Spence v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0152

HARVEY SPENCE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, PRIEST and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 April 2016
DATE OF JUDGMENT:	19 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 113
JUDGMENT APPEALED FROM:	DPP v Spence (Unreported, Supreme Court of Victoria, Croucher J, 25 March 2015 (Conviction))

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CRIMINAL LAW – Appeal – Conviction – Murder – Prosecutor’s address – Whether repeated resort to rhetorical questions aimed at dismantling defence case had the capacity to reverse the onus of proof – Whether Palmer v The Queen (1998) 193 CLR 1 infringed – Whether language employed by prosecutor was intemperate or inflammatory – Robust nature of trial process – Prosecutor’s address proper.

CRIMINAL LAW – Appeal – Conviction – Murder – Privilege against self-incrimination –Prosecution witness granted a certificate under s 128 of the Evidence Act 2008 – Credibility rule – Prosecutor’s address –Whether credit of witness unfairly buttressed – Prosecutor’s address proper – Evidence Act 2008 ss 55, 56, 101A and 128.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Turnbull Lawyers
For the Crown	Mr P J Doyle	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
PRIEST JA
FERGUSON JA:

Introduction

A jury empanelled in the Supreme Court convicted the appellant of murder on 25 March 2015. The trial judge sentenced him to be imprisoned for 27 years, with a non-parole period of 22 years, on 13 July 2015.

On 10 December 2015, a judge of this Court granted the appellant leave to appeal against his conviction on two grounds:

1. A substantial miscarriage of justice occurred in that the onus of proof was reversed because of prejudicial closing arguments made by the prosecutor.
2. A substantial miscarriage of justice occurred because the prosecutor in his closing address sought to impermissibly buttress the credit of the witness, Dong Di Dai Nguyen, by relying on the fact that he had received a ‘certificate’ pursuant to s 128 of the Evidence Act 2008.

For the reasons that follow, we would dismiss the appeal.

Overview

Harvey Spence, the appellant, was a small-time drug dealer. He came to believe that an associate, Nhan Ngoc (‘Kevin’) Doan, may have informed police about his illegal drug activities.

It seems that, on 20 December 2012, the appellant was pulled over and his car was searched. An ‘ice’ pipe, and some powder believed to be methamphetamine was found. The appellant formed the belief that Mr Doan — who was sharing an apartment with Todi (Tom) Muja — had informed on him to the police.

On 6 January 2013, on a pretext, the appellant, together with Peter Mitchell and Tom Muja, drove Kevin Doan from Melbourne to a property in Johnsonville (near Bairnsdale) belonging to another associate, ‘WR’. During the trip, which took several hours, the appellant called Mr Doan a ‘dog’, and, at an early stage of the trip, made Mr Doan travel in the boot of the car.

After arriving at the property, the appellant dragged Mr Doan into a shed and directed Mitchell to bind his hands and gag him with tape. The appellant again called Mr Doan a ‘dog’. WR entered the shed, and, worried that Mr Doan might not be able to breathe properly, removed the tape from Mr Doan’s mouth. The appellant and Mitchell immediately reapplied the tape. WR then left the shed and the appellant followed. When the appellant returned to the shed he had a rifle. He then made Muja, at gunpoint, place a plastic bag on Mr Doan’s head. Muja, however, refused the appellant’s direction to pull the bag down and tie it around Kevin Doan’s neck. Instead, the appellant had Mitchell do so, so that Mr Doan would suffocate. In the event, Kevin Doan died of suffocation.

Before leaving the property, the appellant directed Mitchell and Muja to burn the deceased’s body. They succeeded in only partially burning the body before leaving. Subsequently, WR, with the assistance of a 14-year-old boy, ‘AC’, burnt the body to ashes. On a later occasion, others assisted WR to remove the deceased’s ashes and dump them in a nearby river.

The evidence and issues at trial

Dong Di Dai (Thomas) Nguyen gave evidence that he was a friend of Kevin Doan, and had known him from primary school. He met the appellant, WR and Muja through the deceased.

Thomas Nguyen gave evidence that, after the appellant was pulled over by the police in December 2012, he blamed a number of people — including the deceased — for informing on him. Mr Nguyen also gave evidence of the appellant telling him that something had happened in the country and ‘Kevin’ got killed. The appellant told Mr Nguyen that WR had pointed a gun at them all and confiscated their phones. He said that, apart from WR, he, Muja and the deceased were present. The appellant did not say how the deceased was killed.

During evidence in chief, Mr Nguyen was asked if he used drugs. In the absence of the jury, an application was made for a certificate pursuant to s 128 of the Evidence Act 2008 (‘the Act’). The effect of the certificate was subsequently explained to the jury. (How that eventuated, and what the jury were told, is a matter to which it will be necessary to return.)

Todi Muja gave evidence over the course of five days. He said the trip to the country on 6 January 2013 was planned by the appellant. Muja thought the purpose of the trip was to help grow marijuana. Prior to getting in the car, Muja and the deceased both used ‘ice’, and the appellant may also have done so. In the car were the appellant (who was driving), the deceased, Mitchell and himself. During the drive the appellant called the deceased a ‘dog’. The deceased was, however, singing, and appeared to pay no attention to the appellant. At one point, the appellant put the deceased in the boot of the car, but the deceased kept singing, despite it being a ‘pretty hot’ day. When they stopped for lunch, Muja pulled the deceased out of the boot. His shirt was soaked, so Muja gave him a clean shirt to wear. After lunch the deceased sat in the car. The appellant seemed angry with the deceased.

Ultimately, the appellant drove to the shed. The appellant put his elbow to the deceased’s neck and said, ‘You fuckin’ dog, you gave me up’. He then said, ‘Tie him up’. The appellant, and then Mitchell, tied up the deceased and taped his mouth. WR then came into the shed. The appellant said, ‘Look at this piece of shit’. Muja told the deceased to tell them the truth, but the deceased could not talk. He just screamed. The appellant came back with what looked like a rifle and said, ‘I’m going to blow his head up’. He pointed the gun at Muja’s leg and said, ‘Put the bag on him’. Muja put the bag on the deceased’s head but the appellant said, ‘No put it properly and tie it up’. Muja did not tie the bag. At that time, however, Mitchell was passing by. Mitchell secured the bag to the deceased’s head with sticky tape. After a minute or so, the appellant said, ‘He pissed him’ and ‘He’s dead’. Muja then said, ‘Listen I got a daughter and I’m not going to go and waste my life and leave my daughter without a father’. The appellant replied, ‘No body, no crime’.

The appellant then went back to the house with the gun. When he came back he said to Muja, ‘Help him now’, meaning help Mitchell with the body. Muja helped Mitchell put the deceased into a box. They all used ‘ice’. The appellant gave Muja $1,000, and told Mitchell and Muja to get rid of the body. They found a trailer and tried to burn the body, but Muja was concerned the fire brigade would be called.

Mitchell and Muja went into town to get some gas bottles. Mitchell dropped Muja at the bus station, and Muja gave Mitchell $200. Muja then went back to the property he shared with the deceased, and then travelled to Adelaide. He did not tell the police what had happened. It was only later, when he was in Adelaide, that he contacted the police through his solicitor so as to tell them what he knew.

WR gave evidence of seeing the appellant in December 2012 after he had been pulled over by the police with ice in his car. The appellant thought the deceased had ‘dobbed him in’.

On the day of the killing, WR did not know the appellant was coming to his place. When he arrived, the appellant told WR that the deceased was in the boot and was the guy who had dobbed him in.

The appellant said that they were taking the deceased to the shed. Later, WR went to the shed and saw the deceased duct-taped up on the ground. WR grabbed some scissors and cut the duct tape from the deceased’s mouth. The appellant said, ‘What are you doing?’, and the appellant and the Scottish guy (Mitchell) got the duct tape and taped the deceased’s mouth again. WR — who was under the influence of ice at the time — went back to the house.

About 2:00 am in the morning, the appellant asked to borrow money to buy drugs. He said he would pay him back. WR gave the appellant $15,000 from the safe. He also saw the appellant returning from the shed with a shotgun and putting it back under WR’s bed. At the time of obtaining the money, the appellant said, ‘It’s done’ or ‘I did it’. The appellant then left in WR’s Commodore.

