Kalid Kaddour v R [2013] NSWCCA 243 | Case summary

Substantive issues

The appellant raises two grounds of appeal. They are as follows: Ground 1: His Honour erred as to the meaning of the word "objects" in s 128(1). Ground 2: His Honour erred in applying a test of compellability to the operation of s 128.
It is convenient to consider these grounds together.
At 17-18 of his judgment, Bennett DCJ said this: "Moreover, I am of the view that the decision in Song v Ying…is binding on this court. Hodgson JA…undertook an analysis of authorities including those to which I have referred, and held that the protection offered by s 128 of the Evidence Act applied when an objection could properly be taken to giving of evidence whether in chief, or in response to cross examination, noting that under the common law the privilege against self incrimination was a privilege against being compelled to give evidence that might incriminate, and that witnesses are generally compellable to give evidence, that in all cases apart from a party giving evidence in chief or re-examination in response to questions from the party's own legal representative witnesses are compellable to give evidence, that it is compellability of this nature that gives sense to the word 'objects' in s 128(4), and that it is not the case that a party to proceedings who is also a witness giving evidence in chief in response to questions from the party's own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of a s 128 certificate, 'objects' to giving that evidence within the meaning of s 128(1). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsion or potential compulsion, which makes the expression 'objects' apposite."
In the particular context of the present case the appellant marshals fundamental support for this argument by reference to the onus cast upon an accused person such as him to establish the dominance of unfair prejudice over probative value in a contest governed by s 137 of the Evidence Act. The onus to have evidence excluded under that section is on the accused: Gilmour v EPA [2002] NSWCCA 399; (2002) 55 NSWLR 593. In that case Santow JA at [46] observed as follows: "[46] As to whether the court should have excluded the evidence under the mandatory provisions of s137 of the Evidence Act, the short answer is this. Even if otherwise it were the case that its probative value in retrospect was outweighed by the danger of unfair prejudice to the defendant, the onus to have that evidence so excluded lay on the defence, who simply did not invoke s137 at trial. Clearly the onus to have such evidence excluded lies on the defence. Self-evidently this is because it is only the defence that can point to the danger of unfair prejudice, to be weighed against any probative value."
In order to assess the putative unfair prejudice to an accused person, it is necessary to have regard to the whole of the evidence that is to be given in the proceedings: Aytugrul v The Queen [2012] HCA 15; (2012) 215 A Crim R 501 at [30]. In attempting to satisfy the onus cast upon an accused by s 137 the accused is undoubtedly entitled to give evidence on the voir dire in order to explain the prosecution evidence sought to be excluded. As Simpson J said in R v Cook [2004] NSWCCA 52 at [37]: "[37] The balancing exercise required by s137 cannot, however, be undertaken without an appreciation of any explanation an accused person might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise. That was the purpose of the evidence given by the appellant in the voir dire. The effect of his evidence there was to put before the judge evidence of the response that the appellant would make, if the Crown evidence were admitted. This meant that the evidence of flight could be seen in its complete context. What the appellant told the judge was that his explanation for his flight would necessarily disclose to the jury a prior history of violence towards a female, disregard of the law and contravention of restraining orders serious enough to warrant his incarceration. There was no other way (on the appellant's case) that he could remove the sting from the flight evidence. But the explanation carried its own, serious, sting - disclosing his history of violence and breach of the law. The proposal by the Crown to adduce the evidence of flight presented to the appellant a dilemma. On the one hand, he could say nothing about the evidence, leaving the jury to draw the inevitable inference that he fled when the police approached because he was conscious of his guilt of the assault on the complainant; or he could explain it, which necessarily involved revealing prior criminality of a related kind. The prejudicial effect of the explanation was what s137 required to be balanced against the probative value the Crown evidence would otherwise have had. That exercise was not explicitly undertaken by the trial judge. The s137 exercise also called for consideration of directions that could be given to the jury in order to ameliorate the impact of the knowledge of the appellant's prior conduct."
The appellant's simple proposition is that as a matter of practical reality, if he is to have any fair or realistic prospect of satisfying the onus cast upon him by s 137, he has in effect no other choice, in circumstances where the relevant evidence is only within his knowledge and can only be given by him, than to enter the witness box and do so. If he declines to give the evidence he faces the prospect that his s 137 application will fail. That has the potential adversely to affect him in the conduct of his defence to the principal charges he faces. According to the appellant, that choice arises in the face of the possible or likely but unpalatable consequence that he will inculpate himself in the commission of other offences. In that context the appellant contends that he is "required" to give the evidence in order to succeed, or at least to maximise his chances of succeeding. He contends that the forensic or procedural requirement for him to give evidence in such circumstances favourably informs the proposition that his objection to doing so attracts the operation of s 128. The appellant says that his objection is one that relates to the giving of evidence that he is compelled to give, so that a certificate should have been given to him. I note in this respect that s 128 does not refer to "compulsion" but uses the expression "require the witness to give the evidence" or cognate formulations. However, the word finds its place in this area of discourse by reason at least of other provisions of the Evidence Act. As appears at [19] in Song v Ying: "[19] Under s 12 of the Evidence Act, except as otherwise provided in the Act, a person who is competent to give evidence is also compellable to give it. That compulsion can be exercised by use of subpoenas to get witnesses to court and into the witness box; and refusal to answer questions which a witness is compellable to answer (whether in chief or in cross-examination) can result in imprisonment."
