Privilege against self-incrimination
ss 128, 132 Evidence Act 1995 (NSW)
Part 3.10 Div 2 Evidence Act 1995 enacts, inter alia, the privilege against self-incrimination in other proceedings. The privilege applies where a witness objects to “giving particular evidence”, or “evidence on a particular matter”, on the ground that the evidence may tend to prove that the witness has committed an offence against, or arising under, an Australian law or a law of a foreign country, or is liable to a civil penalty: s 128(1). The phrase “on a particular matter” was inserted by the Evidence Amendment Act 2007 (which applies to proceedings, the hearing of which commenced on or after 1 January 2009, see R v GG  NSWCCA 230), so that s 128 could apply to a class of questions rather than each question: Australian Law Reform Commission, Uniform Evidence Law, ALRC Report 102 (Final Report), 2005 at [15.108]. Section 128 is only enlivened where the witness objects to giving particular evidence: Cornwell v The Queen (2007) 231 CLR 260 at ; Bates trading as Riot Wetsuits v Omareef Pty Ltd  FCA 1472.
Where it appears to the court that a witness or a party may have grounds for making an application or objection under s 128, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision: s 132; R v Parkes  NSWCCA 12 at –. As soon as a question is asked which raises the possibility of self-incrimination, the jury should be asked to retire and a voir dire held: R v McGoldrick (unrep, 28/4/98, NSWCCA) at pp 9–10; s 189 Evidence Act. The purpose of the explanation below is to inform a witness, who has objected, of the various scenarios stemming from that objection.
[1-705] Explanation to witness in the absence of the jury
[Note: If it appears to the court that a witness may have grounds for making an objection under s 128, the court must satisfy itself that the witness is aware of the effect of that provision: s 132 Evidence Act. The court must do so in the absence of the jury.]
You may object to answering that question [and any directly related question] on the ground that your answer may tend to prove that you have committed an offence [or that you are liable to pay a penalty or otherwise be punished in non-criminal proceedings]: ss 128(1), 132.
If you do not object to answering that question [or any directly related question] upon that basis, the trial will proceed: s 128(2).
If you do object to answering that question, it will become necessary for me to decide whether there are reasonable grounds for that objection.
If I decide that there are no reasonable grounds for your objection, the trial will proceed, and you will be required to answer the question.
If I decide in your favour, by finding that there are reasonable grounds for your objection, I will uphold that objection. You will then be given a choice as to whether you wish to answer the question. Whether or not you will be required to answer the question (if you do not wish to do so willingly) will depend, in turn, upon whether or not it is in the interests of justice that you be required to answer it: s 128(3), (4).
Before continuing to explain what may now happen, I need to consider some jurisdictional issues …
[It is necessary for the judge at this stage to determine whether the possible offence or liability to which any objection relates arises under the laws of NSW, the ACT or the Cth.
If the possible offence or liability arises under the law of some Australian jurisdiction other than NSW, the ACT or the Cth, then a certificate cannot be granted which protects the witness against prosecution or penalty in that jurisdiction, and a certificate must not be offered as an inducement to the witness to answer voluntarily: see Evidence Act 1995, s 128(2)–(7); Evidence Act 1995 (Cth), s 128(2)–(7), (10)–(15).
If the possible offence or liability arises under the law of a foreign country, a certificate cannot be granted under s 128 Evidence Act 1995.]
[If it is found that the possible offence or liability arises other than under the laws of NSW, the ACT or the Cth, add
It is a matter for you as to whether you answer the question or not. If you do not wish to answer the question, you need not do so. However, you must clearly understand that if you decide to answer the question, the evidence which you give may be used against you in a prosecution [or in proceedings to recover a penalty].]
[If it is found that the possible offence or liability does arise under the laws of NSW, the ACT or Cth, and that it does not also arise under the laws of any other Australian jurisdiction, add
If you do answer the question willingly, a certificate will be granted to you by this court, the effect of which is that neither that evidence nor any information, document or thing obtained as a direct or indirect consequence of you having given that evidence can be used against you in other proceedings. However, if the evidence which you give is false, criminal proceedings for giving that false evidence may be brought against you: s 128(3)(c), (5), (7).
But, even if you say that you do not wish to answer the question, I have the power to order you to answer it if I am satisfied that the interests of justice require you to do so. I will hear what you want to say about that before any order is made that you answer the question. If I order you to answer the question, a certificate will still be granted to you by this court, the effect of which is that neither that evidence, nor any information, document or thing obtained as a direct or indirect consequence of you having given that evidence, can be used against you in other proceedings. However, if the evidence which you give is false, criminal proceedings for giving that false evidence may be brought against you: s 128(3)(c), (4), (5), (7).]
[1-710] Granting a certificate and certificates in other jurisdictions
If a certificate is to be granted, an appropriate order is:
Pursuant to s 128(3) of the Evidence Act 1995, I direct the preparation of a certificate for my signature, and that the certificate thereafter be given to the witness.
Clause 7.1 Evidence Regulation 2020 provides that the form of the certificate may be in accordance with Schedule 1 Form 1 of that Regulation.
For administrative certainty, it is advisable to physically issue the form of the certificate at a time proximate to when the certificate is granted: Cornwell v The Queen (2007) 231 CLR 260 at .
The Evidence Amendment Act 2010 amends s 128 of the Act so that a certificate provided by another court of a prescribed State or Territory has the same effect as if it had been given under s 128: s 128(12)–(14).
