R v Cranston

Submissions

1. Mr Menon submitted that s 128 in its current form was introduced by the Evidence Amendment Act 2007 (NSW). The Explanatory Note to the Evidence Amendment Bill 2007 (NSW) makes reference to Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 and states: "New section 128 (10) and (11) replicate existing section 128 (8) and (9)."
2. Changes in two matters addressed by the section were identified in the Explanatory Note. First, that the process of taking objection was simplified. The objection in relation to a "particular matter" was introduced. Secondly, it was made clear that a certificate under s 128 does not provide protection in respect of a retrial, being a central issue addressed by the plurality in Cornwell at [86].
3. Mr Menon submitted that the majority in Cornwell did not decide what was meant by "fact in issue" in the former s 128(8) - replicated in the current s 128(10). Rather, it was submitted that the majority held at [80] that: 1. it was not necessary to decide whether the expression "fact in issue" in then s 128(8) includes "facts relevant to facts in issue" (that is, circumstantial evidence: at [57]); and 2. the "approach is sound" to assume that the term "fact in issue" in then s 128(8) does not include "facts relevant to facts in issue", but directs attention to the statutory expression of which "fact in issue" forms part.
4. The reasoning of the majority then proceeded at [81] on the basis that "[e]ven if" the expression "fact in issue" in then s 128(8) "is limited" to direct evidence, such as whether a person accused of murder shot the deceased, that this would be "evidence that the defendant … did an act the doing of which is a fact in issue".
5. It was submitted that on the reasoning in Cornwell, it remains open to construe the term "fact in issue" in former s 128(8) as not being concerned with the distinction between direct evidence and circumstantial evidence. The term "fact in issue" may instead be concerned with matters that are in issue in the proceeding.
6. It was submitted that none of the subjects about which a certificate was sought were a "fact in issue" as Mr Menon had essentially admitted engaging in all of the relevant conduct in his evidence in chief or that conduct was essentially "common ground". It was submitted that Mr Menon was recorded procuring forgeries of various signatures, has admitted to seeking affidavits from "straw" directors in connection with the extortion deed and being involved in other potentially criminal matters in respect of which other witnesses have received certificates. The accuracy of the recordings in those respects, including attributions to Mr Menon, are, thus it was submitted, not facts in issue in this case. An affidavit verifying a statement of claim, witnessed by Mr Menon, is in evidence. That this document (and other documents) is a true copy, has not been an issue in this case.
7. Accordingly, it was submitted that it was appropriate to grant Mr Menon a certificate in respect of cross-examination in connection with, at least, the specified matters in [2] and [3] above. It was also submitted that it is appropriate to grant Mr Menon a certificate in respect of the whole of his cross-examination.
8. The broad scope of these matters, and the potential connection between questions and issues, is such that it is difficult to exclude the risk or apprehension that the answer to any particular question may tend to prove commission of an offence or liability to a civil penalty.
9. The Crown opposed the grant of a certificate and relied on both sub-sections of s 128(10). The Crown was required to prove all of the matters Mr Menon asserted were common ground. In addition, it was submitted that the Crown case against Mr Menon is that a solicitor would only engage in lying, forgeries and Corporations Act offences because that person had a particular state of mind. The existence of the state of mind is a fact in issue in reaction to both Counts in the indictment. The Court thus had no power to grant a certificate here.

Relevant law

1. Section 128 of the Evidence Act provides: 128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness - (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness - (a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and (b) that the court will give a certificate under this section if - (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that - (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if - (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence - (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. Note - This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an "Australian Court" instead of a "NSW court". (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence. (10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant - (a) did an act the doing of which is a fact in issue, or (b) had a state of mind the existence of which is a fact in issue. (11) A reference in this section to doing an act includes a reference to failing to act. (12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by a person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section. (13) For the purposes of subsection (12), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection. (14) Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth.
2. In Cornwell the High Court addressed the former s 128(8), now 128(10). The joint judgment explained that the circumstantial evidence relevant to determining the ultimate question in a criminal case is "evidence that the defendant … did an act the doing of which is a fact in issue": "[81] Even if the expression "fact in issue" in s 128(8) is limited to the shooting by the defendant of the deceased, no doubt evidence by the defendant that he shot the deceased is "evidence that the defendant … did an act the doing of which is a fact in issue". But evidence by the defendant that he had the opportunity, the means and the motive to shoot the deceased is also "evidence that the defendant … did an act the doing of which is a fact in issue". That is because from the circumstantial evidence of opportunity, means and motive can be inferred the doing of the act which is the fact in issue."
3. In Cornwell, the High Court proceeded on the basis, favourable to Mr Menon's application, that "fact in issue" does not include "facts relevant to facts in issue" but is confined to acts and states of mind which are to be established beyond reasonable doubt in order for the prosecution to prove guilt. Thus, in the High Court's example of murder, the fact in issue was whether the accused person shot the deceased.
4. Proceeding on that basis, the High Court held at [81]-[84] that circumstantial evidence tending to prove acts or states of mind necessary for the Crown to prove its case is evidence to which then s 128(8) (in terms identical to s 128(10)) applies.
5. Cornwell is binding on me. It has not been subsequently explained or qualified. The Parliament was clearly aware of Cornwell and chose to replicate s 128(8) in the current s 128(10).

Consideration

1. I have concluded that s 128 does not apply because of the operation of s 128(10) and that a certificate cannot be given to Mr Menon in these circumstances.
2. The High Court in Cornwell made clear at [81]-[84] that "fact in issue" is to be construed as relating to acts and states of mind which must be established beyond reasonable doubt in order for the prosecution to prove guilt. Thus, in the High Court's example of murder, the fact in issue was whether the accused person shot the deceased. Proceeding on that basis, the High Court held that circumstantial evidence tending to prove those acts or states of mind is evidence to which then s 128(8) applies.
3. Here, critical facts in issue include whether the agreements alleged by the Crown were in existence, whether Mr Menon participated in them, and whether he knew that causing a loss to the Commissioner of Taxation by the non-payment of PAYGW and GST was dishonest. The specified matters identified in Mr Menon's submissions are each important parts of the evidence relied upon by the Crown to establish those acts and states of mind. They are each, on the authority of Cornwell, facts in issue. Accordingly, s 128 does not apply to the identified matters.

Orders

1. For these reasons the application for a certificate under s 128 of the Evidence Act is refused.

Amendments 21 March 2023 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2023