R v Martin (No 10) [2017] NSWSC 1401

R v Martin (No 10) [2017] NSWSC 1401

The court found reasonable grounds for Jessica Fallon's self-incrimination objection and held that the interests of justice did not require her to give evidence. The decisive considerations were that she faced pending charges for the same April offences, compulsion would fundamentally alter the accusatorial process in her own trial, there was a risk of prejudice to the accused if she refused to cooperate before the jury, the Crown would not seek a s 165 warning about her hearsay admissions, quarantine arrangements were undesirable and imperfect, psychiatric material supported treating her as vulnerable and raised reliability concerns, neither party contended that a fair trial required her...

Jurisdiction
Australia
Judgment Date
11 October 2017
Procedural Posture
Criminal Law Evidence Ruling Concerning Privilege Against Self Incrimination Under S 128 of the Evidence Act 1995 (nsw) / During Trial, on Voir Dire, After the Accused Called Jessica Fallon as a Witness and She Objected to Giving Evidence
Outcome
Jessica Fallon was not required to give evidence.
Legal Topics
['privilege Against Self Incrimination' 'compulsion of Witness Evidence' 'section 128 Certificate' 'accusatorial Process' 'hearsay Admissions' 'fair Trial' 'witness Vulnerability']
['criminal Law' 'evidence'] ['privilege Against Self Incrimination' 'compulsion of Witness Evidence' 'section 128 Certificate' 'accusatorial Process' 'hearsay Admissions' 'fair Trial' 'witness Vulnerability']

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Procedural Posture

Criminal Law Evidence Ruling Concerning Privilege Against Self Incrimination Under S 128 of the Evidence Act 1995 (nsw) / During Trial, on Voir Dire, After the Accused Called Jessica Fallon as a Witness and She Objected to Giving Evidence

Legal Issues

  1. 1 ["Whether Jessica Fallon's objection to giving evidence was based on reasonable grounds under s 128(2) of the Evidence Act 1995 (NSW)." 'Whether the interests of justice required Jessica Fallon to give evidence under s 128(4) of the Evidence Act 1995 (NSW), with or without a certificate, despite her privilege against self-incrimination.' 'Whether compelling a witness who faced pending criminal proceedings for the same alleged offences would undermine the accusatorial process or create prejudice and forensic unfairness.']

Ratio Decidendi

The court found reasonable grounds for Jessica Fallon's self-incrimination objection and held that the interests of justice did not require her to give evidence. The decisive considerations were that she faced pending charges for the same April offences, compulsion would fundamentally alter the accusatorial process in her own trial, there was a risk of prejudice to the accused if she refused to cooperate before the jury, the Crown would not seek a s 165 warning about her hearsay admissions, quarantine arrangements were undesirable and imperfect, psychiatric material supported treating her as vulnerable and raised reliability concerns, neither party contended that a fair trial required her...

Court Disposition

Jessica Fallon was not required to give evidence.

Orders

  • ['Pursuant to s 128(2) Evidence Act, determine that there are reasonable grounds for the objection made by the witness Jessica Fallon.' 'The witness is not required to give evidence pursuant to s 128(4) Evidence Act on the grounds that the interests of justice do not require that she be so required.']