R v Ronen

[2004] NSWSC 1290

Reported Decision: 211 FLR 297

Supreme Court

CITATION:	Regina v Ronen & Ors [2004] NSWSC 1290
HEARING DATE(S):
JUDGMENT DATE:	1 April 2004
JUDGMENT OF:	Whealy J at 1
DECISION:	I will give a Certificate to the witness in respect of that evidence
CATCHWORDS:	Basha enquiry - proper scope and extent - - s 128 of Evidence Act: Interests of justice - is there a limit? - - Credibility: s 103 of Evidence Act - - Substantial probative value - what is it?
LEGISLATION CITED:	Crimes Act 1914 (Cth) Financial Transaction Reports Act 1988 Evidence Act 1995 s 541 of Companies Code
CASES CITED:	R v Collisson NSWSC 18 February 2002 R v RPS (NSWCCA unreported 13 August 1997) Lockyer (1996) 89 A Crim R 457 at 459 Fowler NSWSC 6 May 1997 per Dowd J R v Booth (1982) 2 NSWLR 847 Collisson [2003] NSWCCA 212 paras 28-33 Balog v Independent Commission Against Corruption (1989) 18 NSWLR 356 at 376-377 Balog v Independent Commission Against Corruption (1990) 169 CLR 625
PARTIES :	Regina v Ida Ronen Regina v Nitzan Ronen Regina v Izhar Ronen
FILE NUMBER(S):	SC 70222/03; 70032/03; 70223/03
COUNSEL:	Mr T. Game SC; Ms S McNaughton - Crown Mr R. Richter QC; Mr. N. Rosenbaum - Accused Ida Ronen Mr I. Hill QC; Mr E. Power - Accused Nitzan Ronen Mr R. Van de Wiel QC; Mr :P. Jones - Accused Izhar Ronen
SOLICITORS:	Ms P. Musgrave - Cth DPP Watsons Solicitors - Accused

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

THURSDAY 1 April 2004

70032/03 - REGINA v Nitzan RONEN
70222/03 - REGINA v Ida RONEN
70223/03 - REGINA v Izhar RONEN

JUDGMENT - (On objection to questions asked of Mr Segal) during Basha inquiry; see p 771 of transcript)

1 HIS HONOUR: Mr Thangaraj of counsel, instructed by Mr Claude Bilinsky, has been given leave to appear for a witness, George Segal. The witness is giving evidence in a Basha inquiry at the request of the accused.

2 It needs to be said that Mr Segal, who was formerly the de facto partner of Mrs Ida Ronen, one of the accused, is an important Crown witness. He lived with Mrs Ronen for some years and in fact, on the Crown case, was for a time part of the conspiracy alleged in the charges appearing in the indictment. He has been, in my view, correctly described as an unindicted conspirator. More importantly, he is an indemnified witness.

3 He has provided three statements to the Crown, the most recent and most extensive dated 20 February 2004. He was given an indemnity in January 2004.

4 It must be said that Mr Segal's evidence is capable of being powerful evidence in support of the Crown case. If he is accepted as a witness of truth, his description of the activities of each of the accused, in all its particular detail, is likely to be compelling in persuading the jury to accept many aspects of the Crown case and to accept those matters beyond reasonable doubt.

5 It comes as no surprise, therefore, that Mr Richter of Queen's Counsel wishes to launch a major attack on Mr Segal's credit. He has indicated quite openly that he proposes to cross-examine the witness about his conduct arising out of two series of criminal charges pending against him. The first is, as I understand it, a number of charges arising under s 29D of the Crimes Act 1914 (Commonwealth). They are charges of defrauding the Commonwealth in relation to the payment of pension moneys to the witness.

6 Secondly, there is a group of structuring charges, that is charges under s 31 of the Financial Transaction Reports Act 1988. Both sets of charges remain unheard at this stage and have not been given dates for hearing. None of the charges, as I understand it, has any connection whatsoever with the conspiracy charges against the accused in this trial.

7 For whatever reason, the indemnity given to Mr Segal by the Crown does not extend to these charges. Mr Segal's evidence was that his solicitor had requested the proposed indemnity cover those matters as well. But the Crown's decision was that it would not extend the indemnity.

