and the charges against some of the other defendants.

16. The start of the second trial. On 27 January 2004 a second trial began; the jury was empanelled on 16 February 2004. The charge against the accused was similar to the charge against him in the first trial in the sense that it related to the same part of s 233B and the same drugs. Apart from the accused, there were four other defendants. Additional unindicted co-conspirators were named.

16. In that trial the DPP contended that statements made by the accused in evidence at the first trial were admissible in the second despite Howie J's judgment of 5 May 2003. On 6 February 2004 Blackmore DCJ ruled that any s 128 certificate issued by the Supreme Court would apply to the proceedings before him, on the basis that the trial before him was a "proceeding" within the meaning of s 128(7) which was different from the proceeding involved in the first trial before Howie J.

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20. Blackmore DCJ receives the accused's testimony about the Diez-Lawrence conversations. The DPP had previously indicated to Blackmore DCJ that he wished to tender the whole of the accused's evidence in cross-examination from the first trial. On 12 February 2004 Blackmore DCJ made the crucial ruling of which the accused complains. He ruled that the Diez-Lawrence conversations "went to a fact in issue" in the trial before him and that s 128(8) precluded the accused from relying on the certificate to prevent the tender of evidence about those conversations. That is, he apparently declined to accept Howie J's ruling that s 128(8) did not apply to the accused's oral evidence about the Diez-Lawrence conversations and appeared to reach the conclusion that since s 128(8) was satisfied, s 128 as a whole did not apply. If that were his reasoning, it would follow that the inhibition which Blackmore DCJ considered was otherwise created by s 128(7) on the use of the evidence against the accused did not exist. Blackmore DCJ rejected an argument that there was sufficient unfairness in the tender to outweigh the significant probative value of the evidence. The accused then requested that the Crown tender the whole of the accused's evidence at the first trial and not just the cross-examination. The Crown agreed to this course, and it was adopted. The accused did not give evidence at the second trial. On 8 June 2004 he was convicted. On 18 November 2004 he was sentenced.

21. The appeals to the Court of Criminal Appeal. In the meantime, on 24 February 2004 the DPP appealed to the Court of Criminal Appeal against Howie J's grant of the certificate. That appeal was eventually heard on 2 and 3 February 2006 at the same time as the accused's appeal against conviction.

22. The grounds of appeal relied on by the accused were:

"1. The learned trial judge erred by admitting against the [accused] evidence which was the subject of a certificate issued pursuant to section 128 of the Evidence Act.

2. The learned trial judge erred by referring to the [accused's] former evidence as (a) an admission tendered against the interests of the accused and (b) 'a possible version of the facts'.
3. The learned trial judge erred by directing the jury that conversations involving the [accused] could be used against him if the jury was satisfied on the balance of probabilities that the conversations related to the conspiracy.
4. The learned trial judge failed to adequately sum up the defence case.
5. The verdict is unreasonable and cannot be supported by the evidence.
6. The learned trial judge erred in refusing to grant the [accused] access to the information on oath deposed by Federal Agent ... on 27 February 2001."

23. The Court of Criminal Appeal upheld ground 1, briefly rejected ground 5, discussed ground 4 but did not decide it, and did not decide grounds 2, 3 and 6. The Court declined to apply the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). The Court ordered a new trial. The Court dismissed the Crown appeal in relation to the issue of the certificate.

…

First issue: did s 128(8) apply to the accused's testimony at the first trial?

30. Before s 128 could operate, a key question posed by s 128(8) had to be answered. Was the accused's testimony at the first trial about the drug dealing in Australia "evidence" that he "did an act the doing of which is a fact in issue" or that he "had a state of mind the existence of which is a fact in issue"? On the accused's construction of s 128(8), the answer is "No" and the balance of s 128 was capable of applying. If the answer is "Yes", s 128 could not have applied, there would have been no power to "require" the accused to give the evidence pursuant to s 128(5), and there would have been no justification for causing the accused to be given a certificate under s 128(6). It would have been a matter for the accused and his counsel what questions were asked in chief, and the accused would have been obliged to answer any otherwise permissible questions in cross-examination.