The next day (or the day after), WR found the deceased’s body with burnt timber around it. WR, and the appellant’s 14 year old cousin, AC, took the body out, made a fire and burned it, so that the body was reduced to ashes. WR said that he told another man, Albert Short, that someone had been killed and Short helped dispose of the ashes (although Short denied knowing about anyone being killed, or disposing of ashes).

No evidence was called in the defence case. As put through counsel, the appellant’s case was that he did drive to WR’s property with Mitchell, Muja and the deceased but that their purpose was to discuss setting up a methylamphetamine laboratory. The appellant left the property, however, while Kevin Doan was still alive. He was not responsible for the killing. The deceased was killed after he left.

Thus, the central issue for the jury was whether the appellant was responsible for murdering the deceased, or whether others at the property were lying to cover their own involvement in the murder.

Muja, who, as we have mentioned, gave evidence on the appellant’s trial, was not charged with any offence. WR and AC each pleaded guilty to, and were sentenced for, a charge of assisting an offender (by being accessories after the fact to murder). Both gave an undertaking to assist the authorities (although only WR was called by the prosecution as a witness in the appellant’s trial). Mitchell pleaded guilty to, and was sentenced on, a charge of manslaughter. He did not give any undertaking to assist the authorities, and was not called as a witness in the trial. Short was not charged with an offence, and also gave evidence at trial.

Was the onus of proof reversed by prejudicial argument in the prosecutor’s closing address?

Under cover of the first ground, it was submitted that the prosecutor’s final address — which was, so it was contended, characterised by the repeated use of rhetorical questions, and by ridicule and sarcasm directed at the defence case — occasioned a substantial miscarriage of justice.

The appellant’s counsel submitted that the prosecutor asked more than forty rhetorical questions in the course of his final address, having commenced it with such a question. Although the prosecutor made repeated reference to the onus and standard of proof, invariably these were made before attempting to dismantle defence hypotheses, and could not cure the inversion of the onus of proof that the continued resort to rhetorical questions effected. It was submitted that by asking the jury why they should not accept what a particular witness had said, the principle stated in Palmer[1] had been infringed as the jury should not be invited to approach the resolution of issues of fact on the basis that the accused has any obligation to provide a motive as to why witnesses would give the account they had. It was said the questions asked by the prosecutor had diminished the standard of proof borne by the Crown.[2] Counsel contended that the trial judge’s directions on the onus and standard of proof, coupled with a conventional Azzopardi direction,[3] could not, and did not, cure the overwhelming prejudice occasioned by the prosecutor’s closing address. A consideration of the prosecutor’s final address as a whole[4] — that is, considering the entirety of the address in the context of the issues in the trial — disturbed the balance between the prosecution and the defence.[5]
[1]Palmer v The Queen (1998) 193 CLR 1 (‘Palmer’).
[2]Theodoropoulos v The Queen [2015] VSCA 364.
[3]Azzopardi v The Queen (2001) 205 CLR 50.
[4]Causevic v The Queen (2008) 190 A Crim R 416, 419 [6].
[5]McCullough v The Queen [1982] Tas R 43, 57 (‘McCullough’). See also Whitehorn v The Queen (1983) 152 CLR 657, 663–4 (Deane J).

The respondent submitted that no miscarriage of justice was occasioned by the Crown’s closing address. The prosecutor prefaced his critique of the defence case with clear statements as to the onus of proof. The Crown was entitled to mount an attack on the alternative theory of the case advanced by the defence during the trial. Given the atmosphere of the trial, the prosecutor was entitled to put this attack in strong terms. The prosecutor’s use of rhetorical questions was of itself insufficient to effect a reversal of the onus of proof. The Crown’s closing address did not suffer from other vices which have led appellate Courts to quash convictions. At the time it was delivered, the prosecutor’s address was not perceived to have the effect now complained of. The jury were given proper judicial direction on the onus of proof.

In the course of oral argument, the Court asked the appellant’s counsel to identify any passage in the prosecutor’s final address which best exemplified the vices relied upon. He identified part of the immediately following passage:

Why not accept Todi Muja? Why not accept what he tells you happened in the shed? What an amazing story to make up, putting a plastic bag over someone’s head and taping it up, when the man’s got a gun. If you’re going to make up a story, ‘Harvey blew him away, put the gun to his head and went “bang”’. It’s so bizarre it’s got the ring of truth about it, the plastic bag over the head, tape it up. If you accept his evidence here before you Harvey Spence is guilty of murder. It’s as simple as that.
One of the most illogical parts of the defence scenario that has been put in relation to Muja is why, why would Muja get involved in killing his friend Kevin Doan? Because that’s what’s being suggested to him. [WR] and these other two goons killed him. Why would Muja kill him? Why would he get involved in the torture, tying up and the death of his good friend? Why wouldn’t [WR] take out his anger on someone other than Kevin? Muja is the one who is supposed to be the cook, who hasn’t produced. Harvey is the one who lost the drugs. But Harvey is taking his car and driving around with his boat.
Why not have this meeting in Melbourne? [WR is] in Melbourne on 5 January with Harvey Spence and they see Kevin in the city. They want to have a meeting. Why not do it there and then? ‘Come on, let’s go back to Harvey’s place, let’s have a chat about this lab. We’re all going to make this enormous amount of money and we're all going to cook this ice and everything’s going to be fantastic’. Why drive all the way to Johnsonville to meet [WR] with these other people? Apparently, it’s put to [WR] and put to Muja, that the hydro equipment is going to get moved to Melbourne and they’re going to grow in a warehouse in Melbourne. Why do they need Johnsonville? There’s a warehouse to cook the ice. Because that's all rubbish. It’s an afterthought to justify why Harvey Spence takes Kevin down to Johnsonville in the first place. He's taking him down there for his reason, and his reason is he wants to punish Kevin because he believes, as he said to Thomas Nguyen, as he said in the car, as he said in Muja's presence, ‘Kevin’s a dog’, Kevin’s the one who lagged him, and he's going to do something about it, he, Harvey Spence.
[WR is] angry at Kevin Doan. He saw him at [Federation] Square on the 5th. Did he attack him then? Did he go up and grab him, drag him off, put him in a car, take him somewhere, torture him and kill him? No. He goes off with Harvey Spence and Kevin goes his own way.
Now, as I’ve said, it will probably be suggested to you that Muja has told a litany of lies …

In the joint reasons in Palmer, Brennan CJ, Gaudron and Gummow JJ said:[6]

It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant.

[6]Palmer, 7 [7].

The vice in a suggestion that the accused was unable to provide a motive was explained in the joint reasons in these terms:[7]

… With respect, a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Cresswell J in the case cited by Wills[8] where his Lordship acknowledged that proof of a motive to lie weakened a complainant’s credibility. The correct view is that absence of proof of motive is entirely neutral.

[7]Ibid 9 [9].

[8][Wills on Circumstantial Evidence, 6th ed (1912), pp 256-257; Taylor on Evidence, 12th ed (1931), vol 2, par 1442.]

The principle in Palmer thus precludes the asking of rhetorical questions such as ‘why would the witness lie?’, because they invite reasoning which undermines the prosecution’s burden of proof that unless the jury is satisfied by the accused that the witness has a motive to lie, they should accept the evidence of that witness and convict. There is no doubt that the rule inPalmer may also apply where the absence of evidence of a motive to lie is only raised during the prosecutor’s closing address. The principle may be infringed because it is explicitly submitted that no motive to lie has been proffered by the accused or because rhetorical questions or other forms of argument implicitly convey that message.[9] But the use of rhetorical questions in the Crown’s closing address does not of itself infringe the principle unless the form of argument that is employed has the effect of casting an obligation on the accused to answer the questions posed and thereby reversing the onus of proof.[10]
[9]R v PLK [1999] 3 VR 567; R v Cupid [2004] VSCA 183.
[10]Woods (a Pseudonym) v The Queen [2014] VSCA 233, [5] (Weinberg JA); [72] (Hansen JA); [100] (Priest JA); Elomar v R (2014) 300 FLR 323, 427–430 [534]–[549] (Bathurst CJ, Hoeben CJ at CL and Simpson J).

The prosecutor emphasised that the Crown bore the onus of proof a number of times during the address. Toward the beginning of the address, having questioned in a rhetorical fashion why WR’s evidence did not directly implicate the appellant, the prosecutor answered this question by putting in positive terms a submission as to how the jury should view WR’s evidence:

What you make of that is that WR is simply telling you what he knows and no more. He is a witness of truth, a reliable witness in the evidence he gives you here in this courtroom.