8 For completeness, I should mention that Mr Richter indicated that, in addition to the matters I have mentioned, he wished to cross-examine the witness in relation to other conduct which is not the subject of any current criminal charges. This cross-examination, as with the matters he seeks to raise in relation to the conduct of Mr Segal in the charged matters, is restricted to the issue of the witness's credit. The conduct in this second category has not thus far been identified to me and I do not propose to deal with it in this decision.

9 The sequence of events I may briefly state as follows; yesterday morning Mr Bilinsky announced his appearance for Mr Segal. He said at page 713, lines 50 to 55:

“My client objects to giving evidence under section 128. The position is that we say a certificate should not even be considered.”

10 Over the page at 714 between lines 25 to 50 Mr Bilinsky made a number of submissions:

“My client, if he is forced to give evidence here, will not be able to properly defend those proceedings. He will have to provide information here which will affect his ability to defend himself in those proceedings. As I understand it, my client mentioned to me yesterday that he had permission to speak to me for the purposes of me being here, that he made comment that in relation to some of the structuring charges, there was a suggestion that he would plead guilty to some of the charges. Consideration has been given to that, but that hasn't been resolved and in any event it wouldn't be to all of them.
In relation to any matters associated with both the structuring charges and the social security charges, there is always a risk that the net may be far wider if he were to be cross-examined in relation to those. If it goes as to credit, it should be sufficient in relation to credit that he has in fact been charged with those offences.
Your made mention about other people being involved and whether he should be questioned as to that. There is a difficulty in that because there are probably at least three or four people who are involved and some of those people are involved in the charges against our client. If he is questioned about other matters, it could result in further charges being brought against him. That is the danger.”

11 After some discussion the matter was stood down until 2pm. It was at that time that Mr Thangaraj, instructed by Mr Bilinsky, was given leave to appear for Mr Segal.

12 At page 744 of the transcript Mr Richter QC asked this question:

“Q. I want to go to another subject if I may and that is the charges still outstanding against you. It is the social security fraud charge outstanding, is that right?
A. Yes.
Q. What did that involve?”

13 After some discussion I allowed that question and some further general questions. I should say that earlier in the proceedings I had expressed the view that the witness, George Segal, was entitled to object to questions on the topics of the outstanding charges against him on the basis that the evidence may tend to prove that the witness had committed an offence or offences against or arising under Australian law. In my view there were reasonable grounds for the objection. I informed Mr Segal that he need not give the evidence unless he was ordered by the Court to do so and further I indicated that I would in any event give him a certificate under s 128 to provide him with the full extent of the protection provided by the section in relation to those topics.

14 Returning then to the events yesterday afternoon. There were then further questions asked at page 748 lines 25 to 30:

“Q. Is the allegation that you falsely claimed the old aged pension?
A. That is the allegation.
Q. Did you have to sign papers making a claim to that pension?”

15 It was at that point that Mr Thangaraj sought a ruling that the witness not be required to give the answer to the question and for that matter evidence on the related matters foreshadowed by Mr Richter. Mr Thangaraj, correctly I think, pointed to the proposition that, in a preliminary sense, the onus lay on Mr Richter to satisfy the Court that in the exercise of its discretion it should find that the interests of justice required the witness to give evidence.

16 The submissions on both sides, the Crown having adopted a relatively neutral stance, were briefly developed. Mr Richter, if I may quote him, said this at page 749 lines 25 to 30:

“One of the most cogent and obvious attacks on a witness's credit where it is impugned, and we seek to impugn it, is to demonstrate that the witness has on other occasions committed perjury or signed documents knowing them to be false in the circumstances where that falsehood is punishable.
What I am trying to get from this witness is in fact admissions that that is what he did. I would seek also later to get admissions from him in relation to the structuring charges of what they were, what they consisted of and of the nature of his conduct with respect to them to demonstrate to a jury ultimately that he is not a witness in whose words they should repose confidence.”

17 Again, dealing with the issue of substantive probative value, an issue that necessarily arises under the Evidence Act 1995, Mr Richter had said earlier, (transcript 717, line 55 and following):

“The areas to which I want to go are the nature and extent of the criminality involved in those matters with which he has been charged and the nature and criminal conduct in respect of matters which he hasn't yet been charged. Both of those are obviously relevant to credit in the sense that they could rationally affect the assessment of the credit of the witness in the sense that they impinge upon his willingness to alter statements or to make statements to advance his interests and to incriminate the accused.”