Despite the relatively confined scope of the point, the appellant sought to support it with detailed submissions to which some reference must necessarily by made. Those submissions were directed to the principal contention that this Court should not follow Song v Ying. Several reasons were proffered in support of that invitation.
First, the verb "object" is not defined in the Evidence Act. The appellant submitted that there was no textual reason why the word as used in s 128 should not extend to opposition by an accused person to giving incriminating evidence in chief without the protection of a s 128 certificate. The appellant referred to Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178 at [89]-[90] and Ollis v Melissari [2005] NSWSC 1016 at [3]-[8].
The issue is not whether there is no textual reason why the word should not extend in the way contended for but whether there is a contextual basis for doing so. Apart from his distinct inclination to prefer it, the appellant does not advance any positive support or other basis for this contention.
Secondly, the word should be broadly, not narrowly, interpreted. The facts of this case were said to highlight the problem. Section 137 of the Evidence Act provides an accused person in a criminal case with the right to object to prosecution evidence, the probative value of which is outweighed by the danger of unfair prejudice. The law places the onus on the accused to make good any such argument. Oral evidence from an accused may be necessary for that purpose. As exemplified by the telephone intercept material objected to in this case, an accused giving evidence in chief on the voir dire might need to give evidence admitting to and/or explaining other serious uncharged criminal acts. Without the protection of a s 128 certificate, there may be a risk of prosecution for such acts admitted by him in the process. Such a prospect could amount to an unfair limitation upon the ability to make good an exclusion argument under s 137 of the Evidence Act. The refusal of a s 128 certificate in these circumstances is also said to give rise to an unfair trial. The appellant referred to the decision of the US Supreme Court in Simmons v United States 88 S.Ct. 967 (1968) at 973 to 976 in which case the appellant faced a similar dilemma.
The American case is of limited value. The decision in that case turned on the application of the Fourth and Fifth Amendments to the United States Constitution. The unpalatable decision that faced the appellant in this case does not raise any equivalent local example of enshrined or fundamental rights.
Thirdly, a strict application of the reasoning of the Court of Appeal in Song v Ying would result in no accused person ever being able to receive the benefit of a s 128 certificate when giving evidence in chief to his own counsel at his criminal trial, whether in the trial proper or on a voir dire. Such an interpretation would constitute an unjustified abrogation of the privilege against self-incrimination and one not intended by the legislature. If such a consequence had been intended, it would have been expected to appear in the terms of s 128 itself. The rules of statutory construction require a clear expression of legislative intent before a provision will be construed so as to abrogate or limit a privilege as fundamental as the privilege against self-incrimination: see Hamilton v Oades [1969] HCA 21; (1989) 166 CLR 486 at 495, 500 and 508 and cases cited therein. The terms of s 128 include no clear expression of a legislative intention to limit the operation of s 128 in the way suggested by the Court of Appeal in Song v Ying. In Cornwell, the High Court at [113] specifically stated it was not deciding the question of whether a s 128 certificate could be granted to an accused person when being examined in chief by his own counsel.
This submission appears to me to amount to no more than a complaint about the current law, rather than a demonstration of why it is incorrect. The decisions in Cornwell and Song v Ying do not abrogate the privilege against self-incrimination at all. They do no more than apply the words of s 128 in a way that excludes the availability of a s 128 certificate to a person who is not compelled to give the evidence in respect of which the certificate is sought. The appellant in this case is in just that category.
The appellant's submission also misconceives the true nature of the privilege against self-incrimination, which confers immunity from an obligation to provide any information tending to establish one's guilt. A person is not bound to answer any question or produce any document or thing if that material would have a tendency to expose the person to conviction for a crime: Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 288. Clearly enough, an accused person is not bound to answer questions from his or her own counsel in criminal proceedings against that person.
Fourthly, the terms of s 189(6) of the Evidence Act lend support to a submission that a s 128 certificate ought in an appropriate case to be available to an accused person giving evidence to his own counsel on a voir dire. Section 128(10) provides that an accused at trial cannot obtain a s 128 certificate in respect to the giving of evidence relating to facts in issue: see Cornwell at [84]-[85]. Section 189(6) provides that s 128(10) "does not apply to a hearing to decide a preliminary question". Section 189(6) was arguably included, among other reasons, to meet the very situation confronting the present appellant.
