Supreme Court New South Wales Medium Neutral Citation: R v Coss (No 5) [2022] NSWSC 795 Hearing dates: 2 June 2022 Date of orders: 2 June 2022 Decision date: 02 June 2022 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: Mr Scott Marle to be provided with a certificate pursuant to s 128 of the Evidence Act 1995 (NSW). Catchwords: CRIMINAL PROCEDURE – trial – judge alone - murder – evidence – privilege against self-incrimination – where witness to be asked about events in which drugs were used – where reasonable grounds of for objection – where in the interests of justice that the witness give the evidence - s 128 certificate granted Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW), s 128 Category: Procedural rulings Parties: Regina (Crown) Bruce Anthony Coss (Accused) Representation: Counsel: L Shaw (Crown) M P King (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2019/336236 Publication restriction: Nil EX TEMPORE Judgment (REVISED) 1. HIS HONOUR: The accused, Bruce Coss, is currently on trial for the murder of Darren Willis. Scott Marle has been called to give evidence in the Crown case. The evidence of Mr Marle relates to at least events immediately surrounding the acts relied on by the Crown to prove the charge of murder against the accused. 2. It became apparent in the course of Mr Marle giving evidence that some of what he had to say would tend to prove that the witness had committed an offence against an Australian law. The offence or offences presently relevant, relate to possession and use of prohibited drugs, particularly cannabis. The evidence of the use of that drug by the witness and by others present that night potentially goes into the providing of such drugs as between the persons present that night, with the potential to incriminate the witness with respect to offences under the Drug Misuse and Trafficking Act 1985 (NSW). 3. Mr Marle was informed of his right to object under s 128 of the Evidence Act 1995 (NSW). Having been informed of that right, Mr Marle chose to object to giving the evidence. I found having regard to what I have already said that there were reasonable grounds for the objection. That being the case, s 128(3) provides: 128 Privilege in respect of self-incrimination in other proceedings … (3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness— (a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and (b) that the court will give a certificate under this section if— (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. 1. Ultimately, Mr Marle appeared to understand that whilst he had a right to object and subject to my being satisfied of there being reasonable grounds for the objection, he could, nonetheless, willingly give the evidence without being required to do so, but would, pursuant to s 128(3), obtain the benefit of a certificate. Mr Marle opted to take that course and as a result determined that he would willingly give evidence and it is anticipated that he will this morning continue to willingly give evidence of the type to which I have referred given his understanding and determination. 2. For the above reasons, I determine that it is appropriate that Mr Marle be provided with a certificate pursuant to s 128 of the Evidence Act. I note that I am satisfied that having been given an explanation of the nature of the certificate, Mr Marle understood the effect of the certificate. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2022