Shortly thereafter the prosecutor reminded the jury of the onus of proof a number of times, stating that ‘the Crown have to prove the case, the elements of murder’ and that ‘the Crown takes on the onus of satisfying you that he is guilty of murder. They have to prove the elements.’ The prosecutor then expressly prefaced his critique of the case advanced by the defence in these terms:

But because I’m going to talk about the defence scenarios and be critical of them does not in any way suggest for any moment that the defence have an onus of proof. They don’t have to prove anything. I’m just going to subject what has been put to critical analysis. If you consider it to be worthy, you adopt it. If you don’t, forget about it.

If however the defence during the course of the trial have advanced a specific motive which it is said explains the untruthful account of a witness or advances an innocent explanation in contradiction of the evidence of the witness relied upon by the prosecution then the prosecution may then seek to invalidate the motive or explanation advanced. It is well recognised that a prosecutor in closing address who seeks to answer a suggested motive to lie will not thereby infringe the rule in Palmer.[11] Hunt CJ at CL in Uhrig,[12] in a passage which was quoted with apparent approval in the joint reasons in Palmer, stated that the principle (as affirmed in Palmer) should not be interpreted as excluding arguments being put to the accused and then to the jury, by either counsel or the judge, relating to the validity of a motive to lie which has in fact been asserted by the defence in relation to a witness.
[11]R v Hilsley[1998] VSCA 143 [24]; R v DJT [1998] 4 VR 784; R v PLK[1999] 3 VR 567; R v Cupid [2004] VSCA 183 [4]; R v Hewitt[1998] 4 VR 862, 866–9; cf R v Brown[2000] VSCA 102 [19]; R v Russo (2004) 11 VR 1; R v DCC(2004) 11 VR 129, 146 [73]; R v MMJ(2006) 166 A Crim R 501, 513–4 [41]–[42]; Glover (a Pseudonym) v The Queen [2016] VSCA 91.
[12]R v Uhrig (Unreported, 24 October 1996, Court of Criminal Appeal, New South Wales, Hunt CJ at CL, Newman and Ireland JJ).

Motives to lie are as Ormiston JA said in Hilsley ‘of the essence of vigorous criminal and common law trials’.[13] The observations made in Hilsey that ‘questions as to whom the jury should believe or disbelieve are questions of fact ordinarily contested with vigour by counsel on each side … well capable of pointing out any weaknesses in the other side’s case’,[14] are apposite to this trial. Winneke P stressed in Russo[15] that prosecution and defence counsel in a criminal trial should be permitted to put their respective cases to the jury ‘in as robust a way as fairness will permit, and that an appellate court will be slow to intervene unless it can clearly be demonstrated that unfairness has been occasioned to the accused’.[16]
[13]R v Hilsley [1998] VSCA 143, [25].
[14]Ibid [25].
[15]R v Russo (2004) 11 VR 1.
[16]Ibid 5 [10]. See also McCullough [1982] Tas R 43; Roulston [1976] 2 NZLR 644.

Almost all of the rhetorical flourishes by the prosecutor which were the subject of complaint were directed to dismantling the defence explanation for the appellant’s presence at JW’s property advanced by defence counsel in cross examination of witnesses. That version included the following elements:

·WR agreed with the accused that they would set up a clandestine laboratory at WR’s Johnsonville property for the manufacture of methamphetamine;
·WR’s hydroponic cannabis crop was to be moved to Melbourne to allow for the meth lab to be established in WR’s shed;
·the deceased and Muja agreed to be involved in establishing the meth lab, with Muja to act as the ‘cook’;
·WR invested $15,000 in the establishment of the lab;
·WR was furious when informed by the accused that Muja and the deceased had set up a small covert lab in their laundry;
·the appellant drove to Johnsonville with the deceased, Mitchell and Muja on 6 January 2013 in order to meet with WR and discuss the meth lab;
·Dai Nguyen was supposed to go to this meeting but decided not to;
·after they arrived WR assaulted the deceased and threatened to kill him unless he paid what he owed;
·after the appellant left, WR killed Doan, with the assistance of Muja and Mitchell;
·WR and Muja later colluded to concoct a false version of events, inculpating the appellant and exculpating themselves; and
·WR decided to inculpate the accused in light of the fact that police suspected him of murder.

Once an alternate explanation for the appellant’s presence at WR’s property was forcefully advanced by defence counsel, the prosecutor was entitled to considerable latitude in the style in which he sought to dismantle that explicit defence explanation. The prosecutor was correct to anticipate that the alternative scenario being put forward was an important part of the defence case.[17] In his closing address, defence counsel initially went so far as to submit that the Crown had to exclude beyond reasonable doubt the possibility of a plan to set up a meth lab in Johnsonville.[18]
[17]The prosecutor’s rebuttal of the defence case was not ‘disproportionate’ as contended in the Appellant’s Written Case.
[18]This submission was later corrected by counsel and the trial judge.

The prosecutor did not advance argument that the appellant had failed to advance any other motive or innocent explanation. Defence counsel made no complaint about the prosecutor having reversed the onus of proof at the conclusion of the Crown’s closing until he had reviewed the transcript of the address.

The prosecutor’s critique of the defence case was not expressed in language that was inappropriate to the circumstances of the case. Strong language was, at times, employed in the prosecutor’s critique of the defence case but that must be seen in the context of the trial as a whole. The defence case was conducted robustly. Having regard to the language which defence counsel employed, the terms in which the prosecutor criticised the defence case could not be described as either intemperate or inflammatory. To take some examples, defence counsel argued in his closing that ‘the Crown decided to rest its entire Crown case for the proof of murder from [sic] the evidence of dogs, liars and cheats.’ Counsel described the evidence of Detective Ron Iddles as ‘baloney’; derided WR’s evidence as ‘rubbish’; and described him as ‘one of Victoria’s worst nightmares’. Defence counsel described Muja’s evidence as ‘ludicrous’, put to him that he was an ‘unmitigated bald-faced liar’, and likened him to ‘Sergeant Shultz’.[19]
[19]Which, presumably, was a reference to the bumbling, inept and dimwitted character portrayed in the television series Hogan’s Heroes.

Being imbued with the atmosphere of the trial, the learned trial judge was well placed to assess whether the terms of the Crown’s closing address were intemperate or otherwise unfair. It is significant that his Honour saw nothing wrong, at all, with the address.

When read as a whole, in our opinion the prosecutor’s address was well within the bounds of legitimate advocacy, and did not suffer from any of the vices contended for by the appellant.

Even if, contrary to our view, the prosecutor’s address had strayed beyond that which was permissible, in our opinion, despite the submissions advanced by the appellant, the jury could have been left in no doubt as to where the onus of proof lay (or, indeed, as to the standard of proof). Before evidence was called, the trial judge gave correct preliminary directions to the jury on the presumption of innocence, and the burden and standard of proof. And in his charge, the trial judge gave the following directions:

… I want to move to the topic of the presumption of innocence, the onus of proof and the standard of proof. I told you about those at the start of the case. They are important, all of these things are important, but I am going to repeat them now.
First, the presumption of innocence. It is a critical part of our justice system that people are presumed to be innocent unless and until they are proved guilty. So before you may return a verdict of guilty on a charge, the prosecution must displace the presumption of innocence or set it aside or overturn it and satisfy you that the accused is guilty of the offence charged.
Secondly, the onus or burden of proof. Since the prosecution brings the case against the accused, it is for the prosecution to prove the offence charged. The accused does not have to prove anything. That never changes from start to finish. It is not for the accused to demonstrate his innocence, but for the prosecution to prove the charge they have brought against him.
Thirdly, the standard of proof. The prosecution proves the charge brought by proving the accused's guilt of the offence beyond reasonable doubt. …
…
Remember, there is no onus on the accused to prove or establish or to satisfy you of anything, or to have you accept anything.
…
Among other things, [defence counsel] submitted to you that you cannot exclude the reasonable possibility that [WR], in company with Mr Muja and/or Mr Mitchell, killed Mr Doan and that Mr Spence was not even there when all of that happened, let alone was he involved in it.
I will come to some of the arguments of the parties later, but for the moment I need to explain this to you. You do not need to be convinced that an explanation or hypothesis that is said to be consistent with an accused’s innocence represents the true state of affairs in order to find an accused not guilty. There is no burden on the accused to establish or prove such an explanation or hypothesis consistent with innocence. Rather, consistently with the directions I have just given you about the burden and standard of proof and inferences and circumstantial evidence, you must act on any part of the evidence favourable to an accused if you consider it to be reasonably possible in light of all of the evidence. If any aspect or aspects of the evidence mean that upon considering the whole of the evidence you cannot exclude the reasonable possibility that one or more of the elements of the charge you are considering is lacking, then you must find the accused not guilty of that charge.
Why is that so? This is because the burden is on the prosecution to exclude all reasonable hypotheses or explanations that are consistent with innocence or, put it another way, inconsistent with the accused’s guilt of the charge you are considering. If in your judgment the prosecution have not done so you must give the accused the benefit of the doubt and find him not guilty of that charge.
Again, it is consistent also with the notion that the accused bears no burden of proving that he is not guilty.
…

Even had the prosecutor’s final address had the capacity to invert the onus of proof in breach of the principle in Palmer, in light of the trial judge’s directions, any misapprehension in the minds of the jury promoted by that address would have been dispelled by the judge’s directions.

