Part 3.9: Identification Evidence
Section 114: Exclusion of visual identification
Section 115: Exclusion of Evidence of Identification by
Smith (No 3)  NSWSC 771, Garling J Evidence Act 1995 (NSW) 137 – murder – S observed person at scene – later saw single photograph of A accompanying online news article about the murder - admissibility of identification evidence by S - unreliability - displacement effect
Held: Identification evidence by S is inadmissible under s 137.
When a person sees, or is shown, a single photograph rather than a photo array from which one photograph is chosen, it is obvious that an identification arising from that single photograph may be unreliable. As well, where the photograph is associated with the description that the person is wanted by the police, albeit for the provision of assistance, those difficulties are magnified: at . Alexander (1981) 145 CLR 395 at 400. Risk of displacement effect i.e. that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person. Real risk that S has, entirely unconsciously, substituted that image in the photograph for the image in his mind of the face of the person whom he saw
Section 116: Direction to Jury
Part 3.10: PrivilegesDivision 1: Client legal privilege
Sections 117, 118, 119: Definitions, Legal Advice &
Did you bring to his attention when he was
cross-examining her that he hadn't ever put to her that there was an occasion
where you had carried her from her bed up _?
Did it concern you that your barrister didn't ever put to
(N) that she was aware that you were going to go into the caravan and take (the
The CCA The two questions that commenced “Did it concern
you …” were not unfair. However, on the evidence, all questions were irrelevant
and inadmissible since they could not substantially affect the assessment of the
appellant’s credibility as required under ss 102 and 103 Evidence
Act. The appeal was nonetheless dismissed because there was no
miscarriage of justice.
(No.3)  NSWSC 1670, McCallum
J Evidence Act
1995 (NSW) s.119 – murder – accused served
tendency notice in relation to victim – Crown called for all witness statements,
conference notes and other notes in relation to potential witnesses of incidents
contained in notice – whether such documents covered by legal professional
privilege despite tendency notice
Held: privilege remains – followed
Petroulias (2007) 176 A crim R 309
El-Zayet  NSWCCA 298 Evidence Act 1995 (NSW) s.118, s.119 – Crown prosecutor had handed to court document advising that DPP had determined there be no further proceedings – on application for costs the applicant sought access to that document on basis DPP had waived privilege – trial judge dismissed applicant's application - applicability of ss 118 and 119 - Whether privilege was waived when the legal advising report was handed to the Court.
Held: i) The primary judge erred in finding ss 118 and 119 applied. The procedure did not involve the adducing of evidence, and as such the Evidence Act was not engaged: . (ii) The only person who could waive privilege was the Director or a person authorised by him: . (iii) The Crown Prosecutor did not have implied authority to waive privilege, as such waiver was neither necessary nor incidental to the task of informing the court that the Director had made a direction under the Director of Public Prosecutions Act 1986, s 7(2)(b): .
