R v Sigalla (No. 4)

[2016] NSWSC 1920

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sigalla (No. 4) [2016] NSWSC 1920
Hearing dates:	10 November 2016
Date of orders:	10 November 2016
Decision date:	10 November 2016
Before:	Adamson J
Decision:	Accused’s application for a certificate under s 128 of the Evidence Act 1995 (NSW) refused.
Catchwords:	CRIMINAL LAW – application by accused for certificate under s 128 of the Evidence Act 1995 (NSW) – material in respect of which certificate is sought falls within s 128(10)(b) – application refused
Legislation Cited:	Evidence Act 1995 (NSW), s 128
Cases Cited:	Nil
Category:	Procedural and other rulings
Parties:	Regina Andrew John Sigalla
Representation:	Counsel: P McDonald SC/ S Callan (Crown) W P Brewer (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Brendan Pigott (Accused)
File Number(s):	2013/1511552013/355116
Publication restriction:	Nil

EX TEMPORE JUDGMENT

1. The accused has applied for a certificate under s 128 of the Evidence Act 1995 (NSW) in respect of past evidence and evidence which he apprehends will be elicited from him by the Crown in cross-examination.

2. I am satisfied, in respect of the evidence he gave at transcript 813 lines 12 to 19 and other earlier evidence that, even if objection had been taken at the time, the evidence has been made relevant to count 5 on the indictment concerning an alleged payment to so-called market makers. I apprehend that the Crown is about to cross-examine the accused about evidence he has given by way of explanation for at least one of the payments, namely, an explanation may have been that it was a non-recourse loan to directors given for the purpose of affecting the share price of TZ Limited.

3. Section 128(10) of the Evidence Act provides that in a criminal proceeding this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant either did an act the doing of which is a fact in issue, or had a state of mind the existence of which is a fact in issue.

4. Having regard to what may be the principal issue in the case, namely, whether the accused was dishonest in making or causing to be made certain payments from TZ Limited to himself or others, it seems to me that the material in respect of which a certificate is sought falls within s 128(10)(b).

5. Accordingly, the accused's application for a certificate under s 128 is refused.

**********

Decision last updated: 17 February 2017