31. The right answer to the question just posed is "Yes", because the accused's construction of s 128(8) is not correct. Section 128(8), in New South Wales and other jurisdictions in which it or identical provisions apply[13], is the successor to s 1(e) of the Criminal Evidence Act 1898 (UK) ("the 1898 Act") and its Australian equivalents. The affirmative answer to the question flows from the language of s 128(8) considered in the light of that earlier legislation and the Australian Law Reform Commission Reports which led to the enactment of s 128(8).

…

58. It can be seen, then, that the problems raised by granting to the defendant the right to testify in criminal cases were serious and controversial; that the grant had been opposed for a long time on many grounds; and that even experienced lawyers who favoured the grant of competence came up with radically different solutions to the problems which conferral created. Notwithstanding these disagreements, the Australian legislatures achieved unanimity on the proposition that the defendant's privilege against self-incrimination was abolished so far as matters of fact tending to criminate the accused as to the crime charged were concerned. In these circumstances it is highly unlikely that the enactment of s 128(8) of the NSW Act in 1995, and the corresponding Commonwealth legislation, the Evidence Act 1995 (Cth) ("the Commonwealth Act"), would have had the effect of changing the law by the introduction of a distinction, not specifically referred to in the statutory language, between self-incrimination as to facts in issue and self-incrimination as to facts relevant to facts in issue, unless clear language were employed. There is no suggestion in reports prepared by the Australian Law Reform Commission or the New South Wales Law Reform Commission that any such change was intended. There is no such suggestion in the Second Reading Speeches. And the indications in the legislation itself relied on by Howie J and by the accused's submissions are insufficient to suggest that it effected so radical a change in the law as that which is involved in the accused's construction of s 128(8).

…

70. Of course, it is not the questions which tend to show anything, only the answers. But it is clear that what the Commission meant was that the expression "evidence that a defendant ... did an act the doing of which is a fact in issue" in cl 110(5) means evidence that "[tends] to show that the accused committed the offence" charged. These passages confirm that the Commission did not intend cl 110(5) to have a different meaning from the equivalents to s 1(e) of the 1898 Act.

…

79. Assume that a man's body is found in a locked room. The cause of death is a single bullet fired into his head. One "fact in issue" on a defendant's trial for murder is whether the defendant shot the deceased. Evidence that the defendant was outside the room just before the time of death in possession of a fully loaded revolver is, on the accused's construction, not evidence of a "fact in issue". Nor is evidence that the defendant was outside the room just after the time of death in possession of a revolver fully loaded save that one shot had been fired. Nor is evidence that the defendant was the only person possessing a key to the room. Nor is evidence that the defendant had a motive for killing the deceased. All of these matters of fact other than the actual shooting are matters of fact relevant to the material "fact in issue", being the shooting by the defendant, but are not themselves "facts in issue". They are items of circumstantial evidence tending to establish that the defendant had the opportunity, the means and the motive to shoot the deceased. Counsel for the accused conceded that on the accused's construction, if the defendant entered the witness box, he could not claim any privilege against answering questions about the shooting inside the room, but he could claim privilege against answering questions about where he was just before and just after the shooting, about possessing the revolver or the key, and about his motive. If s 128(2) was satisfied, the accused would not be required to answer the questions, and if he did so, he would be entitled to a s 128(3) certificate; if s 128(5) was satisfied, he would be required to answer the questions and he would be entitled to a s 128(6) certificate. This would give the defendant a much greater potential immunity from questioning, and from later use of the answers to any questions which were asked, than existed - and in Victoria, Queensland, South Australia, Western Australia and the Northern Territory still exists - under the equivalents to s 1(e) of the 1898 Act. That outcome would be extremely unlikely.