Section 122: Loss of client legal privilege: consent and related
Section 123: Loss of client legal privilege: defendants
Division 1B: Sexual assault communications privilege
* Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act
1999 inserted Part 13 into Criminal Procedure Act - privilege applies to
documents produced on subpoena. * Part 13 became Part 7 (ss.147-159) by Crimes
Legislation Amendment (Sentencing) Act 1999. * For summary and discussion of
provisions see Glenn Bartley, Sexual Assault Communications Privilege,
10.10.2000 (NSW Bar Association Criminal Law Section Seminar)* s.148(d) amended
by Statute Law (Miscellaneous Provisions) Act (No.2) 2000 No.93,
to commence 8.12.2000. * Renumbered ss.295-306 Criminal Procedure
Act - commenced 3.7.2003
Division 2: Other privileges
Section 128: Privilege in respect of self-incrimination in other
Cornwell  NSWSC 45, Howie J (see CCA and HCA below) Evidence Act 1995 (NSW) s.128(8) – certificate promised by Howie J in trial (see above) – jury unable to decide on verdict and retrial ordered – application for certificate – new trial judge indicated certificate would prevent Crown using evidence of accused from first trial at retrial - late application for certificate - whether certificate should be granted
Held: certificate granted – section not intended to prevent evidence of accused at first trial being used at retrial – however no basis for declining to issue certificate where promised – cannot issue certificate on limited basis specifying evidence to be used at retrial – use of certificate depends on interpretation of trial judge – no basis for refusing to grant certificate despite lengthy delay in application
MacArthur  NSWCCA 65 Evidence Act 1995 (NSW) s.128 – appeal against refusal of TJ to warn jury Crown witnesses had received immunity from prosecution
Held: s.128 certificate does not provide immunity from prosecution – only prevents any evidence given in current trial being used against witnesses
Hore; Fyffe  NSWCCA 3 Evidence Act 1995 (NSW) s.128(5) – prison murder – Crown witness admitted lying in statement to police as to presence of cellmate – declined to answer questions at trial – TJ refused to require witness to answer question under s.128(5)
Held: no error in approach taken by trial judge – evidence as to inconsistency of statement and directions sufficiently dealt with issue – no need to force witness to give evidence possibly incriminating him
Cornwell (2006) 160 A Crim R 243, NSWCCA (see HCA judgment below) Evidence Act 1995 (NSW) s.128 – see above (judgments by Howie J) – accused gives evidence at trial, is issued a certificate, and later seeks to exclude his evidence at the first trial from being tendered at retrial, relying upon the certificate –TJ would not grant s128 certificate thereby preventing appellant from giving oral evidence at his retrial - whether miscarriage of justice.
Held: certificate operates to protect evidence given by the appellant at his first trial which is within the terms of the certificate - appeal allowed - new trial ordered.
Lodhi  NSWSC 638 (Whealy J) Evidence Act 1995 (NSW) s.128 – terrorism offences – application by Crown to force witness to give evidence - witness awaiting trial for terrorism offences – disputing records of interview.
Held: order refused – evidence suggests witness would be admitting to offences under Pakistani terrorism act – also not in interests of justice to force witness to give evidence taking into account importance of evidence, effect on witness' trial and anticipated attack on
credibility of witness.
Cornwell (2007) 231 CLR 260, HCA Evidence Act 1995 (NSW), s.128 – Crown appeal and cross appeal by accused against order of a new trial - conspiracy to import cocaine - retrial – first TJ admitted as circumstantial evidence telephone intercept conversations of domestic drug supply arrangements - accused granted certificate of protection under s128(6) to explain domestic drug supply - certificate granted on basis conversations were not evidence of a "fact in issue" under s128(8) – In re-trial, second TJ ruled certificate should not have been granted because evidence came under s128(8) – evidence given by accused at first trial subject to a s128(6) certificate was thus admitted and the accused was convicted – second TJ also earlier ruled that s128(6) certificate would prevent accused's evidence being admitted as the retrial was another "proceeding" under s128(7) - whether first TJ erred in granting certificate under s128(6) – whether second TJ ruling on s128(7) was incorrect.
Held: First TJ erred in granting s128(6) certificate as telephone intercept conversations went to a "fact in issue" under 128(8). Section 128(8) is not limited to direct evidence that the accused did the act or had the requisite state of mind. It applies to evidence by an accused from which the act or state of mind can be inferred, including circumstantial evidence.
Second TJ's ruling on s128(7) was incorrect as the section does not apply to re-trials. Section 128(7) ensures evidence given at a trial is not used later in different proceedings.
NCW CCA erred in holding that first TJ's ruling on s128(8) prevented the second TJ's reception of the evidence at the second trial. Second TJ was not bound by first TJ's ruling or certificate.
Matter remitted to CCA.
