Supreme Court New South Wales Medium Neutral Citation: R v Walker (No 3) [2017] NSWSC 1025 Hearing dates: 3 August 2017 Date of orders: 03 August 2017 Decision date: 04 August 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Section 128 certificate granted. Catchwords: CRIMINAL LAW – evidence – self-incrimination – Evidence Act 1995 (NSW) - s 128 certificate - whether a certificate could be given in respect of alleged perjury committed on committal – construction of s 128 Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Regina Jamie Christopher Walker Representation: Counsel: Mr C Maxwell QC with Ms J M Smith (Crown) Ms B J Rigg SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Jamison Lawyers (Accused) File Number(s): 2015/124540 Publication restriction: Nil Judgment 1. When evidence was called from a Crown witness, Mr Smith, he referred in answering a question in chief, that he had "hit" the accused on an occasion which he identified. 2. When asked about the circumstances, I raised the requirements of s 128 of the Evidence Act 1995 (NSW), with the result that the examination was adjourned so that Mr Smith could be given independent advice about self-incrimination and the provision of s 128. 3. On resumption the accused's counsel, Ms Rigg, raised that cross-examination was going to involve it being put to Mr Smith, amongst other things, that he had made a false statement to police and given false evidence on committal. There was then another adjournment, so that he could be given further advice. 4. On resumption, Mr Smith objected to giving evidence on both topics, but was prepared to do so if given a s 128 certificate. An issue then arose as to whether a certificate under s 128 could be given in respect of alleged perjury committed on committal. That depended on the proper construction of the section. 5. The section provides: "128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (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. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. Note. This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an "Australian Court" instead of a "NSW court". (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence. (10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act the doing of which is a fact in issue, or (b) had a state of mind the existence of which is a fact in issue. (11) A reference in this section to doing an act includes a reference to failing to act. (12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by a person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section. (13) For the purposes of subsection (12), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection. (14) Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth." 1. "Criminal proceeding" is defined in the Dictionary to the Act to include committal proceedings. 2. I ordered that Mr Smith be given a s 128 certificate in respect of the assault and a ruling on the construction of s 128 was deferred, while the Crown considered its position on the issue which had arisen. 3. On resumption it was announced that it had become the common view of the parties that a certificate under s 128 could be given in respect of alleged perjury committed on committal. I agreed with that view of the construction of the section and ordered that Mr Smith be given a second certificate in respect of the police statement and alleged perjury. 4. The reason for my conclusions began with there being no question that perjury is an offence under Australian law, with the result that a witness such as Mr Smith is given the right, by s 128(1), to object to answering questions about such an offence and, despite such objection, may also be compelled to give such evidence, if the witness is not prepared to give the evidence, even with the benefit of a certificate under the section. That can occur in the circumstances specified in s 128(4), where it is concluded that the interests of justice demand that the evidence be given, despite the abrogation of the right to silence, which results. 5. Mr Smith objected to giving evidence about alleged perjury, but was prepared to give the evidence, if provided with a certificate under the section. 6. The Crown initially relied on s 128(7) to argue that a certificate under the section could not be given in respect of perjury at a committal hearing, because of the concluding words of the subsection "However, this does not apply to a criminal proceeding in respect of the falsity of the evidence". 7. On the accused's case, it would be open to the Court to grant such a certificate under s 128(6), notwithstanding what was provided in s 128(7). 8. The effect of the Crown's initial approach to the construction of s 128 was to exclude from the certification process which the section established, an offence of perjury earlier committed. The result of that construction would be that a person's right to silence could be abrogated, if the power granted under s 128(4) were exercised, without the counterbalancing process for which the section provides, that a certificate in respect of such evidence can be given, being available. 9. I considered that was a construction which could not lightly be adopted, given the broad terms in which s 128(1) is expressed, when considered in light of the apparent intent of this aspect of the statutory regime. Had that result been intended, I considered that it was likely that the section would have made that exception plain, as could have easily been done. 10. That there was no such express exception, in my view, provided a powerful reason for not construing s 128 in the way for which the Crown initially contended. That approach would have undermined the beneficial purpose of the section and its apparent intent, by granting a certificate to obtain co-operation from those who have relevant evidence to give, without coercion, when that is consistent with what the interests of justice demands in the circumstances which have arisen in the particular case. 11. I also considered that the Crown's initial approach did not accord with the way in which the competing public interests with which the section is concerned, had been balanced. 12. I also considered that the provisions made in s 128(8) lent force to those conclusions. They provide that s 128(7) has effect, despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned, I also considered lent force to those conclusions. 13. In the result, I also granted Mr Smith a certificate in relation to the cross-examination concerning the question of whether he had made a false statement to police and had committed perjury in the Local Court during the committal proceedings, being satisfied that there were reasonable grounds for his objection: s 128(3) and that the interests of justice required that he give the evidence: s 128(4). 14. The effect of the certificate is that the evidence which Mr Smith gave in these proceedings, about his police statement and the evidence he earlier gave in the committal proceedings, in relation to having observed the accused assault Ms Locke, as well as "evidence of any information, document or thing obtained as a direct or indirect consequence of" Mr Smith having given that evidence, cannot be used against him in any other proceedings, including any proceedings brought against him in respect of alleged perjury in the committal hearing: s 128(7). 15. What s 128(7) would not preclude, is the evidence which Mr Smith gave in these proceedings about such matters being used in other criminal proceedings brought against him, in respect of the falsity of the evidence which he gave in these proceedings. That is, in other proceedings brought against him, in which it is alleged that he gave false evidence in these proceedings, rather than in the Local Court proceedings. ********** Amendments 21 August 2017 - Publication restriction lifted - trial concluded 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: 21 August 2017