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Ewin v Vergara (No 2)

Ewin v Vergara (No 2)

Case [2012] FCA 1518 12 December 2012

Appeal

Admissibility of Evidence

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FEDERAL COURT OF AUSTRALIA
Ewin v Vergara (No 2) [2012] FCA 1518

Citation: Ewin v Vergara (No 2) [2012] FCA 1518

Parties: JEMMA EWIN v CLAUDIO VERGARA

File number: VID 494 of 2011

Judge: BROMBERG J

Date of judgment: 12 December 2012

Catchwords: EVIDENCE – privilege against self incrimination – Evidence Act 1995 (Cth) s 128 – objection by respondent to give evidence under cross-examination – whether reasonable grounds for the objection as required by
s 128(2) – whether the existence of reasonable grounds denied by the low risk of potential prosecution – whether the privilege conferred by s 128 was inapplicable to a witness who had given evidence voluntarily on the subject matter of the objection – whether in those circumstances such a witness “objects” within the terms of s 128(1) – whether reasonable grounds for the objection were denied because the respondent had waived the privilege – whether common law principles of waiver applicable – whether privilege waived because the respondent voluntarily gave a record of interview to Police – whether privilege waived by reference to the admission of particular facts in a defence – whether privilege waived by reason of the respondent giving evidence in chief or giving evidence without objection in cross-examination on subject matters in respect of which an objection is later sought to be taken under s 128(1) – whether such conduct is inconsistent with the maintenance of the privilege – objection disallowed – whether an objection confined to the giving of evidence without the protection of a certificate given pursuant to
s 128 may have led to a different result.

Legislation:
Crimes Act 1958 (Vic) ss 38, 39, 53

Evidence Act 1995 (Cth) s 128
Evidence Act 1995 (NSW) s 9(1)
Sex Discrimination Act1984 (Cth) ss 14, 28B

Heydon JD, Cross on Evidence (8^th ed, LexisNexis Butterworths, 2010)
Odgers S, Uniform Evidence Law (10^th ed, Thomson Reuters, 2012)

Cases cited: Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (1978) AC 547
Cornwell v R (2007) 231 CLR 260
Song v Ying (2010) 79 NSWLR 442
Mann v Carnell (1999) 201 CLR 1
Workcover Authority (NSW) v Tsougranis (2002) 117 IR 203
Versace v Monte [2001] FCA 1572
BTR Engineering (Australia) (Formerly Borg-Warner Australia Ltd) v Patterson (1990) 20 NSWLR 724
Reid v Howard (1995) 184 CLR 1
Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412
Registrar of the Supreme Court of South Australia v Zappia (2003) 86 SASR 388
Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32
Registrar, Court of Appeal (NSW) v Craven (1994) 126 ALR 668

Date of hearing: 12 December 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 31

Counsel for the Applicant: Mr S Reidy

Solicitor for the Applicant: Susan Moriarty & Associates

Counsel for the Respondent: The respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 494 of 2011

BETWEEN:
JEMMA EWIN
Applicant

AND:
CLAUDIO VERGARA

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ewin v Vergara (No 2)

Details

AGLC: Ewin v Vergara (No 2) [2012] FCA 1518
Case: [2012] FCA 1518
Decision Date

CaseChat Overview and Summary

In the case of Ewin v Vergara (No 2), the applicant, Ms Ewin, claims that she was sexually harassed and unlawfully discriminated against by the respondent, Mr Vergara, in breach of the Sex Discrimination Act 1984 (Cth). Ms Ewin alleges that between 12 and 15 May 2009, Mr Vergara subjected her to unwelcome conduct of a sexual nature, culminating in non-consensual acts of sexual intercourse and assault on 15 May 2009. Mr Vergara denies the allegations and has chosen to defend himself without legal representation. The legal issue in this case revolves around Mr Vergara's objection to giving evidence under cross-examination on certain matters, citing the privilege against self-incrimination under s 128 of the Evidence Act 1995 (Cth). The court was required to determine whether there were reasonable grounds for Mr Vergara's objection and whether the privilege had been waived.

The court found that there were reasonable grounds for Mr Vergara's objection, as the possibility that the evidence sought could lead to a reconsideration by Victoria Police of whether Mr Vergara should be charged was a risk that could not be dismissed as improbable. The court also considered whether Mr Vergara had waived his privilege against self-incrimination by giving evidence in chief and submitting to cross-examination. The court ruled that Mr Vergara had waived his privilege insofar as it related to evidence already given, but he could still object to giving evidence on new matters that were not covered by his previous testimony. The court disallowed the objection in its broad form but allowed Mr Vergara to raise further objections in relation to new evidence.

The final orders of the court were that Mr Vergara's objection to giving evidence under cross-examination was disallowed, but he was given an opportunity to consider whether he wished to take an objection confined to the giving of evidence without the protection of a certificate under s 128 of the Evidence Act.

Orders