Director of Public Prosecutions v Rubio Peters (a pseudonym)[1]
[2019] VSCA 193
•30 August 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0087
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| RUBIO PETERS (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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| JUDGES: | PRIEST and NIALL JJA, and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 August 2019 |
| DATE OF JUDGMENT: | 30 August 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 193 |
| JUDGMENT APPEALED FROM: | DPP v [Peters] (Unreported, County Court of Victoria, Judge Stuart, 4 December 2018) |
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CRIMINAL LAW – Interlocutory appeal – Privilege against self-incrimination – Previous plea of guilty to perjury in other proceedings by witness in criminal trial — Whether possible traversal of plea founds objection to giving evidence on ground of self-incrimination – Waiver of privilege against self-incrimination – Whether s 128 of the Evidence Act 2008 abrogates the common law – Haddara v The Queen (2014) 43 VR 53; Power v The Queen (2014) 43 VR 261; Reid v Howard (1995) 184 CLR 1 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Saunders | Mr John Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr J Westmore | Sarah Tricarico Lawyers |
PRIEST JA:
Introduction
Pursuant to certification given by a judge of the County Court,[2] the Director of Public Prosecutions seeks leave to appeal against an interlocutory decision — conveniently, ‘the second ruling’ — made in the respondent’s trial for perjury, whereby the judge excluded the evidence of a critical witness on the basis that the evidence tended to incriminate her.
[2]See Criminal Procedure Act 2009, s 295(3).
As will be seen, this application raises questions as to whether s 128 of the Evidence Act 2008 (‘the Act’) abrogates the common law privilege against self-incrimination (wholly or partly), and whether the witness had waived the right to rely on the privilege against self-incrimination.
For the reasons that follow, I consider that the second ruling is attended by error, and must be set aside.
Background
By way of background, ‘Rubio Peters’ (‘Peters’), the respondent, faces trial in the County Court for perjury (one charge — charge 1) and attempting to obtain a financial advantage by deception (one charge — charge 2).[3] The application in this Court is relevant only to the perjury charge.
[3]The circumstances of the charge of attempting to obtain a financial advantage by deception presently are not relevant.
Peters is a family friend of ‘PD’, and her husband, ‘AD’. Both PD and AD were formerly directors and secretaries of a company (‘the company’). As will appear, the prosecution in Peters’ trial wish to lead evidence from PD to prove the charge of perjury against Peters. Indeed, as counsel for Peters accepted during argument in this Court, PD’s evidence is ‘critical’ in proof of the prosecution’ case.
PD is the daughter of ‘AF’, and the sister of ‘LCF’ and ‘RF’. (As will appear, LCF is the principal witness for the prosecution against Peters on the perjury charge.) AF, who is now deceased, could not read or write either English or Italian. She communicated in Italian, and had a very limited understanding of English. After AF’s husband died, in March 2002, AF became the registered proprietor of the family home in Brunswick (‘the Brunswick house’), together with her three daughters, PD, LCF and RF. AF continued to live there with RF, and with AF’s disabled sister, ‘RP’.
When PD and AD purchased a large house in Balwyn (‘the Balwyn house’), it was agreed between them and RF and LCF that AF, RF and RP would move into it. Thus, on 18 February 2003, AF, RF and RP moved from Brunswick to Balwyn, to live with PD, AD and their children.
Subsequently, the Brunswick house became dilapidated, and AD started using it as a storage warehouse. In March 2010, the Brunswick house was sold for $2,000,000 on a 12 month contract.
In October 2010, RF, LCF and their two brothers, ‘VF’ and ‘JF’, applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for the appointment of an administrator and guardian for their mother, AF, alleging that their mother was being held against her will, and was being forced by PD and AD to take sides in a property dispute. VCAT dismissed the application, however, and AF continued to reside with PD and AD.
On 3 May 2011, AF initiated proceedings in the Supreme Court against her daughters, RF and LCF, with respect to the competing claims of the registered proprietors as to the division of the proceeds of sale of the Brunswick house. By order of a judge made 8 March 2011, a little over $830,000 was paid into court; and, on 27 October 2011, by agreement of the parties, $406,000 was paid to AF. The sum thereby left in court for distribution was almost $426,000.
The disagreement as to the distribution of the proceeds of the Brunswick house stems from a dispute in relation to the liability of RF and LCF for a loan of $580,000 obtained from Bendigo Bank in July 2003. The loan was refinanced through Perpetual Trustees Victoria Ltd in September 2004 in the sum of $744,000. The Brunswick house was the security for both loans. RF and LCF alleged that the proceeds of the loan were paid to PD and AD (or entities under their control), and that AD had agreed to repay the money within 12 months.
Following a trial, on 26 March 2012 the judge ordered that the remaining sum paid into court be distributed by payment of $5,045.50 to AF; $210,366.39 to RF; and $210,366.38 to LCF. After that, PD’s relationship with her sisters and brothers became non-existent, and AF ceased to have any relationship with her children (other than PD).
In November 2010, LCF took proceedings against AD in the Magistrates’ Court claiming that he owed her $70,000. The proceeding was dismissed in December 2011, and AD was awarded costs.
Of particular importance to the charges Peters faces, on 3 October 2011, the company issued proceedings in the Magistrates’ Court against LCF. The Complaint alleged that: the company loaned $35,000 to LCF on 3 August 2004; the loan period would be seven years; the money was advanced on the basis that a loan agreement would be executed within 40 days of the money being paid into LCF’s nominated bank account; on 13 August 2004 LCF executed a loan agreement; and LCF is in default under the loan agreement. It was alleged that the sum of $63,917.64 in accrued interest was owed, the total sum claimed being $98,917.64 (together with interest pursuant to statute and costs). The Complaint was signed by AD as a director of the company.
LCF’s position is that she did not borrow money from the company; did not sign the loan agreement; and did not receive $35,000.
On 18 November 2011, PD swore an affidavit of service in relation to that proceeding (‘the affidavit of service’), deposing that on 27 October 2011 at 11.05 am, she personally served LCF with the Complaint and two Notices of Defence at the corner of William and Lonsdale Streets, Melbourne, on the steps of the Melbourne Magistrates’ Court. Thereafter, on 21 November 2011, no appearance having been entered, AD entered judgment against LCF in default of appearance for the claimed sum.
LCF stated that she was not served with the Complaint (personally or otherwise); and that, had she been served, she would have defended the matter. She first became aware of the Complaint on 2 December 2011, after receiving a number of letters from debt collection and credit agencies advising her that on 23 November 2011 an order was made against her in the Melbourne Magistrates’ Court for the sum of $98,917.64. LCF then instructed her solicitors to have the judgments set aside and to apply for a rehearing of the matter. The application for rehearing was filed on 22 December 2011 and served on the company on 9 January 2012.
On 20 January 2012, AD swore an affidavit in opposition to the application for rehearing. He swore that LCF was served in front of the Melbourne Magistrates’ Court, and that he saw PD approach LCF and serve her with the Complaint.
AF also swore an affidavit in opposition to the application for rehearing on 20 January 2012. In her affidavit, she deposed that she had LCF’s affidavit read to her by Peters, who holds her power of attorney; and that, on 27 October 2011 at approximately 11.05 am, she saw PD serve some documents on LCF in front of the Melbourne Magistrates’ Court.
Peters also swore an affidavit on 20 January 2012. It forms the basis of the perjury charge against him. He deposed that he had read the affidavit of LCF; and that he was only standing a few metres away when, on 27 October 2011 at approximately 11.05 am, he saw PD serve LCF with the Complaint and two Notices of Defence outside the Melbourne Magistrates’ Court. Peters, the prosecution alleges, swore his affidavit of 20 January 2012 knowing that it was false, since he knew that LCF had not been served with the relevant documents (charge 1 — perjury). Thus, charge 1 on the Indictment alleges that Peters
on the 20th day of January 2012 knowingly swore an affidavit which they [sic] knew to be false in that [Rubio Peter] deposed that on the 27th day of October 2011 at approximately 11.05 am he witnessed [PD] personally serve [LCF] with the complaint and 2 notices of defence in relation to Magistrates’ Court of Victoria proceeding number B12732063.
In his defence to the perjury charge, Peters denies that his affidavit of 20 January 2012 contained any false statement that he knew was untrue.
So as to provide necessary corroboration for LCF’s evidence, the prosecution seeks to adduce evidence from PD that she did not serve the relevant Complaint and Notices of Defence on LCF; and, by a Notice dated 18 September 2018, indicated its intention to call PD to give additional evidence.[4]
[4]See Criminal Procedure Act 2009, s 188. By s 188(1), ‘additional evidence’ means any evidence not included in the depositions. Although nothing turns on this, the notice did not comply with s 188(2)(b), in that it did not contain ‘a copy of the statement of the proposed witness containing the additional evidence or an outline of the additional evidence that the witness is expected to give’.
Anticipating, however, that PD might not forthrightly provide the evidence that the prosecution sought to harvest from her, the prosecution also filed a Notice of Intention to Apply to Cross-examine a Witness, pursuant to s 38(1) of the Act, dated 17 September 2018. Very significantly, in the County Court on 1 June 2017, PD had pleaded guilty to a charge of perjury, charge 8, with respect to the affidavit of service (that charge being but one of 13 charges to which she pleaded guilty).[5] If they are compelled by circumstances to do so, the prosecution will allege that PD’s plea — and the summary of facts upon which the plea was based — is an admission by her that she did not serve LCF at the time, place or in the manner described by her in the affidavit of service (or at all). The Notice under s 38 is in the following terms:
[5]Indictment E13215248.
1. The prosecution has today filed a Notice of Additional Evidence in respect of evidence to be given by [PD].
2. It is proposed to call [PD] to give evidence of the fact that on 1 June 2017 she pleaded guilty to charge 8 on indictment number E13215248 being a charge of perjury contrary to s 314(1) of the Crimes Act 1958.
3. That charge read as follows:-
‘The Director of Public Prosecutions charges that [PD] at Melbourne in Victoria on the 18th day of November 2011 knowingly swore an affidavit which she knew to be false in that [PD] deposed that on 27 October 2011 at 11:05am she personally served [LCF] with the complaint and 2 notices of defence in relation to Magistrates’ Court of Victoria proceeding number B12732063.’
4. The prosecution intends to call [PD] to give evidence.
5. An appointment was made with the informant for [PD] to make a statement in this proceeding. [PD] failed to attend that appointment. She has been subpoenaed.
6. In the event that [PD] does not make a genuine attempt to give evidence, the prosecution will seek leave under section 38 [of the Act] to cross-examine the witness about her plea of guilty to the above charge.
