[2014] NSWSC 1155

R v Hunter (No 12)

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), § 90, 128, 138

Judgment

EX TEMPORE Judgment

[1]
Today 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.
[2]
Having 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.
[3]
First, 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.
[4]
Secondly, 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.
[5]
Thirdly, 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.
[6]
Fourthly, 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).
[7]
Finally, 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.
[8]
It is for those reasons that I propose that we simply proceed without me saying anything to the witness Mr Gary Hunter.