18 And at page 718 lines 30 to 40 there is a further passage:

“Because for starters, the fact is he is willing to defraud the Commonwealth and the issue is how did he defraud them, to what extent was he willing to go to defraud them, the perjury involved, the false swearing, the falsification, all the rest of it, the extent to which he is prepared to advance his position. I understand what your Honour is saying but as to those aspects, to the extent to which he is used to go to use his position, including false swearing, that must reflect on his credibility. And the other thing, of course, is the quantum involved. If it is a substantial quantum, that per force impacts on what he does.”

19 In relation to s 128(5) Mr Richter submitted that the interests of justice required in effect that the interests of the witness, protected as they would be by the issue of a certificate, should be subordinated to the interests of his clients in relation to the criminal charges they are facing in the present trial.

20 Mr Thangaraj in the main confined his submissions to the s 128(5) issue. He did not argue that the matters in ss 128(5)(a) and (b) had not been satisfied. He argued however that the Court would not be satisfied that the interests of justice required that the evidence be given.

21 First, he pointed to the fact the protection given by s 128 would not protect the witness against a charge of perjury. He has repeated that submission today in the form of a written outline of submissions. The particular matter appears in para 10 of his outline.

22 That submission is undoubtedly correct but it is not a compelling reason at all in my view in relation to the question of the requirements of the interests of justice. It is the plain intention of the legislature that the protection given by a certificate should not extend to protection against perjury and that is so, if I may say so, for quite obvious reasons. One of the prices to be paid for the issue of the certificate and its subsequent wide range of protection is that the witness is to tell the truth.

23 Secondly, Mr Thangaraj pointed to the various kinds of prejudice that might flow to the witness if he were compelled to give evidence on the very matters central to the outstanding charges against him. A matter of significance in this argument was the assertion that Mr Segal would find himself in a very difficult position if he were to be pursued in relation to his defences to the pending charges. It was argued that Mr Richter's cross-examination would in effect destroy the witness's right to silence.

24 Thirdly, counsel suggested this was a case in which there was other ample material capable of being raised against Mr Segal's credit. He argued that Mr Richter did not need these additional matters.

25 Fourthly, Mr Thangaraj referred to the case of R v Collisson (NSWSC 18 February 2002), where, as it happened, I was the trial Judge. During the trial, I had declined to compel an accomplice, one Bradley, to give evidence based in part on the likely unreliability of his evidence.

26 In that case Mr Bradley had been charged with a serious offence arising out of the death of the deceased but his trial was still pending at the time of Mr Collisson's trial on the murder charge.

27 In the present matter Mr Thangaraj argued that the fact that there are outstanding pending charges against Mr Segal may raise a similar unreliability issue. I referred a little earlier to the written outline provided by Mr Thangaraj. I will not set out the detail of the outline in this decision. But I have read carefully his submissions and I trust that I have understood those and I will take them into account.

28 There are, as I see the matter, two issues for consideration.

29 First, there is the question whether the evidence sought to be adduced by Mr Richter in cross-examination is admissible. This in turn requires an examination of the credibility rule and the exception to it in s 103 of the Evidence Act.

30 Secondly, assuming the evidence passes the admissibility hurdle, it is then necessary to determine whether I am satisfied that the interests of justice require that the evidence be given having regard to the various matters in s 128(5) and to the general considerations appropriately and properly to be taken into account as part of the relevant discretionary exercise.

31 I turn to the first matter. The starting point I think is s 55 of the Evidence Act. This section provides in subs 1 that:

“The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.”

32 Sub-section 2 provides that:

“In particular evidence is not taken to be irrelevant only because it relates only to (a) the credibility of a witness.”

33 The reference to the credibility of a witness in s 55(2)(a) does not extend the definition. It is a category of evidence that is not taken to be irrelevant merely as a consequence of its nature. To be relevant, however, it must nevertheless satisfy sub-s 1. That is to say it must be evidence that if it were accepted could rationally affect directly or indirectly the assessment of the probability of a fact in issue. But even if it satisfies the relevancy hurdle, it is not admissible because of the credibility rule.

34 That rule is contained in s 102 of the Evidence Act.

35 The section is in these terms:

“Evidence that is relevant only to a witness's credibility is not admissible.”