As I have said, on the trial of Peters’ perjury charge, should PD not give evidence that she did not serve LCF with the relevant documents, the prosecution wishes to lead evidence not merely that PD pleaded guilty to perjury with respect to the affidavit of service, but also the prosecution’s summary of facts that was read in open court at her plea hearing. The prosecution seeks to use the summary of facts acknowledged by PD’s plea of guilty as truth of a representation that she did not serve LCF with any documents on 27 October 2011.
The hearing before the trial judge
Prior to empanelling a jury, on 24 September 2018, PD was called to give evidence on a Basha[6] hearing. In answer to the prosecutor’s questions, PD agreed that she pleaded guilty to a charge of perjury relating to the affidavit of service. She also agreed that she understood that by that plea she was admitting that the affidavit of service was false, in that she had not served LCF with the relevant documents. Although PD said that she understood that her plea of guilty was an admission by her that she did not serve LCF, she pleaded guilty because of her barrister’s advice that she ‘had to admit’ it. The relevant passage of evidence is as follows:[7]
[6]R v Basha (1989) 39 A Crim R 337. See now Criminal Procedure Act 2009, s 198B.
[7]Emphasis added to this and following passages.
[PROSECUTOR]: [PD], I want to take you to the events of 27 October 2011. Do you have a memory of that date?---To be quite honest, no.
…
Do you remember some litigation around that time involving your sisters, [LCF] and [RF]?---Vaguely, yes, there was a few things, yep.
Do you remember that there was proceedings both in the Supreme Court and the Magistrates’ Court?---Vaguely, yes.
Did you serve your sister [LCF] with any proceedings on 27 October 2011?---I believe I did but I don’t recall details. I was diagnosed with having gone through a mental trauma through that period so my focus and my memory is not that great.
…
[PD], there were proceedings issued in the Magistrates’ Court where your husband has issued a complaint or your husbands company ... Do you remember that company?---Of the company, yeah.
Issued a complaint against [LCF] for moneys allegedly lent to her, do you remember that?---Yeah. I wasn’t involved in that proceeding, I didn’t initiate so, again, I don’t know the details. I do remember something about it.
Do you remember swearing an affidavit of service in that matter on 18 November 2011 before Michael …, a legal practitioner?---I don’t know, I’m not familiar with the name.
An employee of Mr Kimani Boden’s. Do you remember Mr Boden?---Yeah, I know Mr Boden.
You see, there’s an affidavit that you swore of service … which said that on 27 October 2011 at 11.05 am you personally served [LCF] with a complaint and two notices of defence on the corner of William and Lonsdale Streets. Do you have any memory of that?---Of the?
Actually serving your sister [LCF] with the summons?---I served my sister other documents as well so I’m not sure which one so I’m not 100 per cent sure.
You’re not 100 per cent sure?---There was a few services during that period and, as I said, I wasn’t very focused, I had gone through a lot of stress in my personal life so it’s a bit of a mumble jumble in my head.
That affidavit that you swore was that true?---Which one?
The one that you swore saying that you’d served [LCF] on 27 October 2011?---Is that the one I pleaded guilty to?
Yes?---Yes. So I pleaded guilty to that because based on my barrister’s advice he said because of the way the trial was structured where I was against a bunch of people he suggested to me that it was in my interest possibly to plead guilty rather than go to trial and risk getting a heavier penalty. So it was on that basis that he suggested to me to plead guilty. He said if it was one on one he said maybe with the witnesses maybe that would have been a bit easier for me, but because it was one against a bunch of people he said he wasn’t sure if the jury was going to believe me against a bunch of people. So we made, like, a deal.
Is that a truthful answer?---Yeah.
It is?---That’s what my barrister said.
So is your evidence that you actually served [LCF]?---No, no, I don’t remember.
You don’t remember?---No. I don’t remember details because I - if you recall I did - I said I didn’t read the statements or that affidavit, so I was going through - - -
I’m not asking whether you read the statements?---Sorry?
I’ll ask you this question again. Did you serve your sister [LCF] with a complaint … on 27 October 2011?---I don’t recall if it was that one because I served her other things. There was a family dispute as well.
Did you plead guilty to one count of perjury?---Yes.
In respect of that charge?---Yes.
And you understood that by that plea you were admitting that you did not serve her and that your affidavit was false?---Yes.
And you understand that plea of guilty was an admission by you that you did not serve her?---Yes. That’s what my barrister said to me, that I had to admit, yes.
The prosecution then made an application (which was granted) under s 38 of the Act to treat PD as an unfavourable witness, following which PD was cross-examined by the prosecutor. The cross-examination included the following:
[PROSECUTOR]: On … 27 October 2011, do you have a memory of serving your sister [LCF] on the steps of the Magistrates’ Court with a complaint issued by [the company]?---I’m not sure.
You’re not sure?---No.
You might have, you might not have?---There were, as I said, there was a lot of services so, and my memory wasn’t great, I was going through a lot of stresses during that period.
You’ve said that some three or four times, [PD]. Listen to the question?---Sorry?
Listen to the question, answer the question as best you can. I’ll repeat it. Did you serve your sister [LCF] with the complaint issued by [the company] claiming in total $98,917.67, did you serve that on her?---I’m not sure. I’m not sure.
Do you remember pleading guilty?---Yes.
To one count of perjury?---Yes.
Saying that you didn’t serve her?---Yes.
And you pleaded guilty acknowledging that you did not serve her with that?---Yes.
Knowing what all of the consequences of admitting that criminal offence might be?---Yes. My barrister explained it to me.
…
Would you have a look at this copy document please. Have a look at that last page of that document. Is that your signature?---Yep.
Could you turn over the front page of the document. Do you recognise that document as the affidavit of service of 27 October 2011?---That’s what it says.
Do you recognise the document?---What do you mean recognise?
Do you remember signing it?---Not remember signing it but that is my signature.
Counsel for Peters also cross-examined PD. She agreed that she had pleaded guilty to 13 charges, one of which was the charge of perjury relating to the affidavit of service. PD said that she disputed that charge, because she believed that she did serve LCF. She pleaded guilty to the charge, however, because it was ‘a package deal’ with the prosecution, requiring her to plead guilty to ‘all or nothing’. PD gave evidence that after she was arraigned and pleaded guilty on 1 June 2017, she wanted to change her plea. PD’s evidence under cross-examination included the following:
[PETERS’ COUNSEL]: [PD], you gave some evidence, as I understood the sum of your evidence was you’re not sure whether on 27 October 2011 you served your sister [LCF] with the complaint relating to the [company] proceedings, is that right?---Yep.
But it was the case that you do have specific memories of serving legal documents upon [LCF], is that correct?---Yep.
Was that during the period of 2011 and 2012?---Yep.
Do you also have a specific recollection of serving documents upon [LCF] in the presence of [Peters]?---Yeah, I believe so, yeah.
And also in the presence of your mother?---Yes.
And in the presence of your husband [AD]?---Yes.
Do you also have a specific recollection of serving documents upon [LCF] outside of the Magistrates’ Court?---Yes, but I don’t remember dates.
...
But in terms of the footpath outside the Melbourne Magistrates’ Court that’s a place you served documents upon [LCF]?---I have a recollection but I’m not sure of the details, yeah.
I want to ask you some questions about your court case both in the Magistrates’ Court and the County Court, okay. It was the case that you took the matter to a contested committal in the Magistrates’ Court, is that right? … ---Yes.
And at the end of the committal you entered a plea of not guilty to all charges?---Yes.
...
Was it the case that your matter was in the County Court for some time before it resolved?---Yep, I think so, yeah.
You were arraigned on the 13 charges of perjury on 1 June 2017, is that right?---Yep.
And you pleaded guilty to them, is that correct?---Yep.
…
[PD], you gave some evidence before that the reason why you entered a plea of guilty was that you had been given some advice by a barrister, is that right?---Two barristers, yep.
At that stage before you entered the plea of guilty on 1 June 2017 it was the case that you were facing four separate trials, is that right?---Yeah, like, over three months or something.
…
Those trials involved, in each of them you facing quite a significant number of charges?---Yeah.
And you may not be able to say off the top of your head but do you dispute my calculation skills that in total you faced about 111 charges across those four trials?---Yep.
There were charges not only of perjury but of perverting the course of justice?---I believe so, yeah.
Attempting to pervert the court of justice?---Yes.
False documents and the like?---I believe so, yeah.
The way that it resolved was that a plea offer was agreed upon, being the 13 charges that you were arraigned on? ---Correct.
…
When you accepted the resolution and you entered the plea of guilty did you enter pleas of guilty to allegations that you disputed? ... As in you disagreed with what the allegations were that underpinned the charges that you pleaded guilty?---Yeah. Like, because of my memory, because of the trauma I have experienced I felt like I was pushed into a corner and I had nowhere to go. So my barrister actually said to me, you know, sometimes you’re just going to have to wear it and move on. They were his words. So we decided this was the best way to go.
So is it correct to say that you entering pleas of guilty to these 13 charges involved a pragmatic solution to your situation? … Were you thinking practically about what the consequences would be for you if you on the one hand decided to run your trial and on the other hand decided to enter the plea?---Yeah. That’s how my barrister put it to me, yep.
So did you accept responsibility for allegations that you dispute?---Yeah, because my barrister said to me had it been a trial where you were up against each individual, he said I would have suggested you go to trial, but because of the way it was structured he was really concerned that me against a bunch of people the jury wouldn’t really accept my version, and that’s, yeah, that’s how it went. That’s the suggestion he gave me, the advice.
Was one of the allegations that you disputed an allegation that you falsely swore an affidavit where you purported to serve [LCF] with some documents on 27 October 2011? … ---Yeah. As I said, I believe I did serve her but because my memory’s not great I’m not sure of details, and my barrister said, you know, as he said, he said sometimes you just have to wear it and move on, because even if I disputed one thing I think the prosecution wasn’t going to accept the deal so I had to be careful because I think he wanted everyone satisfied as well, like, give justice to all of the people. So even if I wanted to eliminate my sister for instance he probably wouldn’t have accepted the deal and I would have had to go to trial, so yeah.
Just to interpret that, and correct me if I’m wrong, but do you mean to say that you understood the plea deal to be a package deal, if I could put it that way?---Yes, yeah.
It was either all or nothing?---That’s correct, yeah.
Was it the case that after you were arraigned on 1 June 2017 you for some time sought to change your plea of guilty?---Because I wasn’t involved in the proceedings ... My husband … basically he told his lawyer and they said, well, if you want to change your plea we have to – we can’t, like, not even given you advice, you need to change lawyers. So I sort of followed my husband because he was the one that basically initiated the proceedings and knew more about what was going on. So we had to – we changed barristers or legal team and then we got advice and they said based on what you saw in the computers it’s not enough to assist. So then we had to go back.
