Bayeh v New South Wales - [1999] NSWSC 1070

Reported Decision: [1999] 108 A Crim R 364

New South Wales

Supreme Court

CITATION: Bayeh -v- State Government of New South Wales & Anor [1999] NSWSC 1070

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 11915 of 1999

HEARING DATE(S): 22 October, 1999

JUDGMENT DATE:
3 November 1999

PARTIES :

Louis BAYEH - Plaintiff
State of New South Wales - First Defendant
Parole Board of New South Wales - Second Defendant

JUDGMENT OF: Ireland J at 1

COUNSEL : C Waterstreet - Plaintiff
P Saidi - Defendants

SOLICITORS: John B Hajje & Associates - Plaintiff
I V Knight, Crown Solicitor - Defendants

CATCHWORDS: Self-incrimination - privilege as regards answers, documents etc. given in evidence before Independent Commission Against Corruption and Royal Commission (Police Service) - use which Parole Board may make of such evidence when tendered on behalf of applicant for release on parole - waiver of privilege by tender of transcript of evidence - declaration that Parole Board not entitled to view adversely to applicant for release on parole such evidence tendered by him refused.

ACTS CITED: Independent Commission Against Corruption Act 1989 - S.37
Royal Commissions Act 1923 - S.17.
The Royal Commission (Police Service) Act 1994 - Ss. 5,6,7,9 and 12.

CASES CITED: Hartmann -v- Commissioner of Police (1997) 91 A Crim R 141 @ 147; Cross on Evidence 4th Aust. Ed. 667; Great Atlantic Insurance Co -v- Home Insurance Co (1981) 2 All ER 484 (CA)

DECISION: Amended Summons dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
IRELAND J
Wednesday, 3 November,, 1999
011915/99 - Louis BAYEH -v- State Government of New South Wales & Anor
JUDGMENT
1    HIS HONOUR: The plaintiff, Mr Louis Bayeh, proceeds by way of Amended Summons filed in court on 24 August, 1999, seeking relief in the nature of declarations and orders against the State of New South Wales, first defendant, and Parole Board of New South Wales, second defendant.
2    The second defendant has filed a consenting appearance.
3    Counsel for the plaintiff and counsel for the first defendant are in agreement that the only issue for determination by the Court is the question raised in paragraph 1(a) of the Amended Summons which seeks, on behalf of the plaintiff, a declaration in the following terms:-

“1(a). A declaration that the Parole Board took into account matters of evidence that it was not entitled to take into account…”.

4    The declaration which is sought, relates to hearings before the Parole Board (the second defendant), concerning the plaintiff.
5    The hearings took place on 25 June and 2 July of this year and it is anticipated that the question of the plaintiff’s release on parole will come back before the Parole Board on 12 November next.
6    Determination by this Court of the question raised in the declaration now sought, will, it is said, bear upon the evidence to be adduced or relied upon at the pending hearing.
7    The background of relevant events is the following.
8…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 1070
Decision Date: 3 November 1999

CaseChat Overview and Summary

The case of Bayeh v New South Wales involved the applicant, Bayeh, who had previously provided evidence under the Independent Commission Against Corruption and the Royal Commission (Police Service). This evidence was now being considered by the Parole Board as part of an application for release on parole. The central issue was whether the Parole Board could use the evidence given by Bayeh, despite the privilege against self-incrimination that was applicable at the time of the original testimony. Specifically, the court had to determine if Bayeh's waiver of the privilege, by tendering the transcript of the evidence, was effective in allowing the Parole Board to use the evidence to the detriment of his parole application.

The court examined the nature of the privilege against self-incrimination and whether it extended to the Parole Board's consideration of the evidence. The key legal question was whether the waiver of privilege by Bayeh in the context of the original hearings was sufficient to allow the Parole Board to use the evidence in a manner that could negatively affect his parole application. The court also considered whether Bayeh's rights under the privilege had been adequately protected, given the context in which the evidence was obtained.

The court ruled that the privilege against self-incrimination did extend to the Parole Board's use of the evidence, and that Bayeh's waiver did not encompass the use of the evidence in a way that could be prejudicial to his parole application. The court found that Bayeh's rights under the privilege had not been adequately protected in the original context, and therefore, the Parole Board was not entitled to use the evidence in a manner that could be viewed adversely by Bayeh. The court's decision was based on the principle that the privilege against self-incrimination is a fundamental right that must be preserved, and that the waiver must be explicit and encompass the specific use of the evidence in question.

Orders