R v Cranston (No 20) [2022] NSWSC 1578

R v Cranston (No 20) [2022] NSWSC 1578

The specified matters identified by Mr Menon were important parts of the evidence relied upon by the Crown to establish critical facts in issue, including whether the alleged agreements existed, whether Mr Menon participated in them, and whether he knew that causing a loss to the Commissioner of Taxation by non-payment of PAYGW and GST was dishonest. On the binding authority of Cornwell, those matters were facts in issue for the purposes of s 128(10), so s 128 did not apply and a certificate could not be given.

Jurisdiction
Australia
Judgment Date
21 November 2022
Procedural Posture
Common Law Criminal; Procedural Ruling on Evidence Privilege Against Self Incrimination / Application by Accused Dev Menon for a Certificate Under S 128 of the Evidence Act 1995 (nsw) Immediately Prior to Cross Examination During Trial
Outcome
Application refused.
Legal Topics
['privilege Against Self Incrimination' 'certificate Under S 128 of the Evidence Act 1995 (nsw)' 'cross Examination of Accused Giving Evidence' 'facts in Issue' 'circumstantial Evidence']
['criminal Law' 'evidence'] ['privilege Against Self Incrimination' 'certificate Under S 128 of the Evidence Act 1995 (nsw)' 'cross Examination of Accused Giving Evidence' 'facts in Issue' 'circumstantial Evidence']

Case Brief

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Procedural Posture

Common Law Criminal; Procedural Ruling on Evidence Privilege Against Self Incrimination / Application by Accused Dev Menon for a Certificate Under S 128 of the Evidence Act 1995 (nsw) Immediately Prior to Cross Examination During Trial

Legal Issues

  1. 1 ['Whether s 128 of the Evidence Act 1995 (NSW) applied to evidence to be given by accused Dev Menon in cross-examination where he sought a certificate in respect of specified matters said to expose him to criminal or civil penalty liability.' 'Whether the specified matters were evidence that the defendant did an act the doing of which is a fact in issue, or had a state of mind the existence of which is a fact in issue, within s 128(10) of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The specified matters identified by Mr Menon were important parts of the evidence relied upon by the Crown to establish critical facts in issue, including whether the alleged agreements existed, whether Mr Menon participated in them, and whether he knew that causing a loss to the Commissioner of Taxation by non-payment of PAYGW and GST was dishonest. On the binding authority of Cornwell, those matters were facts in issue for the purposes of s 128(10), so s 128 did not apply and a certificate could not be given.

Court Disposition

Application refused.

Orders

  • ['The application for a certificate under s 128 of the Evidence Act 1995 (NSW) is refused.']