Was it also the case that you were told that Legal Aid wouldn’t fund your change of plea application?---We were mentioned that, yeah, they’re very tight on what they can fund.
The judge then told PD of the privilege against self-incrimination, and asked her whether she wanted to be granted a certificate under s 128 of the Act. There was then discussion between the prosecutor and trial judge, which resulted in the judge standing the matter down to the following day so that PD could obtain fresh legal advice.
PD received advice from counsel the next morning, 25 September 2018, before being recalled to give evidence. The trial judge then informed PD that any certificate that he gave her under s 128 would not protect her from prosecution for perjury; and that, were she to give evidence that had served LCF with the relevant documents — directly contradicting her plea of guilty — she might find herself liable to prosecution. In the course of providing further information to PD concerning the privilege against self-incrimination, the judge specifically asked PD whether she objected ‘to giving any further evidence in relation to whether or not she served [her] sister with court documents on 27 October [2011]’. Her answer was ‘yes’. There was then the following exchange:
HIS HONOUR: So, you do not wish to give evidence in relation to this matter concerning 27 October, and whether or not you served your sister?
[PD]: I do not wish. No.
HIS HONOUR: And the reason why you do not wish to give that evidence is that any answer that you may give might tend to incriminate you?
[PD]: Yes.
Addressing the prosecutor, the judge then observed that ‘this is a scenario where s 128 could be enlivened, but for the reasons that we have discussed, the right of [PD] to refuse to answer any questions seems to be overreaching to me’.
Notwithstanding the judge’s observation, however, the prosecutor indicated that the prosecution still intended to call PD as a witness, and to make an application to cross-examine her as an unfavourable witness pursuant to s 38 of the Act. The prosecutor also made it clear that not only would he seek to rely on PD’s plea of guilty, but, pursuant to s 60 of the Act, he would also seek to rely on the summary of facts put before the judge on PD’s plea hearing as a representation that she did not serve LCF with any documents on 27 October 2011.[8]
[8]See Power v The Queen (2014) 43 VR 261 (‘Power’).
Counsel for Peters submitted that ‘the objection stands regardless of whether the prosecution seek to lead evidence in chief, under cross-examination by way of s 38, or by the defence [and that] if the objection stands, the objection is to giving evidence about this topic, no matter how the prosecution seek to do, to elicit the evidence from this witness’. He also objected to PD’s plea of guilty and the summary of facts being led to establish the truth of the representation therein embodied. Invoking ss 135 and 137 of the Act, and the common law ‘unfairness discretion’ recognised in Haddara,[9] Peters’ counsel submitted that there is ‘a very real danger’ that the jury will reason that because PD pleaded guilty, Peters must be guilty.
[9]Haddara v The Queen (2014) 43 VR 53 (‘Haddara’). See also Police v Hall (2006) 95 SASR 482, 488 [24], 491 [35] (Doyle CJ, Vanstone J agreeing, 534 [215]), 497-498 [88] (Nyland J), 498-499 [94] (Bleby J), and 521 [167] (Gray J). Compare Police v Dunstall (2015) 256 CLR 403, 420 [34] (French CJ, Kiefel , Bell , Gageler and Keane JJ), and see 429 [59] (Nettle J) (‘Dunstall’).
Although I have endeavoured to sum them up in a few sentences, arguments before the judge over the course of 25 and 26 September 2018 with respect to PD’s right to invoke the privilege against self-incrimination, and the admissibility of her evidence more generally, were moderately extensive, and resulted in the judge delivering a ruling on 26 September 2018 (‘the first ruling’).
The first ruling
In the result, by his first ruling — ‘Ruling Number 1: Discretionary Exclusion of Evidence’ — the judge excluded PD’s plea of guilty and the associated summary of facts.
As best I am able to discern, by reference to this Court’s judgment in Power the trial judge apparently accepted that a summary of facts provided to the court following a plea of guilty may, in certain circumstances, be treated as a prior representation (and so become evidence of guilt).[10] The judge observed that ‘the prosecution seek to use the summary of facts acknowledged by [PD’s] plea of guilty as a representation as to the truth that she did not serve [LCF] with any documents on 27 October 2011’, further observing that this went ‘to the factual heart of the prosecution case and the factual dispute between the defence and the prosecution’. His Honour said that, ‘What is sought here is to establish that [PD] was an unfavourable witness, thereby exposing her to be cross-examined on an inconsistency founded in the implied admission of the representation that occurred when she pleaded guilty, and the summary of that particular charge was read’. Having referred to s 38 of the Act — and in particular, s 38(1)(c) — the judge said that if he granted leave to cross-examine PD, ‘the statements contained in the prior inconsistent statement are admissible as going to her credit, but also become admissible pursuant to the operations of s 60 of the [the Act], as set out in the joint judgment of Redlich JA and Robson AJA [in Power]’.
[10]See Power, 266–7 [16], 267–8 [18], 276 [52]–[53], 277 [56] and 277–8 [59]–[60] (Redlich JA and Robson AJA).
PD, the judge said, ‘in her evidence sought to distance herself from a knowledge, and a clear knowledge, of the events of 27 October 2011, asserting on numerous occasions to the effect that her memory was faulty because of pressures upon her at the time’. Having set out a deal of PD’s evidence given on the Basha hearing to make the point, the judge said that ‘it is plain enough, to my mind, that if she were taken to this date and these events and consistent with her purported memory loss, which is further elaborated in other parts of her earlier evidence on the Basha, there would be a foundation for the learned prosecutor to seek leave to cross-examine the witness if I was satisfied that any of the three gateways [in s 38(1)] were indeed opened upon the evidence as it stood before the jury’. It would appear from the evidence she gave on the voir dire that PD would then seek ‘to traverse her plea of guilty, by reference to advices that she had received, as well as her purported lack of memory’, opening herself up to cross-examination by the prosecutor which might put her at risk of perjuring herself.
The judge said that he ‘distilled three scenarios’: first, PD makes an assertion ‘that she did in fact, or believed she did in fact, serve the documents’ on LCF; secondly, PD asserts that she ‘could not specifically remember one way or the other’; or, thirdly, PD gives evidence that she did not serve LCF. His Honour said that he had made it plain to PD that, in relation to the first and second scenarios, she was at risk of incriminating herself in relation to further perjury. Not only was that ‘of moment in itself’, but it might also mean that she was in breach of the three year wholly suspended sentence of imprisonment imposed upon her for the 13 charges to which she pleaded guilty. The judge then observed:
Having understood to my satisfaction her right to object, [PD] did indicate to me that she would be objecting to any questions relating to whether in fact on the day she did or did not make service as stated in her affidavit of service. It is what flows from that scenario that is the foundation of [defence counsel’s] application for the exclusion of that evidence of her plea of guilty and the summary of facts founding the charge.
It is because of her right to refuse to answer questions which has been of great concern to me.
His Honour then referred to ‘a variety of discretions that come into play’, and adverted to ss 38, 192(2), 135 and 137[11] of the Act. The judge alluded to defence counsel’s reliance on ss 135 and 137, and to ‘the overreaching discretion’ acknowledged in Haddara.[12] He then said:
It is put by [the prosecutor] that this evidence has high probative value, it being direct evidence going to the heart of the issues between the prosecution, evidencing the absence of any such service on [LCF] of the court documents. That is true if one views the evidence in isolation. But charge 8 was but one of no less than 13 charges of perjury that [PD] pleaded guilty to. Indeed, some of the charges were ‘rolled-up’ charges, and on my count and [the prosecutor’s] count, there are no less than 26 instances of perjury contained in those 13 charges.
Were that evidence to be led, that would perhaps cast doubt on any assertion by her in any context, including a court context, of the reliability of such evidence. There is a danger further that any such evidence would place [PD] in a category of a habitual perjurer, in circumstances where the accused, [Peters], is a friend of her husband, closer to her husband than herself. Thus, there are dangers associated with any exploration of such matters. But the matter, in my view, is more profound.
The jury, assuming the matter proceeds in the way I anticipate, will hear her being advised by me about her right to object to certain questions, and she objecting upon the basis that such answers that she might give may tend to incriminate her. True it is, I can give clear directions to the jury that any such objection cannot in any way be used against the accused, nor for the prosecution. But it is almost impossible in my view to escape the residual matter that the jury might be concerned that she is trying to hide something, and not answer a question adverse to [Peters], a family friend, thus impermissibly bolstering the prosecution case.
But there is more. Her taking objection to issues going to the heart of both prosecution and defence case means that [defence counsel], on behalf of [Peters], cannot explore or test by cross-examination her evidence on this critical fact. Thus, what would be left would be an in court judicial confession to the summary in relation to charge 8, effectively therefore leaving that judicial confession intact. Furthermore, any exploration of charge 8 could lead to an exploration in relation to charge 10 where on the same day it is said at the same place that she served her other sister, [RF], with a civil complaint and two notices of defence in relation to other Magistrates’ Court proceedings … as well as 24 other instances of perjury being revealed.
The risk of a Pandora’s box of perjury, and guilt by association with a habitual perjurer exists. Each of these matters is in my view of sufficient moment for me to exclude the evidence of her plea of guilty and the summary of facts. Any combination only reinforces it, and putting all matters together, makes for an overwhelming case for the exercise of my discretion to exclude the evidence under any one of the various discretions I adverted to, and in particular the Haddara discretion, in order to ensure that the accused receives a fair trial. For those reasons, I refuse the application.
[11]Section 137 contemplates, however, that no element of discretion accompanies the judicial exercise for which it provides. See DPP v Paulino (2017) 54 VR 109, 132 [101]; DPP v Wise [2016] VSCA 173, [50]; IMM v The Queen (2016) 257 CLR 300, 306 [16] (French CJ, Kiefel, Bell and Keane JJ).
[12]Haddara, 59–60 [16] (Redlich and Weinberg JJA).
Doing the best I can, I consider that the following may be drawn from the judge’s ruling:
· first, on the charge of perjury that Peters faces, PD’s evidence could rationally affect the assessment of a fact in issue (that is, whether PD and Peters knew that LCF had not been served with the relevant documents, but falsely swore that she had);[13]
[13]See DPP v Paulino (2017) 54 VR 109, 124–5 [64]–[67] (Priest JA).
