The interests of justice do not require that the witness give the evidence
40 This requires the examination of a complex of matters which, by their nature, tend to pull in different directions.
41 The first matter is a consideration of the importance of the evidence. There is no doubt that the evidence may be said to be reasonably important in the Crown case. It certainly could not be said to be unimportant or trivial. Indeed, Mr Bellew pointed out on behalf of the Crown that in my earlier decision I labelled evidence of a similar nature as "important". In the earlier decision (which dealt with the evidence of a witness Kwon) I said: -
"The evidence is important to the Crown case for the reasons identified in the transcript by Mr Maidment SC. It is the only evidence in the Crown that directly places Willie Brigitte in an LeT training camp".
42 Am I, as Mr Bellew subtly suggested, hoist on my own petard? I do not think so.
43 First, the evidence of Kwon was examined in the context of s 138 and in particular, in the context of the considerations that the Court was required to take into account under sub-s 3 of the section. The issue arising there related to "the desirability of admitting the evidence" and whether that consideration outweighed the "undesirability of admitting evidence" obtained in a way that was suggested to be improper. Here the issue of "importance" is to be evaluated in a much broader context, namely, "the interests of justice".
44 Secondly, while the evidence of the witness Kwon was "important" to the Crown case, its relative importance was not, expressly in terms of s 138, required to be assessed. Thirdly, once the Crown has been entitled to lead the Kwon evidence, as it is now permitted to do, the relative importance of the Ul-Haque evidence to the Crown case diminishes.
45 Mr Bellew submitted that the Ul-Haque evidence was more important or more significant to the Crown than the Kwon evidence because it showed a more direct link between the accused and LeT. There is undoubtedly force in this submission. But it needs to be recalled that the Kwon evidence (like the Ul-Haque evidence) remains circumstantial only. It is not direct evidence of the commission of the crimes charged. The Crown case, continues to focus, for better or worse, on the relationship between the accused and Willie Brigitte. Therein lies the importance of Kwon's evidence in the Crown case. This is so because Brigitte's background, established by Kwon's testimony, if he be accepted, is circumstantial material that, in the light of Brigitte's association with the accused, may legitimately be added to the overall mosaic sought to be assembled by the Crown case. It adds not merely colour but shape to the suggestion that the accused's actions in collecting, making or possessing documents, for example, may have been carried out with a specific knowledge intent or purpose. It goes to the establishment of the fault elements required in the Criminal Code Act. The evidence is, of course, only part of the mosaic and the strength or clarity of the component's parts as well as the whole picture will be a matter for the jury.
46 The point is, however, that while the evidence of Ul-Haque would admittedly add further dimension to the mosaic of the Crown case, as I have described it, it would not add to it in a significant or critical way. Conversely, the omission of the Ul-Haque evidence will not significantly diminish the overall nature of the Crown case. Importantly, the evidence does not directly bear on the commission of the acts namely, the physical elements of the offence.
47 It is next necessary to consider the nature of the charges against the accused. They are very serious and carry a high likelihood of the imposition of a substantial term of imprisonment if the accused be convicted. No submission has been made to doubt the fact that these are serious charges.
48 The remaining considerations are, first, the interests of Ul-Haque himself in relation to his forthcoming trial. Secondly, there are the interests of the accused in obtaining a fair trial on the charges he faces.
49 As to the first matter, the position of Mr Ul-Haque is a singular one. He is poised to face trial on a very serious charge, subject only to the disposition of the appeal he has brought against Bell J's decision in relation to the indictment. His application seeking to set aside the three records of interview on the basis of substantial unfairness and the manner in which those interviews were conducted has yet to be determined. The records of interview are, it is conceded, the only substantial evidence in the case against Ul-Haque.
50 For the reasons I have outlined, I think that it is highly likely that if he is required to give evidence it will really mean that either he or the cross-examiner will traverse the bulk of the three interviews including the evidence in all three categories. Moreover, there is every possibility that a forceful cross-examination will tend to expose, or at least may expose, that his involvement in the LeT training camp in 2001 was at a higher level than he has indicated in the records of interview. Certainly that will be aim of the cross-examiner who will seek to secure that position as part and parcel of an attack upon the witness's credibility, his reliability and the truthfulness of the material in the interviews so far as it impacts upon the accused.
51 It is of course true that Ul-Haque has the benefit of an indemnity certificate from the Director of Public Prosecutions. Moreover, if required to give evidence, he would have the benefit of a certificate issued by the Court. But, in the unusual circumstances of Mr Ul-Haque's trial, I am not satisfied that that protection will be sufficient.
