The Court held that despite serious misgivings about the appearance of judicially sanctioning immunity from prosecution for a witness whose criminal culpability for murder or manslaughter was comparable to two of the three accused, it was in the interests of justice under s 128(4) of the Evidence Act 1995 (NSW) to require the witness to give evidence with certificate protection. Key factors included: the witness was the only available source of evidence about events immediately before and after the fatal shooting; all parties (prosecution and defence) jointly submitted the certificate should be granted; requiring the prosecution to first seek an Attorney General indemnity under ss 32-33 Criminal Procedure Act 1986 would cause delay and fragment critical evidence mid-trial; and the accused's fair trial rights would be infringed without the evidence. The Court left open that in the ordinary course, such a decision would be better made by the executive through the Attorney General's powers rather than by judicial exercise of s 128.
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