· secondly, evidence of PD’s plea of guilty to perjury (on charge 8), and the summary of facts upon which it was based, was highly probative of that fact in issue;
· thirdly, if PD ‘traversed’ her plea to perjury (on charge 8) in evidence on Peters’ trial, she ran the risk of being prosecuted for perjury and of being found to have breached the suspended sentence imposed on her;
· fourthly, if PD sought to invoke the privilege against self-incrimination — because by answering she would traverse her plea of guilty and expose herself to prosecution for perjury — the judge would necessarily warn her of her right not to incriminate herself (and, it is implicit, excuse her from answering questions relating to the genuineness of her plea of guilty and the truth of the associated summary of facts, since if she gave evidence that her plea and the summary were untrue, that evidence itself might be deliberately untruthful);
· fifthly, although the judge could give ‘clear directions to the jury that any such objection cannot in any way be used against the accused, nor for the prosecution’, it is almost impossible to escape the reality that the jury might be concerned that PD is trying to hide something, or not answer a question adverse to Peters’ interest, ‘thus impermissibly bolstering the prosecution case’;
· sixthly, the effect of PD invoking the privilege against self-incrimination — and the judge allowing her objection to answering — means that PD’s ‘judicial confession’ would be left ‘intact’, with no capacity for Peters’ counsel to test her evidence on the issue; and
· finally, the twin reasons of the ‘Pandora’s box of perjury’, and the risk of ‘guilt by association with a habitual perjurer’, combine to make an ‘overwhelming case for the exercise of [the judge’s] discretion to exclude the evidence’ of PD’s plea of guilty and the associated summary of facts ‘under any one of the various discretions [the judge] adverted to, and in particular the Haddara discretion, in order to ensure that the accused receives a fair trial’.
Events following the first ruling
Immediately after the judge delivered the first ruling on 26 September 2018, the prosecutor asked the judge to certify under s 295(3)(b) of the Criminal Procedure Act 2009 that the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal, pointing out that the charge of perjury required there to be corroboration.[14] Following argument on whether it was appropriate for the judge to certify, the judge adjourned the matter to the following day so that he could review authorities bearing on the decision to certify.
[14]See R v Muscot (1713) 10 Mod Rep 192; 88 ER 689; R v Allsop (1899) 24 VLR 812; R v Linehan [1921] VLR 582; R v Sumner [1935] VLR 197; R v Townley (1986) 24 A Crim R 76; R v Keskin (Unreported, 20 June 1988, Vic, CCA); R v Hoser [1998] 2 VR 535.
The next day, 27 September 2018, the prosecutor announced that ‘events have transpired that lead [him] to make a different application’. He then asked the judge to revisit the first ruling, relying on the following passage from Cross on Evidence:[15]
It is doubtful whether or not there is any privilege against self-incrimination for perjury committed in the same proceedings as those in which the privilege is claimed.
[15]J D Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017), [25160] (footnote omitted).
In the discussion that ensued as to whether the first ruling ought to be revisited, the prosecutor raised the issue whether s 128 of the Act had ‘codified’ the law with respect to the privilege against self-incrimination. His Honour observed that:
at the heart of my ruling is the inability of [Peters], through his counsel … to effectively challenge, cross-examine and explore the assertions implied in the representation by plea of guilty to the summary, and thus adopting the summary, and impliedly adopting the facts contained in the summary. So, my problem, the thrust of my problem was the loss of the ability to challenge evidence of a critical kind going straight to the heart of the prosecution case, namely whether or not service was effected.
The judge then acknowledged that, if PD ‘cannot claim privilege on the basis of self-incrimination, then [he] was wrong in giving the advice that [he] gave her’. He also said:
Another matter that has occurred to me … — leaving aside this matter you’ve raised — going to the exercise of my discretion, which is potentially confirmatory of the exercise of my discretion as it relates to the strength of the prosecution case, you [are] contending you have lost the corroborative evidence required for a charge of perjury … thus, insofar as the exercise of my discretion took into account the consequences and the serious consequences facing the prosecution I’m not so sure that it’s so.
In the result, the judge adjourned the matter until 5 October 2018, so that the parties could provide further submissions. When the hearing resumed on the morning of that day, counsel for Peters raised an issue as to whether considerations of procedural fairness did not dictate that PD should be given notice of the possibility that the first ruling might be revisited (and her interests thereby affected). The matter was stood down, so that contact might be made with PD. In the course of the afternoon, PD and counsel who had represented her at her plea hearing appeared before the judge, who explained the developments in the case since he had made his first ruling. The hearing was then once more adjourned, so that PD could seek further legal assistance.
On 25 October 2018, when the matter next came back before the judge, PD was not represented. In the course of extensive oral argument, the prosecutor in essence submitted that the privilege against self-incrimination does not apply to perjury in ‘the same proceedings’. He submitted that, ‘by necessary implication’, s 128 abrogates the common law with respect to self-incrimination in curial proceedings, and is a ‘code’ that ‘covers the field in curial proceedings’. In any event, he submitted, the privilege cannot ‘authorise a witness to commit an offence’, and the court cannot give an indemnity for committing the offence of perjury in the future. Moreover, as a matter of principle, PD’s plea of guilty constitutes a waiver of the privilege.
Peters’ counsel submitted that PD’s conduct in pleading guilty to perjury did not constitute waiver. PD’s plea of guilty is irrelevant to whether or not she has waived the privilege. Counsel contended that the common law ‘is the relevant sphere in which [PD’s] objection was taken’, and the common law does not admit of any exceptions. Further, s 128 is not a code which abrogates the common law. In circumstances where a certificate under s 128 does not apply, the ‘overarching’ common law privilege against self-incrimination remains applicable.
After counsel for Peters had made his submissions, the judge asked PD whether she wished to be heard. She said that Peters’ counsel ‘had pretty much covered it’, and she did not wish to add anything.
The judge then adjourned the matter to 4 December 2018 for ruling.
The second ruling: Self-incrimination and Waiver
On 4 December 2018, the judge delivered the second ruling — ‘Ruling Number 2: Privilege Against Self-Incrimination and Its Waiver’ — which constitutes the specific subject-matter of the present application for leave to appeal.
The judge observed that the prosecution had asked him to revisit the first ruling — that PD may object to giving evidence ‘on the basis that evidence that she may give may tend to incriminate her’ — because the assumptions upon which the ruling was based were challenged. His Honour distilled two questions, both of which he proceeded to answer in the negative: first, has the common law privilege against self-incrimination been abrogated by s 128; and, secondly, does PD’s plea of guilty to perjury (charge 8) constitute a waiver of any privilege against self-incrimination — whether under common law or recognised by s 128 of the Act — that may exist?
In the course of his ruling, the judge cited at length from Reid.[16]
[16]Reid v Howard (1995) 184 CLR 1, 4 and 8 (Deane J); 12 and 14 (Toohey, Gaudron J, McHugh and Gummow JJ) (‘Reid’).
The judge then set out s 9(1) of the Act, and said that ‘on the face of it, the common law right to object to giving evidence on the basis that the evidence may tend to implicate a person in relation to a criminal matter remains, unless expressly excluded or by necessary intendment’. His Honour then observed that s 128 does not expressly exclude the common law privilege, and he set out the provisions of s 128(1). He then observed that, far from excluding the operation of the common law privilege, s 128 ‘actually acknowledges that common law right’, which ‘tells against the Act providing for the change in the operation of this principle by necessary intendment’.
His Honour observed that the only authority directly on point was a passage from the decision of Haylen J in the Industrial Relations Commission of New South Wales in Tsougranis,[17] with which he agreed. The relevant passage is as follows:
Returning to the provisions of s 9(1), in my view the argument that s 128 operates as a code such as to abolish the principle or rule of the common law in relation to waiver of the privilege against self-incrimination so that s 128 alone governs the matter is not sustainable. Section 9 expressly states that the Act does not affect the operation of a principle or rule of the common law in relation to evidence in a proceeding to which the Act applies: ‘. . . except so far as this Act provides otherwise expressly or by necessary intendment’. There is no express provision: none has been suggested. I am unable to discern an operation for s 128, as argued for, which leads to the principle of waiver being subsumed as a ‘necessary intendment’.
Section 128 does not deal with the issue of waiver of the privilege such as s 122 deals with the waiver of client legal privilege. Section 128 begins with a witness objecting to giving particular evidence 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. While it is undoubtedly true that, if the Court comes to the operation of s 128(5) and whether or not the interests of justice require that the witness give the evidence, it will obviously be relevant that there has been a prior publication and the extent of that publication of evidence which is now objected to. Section 128(2) requires the Court to be satisfied that there are ‘reasonable grounds’ for the objection: again, prior publication and the circumstances of it will be relevant to that consideration. However, it is not necessary for the operation of s 128 that the principles of the common law regarding waiver be replaced by the provisions of s 128.
[17]WorkCover Authority (NSW) v Tsougranis (2002) 117 IR 203, 219–20 [40] (Haylen J) (‘Tsougranis’).
The trial judge then observed:
During argument I put forward an analogy of the privilege against self-incrimination, being seen as a guard at a doorway, who stands ready to protect the person claiming the privilege in appropriate circumstances, but stands aside to allow the operation of a certificate, if granted under s 128 of the Act.
In my view s 128 only operates once a claim for privilege has been made and the other requirements of the section are satisfied and a certificate issued. Up to that point, the privilege against self-incrimination at common law remains intact and operational.
But there are other reasons why s 128 has such a limited operation. The section itself refers to in s 128(1)(a): ‘has committed an offence’. Not will commit an offence, such as in this case, potentially of perjury before a jury, should the witness be called in the trial of [Peters]. Thus the section can only operate in circumstances where the evidence may tend to prove that the witness has in the past, committed an offence. Not where the evidence has the potential to prove that her evidence in the future, exposes her to the risk of a charge of perjury in relation to that evidence.
Further, I am satisfied that in circumstances where there are reasonable grounds for an objection, upon the basis that the evidence may tend to prove that the witness has committed an offence, as stated in s 128(1), but other aspects of the requirements of s 128 are not satisfied, the common law principles still operate. Thus for those reasons, the first question which I repeat, ‘Has the common law privilege against self-incrimination been abrogated by the introduction of s 128 of the Evidence Act?’ My answer is, ‘no’.
His Honour then turned to the question whether PD’s plea of guilty to perjury (charge 8) relevantly constituted a waiver, and set out a passage from Mann.[18] He said that it would be impossible to suggest that when she pleaded guilty to charge 8 PD ‘turned her mind to any future proceedings, let alone proceedings involving her as a witness for the prosecution against [Peters]’. The judge stated that he could not see that PD’s plea of guilty was inconsistent with her invocation of the privilege against self-incrimination. To ‘illustrate the point’, his Honour then set out passages from Guariglia[19] and Zappia,[20] and concluded:
In both of these cases the witness in question had entered the fray: they had made sworn statements. In Rice v Gordon,[[21]] an affidavit had been sworn in the very proceedings. Clearly when a witness enters into the proceedings and gives evidence by way of affidavit or sworn evidence, then they cannot be said to have done other than waive their right to claim privilege against self-incrimination in relation to those very same matters.