…

84. In short, on the correct construction of s 128(8) the words:

"... the giving of evidence by a defendant, being evidence that the defendant:

(a) did an act the doing of which is an act in issue, or

(b) had a state of mind the existence of which is a fact in issue"

are not limited to direct evidence that the defendant did the act or had the state of mind; they extend also to the giving of evidence by the defendant of facts from which the doing of the act or the having of the state of mind can be inferred.

85. Conclusion on s 128(8). In these circumstances, where the accused's construction leads to results which would be both revolutionary and extremely unlikely, where it is not supported by the ALRC Reports (and indeed is, to a degree, contradicted by them) and where it is not justified by the reasons he advanced, it should not be accepted.

Second issue: was the second trial a "proceeding" to which s 128(7) applied?

86. Blackmore DCJ and the Court of Criminal Appeal considered that the second trial was a "proceeding" to which s 128(7) applied so as to prevent the reception of the accused's evidence at the first trial about the Diez-Lawrence conversations. Even if that view were correct, the evidence was still rightly admitted. That is because it was concluded above that the accused's construction of s 128(8) was erroneous. It follows that s 128 could not apply to the accused's testimony about the Diez-Lawrence conversations. Since s 128 could not apply, the prohibition contained in s 128(7) on use of the evidence against the accused could not apply.

87. But even apart from that point, the second trial was not a "proceeding" to which s 128(7) applied. The reason given by Blackmore DCJ for his opinion was:

"[T]he natural meaning of the words 'any proceeding' would include the circumstances of this trial even though it is a retrial. The trial is taking place in a different court, in a different jurisdiction, before a different tribunal of fact and the only similarities are the fact that the accused is charged with the same offence."

On the other hand, Howie J disagreed with Blackmore DCJ on the following grounds:

"I find it difficult to see any justifiable policy which would permit an accused to give evidence in a trial on the basis that some or all of it could not be used against him in any subsequent proceeding for the same offence. There are many situations in which a retrial can occur other than because of a jury disagreement. It is, to my mind at least and generally speaking, an affront to the administration of criminal justice that the evidence given by an accused at a trial of a serious criminal offence could not be used by the Crown at a subsequent trial of the same offence either as evidence in the Crown case or by way of cross-examination of the accused if he or she gave evidence on that occasion. Yet that would be the result of the issuing of the certificate issued by me if the further trial is caught by s 128(7). I do not believe that could have been the intention of the Law Reform Commission or the legislature in giving effect to the Commission's recommendations."

88. Howie J's opinion is correct for the following reasons. The first and second trials were each part of one "proceeding" - the prosecution of the accused on the charge of conspiring to important 120 kilograms of cocaine. As Blackmore DCJ accepted, at both trials the accused was "charged with the same offence" arising out of the same facts, even though the jurors were different, the trial judges were different, the courts were different, and the form of the indictments differed in relation to the parties. That prosecution was not brought to an end by reason of the jury at the first trial failing to agree on whether the accused should be acquitted or convicted. Rather, that failure simply left the prosecution uncompleted. As Howie J said, a retrial may occur for many reasons other than a jury disagreement. The jury may be discharged, for example, because of illness among the jurors, because of what is said in the addresses of counsel, because the jury hears inadmissible information in a manner not capable of being cured by direction, or because of judicial self-disqualification on grounds of actual or apprehended bias. The first trial may proceed to a conviction, but a second trial may be necessary because an appeal is allowed on some ground not resulting in a verdict of acquittal. The construction on which Blackmore DCJ's conclusion depends produces results so unlikely as to compel its rejection. Among other difficulties, it would mean that an accused person who had obtained a ruling under s 128(2) or s 128(5) but who considered that the evidence given to which the ruling related had turned out unsatisfactorily could, by misconduct sufficient to cause the first trial to miscarry, obtain a second trial free of the risk of that evidence being used. To conduct a retrial is to conduct the trial which ought to have taken place in the first place. A retrial returns the parties to the position they were in at the start of the first trial. The parties are at liberty to re-tender the evidence already tendered. They are also at liberty to tender other evidence. Among that other evidence which traditionally the parties have been at liberty to tender is evidence of admissions made at the first trial. To construe a statutory provision as negating that traditional possibility would require the identification of clear words to that effect. There are no clear words to that effect in s 128(7). There is nothing in ALRC 26, ALRC 38 or NSWLRC 56 which would support Blackmore DCJ's construction of s 128(7). In short, the function of s 128 is to ensure that evidence given at a trial in relation to one charge is not used later in relation to another. Section 128 does not ensure that the evidence received at a trial in relation to the first charge cannot be used at a retrial on that charge.