The first ground cannot be upheld.

Ground 2 — Was the credit of a witness unfairly buttressed?
The treatment of the certificate under s 128 of the Act at trial

In order to understand how the second ground is put, it is necessary to say something more of how the trial judge came to grant a certificate to Dong Di Dai Nguyen — ‘Thomas’ Nguyen — under s 128 of the Act.

Thomas Nguyen was, as we have mentioned, a friend of the deceased, Kevin Doan. In his evidence in chief, he said that they had met in ‘Grade 3’. They had also worked together in a small wedding photography business until Mr Nguyen had to shut it down in 2011. Mr Nguyen told the jury that the deceased had been ‘getting into drugs’, in the form of ‘ice’. He did not see Mr Doan for some time and then he turned up with a man called ‘Tom’ (that is, Muja). He gave evidence about meeting the appellant and a person called ‘Richard’ (that is, ‘WR’, another prosecution witness). The prosecutor then asked Mr Nguyen whether he had been a ‘drug user in the past’, and he agreed that he had been. At that point the prosecutor — in the presence of the jury — asked the trial judge to provide the witness with a ‘certificate’. The relevant passage in the transcript is:[20]

[PROSECUTOR]: Your Honour, it may be appropriate for Your Honour to give this witness a certificate. As I understand it, he would request one if the circumstances of this are gone into as I expect they will be.
[DEFENCE COUNSEL]: Given that’s — I’m not saying improperly — mentioned in front of the jury, Your Honour is going to have to explain that to the jury too as to what that’s all about.
HIS HONOUR: First I need to deal with it in the absence of the jury and then I’ll explain to the jury afterwards. Members of the jury, I’m just going to have to ask you to step out for a moment, please.

[20]Emphasis added.

A voir dire was then held in the absence of the jury to determine whether the witness should be granted a certificate. In the result, the trial judge determined to grant the witness a certificate under s 128. There was then the following discussion as to what the jury should be told:

HIS HONOUR: … Now, what do you say I should tell the jury about all of this?
[PROSECUTOR]: Precisely what Your Honour just said again. It’s a section of the Evidence Act that allows witnesses to give evidence without any fear of incriminating themselves.
[DEFENCE COUNSEL]: It has to go further than that. They can only take the objection if they believe the answer they give to a question may incriminate them in a criminal offence and it is on that basis the legislature has determined, if the judge thinks it’s appropriate, a certificate should be given so the witness, I suppose, feels free to answer the question without that fear of reprisal.
HIS HONOUR: All right. I’ll see how I go and see if you think it's good enough.
[DEFENCE COUNSEL]: I’ll give you the wink if I’m happy with it. Is that what Your Honour says? I don’t want the jury to go in and out all the time.
HIS HONOUR: No, you can tell me later if you don’t like it, I can fix it up later if it’s not good enough. All right, let’s have the jury back.

When the jury returned to the courtroom, the trial judge gave the following directions, which, it should be observed, were not the subject of objection or exception in the course of the trial:[21]

All right, members of the jury let me just explain something to you which you heard foreshadowed just before you went out.
The law basically says this, that a person may object to giving evidence if the evidence or the answers to questions might tend to incriminate him or her in a criminal offence. Mr Nguyen, as you heard before, was being asked about involvement in drug use and will be asked things along that line, so someone in his position is entitled to say, ‘I object to giving that evidence’. And if the judge thinks there’s a reasonable basis for that objection, then the next step is it used to be, I should say, the law used to be that that was the end of the matter. If the judge accepted there was a reasonable basis for doing so, the person couldn’t be asked any questions. The law has changed in recent years and now witnesses can still be required to give evidence of things that would incriminate them ordinarily, but under protection of what’s called a certificate under the Evidence Act. Section 128 of the Evidence Act allows me to grant a certificate if I think it’s appropriate to do so and that’s what’s happened in this case. In other words, the way it works is that the witness has the protection that insofar as he or she gives evidence about things that would otherwise incriminate him or her, that evidence can’t be used against him or her in other proceedings. So the person is effectively free to talk about things that otherwise might incriminate them without concern about having those answers used against him or her. I have granted such a certificate to Mr Nguyen in this case and we’ll carry on now, thank you.

[21]Emphasis added.

So far as it went, what the judge told the jury was correct. Thus, it was accurate to tell the jury that Mr Nguyen was ‘effectively free to talk about things that otherwise might incriminate [him] without concern about having those answers used against him’. That is because s 128(7) of the Act makes plain that in any proceeding in a Victorian court (or before another relevant person or body), evidence given by a witness in respect of which a certificate under the section has been given (and evidence of any information, document or thing obtained as a direct or indirect consequence of the witness having given evidence) ‘cannot be used against the person’. But s 128(7) also makes plain that the protection afforded to the witness by the section does not extend ‘to a criminal proceeding in respect of the falsity of the evidence’. Hence, a more complete direction might have alerted the jury to the fact that the certificate did not protect Mr Nguyen from the consequences of perjury.[22] As we have said, however, there was no exception taken, or objection made, to the directions, on the basis that they were incomplete or omitted relevant matters.
[22]See Trudgian v Western Australia (2006) 33 WAR 163, 170 [27] (Steytler P) (‘Trudgian’). See also Hugo v The Queen (2000) 113 A Crim R 484, 527 [136] (Sheller AJ).

Following the grant of the certificate (and the judge’s directions), Mr Nguyen proceeded to give evidence of buying ice for WR. He also gave evidence about a conversation with the appellant about his being intercepted by police and being caught with ice. He said that the appellant was blaming ‘Tom’ (a neighbour), Kevin (Doan) and ‘Carlos’ for the interception. Mr Nguyen also gave evidence about WR and the appellant bumping into the deceased in the city a few days after WR and the appellant had been at Mr Nguyen’s investment property in Geelong Road, Footscray. He said he saw the appellant a few days later and the appellant told him that ‘Kevin got killed’ down ‘in the country’, although he did not say how he was killed or what happened to his remains after he had been killed.

In the course of extensive cross-examination, Mr Nguyen said that — despite being told in or around the second week of January that Kevin had been killed — he did not tell police about it until 6 February 2013. He also agreed that the appellant had told him that it was WR who had killed the deceased. Mr Nguyen said that after the appellant had told him this, he received a phone call from WR threatening him not to say or do anything. Moreover, Mr Nguyen said that after WR had committed an aggravated burglary at Mr Nguyen’s family home in early February 2013, he had told his brother, Vu Nguyen, that the appellant, the deceased, Tom and two other males had attended the address of WR in relation to a ‘hydro’, but that WR had produced a firearm and shot the deceased, whose body was then taken to a country location and burnt. Mr Nguyen also said that he was aware the deceased was trafficking drugs. The deceased had told him that he was supplying ice to ‘Tom’, and also told him that he believed that Tom could cook ice. WR had complained about the quality of the ice that was being supplied and that there was some discussion about establishing a ‘meth’ lab at his property in Johnsonville. Finally, Mr Nguyen denied being involved in the establishment of a meth lab at Johnsonville.