Does a plea of guilty, as a bare plea of guilty, amount to a waiver in relation to unexpected proceedings where the witness, as in this case, has been called by the prosecution? Clearly not.
Does a plea of guilty in the context of that plea of guilty being supplemented by a prosecution summary in relation to that charge constitute a waiver, an entry into the proceedings such that there is an inconsistency between her position on plea and the witness’ position on the trial of the accused [Peters]? I do not accept that there has been any such inconsistency.
And in those circumstances, the answer to the second question, does [PD’s] plea of guilty to [perjury, charge 8] constitute a waiver of any privilege that might exist, for those reasons my answer, as foreshadowed, is ‘no’.
[18]Mann v Carnell (1999) 201 CLR 1, 13–14 [28]–[30] (Gleeson CJ, Gaudron, Gummow and Callinan JJ) (‘Mann’).
[19]R v Guariglia [2000] VSC 13, [27]–[28] (Byrne J).
[20]Registrar, Supreme Court of South Australia v Zappia (2003) 86 SASR 388, 406 [68] (Bleby J) (‘Zappia’).
[21]Rice v Gordon (1843) 13 Sim 580; 60 ER 225.
The third ruling: Certification
The judge’s third ruling — ‘Ruling Number 3: Certification’ — was delivered on 24 April 2019.
Counsel for the Director asked the judge to certify under s 295(3)(b) of the Criminal Procedure Act 2009 in relation to two questions of law ‘distilled’ by the judge — both of which he answered ‘no’ — set out in his second ruling as follows:
[H]as the common law privilege against self-incrimination been abrogated by the introduction of s 128 of the Evidence Act 2008? ...
[D]oes [PD’s] plea of guilty to charge 8 … constitute a waiver of any privilege that might exist? …
The judge granted certification under s 295(3)(b) with respect to the two questions. He did so, however, fully cognisant of the fact that his second ruling had ramifications for the correctness of the conclusions embodied in his first ruling. As he said, the foundations of his discretionary exclusion of PD’s evidence involved assumptions that PD had a continuing common law right to claim the privilege against self-incrimination in the circumstances that obtained. So far as presently relevant, he said:
In my first ruling of 26 September 2018, for the reasons advanced in that ruling, I exercised my wide discretions to exclude the evidence of [PD] in relation to a charge of perjury against [Peters].
Foundational to that first ruling were the two questions of law, which are set out at [in] my second ruling. …
…
Plainly, the two questions which I have distilled are of great significance concerning the operation of s 128 of the Evidence Act 2008 and the question of waiver of the privilege by a plea of guilty to a charge. ...
The questions of law that I decided in that second ruling are, in my view, of sufficient importance to the trial to justify it being determined on an interlocutory appeal as foundations of my discretionary exclusion, involved assumptions that the witness had a common law right to claim privilege against self-incrimination in relation to a further charge of perjury before the jury to be empanelled in the trial for [Peters], and also, her plea of guilty to charge 8 did not constitute a waiver of that privilege.
If I was wrong in either of those assumptions which underlie my discretionary exclusion of her evidence, then these questions of law have resulted in me ruling inadmissible evidence that would eliminate or at the very least, substantially weaken the prosecution case against [Peters] in circumstances where, at common law, corroboration of the alleged perjury is required. The only source in realistic terms of such corroboration would be the evidence of [PD]. Thus, I am satisfied that the two questions of law are each individually of sufficient importance to justify the matter being determined on an interlocutory appeal.
I am further satisfied that it is appropriate in this case to certify, because the consequential result is that if I am wrong in my second ruling, the prosecution would have been denied an opportunity to make submissions as to the discretionary exclusion relying on what they submit is the correct state of the law.
A question has arisen as to whether I should certify simply in relation to my answers to the two questions above posed in my second ruling under s 295(3)(b), and not as to my first ruling which involved the discretionary exclusion of the evidence with witness [PD] under s 295(3)(a). Insofar as that is concerned, if my rulings on those two questions are wrong, then the approach that I adopted in my first ruling must be revisited and it is appropriate for me to say no more about that.
In the end, the two rulings are so interconnected that it is impossible for the second ruling not to affect in some way the first ruling. On any view, the prosecution is entitled to put its arguments and have a ruling founded upon the correct application of the law. I, therefore, do not intend to certify under s.295(3)(a), as such a certification would be, in the circumstances of this case, otiose. …
Summary of issues raised by the three rulings
In summary, the effect of the judge’s three rulings appears to be as follows. The judge held that:
· first, s 128 of the Act does not abrogate the privilege against self-incrimination at common law;
· secondly, PD’s plea of guilty to perjury did not constitute a waiver of any privilege against self-incrimination;
· thirdly, both of the two forgoing propositions underpin his discretionary exclusion of the putative evidence of PD’s plea of guilty and associated summary of facts;
· fourthly, ‘the two rulings are so interconnected that it is impossible for the second ruling not to affect in some way the first ruling’;
· fifthly, if PD denied the genuineness of her plea of guilty and the summary of facts upon which it was based, potentially she left herself open to be prosecuted for perjury;
· sixthly, if PD invoked the privilege against self-incrimination, in circumstances in which the prosecution had tendered evidence of her plea of guilty and summary of facts as a statement (to prove the truth of its contents), the defence would have no capacity to test the evidence; and
· seventhly, the evidence of PD’s plea of guilty and the associated summary of facts should be excluded in the exercise of discretion — in particular the Haddara discretion — to ensure that Peters receives a ‘fair trial’.
The Director’s grounds of appeal and contentions in support
Although the application for leave to appeal is directed specifically to the second ruling, as his Honour recognised, the first and second rulings ‘are so interconnected’ that it is impossible to determine the application without also examining the correctness of the first ruling.
The Director relies on two grounds of appeal which assert that the trial judge erred in finding that:
1. … the common law privilege against self-incrimination has not been abrogated by the introduction [of] section 128 of the Evidence Act 2008; and
2. … the witness [PD’s] plea of guilty on indictment E13215248 did not constitute a waiver of any privilege that might exist.
Particulars:
His Honour erred in holding that the privilege against self-incrimination can be invoked in respect of the crime of perjury committed in the same proceedings as those in which the privilege is claimed.
Under cover of the first ground, counsel for the Director contended that although the privilege against self-incrimination is ‘a basic and substantive common law right’,[22] it may be abrogated by statute either by express words or necessary implication (paying due regard to the principle of legality). Despite the fact that s 9 of the Act preserves the continuation of certain pre-existing common law principles and rules, given that the Act constitutes a major reform of the law of evidence, care must be taken in interpreting its provisions in the context of the pre-existing common law. Primacy must be given to the statutory language.
[22]Reid, 11 (Toohey, Gaudron J, McHugh and Gummow JJ).
Significantly, the Director’s counsel submitted, s 128 of the Act represents a fundamental departure from the common law; and ‘abrogated the common law privilege of self-incrimination in respect of proceedings to which the Act applies’. Unlike the position at common law, under the Act:
· a witness with a valid objection may choose to give evidence with the protection of a certificate;
· the court can compel the witness to give evidence with the protection of the certificate; and
· section 128 does not provide protection against exposure to civil damages, forfeiture or ecclesiastical censure.
Counsel submitted that s 128(4) of the Act provides that a witness can be compelled to give evidence which might tend to incriminate him or her if the court finds that it is in the interests of justice to require it. It has been held that s 128 constitutes an express abrogation of the common law privilege of self-incrimination (albeit that the loss of the privilege is confined by the protection given by a certificate).[23] In the present case, the judge erred by holding the common law privilege against self-incrimination was not abrogated by s 128 of the Act.
[23]Clayton Utz (a Firm) v Dale (2015) 47 VR 48, 106–7 [164] (Ashley, Tate and Ferguson JJA) (‘Dale’).
Under cover of ground 2, the Director’s counsel argued that the privilege against self-incrimination is capable of being waived. Such waiver can be express, implied or imputed by operation of law. It occurs when a person entitled to the protection afforded by the privilege performs an act which is inconsistent with the subject-matter it protects. By her plea of guilty to charge 8, so it was submitted, PD waived any privilege against self-incrimination she might have had because her plea of guilty is inconsistent with the maintenance of the privilege. Whilst there is authority for the proposition that the making of an out-of-court statement does not constitute a waiver of the privilege against self-incrimination in the event that the maker is later called to give evidence,[24] that situation is distinguishable from the present where PD made a plea of guilty in open court.
[24]Reid, 11–12; Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412, 424 (Kirby P), 432 (Clarke JA) (‘McFadden’).
Finally, counsel for the Director submitted that the privilege against self-incrimination has no application to perjury committed in the same proceeding as those in which the privilege is claimed.[25] It is fundamental that in a criminal trial a witness in PD’s position is compellable; must take an oath or affirmation to tell the truth; and is subject to the sanction of perjury if he or she deliberately gives evidence which he or she knows to be false (or does not believe to be true). The judge’s ruling, it was contended, undermines these fundamental principles since it effectively holds that the privilege applies where a person indicates that they may perjure themselves, thereby avoiding their obligation to give truthful evidence.
[25]J D Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017), [25160]. The learned author notes that ‘Rice v Gordon (1843) 13 Sim 580; 60 ER 225 denies the privilege, as do Emanuel v Emanuel [1982] 2 All ER 342; [1982] 1 WLR 669 and Distributori Automatici Italia SpA v Holford General Trading Co Ltd [1985] 3 All ER 750 at 755; [1985] 1 WLR 1066 at 1073, but the latter two cases were ex parte decisions. Cobra Golf Inc v Rata [1998] Ch 109 at 158; [1997] 2 All ER 150 at 193 did no more than assume the correctness of these cases, the first of which was doubted in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 413–14; [1980] 2 All ER 273 at 284–5 and in Memory Corp plc v Sidhu [2000] Ch 645 at 659–60; [2000] 1 All ER 434. Registrar, Supreme Court of South Australia v Zappia (2003) 86 SASR 388; [2003] SASC 276; at [72]–[73] and [76]–[78] holds that the privilege does not apply on grounds of waiver, but the waiver does not extend to questioning on the same topic in subsequent proceedings. Attorney-General (Vic) v Wallace (1982) 65 FLR 15 at 24 (Vic SC) assumes that the privilege applies, but does not discuss Rice v Gordon or Emanuel v Emanuel. See also Zappia v Registrar of the Supreme Court (2004) 90 SASR 193; [2004] SASC 375; at [49]–[59]’.