…

93. Counsel for the accused supported the Court of Criminal Appeal's view by contending that s 128(8) did not relate to the giving of evidence before Blackmore DCJ. Rather, it restricted the tender of evidence from the first trial. Counsel submitted that all Blackmore DCJ had to do was construe the s 128(6) certificate and apply it. He had erred in going behind it.

94. This criticism is incorrect. It would only be valid if there were some legislative provision compelling Blackmore DCJ to follow Howie J's ruling. The only legislative provision to which the accused could point was s 128(7), and it was concluded above that it did not apply. In the absence of any legislative provision to the contrary, Blackmore DCJ was not bound either by Howie J's ruling under s 128(5), or by the certificate, any more than he was bound by any other evidential ruling made by Howie J. Blackmore DCJ took a far wider view than Howie J of the relevance of the Diez-Lawrence conversations, for example: no complaint was made about this, and it could not be said that this course was not open to him. If trial judges conducting second trials are not in general able to approach the task of making evidential rulings afresh for themselves, free of any constraints created by the rulings in the first trial, the prosecution would be placed in an impossible position. Those responsible for the conduct of a prosecution at one trial would have to seek protection against the risk of an order for a new trial later being made. But by what means? To launch interlocutory appeals under s 5F of the Criminal Appeal Act against all rulings which they were dissatisfied with would run foul of the strong repugnance appellate courts have towards interrupting trials by interlocutory appeals. To apply to quash those rulings after the jury disagreed would mean having to face the difficulty that the Court of Criminal Appeal seemed to express considerable doubt, in the passage quoted above, as to whether there exists any method by which to actually do so. Blackmore DCJ was not bound by the accused's construction of s 128(8), and was entitled to depart from it. If the accused's construction were wrong, as it has been held to be, Blackmore DCJ was therefore entitled to depart from Howie J's s 128(5) ruling since no part of s 128 applied. Whether or not Blackmore DCJ actually relied on this reasoning, it is sound, and it supports his conclusion that the accused's testimony at the first trial was admissible at the second. That conclusion stands whether or not the certificate is set aside.

Kirby J (would dismiss the Crown’s appeal)

153. The contest concerning the application of s 128 to the circumstances therefore turns on the meaning of the phrase "fact in issue" in s 128(8). The prosecution contended that the phrase extended to include a "fact relevant to a fact in issue" For many reasons, this is not the preferable construction:

.      It is not what s 128(8)(a) actually says;

.      The distinction between a "fact in issue" and a "fact relevant to a fact in issue" is well established in the law of evidence[159]. The latter is a category often described as "circumstantial evidence". This is evidence which, although not directly proving a fact in issue in the trial, may tend towards or contribute to, the reasoning by which the decision-maker infers that a fact in issue is established;

.      What is "in issue" is determined in criminal, as much as in civil, proceedings, by the pleadings by which the ultimate issues are defined. It was therefore determined, in this case, by the single count of the indictment alleging against the accused his guilt of the offence of conspiracy to import illegal drugs. The "facts in issue" are thus the elements, or necessary ingredients, of the offence so stated. Unless a fact is of such a character, it is not "in issue", however much it may be relevant or useful, in terms of evidence, to deriving a conclusion about the establishment of the facts required by the legal issues for trial;

.      All of this is to say no more than was said by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Smith v The Queen, which Howie J cited and which the Court of Criminal Appeal likewise applied; and

