DPP v Attallah [2001] NSWCA 171

New South Wales Court of Appeal

CITATION : DPP v Attallah [2001] NSWCA 171 FILE NUMBER(S) : CA 40286/00 HEARING DATE(S) : 7 June 2001 JUDGMENT DATE : 14 June 2001

PARTIES : Director of Public Prosecutions Joseph Attallah JUDGMENT OF : Meagher JA at 1; Ipp AJA at 2; Fitzgerald AJA at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT CLD13004/99 FILE NUMBER(S) : LOWER COURT Bergin J JUDICIAL OFFICER :

P A Johnston SC (DPP) COUNSEL : P G Berman SC (DPP) S. Odgers SC with M MacRossan SOLICITORS : S E O'Connor (DPP) Herder & Associates CATCHWORDS : Evidence - admissions - statutory obligation to answer questions - answers sought to be used in prosecution - use of admissions not unfair - s 87 of Independent Commission Against Corruption Act 1988 - s 90 of Evidence Act. D Independent Commission Against Corruption Act 1988 LEGISLATION CITED : Evidence Act 1995 Justices Act 1902 DECISION : See paragraph 28

- 8 -1 Meagher JA: I agree with Fitzgerald AJA. 2 Ipp AJA: I agree with Fitzgerald AJA. 3 Fitzgerald AJA: The respondent (the "accused") gave evidence at hearings before the Independent Commission Against Corruption ("ICAC") on 23 September and 17 and 21 October 1997. In his evidence on 23 September, he denied certain matters. In his evidence on 17 October, he admitted those matters. In his evidence on 21 October, he admitted that his denials on 23 September were untrue to his knowledge at that time. 4 Section 87 of the Independent Commission Against Corruption Act 1988 (the "ICAC Act")makes it an indictable offence for a person to give evidence at a hearing before ICAC that is, to the knowledge of the person, false or misleading in a material particular. 5 On 15 February 1999, informations were laid against the accused alleging five offences against s 87 of the ICAC Act in his evidence at the hearing before ICAC on 23 September 1997. The accused's admissions in his evidence at the hearing before ICAC on 21 October 1997 were sufficient to establish the offences alleged in the informations. 6 On 24 August 1999, the informations came on for hearing before a magistrate at the Downing Centre Local Court. 7 The accused objected to the tender of the transcript of the ICAC hearing on 21 October 1997. The magistrate refused to admit the transcript into evidence under s 90 of the Evidence Act 1995. 8 Section 90 of the Evidence Act provides: - " 90. In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."