Hunter (No.11)  NSWSC, 1154 (Button J) Evidence Act 1995 (NSW) s.128 murder
Held: if witness objects to giving evidence is granted certificate under s.128 judge will explain to jury granting of certificate and its effect
Simmons (No.6)  NSWSC, 418 (Hamill J) Evidence Act 1995 (NSW) s.128 murder – co-offender had charge of murder reduced to accessory after fact them no billed – called to give evidence in trial against accused for murder – whether interests of justice to require witness to give evidence
Held: considered the following matters – no current outstanding proceedings – no bill not final and court would be reluctant to intervene if Crown chose to reinstate matter – adversarial proceedings would be fundamentally altered by compulsory examination if new proceedings brought – evidence significant – possibility of permanent stay if proceedings reinstated although hard to get – s.128 prohibits derivative use – disadvantaged if future proceedings brought – certificate granted and evidence required to be given
Qaumi (No.31)  NSWSC, 674 (Hamill J) Evidence Act 1995 (NSW) s.128 conspiracy to murder / murder – alleged offence committed in context of gang war – victim of conspiracy offence to stand trial for unrelated murder offence – accused sought to question victim about murder charge and involvement in gang for purpose of self defence
Held: questions clearly relevant to self defence – compelling an accused to answer questions about an alleged offence radically alters accusatorial process – balancing exercise – compromise that satisfied all parties – victim to be questioned about allegation of murder charge only – not to be questioned about defence or truth of allegation – sufficient for reliance on self defence
Division 3: Evidence excluded in the public interest
Section 130: Exclusion of evidence of matters of stateDPP v Smith (1996) 86 A Crim R 308; NSW CCA 2 May 1996Evidence Act 1995
(NSW) s.130 - committal proceedings for murder - magistrate refused application
for use of pseudonyms for two Crown witnesses under public interest
immunity.Held: magistrate failed to adequately deal with material -
Attorney General entitled to rely upon high importance of public interest
immunity for police informers - application granted.
Hawi (No.9)  NSWSC 1655, RA Hulme J Evidence Act 1995 (NSW) s.130 – murder, riot and affray – violent confrontation between two motorcycle gangs at airport resulting in death – application for pseudonyms for witnesses who have indicted fear for safety
Held: application granted – evidence provided established several witnesses have real; and genuine fear
AG(NSW) v Lipton  NSWCCA 156 Evidence Act 1995 (NSW) s.130, 131A – drugs – sentencing offender sought access to police documents in relation to possibility partner was a police informer – whether s.130 applied – appropriate test under s.130
Held: because person objecting to the production of material and the person required to produce the material was the same person s.130 applied (s.131A) – test under s.130 requires balancing
 Whatever may be the principle applicable under the general law, the test to be applied under s 130 is clearly a balancing exercise which requires the court to be satisfied that, relevant to the present circumstances, the public interest in preserving secrecy or confidentiality in relation to a category of documents outweighs the public interest in their production. In undertaking that balancing exercise, the court is required to take into account those factors identified in sub-s (5) as are relevant in the circumstances of the case. That exercise is not to be constrained by unexpressed rules derived from the general law, although the same result may be expected on either approach.
AG(NSW) v Lipton  NSWCCA 156 Evidence Act 1995 (NSW) s.130, 131A – drugs – sentencing offender sought access to police documents in relation to possibility partner was a police informer – whether s.130 applied
Held: because person objecting to the production of material and the person required to produce the material was the same person s.130 applied
Application of s.131A and relationship to s.5F
In Lipton (2012) 224 A Crim R 177 the Court of Criminal Appeal considered a Crown appeal against a decision of a sentencing judge to deny a claim of public interest immunity and allow evidence at a sentence hearing in relation to a possible police informer. The interlocutory appeal was allowed on the basis that the Judge applied the wrong test in determining the public interest immunity claim.
The case raised, but did not decide, two questions in relation to the application of s.131A Evidence Act.
Section 131A of the Evidence Act reads:
131A Application of Part to preliminary proceedings of courts
(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and
(b) the person objects to giving that information or providing that document,
the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following:
(a) a summons or subpoena to produce documents or give evidence, …
Division 3, as listed in (1)(a), includes s.130 (public interest immunity):
130 Exclusion of evidence of matters of state
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
(a) prejudice the security, defence or international relations of Australia, or
(b) damage relations between the Commonwealth and a State or between 2 or more States, or
(c) prejudice the prevention, investigation or prosecution of an offence, or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or
(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:
(a) the importance of the information or the document in the proceeding,
(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,
(e) whether the substance of the information or document has already been published,
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.
