Ewin v Vergara (No 2)

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.