.      The interpretation adopted was the one that helps s 128 to operate in accordance with its apparent purpose. It upholds the differential entitlement of the accused to refuse to answer questions tending to prove that he had committed offences of trafficking drugs within Australia (with which he was not charged); but it does so under the protection of a certificate that required him to give his evidence in that regard because that was what "the interests of justice" required in the proceedings for the larger reasons of justice identified by Howie J. Even if I disagreed with the assessment of "the interests of justice" (which I do not), that disagreement would not justify a conclusion that the Court of Criminal Appeal had erred. In decisions made concerning the balance of individual and public interests, contemplated by s 128 of the NSW Act, a high measure of respect must be paid by appellate courts to the assessments and judgment of the trial judge as envisaged by the section.

…

170. Trial judges do not have the luxury, as this Court does, of pouring over the completed record of the entire proceedings. Rulings of the kind that Howie J had to make are necessarily made prospectively, on the run. Of its nature, at the time such a ruling is typically made, neither the jury, nor the judge, will know every fact in dispute in the proceedings, the proof of which might assist the jury in determining whether the accused committed the particular offence charged. This is why it should be inferred from the context that "fact in issue" is an expression used with legal precision. It is concerned not with how probative or significant an evidentiary fact might be to the prosecution case or to the accused's defence of the charge. It is a reference to the "ultimate issues" as defined by the pleading.

…

178. Applying this principle, I agree with the submission for the accused that s 128(7) of the NSW Act should be interpreted liberally while s 128(8) should be construed strictly. This approach to the interpretation of the contested provision supports the conclusion as to the meaning and operation of s 128 adopted by Howie J and by the Court of Criminal Appeal.

…

193. That was a legally correct opinion. The interpretation of s 128(7) of the NSW Act now adopted by the joint reasons is inconsistent with the language in which s 128(7) of the NSW Act is expressed and with its purpose:

.      The language of s 128(7) applies the prohibition on the use of the subject evidence given by a person who is the recipient of a certificate in "any proceeding". The use of the word "any" as an adjective connotes an application of the provision to a number of instances, no matter how many or how much. This is the natural meaning of the word "any" in the context. It imports a universal and unlimited application to the subject described;

.      The subject of s 128(7) is a "proceeding in a NSW court". It defies the ordinary meaning of that expression to suggest that the second trial of the accused was not such a "proceeding". It had all of the appearances of a "proceeding". It was certainly a trial "in a NSW court". It was one of "any" such "proceeding" because retrials are not at all unknown. Obviously, a new trial is a species of legal "proceeding".

.      The interpretation suggested in the joint reasons requires glossing the language of the NSW Act, in effect to add a qualification such as "in any proceeding other than a retrial or the proceeding in which a certificate was given". There is no reason to read such a rider into the NSW Act because Parliament did not put it there;

.      Section 128(7) contains in its concluding sentence a qualification expressly limiting its application to a defined criminal proceeding. Had a further such qualification for retrials been intended it would, by inference, also have been expressly so stated;

.      Moreover, the general object of s 128(7) is protective of the person who has given the evidence in question. It is designed to defend that person from the adverse use of evidence that he or she had been earlier "required" to give by direction of the court;

.      Although the joint reasons are dismissive of the significance of the "certificate"[207] granted under s 128, their approach overlooks the serious step involved in the judicial requirement to give evidence (but under conditions of protection signified by the certificate). Having regard to these features of s 128, the extension of the protection afforded in a criminal proceeding to a defendant who has received such a certificate is far from surprising. On the contrary, the formality of certification obliges the judge concerned to express any such certificate and to address carefully whether to "require" the witness to give the evidence and, if so, in what terms; and

.      The interpretation urged by the accused, adopted on this point by Blackmore DCJ and affirmed by the Court of Criminal Appeal, tends to ensure the continuing availability to the defendant in any later criminal proceedings (even where a retrial is had) of evidence extracted by judicial requirement despite reasonable grounds for an objection based on self-incrimination but it does so under conditions fair to an accused.