To the extent that s 128(10) does not apply to voir dire hearings, s 128 can apply to an accused person giving evidence on a voir dire. Following Song v Ying, when ss 128 and 189(6) are read together, an accused person cannot receive a certificate in relation to questions asked about a fact in issue: s 128(10). An accused person can be granted a certificate if he or she objects to questions that are not about a fact in issue but only in circumstances where the witness is otherwise compellable, such as in cross-examination. On a voir dire, unlike at the trial, an accused person can be granted a certificate in relation to questions asked about a fact in issue but only in circumstances where he or she is a compellable witness, such as in cross-examination: s 189(6).
Nor is there any basis to conclude that s 189(6) was included to meet cases such as the present. The Australian Law Reform Commission's Evidence: Interim Report 26 (1985) does not say so and the final Evidence: Report 38 (1987) does not do so either. Neither the ALRC reports nor the authorities supports the appellant's contention but are instead consistent with an accused person only being able to seek a certificate under s 128, whether on a voir dire or at trial, in circumstances where he or she is compellable.
Fifthly, the terms of s 128(3)(b)(i) and its use of the phrase "the witness willingly gives the evidence without being required to do so" suggest that there is no requirement or prerequisite of compulsion to give evidence on the part of an accused person before he or she can be regarded as "objecting" to giving evidence. So also the terms of s 132 of the Evidence Act, requiring a trial judge (both at trial and on the voir dire) to inform an accused of the effect of s 128(1) when it appears to the judge that the accused may have grounds for making an objection under s 128(1). The appellant submits as well that the Second Reading Speech of the Evidence Bill 1994 supports the submission that "compellability" was not intended as a pre-requisite to the operation of s 128.
The appellant's argument is, in effect, that because the objection can be conditioned, in that it only extends to giving evidence without the protection of a certificate, s 128(1) cannot be said really to involve any element of compulsion. This submission is misguided. It wholly avoids or ignores the fact that a witness who makes a conditional objection is a compellable witness in the first place, which the accused giving evidence in chief (in this case) is not.
Finally, even if it be the case that "compulsion" to give incriminating evidence were a prerequisite to the grant of a certificate under s 128, an accused person is giving "compelled" evidence in chief on a voir dire where or if he or she bears the onus of proof for exclusion of evidence: see Regina v Brophy [1982] AC 476 at pages 481 to 482. The right to a fair trial in criminal proceedings extends to the unhindered right of an accused to make good an argument for the exclusion of evidence. Where necessary, this involves the protection of the accused against self-incrimination on the voir dire where the accused bears the onus to exclude the evidence. In the words of Lord Fraser of Tullybelton in the decision of Brophy: "No man is to be compelled to incriminate himself".
As already discussed, the appellant's contention is that it is unfair to him if he cannot give the evidence he wants to give on a voir dire, confessing to collateral criminal activities, without the use immunity that a s 128 certificate would provide. However, no unfairness arises if, as in this case, the appellant makes a tactical decision to confess less serious criminality than that charged, just because he cannot do so with protection from a s 128 certificate. His Honour Bennett DCJ captured the sound policy behind the provisions in his judgment at 14 as follows: "I do not accept that s 189(6) of the Evidence Act supports the proposition that s 128 of the Act should be construed so as to allow an accused person the opportunity to admit to other criminality with impunity, thereby to explain away evidence that might inculpate him in the offence with which he is charged."
In Cornwell the High Court held that (the previous iteration of) s 128(10) was not limited to the giving of direct evidence that the defendant did an act the doing of which was a fact in issue or had a state of mind the existence of which was a fact in issue. It also extended to the giving of evidence of facts from which the doing of the act or the having of the state of mind could be inferred. The plurality went on to consider at [106]-[113] why an accused person, whether giving evidence of a fact in issue or otherwise, would ever be able to rely upon s 128(1) in circumstances where he or she wanted to give evidence and sought the protection of a certificate during evidence in chief. The Court noted at [106] that: "[106]… The opening words of s 128(1) provide that s 128 only applies if 'a witness objects to giving particular evidence'. A fair characterisation of the exchanges between counsel for the accused and Howie J set out earlier is that while in one sense the accused 'objected' to the 35th question he was asked in chief when he claimed privilege, in another sense he did not object at all. He evidently wanted to give some evidence about the Diez-Lawrence conversations. He could only be sure of giving it in the way he would have liked if he gave it in chief; if he took the risk of leaving its reception to the chance of particular questions in cross-examination, he ran the risk of not being able to give it, or not in the way perceived to be most favourable to his interests. Hence his claim of privilege was arguably not a means by which he 'objected', but was an attempt to ensure that s 128 protected him from some potentially adverse consequences of evidence which he did not 'object' to giving, but strongly wanted to give."