During the very lengthy cross-examination by defence counsel, the grant of the certificate under s 128 was raised only once:

[DEFENCE COUNSEL]: But it was such an important statement to be making about your friend, Kevin, that he’d been killed, ordinarily that would have caused you to go to the police, but for the fact that someone threatened you. You were directly threatened by someone about doing anything about this information. Do you agree with that?---No.

No? Let’s see if I can jog your memory. Harvey Spence told you that [WR] had killed Kevin Doan? Yes? Come on, Mr Nguyen. He told you that? (No answer.)
You understood what the judge told you before about the certificate?---I know. No, I’m just thinking.
HIS HONOUR: You just need to watch him sometimes.
[DEFENCE COUNSEL]: I apologise?---I can’t remember.

Re-examined, Mr Nguyen was taken to a portion of his evidence given at the committal, concerning a conversation he had with WR about what had happened at WR’s farm. He had said that WR had tried to tell him that the appellant had done something at the farm, but he had stopped him by saying that he did not want to get involved.

In his final address, the prosecutor made the following submission, which is the foundation of the second ground of appeal:[23]

Thomas Nguyen, you may remember Thomas Nguyen, a man who seemed to take a long time to think about answering questions. It’s a matter for you what you make of any witness in this case. It’s a matter for you what you accept from any witness and what you don’t accept. You can accept everything a witness says, part of what a witness says. You can reject everything a witness says. It is a matter for you.
Again, I am anticipating what [defence counsel] may say, [defence counsel] may put some reliance upon Thomas Nguyen and may say to you that he is an important witness. I say to you Thomas Nguyen is an important witness for this reason, that he does not support the defence scenario that it was a plan to cook ice at the farm at Johnsonville, because he is supposed to be part of it. He was supposed to go on this car trip, apparently, and didn’t go.
He got a certificate from His Honour in relation to answering questions that could incriminate him. So if he was part of it, he was free to say so without any risk of being prosecuted or incriminated, but he didn’t, because he wasn’t part of it, because there was no such plan, because the reason that he (indicating) took Kevin Doan to Johnsonville was because he was wanted to take him somewhere quiet and remote where he could torture him and punish him for what he thought was Kevin putting him into the coppers.

[23]Emphasis added.

It is to be noted that — as were the directions given by the judge after granting the certificate — what the prosecutor told the jury was correct, so far as it went. Thus, to tell the jury that Mr Nguyen ‘got a certificate from His Honour in relation to answering questions that could incriminate him’, so that ‘if he was part of it, he was free to say so without any risk of being prosecuted or incriminated’, generally was accurate. (This assumes, of course, that the jury would have understood from the judge’s earlier directions that, when the prosecutor asserted that Mr Nguyen was free to give evidence about the offence ‘without any risk of being prosecuted or incriminated’, he meant that the witness’s evidence could not be used to prosecute him for any offence. It would have been quite wrong to convey that, by the mere fact of giving evidence, Mr Nguyen rendered himself immune from prosecution for an offence related to the death of Kevin Doan.) The prosecutor did not, however, inform the jury that Mr Nguyen was not immune from punishment for perjury.

Submissions to this Court

Counsel for the appellant in this Court submitted that the granting of the certificate under s 128 was irrelevant to any issue in the trial. That conclusion is supported by the fact that an application for a certificate under the section is to be determined in the absence of the jury.[24] Next, it was submitted that for the prosecutor to rely on the grant of the certificate in the manner he did, irrelevant evidence was converted into some form of ‘credibility evidence’. Thomas Nguyen was, it was argued, an important witness, whose credibility and reliability were very much in issue. Since, so it was submitted, the jury were not given any direction on the prosecutor’s arguments concerning the certificate, there was a risk — particularly because of the importance of the witness to the case — that the jury may impermissibly have used the granting of the certificate as a way of unfairly bolstering the credit of a key witness on key issues.
[24]Section 128 appears in Part 3.10 of the Act, entitled ‘Privileges’. Section 132 provides:
Court to inform of rights to make applications and objections
If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.

We pause to note that the attitude adopted by counsel for the appellant in this Court — that the grant of a certificate under s 128 is irrelevant to any issues in the trial — is somewhat at odds with the approach taken by defence counsel at trial. Previously we referred to the submissions that defence counsel advanced to the trial judge as to what the jury should be told concerning the grant of the certificate to Thomas Nguyen. It is plain that defence counsel also wanted the jury apprised of the grant of a certificate to WR. The following exchange in the absence of the jury prior to WR being called is instructive:[25]
[25](Emphasis added.)

[PROSECUTOR]: Your Honour, Your Honour can see Mr [WR] is in court.
HIS HONOUR: Yes.
[PROSECUTOR]: In relation to him giving evidence, of course he’s been dealt with for substantive offences but there’s cannabis, cultivation, use and ice use that would be part of him giving evidence and it would be appropriate for Your Honour to give him a certificate in accordance, as Your Honour has in the past, and I raise it now because, as Your Honour indicated, you don’t necessarily want to interrupt the jury and have these things come up when they ---
HIS HONOUR: All right. Do you want to say anything about that [defence counsel]?
[DEFENCE COUNSEL]: I didn’t take the point with Muja or anyone else, but I do. If he wants to object in front of the jury to answer some questions, he can do that. Your Honour can explain to him what's going to go on, but once he goes through that he can only object on the grounds of self-incrimination.
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: Well, if he is going to make that objection, he can do that in front of the jury, and then Your Honour can say, ‘I’ve now given him a certificate’.
HIS HONOUR: Why? Why does it have to be done in front of the jury?
[DEFENCE COUNSEL]: Because he can only take the objection on matters that have a tendency to incriminate him as opposed to, my experience is, a lot of them think, ‘Well, I can just, you know, not answer what I don’t want to’.
HIS HONOUR: But that’s not the way it works. I just don’t understand the point. Why does it need to be done in front of the jury?
[DEFENCE COUNSEL]: Because he takes the oath to answer all the questions and then we get to this issue, is it a question, and answer to which will actually incriminate him in some offending?
HIS HONOUR: It’s plain that he is going to be asked some questions about drug related matters, isn’t he?
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: In respect of which he has not been charged, or if he has been charged they have been withdrawn, I don’t know, in respect of which he would be entitled to, on usual principles, to object on the basis that the answers would tend to incriminate him. I would then have the power to rule on that. In the ordinary course I would agree with that, that there is a valid objection, but then explain also that ---
[DEFENCE COUNSEL]: The point is the jury would see that he is only prepared to answer some questions unless he’s got the gift, the certificate.
HIS HONOUR: All right. What do you say, Mr [Prosecutor]?
[DEFENCE COUNSEL]: This is the important witness from my viewpoint.
HIS HONOUR: I understand that.
[PROSECUTOR]: It’s not a gift, it’s a legal right he’s got not to answer questions, and as I understand it Your Honour brought this up so as to circumvent the interruption to the jury, but if that’s what [defence counsel] insists upon, then so be it.
HIS HONOUR: All right.
[DEFENCE COUNSEL]: I am not insisting that the jury go out and we go through the process then. It can be explained to him now and if he takes the objection and Your Honour is satisfied that it’s an issue he is going to incriminate himself on potentially, then just say, ‘Okay, I now give you the certificate’.
HIS HONOUR: Part of the reason I was keen on the process that I foreshadowed the other day is not to do it on a question by question basis but rather to do it in a blanket way so that you don’t have to consider each time whether or not you should ---
[DEFENCE COUNSEL]: I’m not asking for it to happen each time. Once he takes objection on the drugs issue, you can say to him, ‘I now give you the certificate on any question relating to drugs’.
HIS HONOUR: I’m guessing that might even happen in evidence in chief.
[DEFENCE COUNSEL]: I don’t know what my friend is are you going to ask him questions about ---
[PROSECUTOR]: I’m going to ask him about ice use and cannabis.
[DEFENCE COUNSEL]: We’ll do it this way.
HIS HONOUR: Which way?
[DEFENCE COUNSEL]: The way my friend and Your Honour says but I don’t want it becoming too fractured.