The respondent’s submissions
Counsel for Peters submitted that the common law privilege against self-incrimination is without exceptions, and is only subject to limitation by abrogation by statute, or by waiver. There is a presumption against legislative interference with that right unless an intention to do so is clear. Section 128, counsel submitted, does not abrogate the common law right against self-incrimination expressly. It is not a code,[26] but rather a provision to facilitate the giving of certain evidence, under the protection of a certificate, that was previously protected by the common law privilege against self-incrimination. Indeed, s 9(1) provides that ‘the Act does not affect the operation of a principle or rule of common law or equity in relation to a proceeding to which the Act applies, except so far as this Act provides otherwise expressly or by necessary intendment’.
[26]Counsel cited Tsougranis, 219–20 [40].
Properly construed, counsel contended, s 128 of the Act is a provision that facilitates the giving of previously privileged evidence under the protection of a certificate. To the extent that evidence is not protected by a certificate issued pursuant to s 128, it was submitted that the common law privilege against self-incrimination has not been abrogated. Section 128 provides no exception preventing the privilege being claimed for perjury committed in the same proceedings as those in which the privilege is claimed. To the extent that a witness is not entitled to the protection of a certificate, as was the case here, his or her common law right to claim privilege against self-incrimination is not abrogated by s 128. PD could not avail herself of the protection of a certificate for two reasons: first, under s 128(7) of the Act, a certificate granted under s 128(5) would offer her no protection against self-incrimination in relation to a charge of perjury in respect of the falsity of the evidence that was the subject of her claim of privilege; and, secondly, pursuant to 128(1) of the Act, she did not have a right to object where the objection related to self-incrimination in respect of a future act (that is, the giving of the evidence in dispute).
Peters’ counsel submitted that PD’s plea of guilty to perjury did not constitute a waiver of her right to claim privilege. There was nothing inconsistent between her previous plea of guilty in a separate proceeding and her claim of privilege in respect of the peril of a fresh charge of perjury relating to the same subject matter. On the contrary, counsel submitted, as soon as she became aware of her right to claim the privilege, she did so. In circumstances where the ‘certificate regime’ did not apply to PD’ s evidence, her overarching common law right to claim privilege against self-incrimination was not abrogated. The trial judge was correct to so find.
As to the second ground of appeal, Peters’ counsel submitted that waiver of the right to claim privilege against self-incrimination will occur when a witness conducts himself or herself inconsistently with the purpose of the privilege; for example, by voluntarily testifying about a matter in respect of which they later, in that same proceeding, seek to claim privilege. It was submitted that, contrary to the Director’s contentions, the question is not whether PD’s conduct was inconsistent with maintaining the ‘confidence’ of a claim of privilege, but whether her plea of guilty to a charge of perjury in other proceedings is inconsistent with her claiming privilege in Peters’ trial, so as to avoid exposing herself to prosecution on a fresh charge of perjury on the same subject-matter. As to that, counsel submitted that there was no inconsistency, advancing at least five reasons:
· first, PD’s plea of guilty was made in a separate proceeding, in circumstances in which it has been held that out of court admissions,[27] or sworn evidence given in separate proceedings,[28] cannot constitute a waiver of the privilege against self-incrimination in later proceedings;
[27]Citing McFadden, 424 (Kirby P), 432 (Clarke JA); and Tsougranis.
[28]Citing Zappia, 407–8 [76]-[78] (Bleby J) (‘Zappia’).
· secondly, PD’s plea was not a representation made on oath, at best amounting to an admission to the elements of the offence and an acceptance of that part of the summary of prosecution opening for the purposes of sentencing (and for no other purpose);
· thirdly, on the Basha hearing, PD gave an explanation for why she entered the guilty plea, such that her plea of guilty could not be said to amount to a true plea;
· fourthly, PD was not a ‘volunteer’ in the present proceedings, having refused to make a statement when requested by the informant, and having unwillingly presented herself to give evidence in response to a subpoena from the prosecution; and
· fifthly, PD invoked the claim of privilege not to avoid being cross-examined about the falsity of her previous representation, but to avoid the prospect of being charged with a fresh charge of perjury arising out of any evidence she might give in the present proceeding that was inconsistent with her plea of guilty (and the prosecution case against Peters).
Far from acting inconsistently with asserting her right to claim the privilege against self-incrimination, counsel submitted, as soon as she became aware of her right to do so, PD asserted it. Accordingly, the judge was correct to find that PD’s plea of guilty did not constitute a waiver of her right to claim the privilege.
In supplementary written submissions, counsel for Peters submitted that there was no occasion for this Court to consider the correctness of Haddara. He assigned three reasons. First, the present application for leave to appeal is concerned solely with the second ruling, whereas the exercise of the Haddara discretion was limited to the first ruling. No party having directly challenged the existence of the discretion, the Court should — as did the High Court in Dunstall — conclude that the present case is an inappropriate vehicle to determine the existence of the discretion or its scope. Secondly, and in any event, the exercise of the discretion to exclude the relevant evidence did not depend on the exercise of the Haddara discretion. Rather, so it was submitted, the trial judge considered there was an overwhelming case to exercise ‘any one of the various discretions [he] adverted to’. Unlike Haddara or Dunstall, other relevant discretions were engaged, so that ‘the residual fairness discretion had no specific work to do’. Thus, Peters’ counsel contended, even if the exercise of the discretion in the first ruling had been attacked directly in this proceeding, and even had that attack involved a challenge to the existence of the Haddara discretion, and even had the court departed from its earlier decision in Haddara, that would not alter the outcome of the first ruling. Thirdly, this is not a case where a question arises as to whether this court is, or should be, bound by the obiter dicta in Dunstall. The court in that case, so it was submitted, expressly left open the question of the existence of a residual unfairness discretion. Haddara remains the law in Victoria; for this court to depart from it would require it to consider the decision not merely erroneous but to be ‘plainly wrong’ (and then to engage with a range of other relevant considerations).[29]
[29]Counsel cited Commissioner for State Revenue v Challenger Listed Investments Ltd (2011) 34 VR 617, 621–22 [20]–[23]; DPP v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81, 107 [117]; Gett v Tabet (2009) 254 ALR 504.
Abrogation of the common law privilege against self-incrimination and waiver
As the authorities make clear, the privilege against self-incrimination is deeply embedded in the common law, and may only be nullified by express words or necessary intendment. Thus, this Court observed in R and M v IBAC:[30]
[30]R and M v Independent Broad-based Anti-corruption Commissioner (2015) 47 VR 148, 159–60 [32]–[34] (Priest, Beach and Kaye JJA) (citations as in reported version).
… By the middle of the seventeenth century the privilege against self-incrimination, expressed in the Latin maxim nemo tenetur seipsum prodere (or accusare) — no one is bound to betray (or accuse) himself — was entrenched.[31] It arose out of great political and social upheaval provoked by the abuses of compulsory interrogation at the hands of the judges of the Star Chamber and High Commission. And although it arose from legislative change, it is now firmly embedded in the common law, and remains an important and embedded protection of the individual against the excesses of the state.
Its importance was discussed in Hammond,[32] a case where a person who had been committed for trial on a charge of conspiracy to commit an offence against the law of the Commonwealth in connexion with the export of meat, was called to give evidence before a Royal Commission and was questioned about the conspiracy on which he had been committed for trial. In that context, Brennan J observed of the privilege against self-incrimination:[33]
... it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged. Some reference to the development of the principle may be found in Stephen’s History of the Criminal Law, vol. I, ch. XI and Glanville Williams, The Proof of Guilt, 3rd ed (1963), ch 3. Its importance is eloquently described by Brown J in delivering the opinion of the Supreme Court of the United States in Brown v Walker:[34]
‘The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. ... [The abuses of interrogation which were] so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence.’
An accused person may not be deprived of his immunity from interrogation by the exercise of the prerogative power to appoint a Commission of Inquiry and Report. Whether the Parliament could deprive him of that immunity when he stands charged with an offence against a law of the Commonwealth is a question which need not now be determined, for it is not to be thought that Parliament, in arming a Commissioner with the powers to be found in the respective Acts, intended that the power might be exercised to deny a freedom so treasured by tradition and so central to the judicial administration of criminal justice.
It is because the privilege is so treasured by tradition, and so central to the administration of criminal justice, that its legislative nullification may only ‘be made clearly by express words or by necessary intendment’,[35] and by ‘clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom’.[36]
[31]Environment Protection Authority v Caltex Refining Co Pty Ltd (1992) 178 CLR 477, 526–7 (Deane, Dawson and Gaudron JJ); John H Wigmore, ‘The Privilege Against Self-Crimination: Its History’ (1901–02) 15 Harvard Law Review 610, esp 633–4; Suzanne B McNicol, Law of Privilege (Law Book Company, 1992) 137.
[32](1982) 152 CLR 188, 202–3.
[33]Ibid.
[34](1896) 161 US 591, 596–597 [40 Law Ed 819, 821].
[35]X7 (2013) 248 CLR 92, 143 [125] (Hayne and Bell JJ).
[36]Coco v The Queen (1994) 179 CLR 427, 437–8 (Mason CJ, Brennan, Gaudron and McHugh JJ); Lee (2013) 251 CLR 196, 309 [310] (Gageler and Keane JJ).
There is no doubt that at common law the privilege against self-incrimination applied to non-judicial as well as judicial proceedings,[37] and extended to situations beyond that of a witness giving evidence.[38] Thus, in certain situations, the privilege extended to discovery and interrogatories in judicial proceedings, and to situations such as the production of documents and information in response to statutory notices.[39] Significantly, s 128 is limited in scope to a witness who objects to giving evidence in a court.
[37]See Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 337, 341 (Mason ACJ, Wilson and Dawson JJ), 347 (Murphy J); Baker v Campbell (1983) 153 CLR 52, 127 (Dawson J).
[38]Although the privilege has been recognised to have three aspects — a privilege against self-incrimination in criminal matters; a privilege against self-exposure to a civil or administrative penalty and a privilege against self-exposure to the forfeiture of an existing right — we are concerned only to the situation where answering a question would have the tendency to expose a witness to conviction for a crime.
[39]See Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 502 (Mason CJ and Toohey J). See also Dale, 91–4 [118]–[127] (Tate JA, Ashley JA agreeing).