The plurality further noted at [112]: "[112] The view that the accused's claim of privilege in all the circumstances answered the requirements of s 128(1) has difficulties. It strains the word 'objects' in s 128(1). It also strains the word 'require' in s 128(5) - for how can it be said that a defendant-witness is being 'required' to give some evidence when his counsel has laid the ground for manoeuvres to ensure that the defendant-witness's desire to give the evidence is fulfilled? And it does not fit well with the history of s 128(8). For one thing, s 1(e) of the 1898 Act and its Australian equivalents provided that an accused person called pursuant to the legislation could be 'asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged', which implies that the protection of the accused's position in chief or in re-examination was a matter between the witness's counsel and the witness. For another thing, the Australian Law Reform Commission, in summarising the pre-s 128(8) law, assumed that s 1(e) and its Australian equivalents were to be construed as applying to questions in cross-examination only."
Seven years beforehand in Ferrall, the Full Court of the Family Court was called upon to deal with an application by the husband for a s 128 certificate in advance of filing an affidavit. The trial judge granted the certificate, and the Full Court agreed, holding that it was within the discretion of the trial judge to do so because the husband was "objecting, in the sense required by s 128, by indicating that he would not file the affidavit unless a certificate was given": at [90]. That decision was not apparently drawn to the notice of the High Court in Cornwell.
In Song v Ying the defendant sought a certificate to cover evidence to be given in chief. Hodgson JA indicated at [25] that he was "paying regard to relevant persuasive authority" but thought it was "appropriate for this Court simply to reach its own view". His Honour had earlier observed at [22] as follows: "[21] In Ferrall, the Court's reasons for holding that it was within the discretion of the trial judge to grant a s 128 certificate were: '[89] We think the trial judge was clearly correct in holding that it was within his discretion to grant such a certificate. First, we think it would be unrealistic to limit the availability of a certificate to a situation where a witness is asked a particular question in cross-examination. We think the availability of a certificate clearly applies to evidence given in chief, otherwise an inappropriate forensic advantage would rest with the other party who would be in a position to prevent the question of an objection arising by simply not seeking to cross-examine. [90] In the particular circumstances of the Family Court of Australia, evidence-in-chief is normally given by affidavit. We think that in the circumstances of the present case, the witness was objecting, in the sense required by s 128, by indicating that he would not file the affidavit unless a certificate was given. We see the situation as no different from that which would have been the case if he had been sworn in and asked to answer questions concerning the matter in evidence-in-chief, and had objected to doing so without the issue of such a certificate.' [22] While I agree with the view that the availability of s 128 is not limited to questions in cross-examination, in my opinion these reasons are flawed in that they do not advert at all to the question of whether the witness was otherwise compellable to give the evidence objected to."
Hodgson JA went on at [27]-[28] to consider the meaning of "objects" in the s 128 context as follows: "[27] In all cases apart from a party giving evidence in chief or re-examination in response to questions from the party's own legal representative, witnesses are compellable to give evidence either at the instance of the party calling them, or the party directing questions in cross-examination, or the judge (if the judge asks questions). It is compellability of this nature that gives sense to the word 'objects' in s 128(1) and makes sense of the word 'require' in s 128(4). In my opinion, such motivation as a defendant may have to give evidence to avoid having a judgment entered against him or her does not amount to relevant compellability. [28] In my opinion, having regard to the wording of s 128 and the scope of the common law privilege which it displaced, it is not the case that a party to proceedings who is also a witness, giving evidence in chief in response to questions from the party's own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of a s 128 certificate, 'objects' to giving that evidence within the meaning of s 128(1). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsion or potential compulsion which makes the expression 'objects' apposite."
The approach taken by Hodgson JA in Song v Ying is consistent with the High Court in Cornwell, that when considering the application of s 128, the issue of whether the witness who objects to giving the evidence and who seeks the grant of a certificate is or is not a compellable witness, is a relevant precondition.
In my opinion the appellant cannot be characterised as a witness who is being "compelled" to give evidence simply because he feels pressured to do so as the result of some strategic or tactical imperative affecting his case. In that sense the decision remains one for him alone: he retains complete control over the decision about whether he will or will not give evidence. Even if he feels compelled by circumstances to give evidence that he would rather not give, there can be no external sanction or penalty imposed upon him if he decides not to do so. Indeed, the very fact that he retains the power to decide disposes of the question entirely. He is not being compelled, except by circumstances over which he has the final say, and hence the choice, about whether to give the evidence or not. He cannot be required to give the evidence within the meaning of that concept in s 128. In the circumstances of this case, neither the judge nor any other authority can require the appellant to give the apparently troublesome evidence. More particularly, neither the court nor any other authority has required him to do so. He is not therefore a person who can relevantly object to giving evidence in a way that engages the application of that section.

Kalid Kaddour v R

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