36 The first exception is contained in s 103 which is headed:

“ 103 Exception: cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.
(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.”

37 In R v RPS (NSWCCA unreported, 13 August 1997) the meaning of the words “substantial probative value” in s 103(1) was considered. Hunt CJ at CL, in a judgment with which other members of the Court agreed, stated (footnotes omitted): -

“ Section 103 of the Evidence Act limits cross-examination as to credit to adducing evidence which has "substantial probative value". The "probative value" of evidence is defined in the s 3 Dictionary as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue", but both the context in which that phrase appears and the subject matter of s 103 indicate that that definition does not apply.[25] That is made clear by the terms of subs (2), which demonstrate that the evidence must have probative value in relation to the credit of the witness. Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness.[26] Such an interpretation accords with the intention of the Law Reform Commission.[27] The addition of the word "substantial" nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue.[28] That limitation is an important one.

38 "Probative value of evidence" means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

39 What then is the import of the word "substantial" where it appears in s 103? In my opinion the word "substantial" when used in relation to the probative value of the evidence in s 103(1) should be contrasted with the use of the word "significant" in relation to the probative value of evidence to be admitted under s 97(1) as an exception to the tendency rule.

40 It has been held for the purposes of this subsection "significant" means "important" or "of consequence" and before evidence can be admitted under that provision it must be more than merely relevant. It may have less than a substantial degree of relevance. (Lockyer (1996) 89 A Crim R 457 at 459.) Hunt CJ at CL went on to state:

“To some extent it seems to me the significance of the probative value of the tendency evidence (whether led by the Crown or by the accused) must depend upon the matter of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact.”

41 In Fowler, Supreme Court, New South Wales, Dowd J, 6 May 1997, Dowd J held that evidence would be admitted under s 103(1) if it had a real persuasive bearing on the reliability of the witness.

42 It seems to me that before evidence can have substantial probative value in respect of the credit of a witness, it must have such potential to affect the jury's assessment of the credit of the witness in respect of the evidence he or she has given that the credit of the witness cannot adequately be determined without regard to it.

43 If the probative value of the evidence can be any less than this there does not appear to me to be any real distinction between the terms significant probative value and substantial probative value as they are used in the Act.

44 To my mind there must be such a connection between the evidence to be admitted and the credit of the witness at the time of giving the evidence that the former is likely to affect the latter in a substantial way. That seems to me to be the import of the matters set out in s 103(2) to which the Court must have regard when determining whether the evidence is of sufficient probative value so as to justify admission, notwithstanding the credibility rule. Although the matters set out in sub-s 2(a) and (b) of s 103 are not the only matters that the Court must take into account when determining whether to admit the evidence, they highlight the fact there must be a real correlation between the evidence to be admitted and the credit of the witness.

45 Before ruling on this issue I should say there are two other considerations that need to be mentioned. There may be, as I indicated during the course or argument, scope for a discretion to reject evidence otherwise admissible under the exception to the credibility rule now under discussion because of the provisions of s 135 of the Evidence Act. For example, if the Court were satisfied that there was danger that the evidence might be misleading or confusing or could cause or result in undue waste of time.

46 It needs also to be borne in mind, I think, that the credibility rule is concerned to a significant extent with preventing a situation from arising where issues that are essentially side issues may tend to sidetrack the tribunal of fact from the real issues in the proceedings.

47 Applying those considerations to the present matter it is my view that Mr Richter has established that the question of the conduct of the witness, George Segal, in relation to the social security fraud matters constitutes credibility evidence possessing substantial probative value.

48 The type of dishonesty alleged in those charges is plainly capable of being material to the issue as to whether Mr Segal is telling the truth about the activities of the accused in furtherance of the conspiracy to defraud the Commonwealth. But more importantly it is a matter capable of bearing on the witness's relevant credibility in a substantial way. My view on that matter is reinforced by both the considerations in s 103(2)(a) and (b).

49 In those circumstances I turn to consider the second issue. This requires an examination of s 128 of the Evidence Act.

“ 128 Privilege in respect of self-incrimination in other proceedings
(1) 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.

(2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:
(a) that he or she need not give the evidence, and
(b) that, if he or she gives the evidence, the court will give a certificate under this section, and
(c) of the effect of such a certificate.
(3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence.