52 In Hamilton v Oades in the High Court, (1989) 166 CLR 486) the Court was dealing with the examination permitted by s 541 of the Companies (NSW) Code. The Court took a different view than had the New South Wales Court of Appeal in relation to the particular legislation under consideration. The legislation had the effect of compelling persons to give evidence that might tend to incriminate them. The High Court held that the particular legislation manifested a clear legislative intention to abrogate the privilege against self-incrimination. A note of caution, however, was sounded in the judgment of Toohey J. His Honour suggested a possible qualification to the extent of questioning permissible under s 541. That passage appears in the decision of Toohey J at page 515.
"A protection against self-incrimination in the terms enunciated by the Court of Appeal gives no effective operation to s 541(12). And that is so notwithstanding the qualification expressed in the words "concern those facts which constitute the ingredients of the offences …". The areas of inquiry specified by the appellant liquidator may well concern those very facts. The power vested in the court by s541(5) to give directions as to the matters to be inquired into may be used to ensure that the matters to be inquired into are relevant to the object of the examination. And, as Barwick CJ pointed out in Mortimer v Brown , a question may be so peripheral that it would be oppressive or unjust to require an answer. It is not hard to think of other examples of oppression or injustice. Clearly, a question designed to elicit a direct admission of guilt would fall into this category . See also Huston v Costigan (1982) 45 ALR 559 at 563. But it is not enough that the answer to a question may tend to incriminate the person examined. It is precisely this sort of answer that s541(12) allows so that the affairs of the company may be relevantly investigated."
( underlining added )
53 Although this note of caution was sounded in a different context to s 128 it raises appropriately the possibility of questions, which fall into a category of possible oppression or injustice.
54 Section 128 of the Evidence Act is a section that imposes a power or confers a discretion upon a court to compel a witness to give evidence that may tend to demonstrate that the witness has committed an offence against an Australian law. It is not itself a statutory exception to the principles stated by Clarke J in Hamilton v Oades (1987) 11 NSWLR 138 at 153. The section does not compel the making of an order. Where, however, an order has been made requiring a person facing unresolved charges to give evidence, this may result in a situation where incriminating evidence must be provided. The legislation addresses the interests of the witness, however, by providing a protection. That protection arises from the issue of a certificate.
55 But the certificate does not give absolute protection. There are, for example, the indefinable but no doubt real prejudices that may result where a witness has given evidence of the kind dealt with in s 128 which may as a consequence bring him into disfavour with some sections of the community or people who have previously held the witness in high regard. Secondly, the protection may not extend to the consequences that may be involved in disciplinary proceedings instituted against professional persons or even, at a wider level, against members of the general community. In the present case, particularly, there is the subtle but real damage that can be done to the rights of Ul-Haque if the entirety of the Crown case against him, in effect, becomes the material evidence he is required to give against the accused. The position is made the worse, I consider, in the particular circumstances where he is seeking to overturn those very records of interview and have them excluded from his trial. It is not inconceivable that a successful cross-examination by Mr Boulten SC in the present matter may disrupt and indeed, shatter the professional bond of confidence existing between Ul-Haque and his counsel of choice. The very substance of the questioning envisaged by Mr Boulten SC might well lead to a question whether the matters to be put to Ul-Haque fall into the category of material that is "oppressive and unjust" in the sense mentioned by Toohey J in Hamilton's case.
56 There is one further issue that needs to be mentioned: this is the aspect of the reliability of the material evidence to be adduced from Ul-Haque. This issue was raised and dealt with by the New South Wales Court of Appeal in R v Collisson [2003] NSWCCA 212 paras 28-33. Here, for the reasons mentioned by Mr Boulten in argument there is likely to be an issue concerning the reliability of Ul-Haque's evidence. It seems almost inevitable that a direction would have to be given under s 165 of the Evidence Act. Although I do not think that this is a determinative factor in the present matter, it is a matter that needs to be brought into the scales and, on balance, it also favours the result that seems appropriate to me in relation to the present application.
57 There is no need for me to dwell unduly on the aspect of a fair trial for the accused. The only relevant matter, for present purposes, is the suggestion that he should be precluded from cross-examining Ul-Haque about the category two evidence. That would be, as I have already said, significantly unfair to the accused and is a further factor in favour of making an order that the witness not be required to give evidence in the trial.
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