Ground 2 is limited to a complaint concerning the prosecutor’s final address insofar as it sought to buttress the credit of Thomas Nguyen. Notwithstanding that this is so, and further notwithstanding that trial counsel — as the foregoing exchange demonstrates — wanted the jury to know that WR had a certificate, counsel for the appellant submitted that, since the jury was aware that WR had also been granted a certificate under s 128, there was a real risk that the jury may thus also have used impermissible reasoning with respect to WR’s evidence. Although the grant of the certificate to WR had been made in the absence of the jury, its existence was revealed (and introduced) by the following passage of cross-examination of WR by the appellant’s own counsel:[26]

By the way, whilst I remember it, there’s no dispute here, you have not received an indemnity or undertaking from the Director of Public Prosecutions?---I got no idea what that means.
It means the Director hasn’t given you an undertaking that he wouldn’t prosecute you for murder or any relevant charge?---Don’t think so.
But you have been given a certificate by the judge at the commencement of your evidence that anything you say can’t be used against you unless you commit perjury whilst giving evidence in front of the jury?---Yeah.

[26](Emphasis added.)

In supplementary written submissions — provided after the hearing at the invitation of the Court — counsel for the appellant submitted that, under s 102 of the Act, ‘credibility evidence’[27] about a witness is not admissible (although exceptions do exist for the purpose of cross-examination[28] and the adducing of evidence to rehabilitate the credibility of a witness[29]). It was submitted that the mere fact of the granting of the certificate to the witness was irrelevant ‘evidence’. That irrelevant evidence was then impermissibly used by the prosecutor as ‘credibility evidence’ — in the sense that the prosecutor in the closing address used the certificate to explain why the jury should accept the evidence of the witness — to unfairly buttress or ‘bolster’ the credit of a central prosecution witness on a critical issue in the trial. When combined with the fact that the jury were not otherwise directed about how not to use the evidence of the granting of a certificate, or the legally flawed submission by the prosecutor; and the fact that, in truth, that the ‘evidence’ was ‘intractably neutral’, and relayed nothing about the credibility or reliability of the evidence of the witness; it could not be contended that there has not been a substantial miscarriage of justice.
[27]See s 101A of the Act.
[28]See s 103 and s 104.
[29]See s 108.

Key provisions of the Act

Section 128(1) provides that the section applies if a witness objects to giving evidence on the ground that the evidence may tend to prove that the witness has committed an offence (or is liable to a civil penalty). By s 128(7), if the witness is granted a certificate under the section, the evidence ‘cannot be used against’ the witness.

As we have observed, there was no evidence in the usual sense[30] introduced at trial to show that Mr Nguyen had asked for and received a certificate under s 128, or as to the content and meaning of such a certificate. Initially, what the jury learned of the certificate, they learned of it from the judge. It will be remembered that, in the early stages of Mr Nguyen’s evidence, the prosecutor suggested to the trial judge — in the presence of the jury — that it might be ‘appropriate’ to give Mr Nguyen a ‘certificate’. The nature of the ‘certificate’ was not identified, and, although a trained lawyer might have understood the import of the prosecutor’s allusion, we doubt that the jury would have had at that point even the vaguest idea of what was meant. In the jury’s absence, the judge determined that the certificate under s 128 should be granted. When the judge enquired of counsel as to what he should tell the jury about what had just occurred, the prosecutor submitted that the jury should be told that the judge had acted under a section of the Evidence Act which ‘allows witnesses to give evidence without any fear of incriminating themselves’. Defence counsel submitted that any direction ‘has to go further than that’. The jury needed to be told that a witness ‘can only take the objection if they believe the answer they give to a question may incriminate them in a criminal offence and it is on that basis the legislature has determined, if the judge thinks it’s appropriate, a certificate should be given so the witness … feels free to answer the question without that fear of reprisal’. The judge then gave the directions referred to above. Thereafter, the sole mention in the evidence of the certificate granted to Mr Nguyen occurred when defence counsel asked in cross-examination, ‘You understood what the judge told you before about the certificate?’, eliciting the reply, ‘I know. No, I’m just thinking’.
[30]See Evans v The Queen (2007) 235 CLR 521, 528–9 [20]–[21] (Gummow and Hayne JJ) (‘Evans’).

By s 56 of the Act, subject to exclusionary rules, evidence that is relevant in a proceeding is admissible in the proceeding, and evidence that is not relevant is not admissible. Section 55(1) provides that relevant evidence ‘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 proceeding’. And s 55(2)(a) makes clear that ‘evidence is not taken to be irrelevant only because it relates only to … the credibility of a witness’. Questions of relevance require careful analysis, and in particular, careful identification of the process of reasoning that is invited.[31] Only then can it be seen whether the evidence in question could ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’.[32]
[31]Ibid 529 [23].
[32]Ibid.

At the risk of repetition, the appellant’s counsel submitted that the fact that a certificate was granted to the witness was irrelevant ‘evidence’, which was used by the prosecutor as ‘credibility evidence’ (in the sense that the prosecutor in the closing address used the certificate to explain why the jury should accept the evidence of Mr Nguyen).

As has been observed, evidence is not taken to be irrelevant ‘only because’ it relates only to the credibility of a witness. Part 3.7 of the Act concerns ‘Credibility’. Section 102 establishes the general rule that: ‘Credibility evidence about a witness is not admissible’.

Credibility evidence is defined in s 101A:

101A Credibility evidence
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that—
(a) is relevant only because it affects the assessment of the credibility of the witness or person; or
(b) is relevant—
(i) because it affects the assessment of the credibility of the witness or person; and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

Various exceptions to the general rule established by s 102 are spelled out in succeeding provisions of Part 3.7. None are of relevance to the circumstances of this case.

The Dictionary to the Act defines credibility in relation to a witness as follows:

credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence;

Credibility imports notions of both truthfulness and reliability.[33] In the context of the present case, a non-exhaustive list of matters bearing on Mr Nguyen’s credibility would include his truthfulness, bias and motives to lie. In the present case, the first attempt to link the certificate to Mr Nguyen’s credibility was made by defence counsel in the course of cross-examination, when he asked the witness: ‘But you have been given a certificate by the judge at the commencement of your evidence that anything you say can’t be used against you unless you commit perjury whilst giving evidence in front of the jury?’.[34] Albeit that the cross-examination concerning the existence of the certificate was fleeting, the prosecutor would have been justified in anticipating that the fact of the certificate would be used by defence counsel in his final address as a springboard to impugn Mr Nguyen’s truthfulness and reliability. It was thus natural that the prosecutor would seek to mount arguments designed to undermine an anticipated defence attack on Mr Nguyen’s evidence so far as any such attack might revolve around the fact of the certificate.
[33]Dupas v The Queen (2012) 40 VR 182, 255 [265]. See also IMM v The Queen (2016) 90 ALJR 529.
[34]As has earlier been observed, in WR’s case, the fact that he had been granted a certificate arose from a single question and answer in cross-examination: ’But you have been given a certificate by the judge at the commencement of your evidence that anything you say can’t be used against you unless you commit perjury whilst giving evidence in front of the jury?---Yeah’.

Nature and effect of a certificate under s 128 of the Act

It is necessary to say something of the nature and effect of a certificate under s 128 of the Act. Such a certificate bears some similarity to — but has important differences from — an indemnity. An indemnity is a written promise by an authorised person (in this State, usually the Director of Public Prosecutions) to relieve a person of the penal consequences of a criminal act.[35] Ordinarily, an indemnity is conditional on the indemnified person giving truthful evidence against others. The practical effect of a certificate given under s 128 is to give the witness both use and derivative use immunity in respect of evidence (except, of course, with respect to criminal proceedings relating to the falsity of the evidence). But, unlike an indemnity, a certificate under s 128 does not render the witness immune from prosecution with respect to the offence or offences about which the witness gives evidence.
[35]For example, see Public Prosecutions Act 1994, ss 22(1)(ca) and (cb), and s 22(1)(1A). See also R v Georgiadis [1984] VR 1030.