(4) 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.

(5) If the court is satisfied that:
(a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and
(b) 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
(c) the interests of justice require that the witness give the evidence, the court may require the witness to give the evidence.

(6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence.

(7) In any proceeding in a NSW court:
(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.

50 The question is - do the interests of justice require that the evidence be given? There is no issue, as I have already said, about the other matters contained in s 128(5).

51 In my view the interests of justice do require that the evidence be given. My reasons are these; first, there is the nature of the charges. They are very serious and carry a high likelihood that a term of imprisonment might be imposed upon each accused if convicted.

52 Secondly, there is the importance of Mr Segal's evidence in the Crown case. It is, for the reasons I have indicated earlier, important evidence and, if it were accepted it would be compelling material in support of the Crown case.

53 Thirdly, there is the fact that the evidence sought to be adduced in the cross-examination is sought to be led by the defence and that it is capable of impinging in a substantial way on the credit of the indemnified Crown witness.

54 Fourthly, there are the interests of the accused in obtaining a fair trial, that is in the present context the ability to properly test and rebut, if it be possible, the Crown case.

55 All of those considerations in my view point firmly in the one direction and that is that the interests of justice require that the witness give the evidence.

56 There are, however, the interests of the witness, Mr George Segal, himself. There is no doubt whatever in my view that the interests of justice require a consideration of his position.

57 Mr Thangaraj has in his outline of submissions emphasised a matter that is of concern to me and which I raised yesterday with Mr Richter. A convenient way of addressing that matter is to quote the statement in Hamilton v Oades(1987) 11 NSWLR 138 at 153 where Clarke JA said:

“Once a charge is laid an accused person is, statutory exceptions apart, entitled to all the protection afforded by well-established principles of the criminal law. In particular he is not required to submit to pre-trial interrogation, nor is he amenable to the subpoena process. The Crown is obliged to prove the case against him and he is not required to assist the prosecution or to disclose his defence.
It follows that the exposure of a person charged with a criminal offence to questioning which may lead to the furnishing of incriminating answers in respect of matters at the heart of the criminal charge may cause significant prejudice to the examinee and constitutes a real interference in the administration of criminal justice.”

58 Later at p 154 Clarke JA said: -

“Indeed I am of the opinion that the need to avoid any risk of injustice to a person charged with criminal misconduct is so compelling that, unless particular considerations in a given case dictate a contrary course, orders should be made to avoid the possibility that there is any trespass upon the charged person's right to a fair trial.”

59 The orders of the Court of Appeal in that matter, however, were overturned by the High Court.

60 There was, as Mr Thangaraj said in his submission, no disagreement with the general nature of the principles enunciated by Clarke JA and which I have mentioned above. But at the same time the High Court determined that s 541 conferred a specific authority to compel the answering of questions, and that the authority was not displaced by the inherent power of the Supreme Court to stay civil proceedings.

61 In relation to the remarks by Clarke JA, the following comments emerge from the decision of Mason CJ (page 354 between lines B - G:

“Clarke JA considered that, because a person charged is not ordinarily required to submit to pre-trial interrogation, to reveal his defences or to produce documents under compulsion, questions asked of that person pursuant to s 541 may lead to the giving of incriminating answers in respect of matters central to the charge which may result in significant prejudice to the person charged and constitute ‘a real interference in the administration of criminal justice’.
It is plain that an examination under s 541 while charges are pending may expose the witness to the risks mentioned. To the extent only that under the section rights of an accused person are denied and protections removed, an examination may even amount to an interference with the administration of criminal justice. But it is well established that Parliament is able to “interfere” with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked: see Hammond v Commonwealth (1982) 152 CLR 188; 42 ALR 327, Sorby . There has been a long history of legislation governing examinations in bankruptcy and under the Companies Acts which abrogate or qualify the right of the person examined to refuse to answer questions on the ground that the answers may incriminate him: see Rees v Kratzmann (1965) 114 CLR 63, especially at 80. In that case Windeyer J observed (at 80):
‘The honest conduct of the affairs of companies is a matter of great public concern today. If the legislature thinks that in this field the public interest overcomes some of the common law’s traditional consideration for the individual, then effect must be given to the statute which embodies this policy.’
This passage was cited with approval by Walsh J (with whom Barwick CJ, Windeyer and Owen JJ agreed) in Mortimer v Brown (1970) 122 CLR 493 at 499.
“The privilege against self-incrimination can only be abrogated by the manifestation of a clear legislative intention. The intention may none the less be demonstrated by reference to express words or necessary implication: Sorby (CLR at 309); Police Service Board v Morris (1985) 156 CLR 397; 58 ALR 1. But the privilege is not lightly abrogated, and the phrase “necessary implication” imports a high degree of certainty as to legislative intention.”

