Cth v Griffiths & Anor

(2007) 70 NSWLR 268; [2007] NSWCA 370

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Witness immunity
3. › Scope of immunity
4. › Out-of-court conduct preparatory to proceedings
5. › Statutory analyst conducting testing of seized substance
6. › Whether testing at investigative or forensic phase
7. › Whether immunity extends to preparatory analytical testing
1. Evidence
2. › Witness immunity
3. › Rationale
4. › Finality of judgments
5. › Whether civil proceedings would require retrial of evidence given at criminal trial
1. Tort
2. › Vicarious liability
3. › Immunity of employee
4. › Whether employer protected by immunity available to employee
5. › Whether immunity extends to vicariously liable party
1. Tort
2. › Negligence
3. › Duty of care
4. › Statutory authorities
5. › Conflicting obligations
6. › Indeterminate liability
7. › Analyst appointed under statute playing integral role in law enforcement
8. › Whether duty of care owed to person prosecuted
9. › Poisons and Therapeutic Goods Act 1966 (NSW), s 37A
10. › Drug Misuse and Trafficking Act 1985 (NSW), s 43

Quick Take

Witness immunity protects a statutory analyst from civil suit in respect of all analytical testing conducted in connection with criminal proceedings, including testing at the preparatory stage, and extends to protect the analyst's employer from both vicarious and direct liability. The content of a statutory certificate of analysis issued for use in criminal proceedings is not conduct 'in trade or commerce' for the purposes of s 52 of the Trade Practices Act 1974 (Cth). Statutory analysts and their employing agencies do not owe a duty of care to persons prosecuted, as imposing such a duty would create conflicting obligations and indeterminate liability.