Gin and Hing (No 3) - [2020] FamCA 735

FAMILY COURT OF AUSTRALIA

GIN & HING (NO 3)

[2020] FamCA 735

FAMILY LAW – EVIDENCE – s 128 of the Evidence Act – unauthorised recordings of private conversations – alleged contravention of Surveillance Devices Act – whether respondent has reasonable grounds to object to questioning on the basis that his answers may expose him to self-incrimination – no reasonable grounds demonstrated – objection over ruled – leave to apply under s 128(6) granted after evidence given.

Evidence Act 1995 (Cth), s 128
Surveillance Devices Act 1999 (Vic)

Giannarelli v Wraith (1988) 165 CLR 543
Gin & Hing [2019] FamCA 779

APPLICANT:

Mr Gin

RESPONDENT:

Ms Hing

INDEPENDENT CHILDREN’S LAWYER:

Macgregor Barristers & Solicitors

FILE NUMBER:

MLC

4528

2010

DATE DELIVERED:

1 September 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

1 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr F. Dixon SC with Mr A Robinson

SOLICITOR FOR THE RESPONDENT:

Clancy and Triado

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr D. Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Macgregor Barristers & Solicitors

Orders

Mr Gin’s application for a s 128 certificate under the Evidence Act is refused.
Mr Gin has leave under s 128(e) of the Evidence Act to apply for a certificate under s 128 of the Evidence Act at the conclusion of his evidence.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gin & Hing has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4528 of 2010

Mr Gin

Applicant

And

Ms Hing

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Introduction

On the seventh day of the trial of this proceeding, during the cross-examination of the father, Mr Gin applied for the grant of a certificate under s 128 of the Evidence Act in relation to a discrete part of his cross-examination.

The issue in context

In seeking to invoke s 128 of the Evidence Act Mr Gin objected to providing answers to Mr Dixon SC for the mother about the circumstances surrounding the father’s creation of 13 separate sound recordings taken of the mother and the child. Mr Gin argued that he feared that any answers he might give to Mr Dixon’s questions may incriminate himself under the Surveillance Devices Act 1999 (Vic).
When Mr Gin first raised his objection, he did so under s 128(1) of the Evidence Act. At the time…

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 Gin and Hing (No 3)

Details

AGLC: Gin and Hing (No 3) [2020] FamCA 735
Case: [2020] FamCA 735
Decision Date: 1 September 2020

CaseChat Overview and Summary

This matter concerned an application by Mr Gin for a certificate under section 128 of the *Evidence Act 1995* (Cth) before the Federal Court of Australia. The precise nature of the dispute between Mr Gin and Ms Hing is not detailed in the provided text, but the application for the certificate suggests it relates to the admissibility of evidence that might otherwise be privileged or self-incriminatory.

The primary legal issue before Justice Wilson was whether Mr Gin was entitled to a section 128 certificate at that stage of the proceedings. Section 128 of the *Evidence Act* provides a mechanism for a witness to give evidence that might otherwise be inadmissible due to privilege or self-incrimination, by obtaining a certificate from the court. The court was required to determine if the conditions for granting such a certificate had been met.

Justice Wilson refused Mr Gin's application for a section 128 certificate at that time. However, the court granted Mr Gin leave to apply for such a certificate at the conclusion of his evidence. This indicates that while the court was not satisfied that the requirements for an immediate certificate were met, it acknowledged the possibility of granting one later in the proceedings, contingent upon the evidence Mr Gin would give.

Orders

Orders of the court

Mr Gin’s application for a s 128 certificate under the Evidence Act is refused.

Mr Gin has leave under s 128(e) of the Evidence Act to apply for a certificate under s 128 of the Evidence Act at the conclusion of his evidence.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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