R v Hunter (No 12) [2014] NSWSC 1155

Supreme Court New South Wales

Medium Neutral Citation: R v Hunter (No 12) [2014] NSWSC 1155 Hearing dates: 16 July 2014 Decision date: 16 July 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: The trial will proceed without me saying anything to the witness about his s 128 certificate. Catchwords: CRIMINAL LAW - EVIDENCE - witness - examination in chief - witness protected by certificate pursuant to Evidence Act s 128 - witness gave evidence that evidence he had previously given while on oath in these proceedings is false - whether the certificate protects the witness in respect of this falsity - whether issue should be raised with witness Legislation Cited: Evidence Act 1995 (NSW), ss 90, 128, 138 Category: Interlocutory applications Parties: Regina Paul Andrew Hunter Representation: Counsel: M Cinque (Crown) D Carroll (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Shiranica Danieli Lawyers (Accused) File Number(s): 2011/397367

EX TEMPORE Judgment 1Today in evidence, as I understand the testimony of Mr Gary Hunter, he was saying that yesterday on oath he had told lies about some topics. A question arose in my mind, therefore, whether that admission could be used against him, and perhaps whether or not the certificate which I had granted him yesterday protected him. 2Having reflected on the matter, and having discussed it with both counsel, and having received indirectly the thoughts of Senior Counsel who was assisting the witness, I do not propose to revisit the question. That is so for five reasons. 3First, as I understand it, this question of whether or not Mr Gary Hunter would give evidence that some of his evidence yesterday was a lie will not be revisited by either party. 4Secondly, I think it unlikely in the extreme that Mr Gary Hunter would ever be prosecuted for perjury arising from the evidence that he gave today or yesterday. For example, I understand he has not been prosecuted with regard to the evidence he gave at the committal in January 2013 (with regard to which, again as I understand it, he had no certificate) which was clearly contrary to his sworn evidence at the committal of November 2012. 5Thirdly, my reading of the legislation is that, in any event, one simply cannot give a certificate that protects a witness with regard to the alleged falsity of his or her evidence. 6Fourthly, if it be the case that, when Mr Gary Hunter was asked today whether or not his evidence yesterday on oath was a lie, I should have informed him of a right to object at common law with regard to whether or not he had told lies on oath yesterday, I consider it quite likely that any evidence he gave today at any subsequent trial or hearing would be excluded pursuant to s 90 or s 138 of the Evidence Act 1995 (NSW). 7Finally, Senior Counsel for the witness has been contacted. He is of the view, as I understand, that, at least, a s 128 certificate would not provide protection to the witness in these circumstances. 8It is for those reasons that I propose that we simply proceed without me saying anything to the witness Mr Gary Hunter.