Some time after the conclusion of the evidence in this special hearing by judge alone, in which the primary count is murder, of the important Crown witness Mr Thomas Miringaorangi, my associate provided his solicitor with a certificate pursuant to s 128 of the Evidence Act 1995 (NSW) ("the section"). Because that certificate is detailed and complex, I have thought it appropriate to set out in general chronological form all relevant events, in order to show how it came to be in that form.
[2]
Chronology
At a directions hearing on 8 September 2017 directed towards the smooth running of the special hearing many months later, I requested the Crown prosecutor to ensure that the trial not be delayed by any unmet need on the part of Mr Miringaorangi, by way of example, requiring separate advice with regard to the section in question (Transcript 6.18 and 9.45).
On the second day of the special hearing, 6 March 2018, I was told that the witness had consulted a solicitor the day before, and wished to see him again (Trial Transcript ("TT") 23.24 and following).
When the witness commenced to give evidence on the same day, his solicitor was not present at the Bar table at that stage.
On the same day, the witness gave evidence in examination-in-chief of having consumed crystal methylamphetamine. I spoke to the witness and expressed my understanding that his solicitor had spoken to him about "possibly seeking protection if you were to answer truthfully and admit to a crime". I went on to explain that, due to my understanding of the time limit on prosecution for summary offences in the Drug Misuse and Trafficking Act 1985 (NSW), I did not propose to give the witness a certificate about that subject matter (TT 47.38 and following).
On the same day, once the witness began to give evidence of having played a role in the cultivation of cannabis, I provided him with a thumbnail sketch of the meaning and operation of the section (TT 51.8 and following).
Thereafter, I worked through the section with counsel, and satisfied myself that it was appropriate for me to indicate to the witness that I would give him a certificate "that means that if you say anything admitting anything to do with cultivating cannabis, anything you say can't be used against you" (TT 52.44).
Later on the same day, when the witness was still giving evidence-in-chief, I expanded the certificate to cover anything he might say implicating himself in any offence to do with prohibited drugs (TT 78.33 and following).
Again in chief, I extended the certificate to cover anything that the witness might say about contact between himself and firearms on Thursday 3 April 2014 (TT 87.37). Shortly thereafter, I extended the certificate to cover "anything to do with offences to do with a firearm, let us say perhaps from 1 January 2014 until 30 June 2014" (TT 88.13).
Yet again in evidence-in-chief, and on the same day, I extended the certificate to cover any evidence that may implicate the witness as being an accessory after the fact to murder, or having concealed that serious offence, contrary to s 316 of the Crimes Act 1900 (NSW) (TT 94.42).
The cross-examination of Mr Miringaorangi commenced on the third day of the trial, Wednesday 7 March 2018.
When the accused was asked by defence counsel whether he had had discussions with persons about manufacturing ice at a particular location, I confirmed with both counsel and the witness that my certificate would extend to "anything to do with prohibited drugs" (TT 136.16).
Later in cross-examination on the same day, the witness enquired of defence counsel whether defence counsel was asserting that in truth, the witness had committed the murder that founded the count upon which the accused had been arraigned at the commencement of the special hearing. Defence counsel replied in the affirmative (TT 153.39 and following). I suggested that the section needed to be discussed further between counsel and me, and that the solicitor for the witness should speak to him further (TT 154). I asked that logistical steps be taken to facilitate that (TT 155.8). Thereafter I discussed with the Crown prosecutor and defence counsel the question of expanding the certificate to cover evidence that was relevant to the proposition that the witness had committed the murder.
At the conclusion of that discussion, I was told that the solicitor for the witness was speaking with him at that stage. After a short adjournment, the solicitor was not at the Bar table. Mr Miringaorangi said "I object to being blamed for the murder when I'm answering questions up here" (TT 158.23 and following).
The solicitor for the witness then appeared. He confirmed that he had spoken to his client shortly beforehand, and that the witness did indeed raise an objection to being questioned about the murder. He told me that "I don't expect he [the witness] will agree that he's had any involvement but obviously his concern is what the police make of what he says and what their position is" (TT 159). Later, the solicitor confirmed that he understood that an objection was being made by the witness pursuant to the section (TT 160.17).
I indicated to counsel that "on what I've heard so far possibly there are reasonable grounds for the objection" (TT 160.39).
Subsequently I took time to consider the breadth of evidence that "may tend to prove" the commission of an offence, in accordance with the section. At TT 164.45, in the presence of both counsel and the solicitor for the witness, I set out my initial thoughts about the breadth of that concept. A little later, I foreshadowed the giving of this judgment at a later stage.