The effect of a certificate under s 128 was discussed in Macarthur.[36] In that case, the appellant contended that, in his trial for defrauding the Commonwealth, the trial judge erred in failing to inform the jury that the evidence of two prosecution witnesses ‘was tainted in that they had received immunity from prosecution in respect of self-incrimination in other proceedings under s 128 of the Evidence Act’. Trial counsel had made an application to the trial judge for the judge to inform the jury that the relevant witnesses had given evidence ‘under the protection of a s 128 certificate’. The trial judge refused. Grove J (with whom James and Barr JJ agreed) said of the effect of a certificate:[37]

Section 128 of the Evidence Act provides an elaborate procedure in circumstances similar to where, prior to that statute, a witness was cautioned as to entitlement to claim privilege against answering on the ground of possible self-incrimination. Under the statutory provision, in short, if a court determines that a witness should answer a question of that quality, a certificate is given which, subject to exception not presently material, prevents that evidence, given under ‘protection of the certificate’, from being used in proceedings against that witness later.
The submission that these witnesses were given immunity from prosecution, by the certificate or otherwise, misunderstands what occurred. Both witnesses remained vulnerable to prosecution. No indemnity was received. Either could be prosecuted but the s 128 certificate did no more than prevent what was said on this occasion from being admissible against them in any such prosecution.

[36]R v Macarthur [2005] NSWCCA 65 (Grove, James and Barr JJ) (‘Macarthur’).

[37]Ibid [40]–[41] (emphasis added).

There is a dearth of authority concerning the relevance (or the lack of relevance) of a certificate having been granted to a witness under s 128 of the Act, although there is limited authority concerned with other statutory provisions dealing with similar subject-matter. Thus in Trudgian,[38] a prosecutor in a drug trial addressed the jury asserting that a defence witness, for whom a certificate protecting the witness from self-incrimination had been sought, had, in effect, testified under cover of an immunity from prosecution, and had concocted his evidence to get the appellant acquitted. In that case, the appellant was convicted of three counts of possession of methylamphetamine with intent to sell or supply. Police raided a workshop rented by the appellant, and discovered methylamphetamine hidden in two places. At trial, a witness called by the defence was asked questions about the drugs hidden in the workshop, but refused to answer on the basis that his answers would tend to incriminate him. Invoking s 11 of the Evidence Act 1906 (WA), defence counsel invited the trial judge to require the witness to answer the questions. The trial judge agreed, and told the witness — in front of the jury — that he was required to answer the questions put to him, and that if he answered them in a satisfactory manner, the judge would grant him a certificate under s 11 ‘which will protect you from prosecution upon what you say’. After being told these things, the witness testified that the drugs hidden in the workshop were his, and that he had stored them at the workshop after an earlier police raid upon his own premises. Significantly, the trial judge neither granted nor refused a certificate in the jury’s presence. The appellant contended on appeal that his trial had miscarried as a result.
[38]See fn 22 above.

For comparative purposes, it must be acknowledged that s 11 of the Evidence Act 1906 (WA) is expressed in markedly different terms to s 128 of the Act. Section 11 permits a trial judge to compel a witness to answer an incriminating question, and if the witness ‘answers such question … and other questions … that may be put to him, in a satisfactory manner’, the judge may grant the witness a certificate under the section. Where such a certificate is granted ‘in respect of any evidence’, then ‘a statement made by [the witness], as part of that evidence, in answer to a question … is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceedings’.

In Trudgian, the appellant argued that the trial judge ought to have granted or refused a certificate under s 11 in the jury’s presence and that he ought to have explained to the jury the effect of granting a certificate. In his directions to the jury, the judge said nothing about the application for a certificate under s 11. Steytler P, with whom Roberts-Smith and McLure JJA agreed, made plain that the practice in Western Australia is to grant certificates under s 11 in the presence of the jury. He observed:[39]

Section 11 certificates are ordinarily given in the presence of the jury. In Markovina [Markovina v The Queen (No 2) (1997) 19 WAR 119] (at 126), Malcolm CJ said that this is because the granting of a certificate puts the witness in a very special category. This was said by him in the context of the grant of a certificate to a prosecution witness. He suggested that this was ‘a circumstance which enables the defendant to say that the witness is unreliable’.
In Hugo v The Queen (2000) 113 A Crim R 484, the court was invited to reconsider whether the normal practice of giving a s 11 certificate in the presence of the jury was desirable. It declined to do so upon the basis that that was not an appropriate case in which to question the established practice (at 526). However, Sheller AJ (with whom Pidgeon and Anderson JJ were in agreement) said (at 527):
Given that certificates of immunity should generally be granted in the presence of the jury, the trial judge should take care, either then or in his directions to the jury or both, to explain to the jury the limited nature of the satisfaction which is preconditional to the granting of such a certificate, namely that it is not a finding by the trial judge of credit or truthfulness on the part of the witness, and that that question is for the jury to determine as they do with any witness.
He went on to say (at 527-528):
As I have said, I think that ordinarily when a trial judge compels a witness who has claimed privilege to give evidence pursuant to s 11, an explanation should be given to the jury as to why such an order is made, why a certificate is granted if it is granted and the consequences of this in terms of the unreliability of the evidence and the immateriality of the fact that the trial judge is satisfied in accordance with s 11.
If, in the course of explaining the effect of a s 11 certificate, the trial judge leaves a witness with the impression that he or she is immune from prosecution for perjury, this may affect the force of the oath or affirmation the witness has taken: Markovina (at 127) per Malcolm CJ. Moreover, it would be incorrect for counsel to assert that the effect of the grant of a certificate was that the witness could lie with impunity and it would be appropriate, in such a case, for the trial judge to direct the jury accordingly: Hugo (at 527) per Sheller AJ. As I have said, the recipient of a s 11 certificate can be prosecuted for perjury in respect of the evidence given. Moreover, that person can also be prosecuted in respect of an offence or offences admitted in the course of the evidence, notwithstanding the grant of a s 11 certificate. The only effect of the certificate is, as I have said, that the evidence given under its protection will not be admissible in those proceedings or in any criminal proceedings against the witness other than for perjury.

[39]Trudgian 169–70 [25]–[27] (emphasis added).

Steytler P later said:[40]

… [T]he prosecutor had told the jury, without contradiction, that anything said by [the witness] in the course of his evidence could not ‘be used against him in a prosecution’, that ‘nothing is going to happen to him’ and that he ‘was brought along in this trial to really just throw a cloud over the issue, to relieve himself from any prosecution that may occur and to get his friend off at the same time’. In my respectful opinion, the trial judge’s failure to correct what had been said by the prosecutor (which suggested, also, that a certificate had been, or would inevitably be, given) would have left the jury under the impression that [the witness] could lie with impunity, if he chose to do so, when in reality he was able to be prosecuted for perjury if it could be proved that he had in fact lied and, indeed, he could be prosecuted for his possession of the drugs, if that could be proved without relying upon the evidence given by him in these proceedings. It seems to me to be undeniable that this misapprehension may have had a significant effect on the jury’s assessment of the reliability of [the witness’s] evidence.
While there was, as counsel for the respondent pointed out, other material which detracted from [the witness’s] credit, it is impossible to know what would have been the jury’s assessment of the credibility of his evidence if they had been properly directed as regards the effect of the grant of a certificate. This conclusion leads inevitably to the result that ground 2 should be upheld …

[40]Ibid 170–1 [29]–[30].

At least four relevant propositions may be distilled from Trudgian. First, the established practice in Western Australia is to grant s 11 certificates in the presence of the jury. Secondly, in that State, the grant of the certificate is regarded as putting the prosecution witness in a ‘very special category’, which ‘enables the defendant to say that the witness is unreliable’. Thirdly, when a certificate is granted, the judge ordinarily should provide reasons to the jury for its granting, and explain the consequences ‘in terms of the unreliability of the evidence’. Fourthly, the judge cannot leave the jury with the impression that a witness granted a certificate can lie with impunity, the only effect of the certificate being that the evidence given under its protection will not be admissible in any criminal proceedings against the witness other than for perjury.

There is very limited authority dealing specifically with whether a certificate under s 128 of the Act should be revealed to the jury. Earlier we cited Macarthur. In an ex tempore ruling in the course of a trial, in Hunter,[41] Button J, citing Macarthur, determined that if he were to grant a certificate to a witness under s 128, he would explain to the jury the fact that that had occurred, and the effect of it. His Honour said:[42]
[41]R v Hunter (No 11) [2014] NSWSC 1154.
[42]Ibid [1]–[7].

