Supreme Court New South Wales Medium Neutral Citation: R v Coss (No 7) [2022] NSWSC 797 Hearing dates: 6 June 2022 Date of orders: 6 June 2022 Decision date: 07 June 2022 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: Mr Robert Stonestreet 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 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) 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. Robert Stonestreet has been called to give evidence in the Crown case. The evidence of Mr Stonestreet relates to 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 Stonestreet giving evidence that some of what he had to say would tend to prove that he had committed an offence against 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 beyond the possession and use of the drug and into the providing of that drug between the persons present that night. 3. I formed the view that the evidence did tend to incriminate the witness with respect to offences under the Drug Misuse and Trafficking Act 1985 (NSW). Mr Stonestreet was informed of his right to object pursuant to s 128 of the Evidence Act 1995 (NSW). Having been informed of that right, Mr Stonestreet chose to object to giving the evidence. I found, for the reasons already indicated, 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 Stonestreet appeared to understand that while he had a right to object to giving the evidence, he could nonetheless willingly give the evidence without being compelled to do so but would, pursuant to s 128(3), obtain the benefit of a certificate. Mr Stonestreet opted to take that course. 2. For the reasons I have given, I determined that it is appropriate that Mr Stonestreet 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 as to the nature of the certificate, Mr Stonestreet 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