Section 128(10) (previously s 128(8)) provides that s 128 does not apply where the evidence given by the defendant is that he or she did an act, the doing of which is a fact in issue, or that he or she had a state of mind, the existence of which is a fact in issue. In Cornwell v The Queen (2007) 231 CLR 260, the court held that the former s 128(8) (now s 128(10)) is not limited to direct evidence that the accused did some act or had the state of mind the subject of the offence. It also denies the privilege for evidence given by an accused of facts from which the doing of the act or the having of the state of mind can be inferred. This includes, inter alia, circumstantial evidence of opportunity, means or motive that infer the doing of the act which is the fact in issue: at .
In Cornwell v The Queen, the High Court suggested the protection in s 128 applied to questions asked under cross-examination of a witness and did not extend to questions asked in-chief and in re-examination. The High Court also doubted, without finally deciding the issue, whether an accused can “object” in the relevant sense under s 128 when the accused is answering questions in-chief from his or her own counsel: at –. Given these comments were obiter and given apparently contradictory remarks by the Full Family Court in Ferral v Blyton (2000) 27 Fam LR 178, the Court of Appeal of NSW considered the issue afresh in Song v Ying  NSWCA 237. The court concluded, consistently with the views above expressed by the High Court in Cornwell v The Queen, that when a witness who is a party to the proceedings is being asked questions by their own legal representative (whether in chief or re-examination) there would “rarely if ever be a question” that that evidence “was given under compulsion”: at , . The court held that a witness who “wishes” to give evidence but “ is not willing to do so” except under the protection of a s 128 certificate does not “object” within the meaning of s 128(1).
In Song v Ying, the court identified the following propositions, at , –, that:
unless a party to the proceedings is giving evidence in response to questions from their own legal representative, witnesses are compellable to give evidence
compellability of this nature makes sense of the word “objects” in s 128(1) and of “require” in s 128(4): see also Cornwell v The Queen at . A motivation to give evidence which avoids a judgment being made against a defendant does not amount to relevant compellability
a party to proceedings who wishes to give particular evidence in response to questions from his or her own legal representative “but is not willing to do so” without a s 128 certificate does not “object” within the meaning of s 128(1)
a witness who is compelled by a party to give evidence during the proceedings (for example under cross-examination) can raise an objection at any stage during their evidence: see, in particular, Song v Ying at .
If the witness in question is the accused, it is customary for him or her to be given an opportunity to consult with his or her legal representative prior to deciding whether to answer the question willingly. If the witness is not the accused, and therefore not legally represented, it may be appropriate to grant the witness the opportunity to obtain independent legal advice in relation to the matter.
The Evidence Act provides no guidance as to what might constitute “reasonable grounds” for an objection under s 128(2). In R v Bikic  NSWCCA 537, Giles JA said that “it seems to me to be a matter of commonsense that reasonable grounds for an objection must pay regard to whether or not the witness can be placed in jeopardy by giving the particular evidence”: at . “Reasonable grounds” must be established on the balance of probabilities: s 142 Evidence Act. Some assistance may be obtained from s 130(5) Evidence Act in determining what factors may be taken into account in determining whether “the interests of justice” require the witness to give the evidence within the meaning of s 128(4)(b). Other factors to be taken into account include the probative value of the evidence, the nature of the proceedings, and the consequences for the witness: R v Ronen (No 2)  NSWSC 1284; R v Lodhi  NSWSC 638; R v Collisson (2003) 139 A Crim R 389.
Section 128(7) prevents the evidence in respect of which a certificate has been given from being used against the person in a proceeding. A “proceeding” under subs (7) does not include a retrial for the same offence or an offence arising out of the same circumstances: s 128(9).
The certificate does not give immunity from prosecution: R v Macarthur  NSWCCA 65 at . It does no more than prevent the evidence given by the witness being used against him or her in any subsequent prosecution. Further, the grant of a s 128 certificate does not of itself provide sufficient grounds for a warning under s 165 Evidence Act that the evidence of the witness may be unreliable: R v Macarthur at –.
In Spence v The Queen  VSCA 113 at – the court held, inter alia,:
Reliance on the privilege against self-incrimination is not relevant to credit.
The granting of a s 128 certificate may affect a witness’s credibility, depending on the circumstances.
If it is plain the witness’s credit will be attacked and the protection afforded by the certificate is relevant, it will be proper to reveal to the jury the existence of the certificate.
Where the existence of the certificate has been revealed to a jury, it is desirable the judge provide directions explaining its effect and the extent of the protection; that it does not provide immunity from prosecution (consistent with the direction in R v Macarthur); and that it does not protect against perjury.
Part 2 cl 3 Dictionary (s 3 Evidence Act) defines “civil penalty”. It provides that “[f]or the purposes of the Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country”. Civil penalties have been held to include:
disciplinary proceedings against a police officer, reduction in rank, dismissal from employment: Police Service Board v Morris (1985) 156 CLR 397 at 403, 408, 411
penalties for failure to produce documents in non-judicial proceedings: Pyneboard v Trade Practices Commission (1983) 152 CLR 328 at 341
forfeiture and punishment: s 21 Interpretation Act 1987.
However, they do not include the payment of compensation: R v Associated Northern Collieries (1910) 11 CLR 738 at 742. As to the scope of what constitutes a civil penalty see The Honourable AM Gleeson AC, “Civil or criminal — What is the difference” (2006) 8(1) TJR 1.
Section 133 provides that if a question arises under Pt 3.10 (Privileges) “relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question”.