At TT 171.7, the solicitor for the witness tendered a recorded interview in which Mr Miringaorangi had participated with detectives on Saturday 5 April 2014.
The trial then returned to the cross-examination of the witness by defence counsel. An objection was taken by the solicitor for the witness to a question suggesting that the accused was incapable of walking at around the time of the murder. I upheld the objection, and expanded the certificate "to cover the topic of the state of health" of the accused (TT 172.22 and following).
Interrupting the chronology for a moment, I do not propose to delve deeply now into the statutory concept to which I have referred at [17] above. It is enough to say that I consider that the concept is a broad one, and that on my understanding of the issues in the special hearing as at the time the first objection was taken by the witness through his solicitor, it was appropriate for the certificate to be expanded liberally. As can be seen from the trial transcript commencing at page 164, in coming to that view, I had had recourse to the decision of the High Court of Australia in Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281; the decision of the House of Lords in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380; the judgment of Brownie JA in Application concerning Section 80 of the Supreme Court Act and Sections 119 and 128 of the Evidence Act [2004] NSWSC 614; J D Heydon, Cross On Evidence (11th edition, 2017, LexisNexis Butterworths) at 939 par [25175]; and Stephen Odgers, Uniform Evidence Law (12th edition, 2016, Thomson Reuters) at 1060 par [EA. 128.180].
Thereafter the certificate continued to be expanded on objection, on my acceptance of the proposition that particular aspects the cross-examination could tend to exculpate the accused and inculpate the witness. That included the events of the entirety of Thursday 3 April 2014, that being a day close to the time of the death of the deceased (TT 179.13 and following); and events from the commencement of Tuesday 1 April 2014 until a point in time on Saturday 5 April 2014 (TT 183.10, 184.45, and 188.3).
At TT 193.12, I made it clear that my intention was that the certificate would extend to things subsequently said by the witness to various persons about the events that were otherwise directly covered chronologically or by subject matter by the certificate.
Subsequently, I extended the certificate to cover the question of footwear worn by the witness between 1 January 2014 and the evening of Saturday 5 April 2014 (TT 205.32).
Finally, on day four of the trial, Thursday 8 March 2018, I broadened the certificate further. I said "so I wonder whether, to cut the Gordian knot, it would be appropriate for the certificate now to extend backwards with regard to future evidence as it were, commencing with the time when the witness started to live at the property. That would certainly cover this topic Mr Behan [solicitor for the witness] and it may cover other topics that arise as well" (TT 225.1). The solicitor for the witness agreed with that extension, neither counsel wished to be heard against it, and the certificate reflects it.
[3]
After the evidence of the witness concluded
At the conclusion of the re-examination of the witness, I expressed my appreciation of the importance of the certificate being prepared as soon as reasonably practicable, and spoke of the need that it be settled in Court. I asked that I have the assistance of the solicitor for the witness to ensure its correctness, and to have the assistance of the two substantive legal teams (as friends of the Court) as well. The solicitor for the witness agreed with all of my thoughts at that stage (TT 255.31 and following).
Later on 8 March 2018, I discussed logistical aspects of the preparation of the certificate and its effect with counsel (TT 304.40 to 306.44). In a nutshell, I expressed my understanding, and intention, that although the certificate expanded backwards and forwards in time with regard to its subject matter, it would not capture any evidence given by the witness prior to an objection having been made by him and upheld by me.
The following day, the fifth day of the trial, 9 March 2018, the solicitor for the witness again appeared. I provided him with a copy of the draft certificate as it was at that stage (TT 341.14 to 342.40).
On day six of the trial, 12 March 2018, the solicitor for the witness appeared again. I provided him with a further iteration of the draft certificate. On that occasion, he made it clear that he was untroubled by the version of the draft certificate with which I had provided him on 9 March 2018. It was agreed that the question of the certificate would not need to be discussed substantively again in open Court (TT 425.29 to 426.50).
Thereafter, the draft certificate kindly prepared by the solicitor for the DPP was settled by me with the assistance that I had requested. I do not believe that it is necessary to detail further that essentially administrative process in this judgment. As I have said, in due course on 20 March 2018 my associate provided the solicitor for the witness with a paper copy of the certificate in its current form, a copy of which remains on the court file.
[4]
Conclusion
It is in the circumstances that I have set out above that the certificate provided to the witness Mr Thomas Miringaorangi pursuant to the section came to be in its final form.
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Decision last updated: 04 April 2018