Where an offender's trial evidence departs from the statement in which they undertook to give evidence, the question whether the undertaking was fulfilled is determined by comparing the evidence undertaken to be given with the evidence actually given, not by reference to the trial judge's assessment of credibility. Departures that concern the whole of the material part of the evidence and support the co-offender's defence constitute a substantial failure to fulfil the whole undertaking. Post-release rehabilitation and absence of further offending are irrelevant to the exercise of the discretion to vary the sentence under s 5DA. The question whether s 5DA appeal proceedings 'relate to sentencing' within s 4(1) of the Evidence Act 1995 (NSW) remains open.
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