…

201. The second trial was bound: Blackmore DCJ decided that he was not bound by Howie J's ruling under s 128(5) of the NSW Act, nor by the certificate granted by Howie J under s 128(7). The joint reasons support Blackmore DCJ in these conclusions. Their support derives from the view that his Honour adopted concerning the ambit of s 128(8)[215]. For several reasons, it is my opinion that Blackmore DCJ erred in the course that he adopted and in the conclusion that he expressed:

.      The ruling made by Howie J in the accused's first trial was one lawfully made in the conduct of a trial, the circumstances of which had not relevantly changed when the second trial began before Blackmore DCJ. With respect, one would ordinarily expect that a single judge of equal or inferior rank in the judicial hierarchy would follow that ruling in any retrial, if only out of comity, leaving it to a court of criminal appeal to correct it later if it were challenged, either in an interlocutory appeal by the prosecution or in any final appeal following completion of the trial;

.      Especially is this so, given the preliminary conclusion that Blackmore DCJ had reached (correctly in my view) that the "proceeding" before him and the new jury, involving a fresh indictment with different named parties (some of the original defendants having been convicted by the first jury), was a different "proceeding" within s 128(7), thereby attracting legal consequences for the "certificate" granted in the first trial by Howie J and formalised by that judge whilst the second trial was proceeding;

.      Most importantly, it was only after the grant of the certificate by Howie J in the first trial, and his Honour's signification that he "required" the accused to give evidence of his "domestic dealings" in illegal drugs, that the accused embarked on his detailed evidence concerning his drug dealings with Mr Diez and Mr Lawrence, evidence which (save for the protection of the certificate) heavily inculpated the accused in serious but local domestic offences of drug trafficking; and

.      The course therefore adopted by Blackmore DCJ treated Howie J's "certificate" as immaterial, despite the fact that it was only after Howie J had determined that a certificate would be granted that the accused gave such evidence and although that certificate then, and to this time, had never been quashed or set aside. As the Court of Criminal Appeal observed[216]:

"If that certificate could now be quashed, not only could the evidence be tendered at a retrial of the original charge but also would be available to the Crown to tender against him at a separate trial on the 'domestic' charges. This could result in significant injustice."

Giles JA

1. I agree with Hodgson J

Hodgson J

2. Proceedings have been brought in the Equity Division by the respondent Mr Ying against the appellant Mr Song and a company Budget Scaffold Supplies Pty Limited (BSS) seeking declarations and consequential orders. On 1 December 2009 Ward J heard what was initially an application by Mr Song and BSS for a certificate under s 128 of the Evidence Act 1995 in respect of the giving of particular evidence by Mr Song and by a Mr Yang (not a party to the proceedings, but proposed to be called as a witness by the defendants) regarding the circumstances in which certain loans were recorded in the records of companies associated with Mr Song and the circumstances in which Mr Ying was made a director of companies associated with Mr Song. However, it appears that this application was modified at the hearing to an application by Mr Song alone in respect of evidence to be given by Mr Song.

3. On 3 December 2009, the primary judge dismissed that application. Mr Song sought leave to appeal from that decision. Leave to appeal was granted on 29 April 2010.

…

5. The primary judge set out the circumstances in which the certificate was sought (Ying v Song [2009] NSWSC 1344):

[2] The claim by Mr Ying is a claim variously put as a claim against Mr Song arising out of an alleged agreement for the sale of shares by Mr Song and as a claim against the second defendant company for a debt arising out of an alleged loan agreement. Broadly, as I understand it, a s 128 certificate is sought on the basis that evidence to be given by each of Mr Song and Mr Yang (if such a certificate issued) would be to the effect that the loans/directorships were to create the false impression that Mr Ying had greater assets and business interests in Australia than he in fact did, in order favourably to influence the consideration by the Department of Immigration of Mr Ying’s then application for permanent residency, and would tend to incriminate Mr Song, who had signed a statutory declaration in relation to those matters.