62 There was also another passage in the judgment of Toohey J, which has been reproduced I think in the written outline of submissions. It contains a possible qualification as to the extent of questioning permissible under s 541. That passage appears in the decision of Toohey J at page 364:

“A protection against self-incrimination in the terms enunciated by the Court of Appeal gives no effective operation to s 541(12). And that is so notwithstanding the qualification expressed in the words “concern those facts which constitute the ingredients of the offences …”. The areas of inquiry specified by the appellant liquidator may well concern those very facts. The power vested in the court by s541(5) to give directions as to the matters to be inquired into may be used to ensure that the matters to be inquired into are relevant to the object of the examination. And, as Barwick CJ pointed out in Mortimer v Brown , a question may be so peripheral that it would be oppressive or unjust to require an answer. It is not hard to think of other examples of oppression or injustice. Clearly, a question designed to elicit a direct admission of guilt would fall into this category . See also Huston v Costigan (1982) 45 ALR 559 at 563. But it is not enough that the answer to a question may tend to incriminate the person examined. It is precisely this sort of answer that s541(12) allows so that the affairs of the company may be relevantly investigated.”
( underlining added )

63 As Oades’ case itself demonstrates, there has been significant legislative movement in the last thirty years in certain statutory contexts towards the compulsion of persons to give evidence that may tend to incriminate them.

64 Because of the need to give this ex-tempore decision quickly there has not been time to research and analyse those various pieces of legislation but anecdotally one knows that they exist. In addition to s 541 of the Companies Code, which was the matter under consideration in Hamilton's case, there are modern day examples in anti terrorist laws, public protection laws, laws relating to the establishment of commissions to root out corruption and the like.

65 In my view, s 128 is itself a section that imposes a power or confers a discretion upon a Court to compel a witness to give evidence that may tend to discretion that the witness has committed an offence against an Australian law. It is not itself a statutory exception to the principles stated by Clarke JA. It does not compel the making of an order. Where, however, an order has been made requiring a person facing unresolved charges to give evidence, this may well result in a situation where incriminating evidence must be provided. The legislation addresses the interests of the witness, however, by providing a protection. That protection arises from the issue of a certificate.

66 The certificate has the effect stated in sub-s 7. I have already set out the terms of the sub-section in this decision. But it is important to note that it is a protection that provides, first, that evidence given by a person in respect of which a certificate has been given cannot be used against the person. Secondly, that 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 in any proceedings in an Australian Court.

67 Mr Richter, in part of his submissions, used the expression "the fiction of the protection". But I do not see it in that way. In my view, the protection is quite a wide one and it protects the witness not only in respect of the evidence that he has given but also in respect of the derivative type of evidence that, for example, was not protected by the terms of the legislation involved in Hamilton's case.

68 Now, it is also equally true, and I think it needs to be taken into account, that the certificate cannot give absolute protection. There are, for example, the indefinable but no doubt real prejudices that may result where a witness has given evidence of the kind dealt with in s 128 and which may as a consequence bring him into disfavour with some sections of the community or people who have previously held the witness in high regard. I suppose it is obvious that the certificate does not protect in that regard unless there is imposed some restriction on the publication of the evidence.

69 Also, as my recent decision in this trial relating to the witness Mr Agoston demonstrates, the protection may not extend to the consequences involved in disciplinary proceedings instituted against professional persons. At an even more mundane level, it might not protect a club member if he or she were sought to be blackballed at the local golf club because of adverse views taken by a majority of committee members.

70 One has to take these matters into account but, nevertheless, I consider that there is a protection; there is a wide protection, and it is a very real protection. So looking at the position of Mr Segal here, I think that it is very important to note that he will receive that important level of protection.

