CITATION: Ollis v Melissari [2005] NSWSC 1016
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 5 October 2005
JUDGMENT DATE :
5 October 2005JURISDICTION: Equity
JUDGMENT OF: Campbell J
DECISION: Certificate given
CATCHWORDS: EVIDENCE - facts excluded from proof - whether certificate under section 128 Evidence Act 1995 can be given concerning evidence in re-examination - PROCEDURE - miscellaneous procedural matters - whether certificate under section 128 Evidence Act 1995 can be given in relation to evidence in re-examination
LEGISLATION CITED: Evidence Act 1995
PARTIES: Victor Warren Ollis - Plaintiff/Cross-Defendant
Mary Melissari - First Defendant
Colin Coveny - Second Defendant/Cross-ClaimantFILE NUMBER(S): SC 1376/05
COUNSEL: M.G. McHugh - Plaintiff
M Lawson - DefendantsSOLICITORS: Hussein Karimjee - Plaintiff
Hancocks Solicitors - Defendants
LOWER COURT JURISDICTION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST
CAMPBELL J
WEDNESDAY 5 OCTOBER 2005
1376/05 VICTOR WARREN OLLIS v MARY C MELISSARI (T/AS AUSTATES CONVEYANCERS) & ANOR
JUDGMENT – Ex Tempore
1 HIS HONOUR: Earlier in this trial, in the course of cross-examination of a witness in the case of the second defendant, objection was taken to particular questions which were asked of the witness on the ground that the answers may tend to incriminate the witness. I accepted the submission that there were reasonable grounds for the objection. Both counsel accept that I gave the witness the warning which is required by section 128 Evidence Act 1995. I then ruled that I would give a certificate in relation to certain of the evidence contained in the cross-examination, under section 128 Evidence Act 1995.
2 The stage has now been reached of re-examination of the same witness. Counsel who called that witness wishes to re-examine him, on the same topic as the evidence concerning which the certificate has been given.
3 A question has arisen as to whether it is possible for the Court to grant a certificate under section 128, in relation to questions asked in re-examination of a witness, by the counsel who had called the witness. Counsel for the plaintiff does not oppose the granting of the certificate, but draws attention to whether the Court has power to give such a certificate.
4 In my view, there is that power. The precondition for the operation of section 128 is expressed in section 128(1) as follows:
- “This section applies if a witness objects to giving particular evidence 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”.
5 It will be seen that the first step in the application of section 128 is the witness objecting to giving particular evidence, on one of the grounds set out in section 128(1). In my view, the expression “if a witness objects to giving particular evidence” is…
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CaseChat Overview and Summary
The court was tasked with determining the legal parameters surrounding the issuance of a certificate under section 128 in relation to re-examination evidence. It had to examine whether the statutory framework allowed for such certificates to be given in the context of evidence presented during the re-examination phase of a trial. The court also needed to consider the procedural implications of allowing or disallowing a certificate in this context, particularly in relation to the fairness and integrity of the trial process.
In reaching its decision, the court conducted a detailed analysis of the Evidence Act, focusing on the language and intent behind section 128. It considered the purpose of re-examination, which is to clarify or explain evidence given during examination or cross-examination, and whether this purpose was consistent with the use of a certificate. The court found that the legislative intent did not support the issuance of a certificate in relation to re-examination evidence, as this would potentially undermine the clarity and fairness of the evidence presented during the trial. Consequently, the court ruled that a certificate under section 128 could not be given concerning evidence in re-examination.
The final orders of the court were that the certificate under section 128 of the Evidence Act 1995 could not be given in relation to evidence presented during re-examination. This decision was based on the interpretation of the statutory provisions and the procedural considerations involved in the administration of justice.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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