Section 4(1) of the Act provides that the Act applies to all proceedings in a Victorian court, defined in the Dictionary to include the Supreme Court and ‘any other court created by Parliament’, and ‘any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence’. (The Dictionary also defines court to mean Victorian court.)
Turning to s 128, so far as relevant, it provides:[40]
[40]Emphasis added.
128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if 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—
(a)has committed an offence against or arising under an Australian law or a law of a foreign country; …
(2) The court must determine whether or not there are reasonable grounds for the objection.
(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness—
(a)that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b)that the court will give a certificate under this section if—
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii) the witness gives the evidence after being required to do so under subsection (4); and
(c)of the effect of such a certificate.
(4) The court may require the witness to give the evidence if the court is satisfied that—
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b)the interests of justice require that the witness give the evidence.
(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(6) The court is also to cause a witness to be given a certificate under this section if—
(a)the objection has been overruled; and
(b)after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(7) In any proceeding in a Victorian court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence—
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
…
(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.
…
For present purposes, there are several things to notice about the provisions of s 128.
First, s 128 applies to a witness in a court who objects[41] either to giving particular evidence, or to 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). Quite plainly, s 128 is limited in operation to evidence that may tend to prove the past commission by the witness of an offence — one that the witness has committed — and does not extend to the provision of any form of ad hoc indemnity to a witness for the commission of an offence constituted by, or arising out of, the evidence that he or she gives. Hence, although a privilege against self-incrimination for past perjury in other proceedings (and for other past crimes) must be seen to exist, s 128 provides no protection for contemplated future perjury.
[41]See Song v Ying (2010) 79 NSWLR 442, 449 [24], 449–50 [26]–[28] (Hodgson JA, Giles and Basten JJA agreeing).
Secondly, the judge is required to determine whether there are reasonable grounds for the objection.
Thirdly, if the judge determines that there are reasonable grounds for the objection, he or she must to inform the witness that the witness need not give the evidence unless required by the court to do so (under subsection (4)); and that the court will give a certificate if the witness willingly gives the evidence, or the witness gives the evidence after being required to do so (under subsection (4)). The judge must also inform the witness of the effect of the certificate.
Fourthly, the judge must cause the witness to be given a certificate if the witness willingly gives the evidence, or gives it after being required to do so (or the witness’s objection has been overruled and the court finds there were reasonable grounds for the objection after the evidence has been given).
Fifthly, evidence given by a person to which the certificates relates (and evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence) cannot be used against the witness. The certificates does not, however, protect the witness from the evidence being used against him or her in a criminal proceeding with respect to the falsity of evidence. Hence, a certificate under s 128(4) would not protect a witness who deliberately gave evidence which he or she knew to be false (or did not believe to be true) from prosecution — and punishment — for perjury.
Sixthly, the judge may compel the witness to give the evidence if satisfied that the interests of justice require that the witness give the evidence (and that the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country).
Given that s 128 is limited in its operation to a witness who is giving (or is about to give) evidence, it is abundantly clear that it does not cover the field with respect to all aspects of the privilege against self-incrimination. Thus, for example, its provisions have no work to do in the field of discovery or interrogatories in civil cases, or with respect to the production of documents pursuant to statutory notices and similar. But insofar as it relates to witnesses giving evidence, is it a ‘code’, or does the common law still have some work to do?
It must be accepted that the Act is not a complete ‘code’ with respect to the laws of evidence, in that it does not contain a complete statement of all law pertaining to evidence.[42] Thus, a number of topics associated with the laws of evidence are not dealt with by the Act, and for the purposes of criminal proceedings other pieces of legislation (including the Evidence (Miscellaneous Provisions) Act 1958 and Criminal Procedure Act 2009) regulate certain facets of the laws of evidence.[43]
[42]Australian Law Reform Commission, Evidence (Interim Report No 26, 1985) vol 1, [46]; Stephen Odgers, Uniform Evidence Law in Victoria (Thomson Reuters, 2nd ed, 2013) [1.1.40] (‘Odgers’).
[43]Haddara, 100–01 [160] (Priest JA).
Accepting that the Act does not constitute a complete code of the laws of evidence, the next question to be determined is: does Chapter 3 of the Act — headed Admissibility of evidence — constitute a code with respect to the admissibility of evidence?[44] Different answers to that question were given in Haddara. Thus, the majority view of Redlich and Weinberg JJA was that ‘Ch 3 is not to be treated as a code as to the exclusion of admissible evidence’;[45] whereas my minority opinion was that Chapter 3 ‘is, in effect, a code with respect to the admissibility of evidence and exclusions’.[46] (Unsurprisingly, perhaps, I still incline to the view I there expressed.)
[44]See Odgers, above n 43, [1.1.40], where the learned author argues persuasively that Chapter 3 ‘constitutes a code for the rules relating to the admissibility of evidence, in the sense that common law rules relating to the admissibility of evidence are abrogated’.
[45]Haddara, 57–8 [12], 72 [57], 77 [70] (Redlich and Weinberg JJA).
[46]Ibid 101 [160], 105–7 [176]–[182] (Priest JA).
It may be distracting, however, to focus on whether the Act generally, or Chapter 3 specifically, constitutes a complete or partial code with respect to the laws of evidence (or aspects of it). A better approach, so it seems to me, is to focus on the terms of s 128, to see whether the section evinces an intention to oust the common law (or facets of it) so far as the privilege against self-incrimination is concerned. Section 9(1) of the Act, it will be remembered, provides that the Act ‘does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment’.
In my view, having regard to the language used, s 128 is intended within its sphere of operation to substitute for the common law. As has been observed, the common law did not admit of any exceptions to the privilege against self-incrimination, which was absolute (unless waived).[47] Section 128 effects a striking and profound change to that state of affairs, permitting a witness to be compelled to give evidence which might incriminate him or her, subject to the witness being provided with a certificate preventing the evidence given under compulsion (or any information, document or thing obtained as a direct or indirect consequence of the person having given evidence) from being used against the witness. Given its radical departure from the common law, I consider it to be tolerably plain that ‘by necessary intendment’ s 128 is designed to ‘affect the operation of a principle or rule of common law’, so far as a witness giving, or about to give, particular evidence, or evidence on a particular matter, is concerned. In such a situation, there is no room for common law principles to continue to intrude.
[47]Reid, 12, 14.
For these reasons, at least so far as the situation of a witness giving (or about to give) evidence is concerned, the judge was wrong to hold that s 128 did not abrogate the common law. Given that the second ruling was premised on the assumption that common law principles still applied to PD’s situation, it cannot be permitted to stand.
Moreover, I consider the parties and the judge to have been in error to approach the matter according to whether PD’s plea of guilty (accompanied by the summary of facts) constituted a ‘waiver’ of the kind that the common law may have contemplated. Once it is recognised that within its area of operation s 128 substitutes for the common law, there is no justification for importing common law principles such as waiver.
To so conclude, however, is not to say that the prior conduct of a witness will necessarily be irrelevant to the decisions that a judge may be called upon to make under s 128. Hence, when 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, s 128(2) requires the court to ‘determine whether or not there are reasonable grounds for the objection’. It is only if the court determines that there are reasonable grounds for the objection that ‘the court is not to require the witness to give the evidence’. It may readily be concluded that s 128(2) requires the court to determine that there are reasonable grounds to conclude that the giving of the relevant evidence might tend to prove that the witness has committed an offence. But I consider that s 128(2) is intended to have wider scope. Thus, in my view, reasonable grounds for the purposes of 128(2) would not exist when the witness has done something inconsistent with the invocation of the protection given by the section.
In considering whether a witness has done something inconsistent with a claim for privilege, and whether therefore ‘there are reasonable grounds for the objection’ to giving evidence, it is likely that the kinds of situations that amounted to waiver of the privilege at common law will provide some guidance to judges called upon to determine whether a witness has reasonable grounds for an objection to giving evidence in circumstances where some antecedent inconsistent or disentitling conduct is relied upon to deny the benefit of the privilege. Thus, the mere making of an out of court statement,[48] or participation in a police record of interview,[49] would not necessarily lead to the conclusion that there are no reasonable grounds for the objection. But if, for example, a witness who had previously given evidence on a topic, made an objection to giving evidence on that same topic in the course of proceedings against a co-offender, and the trial judge came to the conclusion that the real reason underlying the objection was that the witness did not want to provide evidence adverse to the co-offender, that conclusion might provide a sound basis for determining that there were no reasonable grounds for the objection.[50]
[48]See McFadden, 424 (Kirby P), 432 (Clarke JA).
[49]See Dale, 122 [213].
[50]See Zappia, 403 [53], 408 [81], 408 [83].
The judge’s assumption that common law principles of waiver applied — an assumption for which he can be excused making given the approach of the parties — was another premise underpinning the second ruling, and provides a further reason for concluding that the ruling was attended by error and must be set aside.
For these reasons, the grounds of appeal have been made out.
That conclusion, however, does not finally dispose of the matter.
Reconsideration of the first ruling
The judge recognised that the first and second rulings ‘are so interconnected that it is impossible for the second ruling not to affect in some way the first ruling’, and that the first ruling would require reconsideration if the second ruling be found to be in error. It is necessary, therefore, to say something about the first ruling.
As I have indicated, the essential evidence that the prosecution seeks to adduce from PD is that on 27 October 2011 at 11.05 am, she did not personally serve LCF with the relevant Complaint and two Notices of Defence at the corner of William and Lonsdale Streets, Melbourne, on the steps of the Melbourne Magistrates’ Court. The importance of that evidence is, of course, that if PD did not serve LCF with the documents, the claim in Peters’ affidavit of 20 January 2012 (that he was only standing a few metres away when, on 27 October 2011 at approximately 11.05 am, he saw PD serve LCF with the Complaint and two Notices of Defence outside the Melbourne Magistrates’ Court) must be an untrue, perjured statement.
Quite obviously, should PD be permitted to give evidence before the jury, if she asserts that she did not serve the documents on LCF — thereby founding an inference that Peters’ assertion in his affidavit that she did so is deliberately false — there would be no occasion for the prosecution to seek to cross-examine her. It is only if — as it is anticipated she might — she either claims that she did in fact serve the documents, or, alternatively, claims to have no memory one way or the other (which seems presently to be the burden of her evidence),[51] that the prosecution realistically could seek to invoke the provisions of s 38 of the Act. In those circumstances, the prosecution would seek leave under s 38 to cross-examine PD, so as to adduce from her evidence of the plea of guilty that she made to perjury with respect to the relevant affidavit of service, together with the summary of facts presented to the court describing the circumstances of her commission of that offence.
[51]See [25] above.