(6) A reference in this section to a State includes a reference to a Territory.
One interpretation of s.131A is that it only applies where the person required to produce the document is also the person that objects to its production. Where these persons are different s.131A and s.130 do not apply and the common law principles for public interest immunity apply.
This is the interpretation applied by:
the Court of Appeal in State of New South Wales v Public Transport Ticketing Corporation  NSWCA 60
the CCA in Derbas(2012) 221 A Crim R 13
and by single judges:
Singtel Optus v Weston  NSWSC 1083 per White J at 
Eastmark Holdings Pty Ltd v Kabraji (No.3)  NSWSC 1463 per Hallen J at 
Melrose Cranes v Manitowoc Crane Group  NSWSC 904 per Campbell J at 
Polley v Johnson  NSWSC 543 per Bellew J at -
In Lipton Basten JA challenged this interpretation but did not need to decide the matter since the person required to produce the documents and the person seeking to object to its production were the same person.
 A further preliminary issue arose in relation to the principles governing the substantive issue. In a supplementary submission dealing with the question of jurisdiction, senior counsel for the Attorney submitted that the issue was to be addressed by reference to s 130 of the Evidence Act, which section, although dealing with the admissibility of evidence, was applicable by virtue of s 131A of the Evidence Act. Section 131A constituted a device by which the question of production could be assessed by reference to the test applicable to admissibility. As a matter of principle, that approach had much to commend it. However, it was not the approach adopted by this Court in Derbas, a judgment delivered on 21 February 2012. That case, like the present matter, involved a claim of immunity from disclosure in the public interest made by the Commissioner of Police. Meagher JA rejected the Attorney's submission that the matter was to be addressed by reference to s 130 of the Evidence Act, concluding that s 130 was not engaged and that it was necessary to address the application for immunity by reference to common law principles: at .
 Although the Attorney also submitted in Derbas that nothing turned on the answer to this question, that may not be right. In support of ground 1, the Attorney argued that there was an inflexible rule that once the identity of an informer was raised, the only basis for rejecting the objection was the need for disclosure to show that the defendant was innocent of the offence: Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248 (McHugh JA, Kirby P agreeing). That was said to be a principle of the common law; even if that were right, it is less clear that it is a principle which fits within the language of s 130. The irony of the Attorney's position is thus that if s 130 is applied, as he submits it should be, he may fail on ground 1.
 Under s 131A, if a person is required by a subpoena to produce a document of a kind "referred to in" Division 3 (which includes s 130) and "the person objects to ... providing that document", the court must determine the objection by applying the provisions of s 130 with any necessary modifications "as if the objection ... were an objection to the giving or adducing of evidence". (Once the objection is treated as an objection to giving evidence, it is not clear what modifications to, say, s 130 are contemplated.)
 As noted by the writers of a standard text on the Evidence Act, the use of "the circuitous drafting device" adopted in s 131A "gives rise to fundamental problems": J Anderson, N Williams SC, L Clegg, The New Law of Evidence (2nd ed, LexisNexis Butterworths, 2009) at [131A.3]. One problem noted by the authors is that the section appears to operate only where the person required to produce the document is the person who objects to production. If the first person is not the holder of the privilege, the section may not be engaged.
 This approach has been accepted in relation to public interest immunity and a statutory corporation. Thus, in State of New South Wales v Public Transport Ticketing Corporation  NSWCA 60 at  Allsop P stated (with the agreement of Hodgson JA and Sackville AJA):
"The State submitted that the terms of s 131A(1) were not engaged. That was so, it was submitted, because the State, which had the carriage of the upholding of the immunity was not a person subject to a disclosure requirement who objects to giving that information or document. The PTTC [being the statutory corporation] is the person subject to the disclosure requirement; all the documents are discovered by it and are within its custody, power and control. The State is seeking to rely upon the immunity, not the PTTC, and the State is not subject to the disclosure requirements."