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 [GH], 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.
First, I think that it would be highly artificial for the jury not to know of that important aspect of the evidence of [GH].
Secondly, I have already adopted the identical procedure with another witness who was granted a certificate, Ms [E]. 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 [E], but not having adopted it with regard to [GH].
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.
Fourthly, in light of evidence on the voir dire with regard to the number and nature of inconsistent statements made in the past by [GH], 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.
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.
Nevertheless in the circumstances of this trial, for the convenience of counsel, I indicate that my proposal at this stage is that, if [GH] 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. …

Earlier, we adverted to the similarities and differences between a certificate under s 128 of the Act and an indemnity. In this State, where a prosecution witness has been granted an indemnity, the usual practice is for the prosecutor to hand the indemnity to the witness in the presence of the jury, to announce its effect and then to lead evidence from the witness.[43] The position elsewhere appears to be similar. Both before[44] and after[45] the introduction of the uniform Evidence Act, in New South Wales it has not been unusual for the existence of an indemnity (or similar) to be revealed to the jury antecedently to any attack on the indemnified witness’s credit being mounted. The justification for that course seems to lie in the notion that such evidence is not tendered solely as being relevant to the credibility of a witness, but because it is the prosecution’s duty of fairness to the defence to expose the status of the witness for the jury’s benefit, without information about the witness’s status being wrung from the witness in cross-examination in circumstances which might not favour the interests of the accused. Hence in Ngo,[46] in a trial for murder conducted after the introduction of the uniform Act, the prosecutor desired to put before the jury the fact that two witnesses had been indemnified. The trial judge, Dunford J, permitted that to occur in evidence in chief (although he prevented the prosecution from eliciting in chief other evidence which might have bolstered the credit of the witnesses).[47]
[43]See R v Georgiadis [1984] VR 1030, 1036.
[44]R v Booth [1982] 2 NSWLR 847, 850–1.
[45]R v Chen (2002) 130 A Crim R 300, 310–12 [27]–[28].
[46]R v Ngo (2001) 122 A Crim R 467.
[47]Ibid 470–2 [20]–[28].

The relevance of an objection based on self-incrimination

As we have observed, subject to exclusionary rules, relevant evidence is admissible, and irrelevant evidence is inadmissible. It has been held, however, that the taking of an objection to giving evidence on the basis of possible self-incrimination cannot affect the credit of a witness. No inference adverse to a witness can be drawn from the witness’s reliance on a claim of privilege against self-incrimination, nor may any inference be drawn adverse to the case of the party calling the witness.

Thus in Roberts,[48] two accused were charged with, and convicted of, importing cocaine. Not long before the trial commenced, two police witnesses were arrested and charged with drug offences unrelated to the charges against the accused. The prosecution provided the accused with copies of the charges against the two police and summaries of evidence in support of the charges. At trial, defence counsel informed the judge that he desired to cross-examine the officers about their having been charged. He also wanted to cross-examine the witnesses about the matters in the summaries of evidence, and to lead evidence of the matters in the summaries. The judge refused to allow the proposed cross-examination, or any independent evidence of corrupt dealings by the officers. Further, in a voir dire in the absence of the jury, the judge allowed the officers to take a proleptic and global objection to answering any questions relating to the charges against them on the ground of the privilege against self-incrimination. Subsequent to the trial of the accused, both officers were convicted of a number of offences.
[48]R v Roberts (2004) 9 VR 295 (‘Roberts’).

In upholding the convictions in Roberts, Batt JA (with whom Buchanan and Chernov JJA agreed) observed:[49]

[I]t is not permissible to draw any inference adverse to a witness from the reliance of the witness on a claim of privilege against self-incrimination. The credit of the witness is not impugned by the claiming of the privilege nor may any inference be drawn adverse to the case of the party calling the witness. …

[49]Ibid 328–9 [83].

As to whether the privilege should be taken before the jury, Batt JA said:[50]

Since the taking of the objection based on privilege against self-incrimination could not affect the credit of the witness and since the genuineness of the objection was for the judge alone the taking of the objection before the jury would neither provide them with any evidential material nor serve any other useful purpose. Rather, it might tend to distract them from their task … The trial judge here was concerned to avoid this. Whilst it may be conceded that the objection will usually be taken in the presence of a jury in the case of a jury trial, this is because the question usually arises incidentally or unexpectedly. No authority was cited for the proposition that that must always be done. In my opinion, in the circumstances of this case his Honour was entitled to hear the objection, and rule on it, on a voir dire. That necessarily meant allowing the objection to be taken in advance of the giving of evidence before the jury and globally. …
[50]Ibid 329 [84].

Analysis

In our view, based on the relevant provisions of the Act and a review of authority, a number of non-exhaustive propositions may be stated.

First, a witness’s reliance on the privilege against self-incrimination is not relevant to his or her credit.

Secondly, since an objection based on the privilege against self-incrimination cannot affect the credit of the witness; and since, under s 128(2) of the Act, it is for the trial judge to ‘determine whether or not there are reasonable grounds for the objection‘; the taking of the objection before the jury provides no evidential material bearing upon the witness’s credibility.

Thirdly, s 132 of the Act does not prevent the jury from being informed of the grant of a certificate under s 128. Section 132 merely requires that, if it appears to the trial judge that either a witness or a party may have grounds for invoking the privilege against self-incrimination, the judge must satisfy himself or herself that the witness or party is aware of the effect of s 128, and so satisfy himself or herself in the absence of the jury. Once a certificate is granted, however, s 132 of itself presents no obstacle to the existence of the certificate being revealed to the jury.

Fourthly, although the taking of the privilege against self-incrimination cannot affect credit, depending on the circumstances of a given case, the grant of a certificate under s 128 may affect credibility. Whether it has that capacity will depend on whether knowledge by the jury of the protection afforded to the witness by the grant of the certificate is capable of bearing upon the credibility of the evidence of the witness. Hence, where there is an attack on credit, whether of a general nature or directed to a fact in issue, it may be relevant to a jury’s assessment of credibility to know that a witness has been granted a certificate and its effect. That said, revealing the existence of the certificate might be a ‘two-edged sword’. We do not subscribe to the view, exemplified by Trudgian, that the mere grant of a certificate under s 128 will necessarily put a prosecution witness into a ‘very special category’, which ‘enables the defendant to say that the witness is unreliable’. Whether a witness might be regarded as ‘unreliable’,[51] will depend on the particular facts of the case.
[51]At the time of the appellant’s trial, s 165 of the Act governed warnings relating to unreliable evidence. See now Jury Directions Act 2015, s 31 and s 32.

Fifthly, if it is plain that there is to be an attack on a witness’s credit and the protection afforded to the witness by the grant of the certificate is relevant, in the same way that it is customary to reveal the fact of an indemnity or undertaking from the outset, it will be proper to reveal the existence of a certificate under s 128 to the jury.

Sixthly, if there has been an attack on a witness’s credit, and the existence of a s 128 certificate has been revealed to the jury, counsel will ordinarily be justified in making relevant submissions to the jury as to the manner in which they should approach their assessment of the witness’s credibility in light of the certificate.

Seventhly, in circumstances in which the fact of the certificate is revealed to the jury, it will ordinarily be desirable for the judge to provide directions to the jury as to its effect. The extent of the protection which the certificate provides must be explained. Consistently with Macarthur, the judge should also ordinarily inform the jury that the certificate does not provide the witness with an immunity from prosecution, and does no more than prevent the witness’s evidence from being used against him or her in any subsequent proceeding. As part of any direction, the judge ordinarily should inform the jury that the witness cannot lie with impunity, since the certificate offers no protection against perjury.

In the present case, it is impossible to conclude that there has been any substantial miscarriage of justice.

It was plain that the defence intended to mount an attack on Thomas Nguyen’s credibility. Further, it is clear that defence counsel at trial wanted the jury to know that the witness had been granted a certificate. Moreover, trial counsel submitted specifically that the jury should be told that a witness ‘can only take the objection if they believe the answer they give to a question may incriminate them in a criminal offence’, so that the witness ‘feels free to answer the question without that fear of reprisal’. And when the judge gave directions — albeit they were arguably incomplete — trial counsel took no exception, and sought no further directions.[52] Finally, there was nothing objectionable in what the prosecutor told the jury. Given that defence counsel had sought to impugn the credit of Mr Nguyen, it was for the jury to assess what weight (if any) ought to be given to the fact that the witness had been granted the certificate.
[52]See Jury Directions Act 2013, s 13, s 14 and s 15. See also Xypolitos v R (2014) 44 VR 423.

Ground 2 must fail.

Conclusion

For the foregoing reasons, the appeal must be dismissed.

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[2016] VSCA 113

19 May 2016