R v Hunter (No 11)

[2014] NSWSC 1154

Supreme Court

New South Wales

Case Title:	R v Hunter (No 11)
Medium Neutral Citation:	[2014] NSWSC 1154
Hearing Date(s):	14 July 2014
Decision Date:	14 July 2014
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	If Mr Gary Hunter objects to giving evidence, and if he is granted a certificate pursuant to the Evidence Act, I propose to explain to the jury the fact that that has occurred, and very briefly the effect of it.
Catchwords:	CRIMINAL LAW - EVIDENCE - witness - examination in chief - witness granted certificate pursuant to Evidence Act s 128 - whether the jury should be informed of the grant and its effect
Legislation Cited:	Evidence Act 1995 (NSW), ss 38, 55, 103, 137, 128
Cases Cited:	R v Macarthur [2005] NSWCCA 65
Category:	Interlocutory applications
Parties:	Regina Paul Andrew Hunter
Representation
- Counsel:	Counsel: M Cinque (Crown) D Carroll (Accused)
- Solicitors:	Solicitors: Office of the Director of Public Prosecutions (Crown) Shiranica Danieli Lawyers (Accused)
File Number(s):	2011/397367

EX TEMPORE JUDGMENT

1. Rather than delivering a formal ruling, I think I will just indicate, for the convenience of the parties so that they can reflect upon their positions, that if Mr Gary Hunter, as expected, were to object to giving evidence in the trial pursuant to s 128 of the Evidence Act 1995 (NSW), and if a certificate were granted to him in the absence of the jury, I would propose to briefly inform the jury of that fact, and very generally of its effect. That is so for four reasons.

2. First, I think that it would be highly artificial for the jury not to know of that important aspect of the evidence of Mr Gary Hunter.

3. Secondly, I have already adopted the identical procedure with another witness who was granted a certificate, Ms Ellingsworth. If the jury were not told of that I think that that could be seen to be inconsistent. If the jury came to believe (or otherwise know) that a certificate had been granted, the jury could perhaps speculate on the strangeness of me having adopted that procedure with regard to Ms Ellingsworth, but not having adopted it with regard to Mr Gary Hunter.

4. Thirdly, I consider that if the objection were taken in a highly formal way, and the intricacies of the section worked through thereafter in the absence of the jury, it would be odd and could lead to speculation if, the objection having been successful, the jury were simply to return to Court and I were to tell them nothing about the outcome of that objection that had been taken in their presence.

5. Fourthly, in light of evidence on the voir dire with regard to the number and nature of inconsistent statements made in the past by Mr Gary Hunter, including on oath, I consider it highly likely in any event that the fact that he has been granted a certificate, if that is to occur, will come out in evidence in any event, pursuant to ss 38, 55, 103, and 137 of the Evidence Act.

6. In short, I accept that there is no explicit guidance from the Court of Criminal Appeal or the High Court of Australia with regard to this particular question of whether or not a jury should be informed of the granting of a s 128 certificate. I also accept that it could be said that, to some small degree, the discussion in R v Macarthur [2005] NSWCCA 65 at [37] to [41] militates in support of not telling the jury about the granting of a certificate.

7. Nevertheless in the circumstances of this trial, for the convenience of counsel, I indicate that my proposal at this stage is that, if Mr Gary Hunter objects to giving evidence, and if he is granted a certificate pursuant to the Evidence Act, I propose to explain to the jury the fact that that has occurred, and very briefly the effect of it. In short, my explanation would be highly similar to the brief explanation that I provided to the jury when Ms Ellingsworth was provided with a certificate last week.

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