The Court held that an alleged co-offender facing an unresolved murder charge cannot be compelled under s 128(4) of the Evidence Act 1995 (NSW) to give evidence at the trial of another co-offender, even where the witness had previously given evidence voluntarily at their own trial that resulted in a hung jury. McNaughton J rejected the Crown's argument that prior voluntary testimony meant there were no reasonable grounds for a self-incrimination objection under s 128(1)-(2), holding that repetition of an account could make it more credible, cross-examination could reveal new inculpatory material, and inconsistencies could emerge that would be used against the witness at retrial. On the s 128(4) interests of justice inquiry, the Court held that compelling testimony would fundamentally alter the accusatorial process by circumscribing the witness's forensic choices at retrial, and that the inherent limitations on derivative use protection and the reduced probative value of evidence from a witness with outstanding charges weighed against compulsion.
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