Having established that PD pleaded guilty to the perjury charge, and that the basis of that charge was that she had falsely sworn that she had served LCF (when in fact she had not), the prosecution will seek to rely on the previous representations implicit in her plea, and those explicit in the summary of facts, to prove the existence of a fact relevant to a fact in issue; that is, that LCF was not served (and that Peters’ assertion in his affidavit that he saw her served is therefore deliberately untrue). In order to adduce the evidence from PD — should she, as is anticipated, fail to give evidence consistent with her plea and the summary of facts — the prosecution will need to seek leave to treat her as an unfavourable witness, bringing s 38 of the Act into play.
So far as relevant, s 38 provides:
38 Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about—
(a)evidence given by the witness that is unfavourable to the party; or
(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c)whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness credibility.
…
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account—
(a)whether the party gave notice at the earliest opportunity of the party’s intention to seek leave; and
…
(b)the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7) A party is subject to the same liability to be cross-examined under this section as any other witness if—
(a)a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and
(b)the party is a witness in the proceeding.
It will be noticed that s 38(1) provides that ‘a party who called a witness’ may — with the leave of the court — question the witness as though the party were cross-examining the witness, concerning subject-matter falling into three categories (the three ‘gateways’ referred to by the judge in his ruling).
At the risk of repetition, PD has not yet been called to give evidence before the jury (the judge having excluded the evidence that the prosecution desires to lead from her, based on an assumption as to what she would say if questioned before a jury). Were the prosecution able to call her, however, if any of the criteria in s 38(1) were engaged — it is not yet known whether any evidence she may give (or fail to give) necessarily would do so — the judge may give the contemplated leave. The effect of s 192(2) of the Act is that, in deciding whether to give the leave, the court is required to take into account matters which include: the nature of the proceeding; the importance of the evidence in relation to which the leave is sought; and the extent to which to grant leave would be unfair to a party (in this case, Peters) or to a witness (in this case, PD).
The principal advantage of the prosecution being able to question PD ‘as though the party were cross-examining the witness’, is that the prosecution will be able to ask PD leading questions,[52] including ‘with the leave of the court, question [PD] about matters relevant only to [her] credibility’.
[52]See s 37 of the Act.
If PD were to say — as it seems to be anticipated she may say if not at liberty to invoke the privilege against self-incrimination — that she disputed the genuineness of her plea of guilty to perjury and the summary of facts upon which it is based, her evidence clearly would be ‘unfavourable to the party’ who ‘called the witness’, in the sense that her evidence would be unfavourable to the case that the prosecution seeks to mount against Peters.[53]
[53]See DPP v Garrett (a Pseudonym) (2016) 257 A Crim R 509 525–6 [64]–[69] (Maxwell P, Redlich and Beach JJA).
Had the judge not foreclosed the possibility, the prosecution would have been in a position to call PD to give evidence in front of the jury. Had she then not distinctly given evidence that she did not serve LCF when called — either by asserting that she did serve LCF or by asserting that she had a faulty memory — her evidence would necessarily have been ‘unfavourable’ to the prosecution, permitting an application to be made by the prosecution under s 38 to cross-examine her. Although the judge would then have had a discretion to exercise, given the importance of the evidence (balanced with other relevant factors), it is likely that leave to cross-examine would be given (even if on terms).
Leave to cross-examine having been given, based on the majority judgment in Power, it would have been open to the prosecution to establish that PD had pleaded guilty to perjury, the fact of that plea in the first place going to PD’s credit.[54] And as was also contemplated by the majority in Power, the prosecution would then be able to adduce evidence of the prosecution summary upon which the plea of guilty was based, to be treated as a prior inconsistent statement.[55] Critically, that having been done, consistently with the majority judgment in Power, the plea of guilty and summary would fall within the hearsay rule exception in s 60 of the Act, and be admitted as evidence of the truth of their contents.
[54]Power, 274 [43]–[44].
[55]Ibid 277–8 [60].
As I have indicated, however, the judge pre-emptively has foreclosed the prosecutions’ ability to seek leave to cross-examine PD under s 38; and, as part of that cross-examination, adduce evidence of her plea of guilty and the associated summary of facts. In my view, he was wrong to have done so.
It cannot be predicted with any certainty what PD’s evidence ultimately might be. She may give evidence that relevantly she did not serve LCF. In that situation there would be no cause for the prosecution to cross-examine her. She may claim — and this strikes me as the likelihood given her evidence on the voir dire[56] — to have no memory whether she served LCF. In that case, given her previous plea of guilty, it would be legitimate to permit the prosecution to treat her as an unfavourable witness and cross-examine her so as to prove her plea and the facts upon which it was based. In light of Power, the plea and summary of facts would then be capable of being used in proof of the facts thereby asserted. And she may, when pressed, say that her plea of guilty was not genuine. Once more, in that situation, it would be legitimate to permit the prosecution to treat her as an unfavourable witness and cross-examine her so as to prove her plea and the facts upon which it was based. Any objection by her under s 128 of the Act could not be upheld, since the putative evidence would not tend to prove that she has committed an offence.
[56]See [25]–[27] above.
In these circumstances, it is difficult (if not impossible) to see that any ‘Pandora’s box of perjury’, or ‘guilt by association with a habitual perjurer’, exists; or that there is ‘an overwhelming case’ for the exercise of discretion to exclude the evidence of PD’s plea of guilty and the associated summary of facts ‘under any one of the various discretions [the judge] adverted to, and in particular the Haddara discretion, in order to ensure that [Peters] receives a fair trial’.
If, because PD does not distinctly give evidence that she relevantly did not serve LCF, the prosecution needs to prove that she pleaded guilty to perjury (and the facts upon which that plea was based), it could hardly be concluded that the probative value of the evidence is outweighed by the danger of unfair prejudice[57] (or otherwise be unfairly prejudicial or misleading and confusing),[58] or that it would result in an unfair trial. PD’s potential evidence is crucial in providing the necessary corroboration of LCF’s evidence. Without it, the prosecution case will be emasculated. The evidence is thus highly probative. It would be contrary to the interests of justice to exclude it.
[57]See s 137 of the Act.
[58]See s 135 of the Act.
Furthermore, even assuming the existence of a residual ‘Haddara discretion’ to reject any evidence if the strict rules of admissibility would operate unfairly against the accused (in the sense that the accused’s trial would be unfair) — an assumption that strikes me as doubtful in light of Dunstall — I cannot see that there is any room for the application of such a discretion in this case. The possibility of a ‘Pandora’s box of perjury’ being opened, or of ‘guilt by association with a habitual perjurer’, is largely chimerical. If it legitimately could be said that an unfair trial might result every time a prosecution witness appeared to have put themselves in the camp of the defence, so that the prosecution needed to treat them as unfavourable (and thereby raising the spectre of possible perjury and guilt by association), many trials would never be able to proceed. Peters’ counsel asserts that if PD traverses her plea of guilty — and that remains a substantial ‘if’ — he will effectively be unable to cross-examine her. I am not sure why that is so. Notwithstanding the formidable difficulties that he might face, he will still be capable of endeavouring to obtain evidence from her that she did indeed serve her sister; and, if necessary, that her plea of guilty was not genuine. Moreover, he will not be shut out from producing evidence as part of an affirmative defence based on the truth of service having been effected. Additionally, any risk of Pandora’s box being opened, or of the jury
reasoning on the basis of guilt by association, may be acceptably ameliorated by appropriate jury warnings.
Conclusion
Leave to appeal against the interlocutory decision constituted by the second ruling should be granted; the appeal should be allowed; and the interlocutory decision should be set aside.
NIALL JA:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. I agree that the appeal should be allowed and the ruling of the judge set aside.
I agree, for the reasons given by Priest JA, that s 128 of the Evidence Act applied to the exclusion of the common law in respect of the evidence of PD. It was not in dispute that, in the event s 128 applied, PD was not entitled to invoke the privilege against self-incrimination in the circumstances. That was because there were no reasonable grounds to conclude that any evidence she might give may tend to prove that she had committed an offence in relation to the service of the court documents which had not already been dealt with by her plea of guilty. Her evidence could not have exposed her to any further risk of prosecution.
Further, s 128 applies to evidence that may tend to prove the commission of an offence that has already occurred and provides no immunity to a witness to refuse to answer a question on the basis that the answer may be untruthful and render the witness liable to prosecution for perjury.
Since the claim of privilege was to be determined by reference to s 128 and not common law, there is no occasion to consider whether the common law afforded a witness protection in the event a judge believes on reasonable grounds that the
witness may be about to give false evidence. This appears to be the premise on which the judge proceeded. However, it must be doubted that this could be so. The concern of the privilege against self-incrimination is to protect a person from being convicted of an offence, as a consequence of their own evidence. Allowing a witness to avoid answering a question because the answer may render the witness liable to prosecution for perjury does not accord with the purpose or rationale of the privilege.
Given that s 128 of the Evidence Act applied and was not available to PD, it is not necessary to consider whether her plea of guilty and her agreement to the summary of facts amounted to a waiver. In my respectful view, it is preferable to defer the determination of whether, and in what circumstances, waiver may operate to preclude a claim of privilege under s 128 to a case in which it is decisive.
Finally, I agree with the additional observations of Priest JA in relation to the first ruling of the judge.
In the circumstances, the orders proposed by Priest JA should be made.
CROUCHER AJA:
I have had the benefit of reading in draft the separate reasons for judgment of Priest JA and Niall JA.
First, I agree, for the reasons Priest JA gives, that s 128 of the Evidence Act applied to the exclusion of the common law privilege against self-incrimination in so far as PD might give evidence concerning whether or not she served documents on LCF on the occasion in question and related matters.
Secondly, as Niall JA points out, given that s 128 applied but was not available, there is no necessity to consider whether the circumstances of and surrounding her plea of guilty amounted to a waiver.
Thirdly, like his Honour, I think it is preferable to defer the determination of whether, and in what circumstances, waiver may operate to preclude a claim of privilege under s 128 to a case in which it is decisive.
Fourthly, however, I do not consider it necessary to express any opinion on what the judge might do in view of the error in respect of the availability of the privilege against self-incrimination. It is enough to say, as the trial judge himself acknowledged, that any such error would require him to reconsider his ruling with respect to the admissibility of the evidence of the plea of guilty and the summary, should that issue arise. How his Honour might decide the matter if pressed again to exclude the evidence, and how he might deal with any application under s 38 of the Act (should that arise), are entirely for him.
Since the error concerning the availability of the privilege against self-incrimination is enough to compel the orders proposed by Priest JA, I agree that those orders should be made.
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