 That approach was applied in Derbas at , in respect of a subpoena to produce addressed to the Registrar of the Local Court. Objection was taken by the Commissioner for Police who sought to intervene in the proceedings in the District Court. Meagher JA noted that on a question of production, s 130 did not in its terms apply and continued:
"Nor did s 131A operate to require the primary judge to determine the Commissioner's objection by applying the provisions of s 130. That is because s 131A only applies if the 'person' required to produce the document is 'the person' who objects to the provision of the document .... In State of New South Wales v Public Transport Ticketing Corporation ... the person producing documents by way of discovery (the Public Transport Ticketing Corporation) and the person making the claim for immunity (the State) were distinct juristic entities, with the result that ss 130 and 131A were not engaged. That is also the position here. The person producing the documents (the Registrar) and the person making the claim for immunity (the Commissioner) were not the same."
 Approaching the present matter in the terms accepted in these two recent cases, a different result obtains. The subpoena was addressed to the Commissioner and it was the Commissioner who raised the objection. There was no objection in Derbas to the Commissioner raising the objection, as distinct from the State, and it may well have been that the Court in Derbas was satisfied that the Commissioner and the State were relevantly the same entity.
 Given the unity of the producer and the objector in the present case, it is not necessary to raise any question as to the correctness of those decisions, although whether they achieve a sensible result may be debated. Significantly, there was no reference to the terms of s 130(2) providing that the court might direct that the document not be adduced as evidence "either on its own initiative or on the application of any person (whether or not the person is a party)". This provision is consistent with the common law principle which allows an objection to be taken by a private person, whether witness, litigant or person subject to an order for production, and obliges the court to consider the issue for itself, and indeed to do so whether or not objection is raised: Sankey v Whitlam (1978) 142 CLR 1 at 44 (Gibbs ACJ), 58-59 and 68 (Stephen J), 100 (Mason J) referring to Marconi's Wireless Telegraph Co Ltd v The Commonwealth (No 2) (1913) 16 CLR 178 at 192 (Barton J) and 206 (Isaacs J). As it is clear that the person required to produce documents is entitled to object to such production on the basis of public interest immunity, s 131A(1) would be satisfied if such objection were taken. Public interest immunity is not a "privilege", as has long been recognised, and does not "belong" to any individual or entity, although in many cases an objection by a private individual without the support of the government of the day will fail: see, eg, Sankey v Whitlam. In any event, such matters do not affect the outcome in the present case, where the Commissioner was the recipient of the subpoena and the Commissioner objected to production. The Court was therefore required to determine the objection by application of s 130.
Since s.130 did apply in Lipton a second question became relevant – whether the appeal could be dealt with under s.5F. The appeal related to a decision on the production of documents under a subpoena, a matter which has long be considered to fall within the jurisdiction of s.5F. See for example AG v Stuart (1994) 34 NSWLR 667
An order to a stranger to the proceedings that documents be produced to the court following the rejection of a claim of public interest immunity is one which commands the stranger to do something. It may be entered in the court record, and action may be taken upon it in the event that it is disobeyed. For myself, I have no doubt that is an interlocutory order within the meaning of s 5F. The fact that it is or may also amount to a ruling upon evidence does not exclude such an order from the terms of s 5F: cf Steffan (at 640-641). The appeal brought by the Attorney-General therefore lies within the jurisdiction of this Court. (Per Hunt CJ at CL at p.673)
The application of s.130 however means that the question is to be dealt with under the Evidence Act s.131A:
as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
A decision as the admissible of evidence does not come within the jurisdiction of a s.5F matter unless the refusal to admit evidence substantially weakens the crown case
(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.