6 The primary judge identified the question to be determined as follows:

[7] The question before me, therefore, is limited to whether s 128 applies in circumstances where a witness wishes to give particular evidence in chief but only if he or she is protected from the consequences of the giving of that evidence. In those circumstances, can the witness be said to “object” to giving particular evidence or evidence on a particular matter so as to enliven the operation of s 128?

…

13 The primary judge expressed a preference for a construction of “objects” in s 128 as referring to a circumstance where a witness protests against giving evidence in circumstances where, but for the privilege, they would be compelled to do so; and she expressed disagreement with the view that all that is required is an unwillingness, without a certificate to give evidence, in circumstances where there is no compulsion that evidence be given.

…

18. I would note first that although both in Ferrall and in Cornwell, the focus of the court’s discussion appeared to be on whether s 128 is restricted to questions in cross-examination, in my opinion this is not the real issue.

19. Under s 12 of the Evidence Act, except as otherwise provided in the Act, a person who is competent to give evidence is also compellable to give it. That compulsion can be exercised by use of subpoenas to get witnesses to court and into the witness box; and refusal to answer questions which a witness is compellable to answer (whether in chief or in cross-examination) can result in imprisonment.

20. Plainly, in my opinion, if a witness gives evidence in chief because actually compelled to do so (by subpoena and threat of imprisonment), or because of the availability of such compulsion if he or she does not do so, there is no reason why that witness may not object to giving evidence in chief on the ground that that evidence may tend to incriminate. The question in my opinion is not whether the evidence is given in chief or in cross-examination, but rather whether an objection under s 128 is limited to an objection to giving evidence which the witness would otherwise be compellable to give.

…

24. It is true that in par [112] the High Court focussed on the distinction between examination in chief and cross-examination; but that was in a context of evidence being given by a party to the case, namely the accused. When a witness is a party to the case, giving evidence in chief pursuant to questions asked by the witness’s own counsel, there would rarely if ever be a question that the evidence in chief is given under compulsion or because of liability to compulsion. I do not understand the High Court’s reasons to be authority for restricting s 128 to cross-examination.

25. In circumstances where there is conflict between a decision of the Full Court of the Family Court and dicta (albeit tentative dicta) of the High Court, I think it is appropriate for this Court simply to reach its own view, while paying regard to relevant persuasive authority.

26. In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence. A party giving evidence in chief, in response to questions from that party’s own legal representative, is not generally giving evidence which that party is, in any real sense, compellable to give: unless called by another party and asked questions in chief by that other party, a party’s evidence in chief is given entirely at the choice of that party and is not evidence that the party is compellable to give at the instance of anyone else. It is true that a party’s legal representative can ask questions in chief without specific instructions to ask them; but if the party instructed the representative to withdraw such a question, there would in my opinion be no possibility of the witness being compelled to answer the question, at least unless it was pressed by another party or the judge, in which case no doubt s 128 could apply.

27. In all cases apart from a party giving evidence in chief or re-examination in response to questions from the party’s own legal representative, witnesses are compellable to give evidence either at the instance of the party calling them, or the party directing questions in cross-examination, or the judge (if the judge asks questions). It is compellability of this nature that gives sense to the word “objects” in s 128(1) and makes sense of the word “require” in s 128(4). In my opinion, such motivation as a defendant may have to give evidence to avoid having a judgment entered against him or her does not amount to relevant compellability.

28. In my opinion, having regard to the wording of s 128 and the scope of the common law privilege which it displaced, it is not the case that a party to proceedings who is also a witness, giving evidence in chief in response to questions from the party’s own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of a s 128 certificate, “objects” to giving that evidence within the meaning of s 128(1). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsion or potential compulsion which makes the expression “objects” apposite.

…

34. Accordingly, in the present case, the primary judge was correct not to grant a s 128 certificate to the appellant. However, if the appellant now seeks to lead evidence from Mr Yang, I would see no reason why Mr Yang could not object, and if the requirements of s 128 are otherwise satisfied, obtain a certificate under s 128.

Basten JA

36. I agree with the orders proposed by Hodgson JA and with his reasons.