71 More importantly, I have come to the conclusion that, even though Mr Segal will be required to give the evidence in relation to the matters that are involved in the pending proceedings against him, there is nothing in s 128 that means that it must automatically follow for that reason that the Court is bound to find that the interests of justice do not require the witness give the evidence. To the contrary, whilst I think such a matter is a proper and important matter to take into account, in the end, in the exercise of the discretion, one has to bring that consideration into account along with all of the other matters to which I have made reference as aspects of the very wide considerations involved in the expression “the interests of justice”.

72 In other words, there is no warrant in my view for reading the section as requiring automatically that the witness is not to give the evidence if the witness be required to give evidence of matters relating to proceedings that are pending against him.

73 It must also be said that, in some respects, a witness who does not face pending proceedings, but who has been required to give evidence of matters that may disclose the commission of an offence against an Australian law, is in perhaps a worse position. At least, it seems to me that the section does not require or oblige the Court to draw a distinction that would warrant a conclusion, in the case of a person facing pending charges, that the evidence must not be given for that reason alone.

74 In the matter of Collisson, to which reference has been made, I did make specific mention of the situation of a witness facing a pending trial in the context of s 128. The reference is at page 6 in the following terms:

“As I have said, he is implicated and charged in relation to the very criminal act with which the accused is charged. It would only be, in my view, in the most compelling of circumstances that he should be required prior to the resolution of the charge against him to give evidence of his involvement, if any, in that act, notwithstanding the apparent protection afforded by the certificate.”

75 That position contrasts with the present matter. Mr Segal was originally charged in relation to the conspiracy charges faced by the accused. But he has now been given an indemnity in relation to those very matters so his position is rather different, it seems to me, than that of Mr Bradley in the Collisson matter. Bradley’s situation was analogous to that covered by the principle in R v Booth (1982) 2 NSWLR 847. It is true that Mr Segal is facing other charges but they have nothing to do with the charges against the Ronens.

76 There is also a further point of distinction. The unreliability referred to in the Collisson matter was the unreliability that necessarily followed from an analysis of the special relationship between Mr Collisson and Mr Bradley. I need not develop that point further, but a reading of my reasons in the trial judgment of 18 February 2002, and also, more importantly, a reading of the Court of Criminal Appeal's decision in the Collisson appeal – ([2003] NSWCCA 212 paras 28-33) - demonstrate why it was inevitably the case that whatever evidence Mr Bradley may have given in that trial, it was likely to be unreliable.

77 That also contrasts with the position of Mr Segal. I have, for my part, no reason to suppose that his evidence will be unreliable. I trust that he will tell the truth when he gives his evidence before the Court. But his situation is not, because of any circumstances arising out of his relationship with the persons who are facing the serious conspiracy charges here, at all similar to that of the witness Bradley in the Collisson matter.

78 I now turn to the final evaluation of all these considerations. Having regard to all the matters I have taken into account and giving due allowance for the position of Mr Segal, I have come to the conclusion that the interests of justice require that he give the evidence. I propose to make an order requiring the witness give the evidence, that is to answer the question that has been asked and objected to, and further questions on the same subject matter, subject of course to any individual objections that may be taken to such questions. That may arise either because there is a departure from the considerations I have taken into account in coming to the conclusion I have; or because of considerations arising under s 135 of the Evidence Act. For the moment, I am satisfied that, in relation to the questions Mr Richter wishes to ask, there is no present warrant for their exclusion.

79 Finally, of course, if the questioning branches out into other areas, then that of itself would entitle either the Crown or counsel for Mr Segal to raise the issue as to whether the credibility rule applies to that particular matter. In other words, I am not suggesting that the matter is entirely at large, but I am satisfied that I should require the witness give the evidence that I have identified. I will give a certificate to the witness in respect of that evidence.

80 I wish only to add one final comment. I referred earlier to a possible qualification in the observations of Toohey J in Oades’ case. I leave open for further argument the question whether any particular question in relation to the pending charges ought to be refused on the ground that is oppressive or unjust. (See also the remarks of Mahony JA in Balog v Independent Commission Against Corruption (1989) 18 NSWLR 356 at 376-377; Those remarks were not denied validity when later the High Court reversed the Court of Appeal’s decision: Balog v Independent Commission Against Corruption (1990) 169 CLR 625).

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Last Modified: 07/16/2007