Although the issue was raised by the circumstances of Lipton there was no argument made and the Court accepted the application of s.5F
 An appeal lies as of right at the instance of the Attorney General (and the Director of Public Prosecutions) in respect of an "interlocutory judgment or order" which is given or made "in proceedings". A ruling with respect to the admissibility of evidence is generally considered not to be such a judgment or order, although clearly made in the proceedings: Steffan (1993) 30 NSWLR 633. An objection to evidence based on public interest immunity will frequently give rise to an evidential ruling as to admissibility in the course of proceedings. However, such objections may also arise in respect of production of documents in answer to a subpoena or other form of court process or court order. Rulings on such objections have uniformly been treated as falling within the scope of s 5F: Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 at 673C-D (Hunt CJ at CL, Studdert J agreeing) and 689B-C (Smart J); Kaddour  NSWCCA 456 at  (Sully J, Spigelman CJ and Adams J agreeing); Fandakis  NSWCCA 5 at  (Barr J, Ipp AJA and Hidden J agreeing); Attorney General (NSW) v Chidgey  NSWCCA 65; 182 A Crim R 536 at  (Beazley JA, James and Kirby JJ agreeing); Nagi  NSWCCA 197 at -; WO  NSWCCA 275 at ; Derbas  NSWCCA 14 at  (Meagher JA, Hoeben and Rothman JJ agreeing).
 Although the court is now required to determine an objection to production "as if [it] were an objection to the giving or adducing of evidence" - see Evidence Act 1995 (NSW), s 131A, discussed below - there was no submission in this Court that the line of authority as to an appeal under s 5F was affected by that provision. Accordingly, it should be accepted that the appeal was properly brought by the Attorney, as of right.
There have been no subsequent cases on the question. Two slightly earlier cases simply applied s.5F without consideration of the issues.
In Attorney General v Kaddour & Turkmani  NSWCCA 456 involved a crown appeal against a decision of a trial judge to allow witnesses to be cross-examined in such a way as to possibly disclose their identity as a police informer. Although the issue was to be decided under s.130 the Court of Criminal Appeal simply stated
 This is a Crown appeal brought by the Attorney General as of right pursuant to section 5F of the Criminal Appeal Act 1912 (NSW). The appeal challenges an interlocutory judgment given by his Honour Judge Woods QC on 10 September last. Mr. Kaddour and Mr. Turkmani, the respondents to the appeal, are currently standing trial before his Honour, sitting without a jury, upon a charge of having solicited the murder of one Albert Brikha. The interlocutory judgment against which the appeal has been brought by the Attorney General concerns some questions of public interest immunity privilege.
In Fandakis  NSWCCA 5 the court also involved a crown appeal against a decision of a trial judge to allow questioning of police about matters the crown claimed were covered by public interest immunity. Once again the court simply stated:
 The issues raised are appropriate to be determined on an appeal under s 5F: Attorney General (NSW) v Stuart (1994) 34 NSWLR 667; Attorney General (NSW) v Smith (1996) 86 A Crim R 308.
Section 132 Court to inform of rights to make applications and objections
RLP  NSWCCA 93 Evidence Act 1995 (NSW) s.126A, s.132, s.138 - sexual assault child aged 14 – appellant's Doctor gave statement to police indicating appellant confessed to sexual assault of step-daughter – whether evidence a protected confidence under s.126A – whether failure to warn Doctor of right to object to evidence caused miscarriage – whether evidence obtained improperly because it breached Code of Conduct for Medical Practitioners and Article 17 International Covenant of Civil and Political Rights
Held: appeal allowed on other grounds – no error in admitting evidence – consideration given to effect of Children's and Young Persons (Care and Protection) Act 1998 on evidence of doctor – failure to warn doctor about s.132 rights caused no miscarriage where appellant objected to evidence and doctor aware of objection – no breach of s.138
KH  NSWCCA 294 Evidence Act 1995 (NSW) s.132 – judge advised witness of right to abject if felt questions could incriminate him – advice given in front of jury – witness said nothing that tended to incriminate
Held: appeal dismissed – preferable that warning be given in absence of jury but no miscarriage of justice