Khoi & Khoi
[2022] FedCFamC2F 932
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khoi & Khoi [2022] FedCFamC2F 932
File number: MLC 9955 of 2021 Judgment of: JUDGE TURNBULL Date of judgment: 10 June 2022 Catchwords: FAMILY LAW – PROPERTY – jurisdiction
EVIDENCE LAW – PRIVILEGE – self-incrimination – certificate under s 128(3) – where affidavit material read into evidence prior to any objection
Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth)
Cases cited: Cornwell v The Queen (2007) 231 CLR 260
Ferrall v McTaggart [2000] FamCA 1442
Field v Kingston [2018] FamCAFC 145
Forlan v Forlan [2017] FamCA 58
Lewis Securities Ltd v Carter [2017] NSWSC 412
LGM v CAM [2011] 328 FLR 227
Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354
Ross v Internet Wines Pty Ltd [2004] NSWCA195
Shanahan v Jatese Pty Ltd [2018] NSWCA 1097
Song v Ying [2010] NSWCA 237
Secondary sources: Stephen Odgers, Uniform Evidence Law (Lawbook, 16th ed, 2021) Division: Division 2 Family Law Number of paragraphs: 43 Date of hearing: 19-20 May 2022, 8 June 2022 Place: Heard in Hobart, delivered in Launceston Counsel for the Applicant: Ms Wilson Solicitor for the Applicant: Doan Legal Counsel for the Respondent: Mr Rothschild Solicitor for the Respondent: Brendan Rothschild Legal Group ORDERS
MLC 9955 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KHOI
Applicant
AND: MS KHOI
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
10 JUNE 2022
THE COURT ORDERS THAT:
1.Pursuant to section 128 of the Evidence Act 1995 (Cth) a Certificate issue in regard to the Applicant’s evidence, under cross-examination, given from 11.28 a.m. on 20 May 2022.
2.The matter remain listed for final hearing commencing 21 November 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Khoi & Khoi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE TURNBULL
These are ex tempore reasons for judgment.
Mr Khoi, the Applicant, initiated financial proceedings on 8 September 2021 against Ms Khoi, the Respondent. The Applicant seeks interim orders as to disclosure and certain injunctions against the Respondent dealing with property. He has not yet particularised the final orders sought under pt VIIIAB of the Family Law Act 1975 (Cth). The parties disagree as to the jurisdictional question of whether, as a matter of fact, they were, at any time, in a de facto relationship. If the Applicant cannot show, on the balance of probabilities, that he and the Respondent were, at any time, de facto partners, then his application for a final order under pt VIIIAB of the Family Law Act cannot continue.
It was upon this threshold issue that the parties came before me for a final hearing on 19 May 2022 as listed by Alstergren CJ on 8 March 2022. The trial continued to 20 May 2022 and was further adjourned part-heard to a date in November for a further five days. The jurisdictional proceedings also involved some evidentiary proceedings with respect to a certificate pursuant to s 128 of the Evidence Act 1995 (Cth).
Submissions in relation to that issue were finalised on 8 June 2022. This judgment relates to that issue.
The essential question is whether or not a s 128 certificate should issue in relation to evidence that the Applicant was asked to provide in response to questions under cross-examination regarding a certain Centrelink document, as well as his evidence set out at paragraph 11 of the Applicant’s affidavit filed 17 May 2022 and paragraph 46 of his affidavit filed 5 May 2022.
The relevant part of paragraph 11 of the Applicant’s affidavit of 17 May 2022 states:
…
Subsequently Ms Khoi’s solicitor continued to make unfounded allegations I was attempting to hide my relationship status in the Centrelink information. In response, my solicitor pointed out to Ms Khoi’s solicitor that in the Centrelink information provided it was clearly stated I was ‘Not Partnered’ during 2014 and 2021.
Now produced and shown to me and marked as Annexure “6” is a true copy of my solicitor’s email dated 2 March 2022.
…
In 6, the Applicant’s solicitor states:
Our client confirms he has complied with the Orders of 24 November 2021 by providing your client with Centrelink records containing details of his relationship status through service by email transmission on 22 December 2021.
We again attach Centrelink records for ease of reference. For greater clarity, we refer your client to page 4 wherein it is stated our client was not partnered as being the status of his relationship, meaning that he was not in a relationship whilst in receipt of Centrelink payment.
Paragraph 46 of the Applicant’s affidavit filed 5 May 2022 states:
In December 2021 I went to [the] Centrelink office to apply for financial support as I could not find work. A staff member informed me I have a debt to Centrelink and provided me with a copy of a letter about my debt. The letter is addressed to Ms Khoi and states, among other things, “This is a copy of a letter we have sent to Mr B for whom you are the nominee”.
Now produced and shown to me and marked as Annexure “-21” is a copy [of] the Centrelink letter. …
There is nothing in paragraph 46 of the 5 May 2022 affidavit, nor in the annexure, that could be regarded as incriminating. The extracted part of paragraph 11 of the 17 May 2022 affidavit is, however, potentially incriminating if the court ultimately finds that the parties were in a de facto relationship at any time between 2012 and 2021.
Section 128 of the Evidence Act, in relation to the privilege in respect of self-incrimination in other proceedings, states:
(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; or
(b)is liable to a civil penalty.
(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 an Australian court:
(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.
(9)If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.
(10)In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:
(a)did an act the doing of which is a fact in issue; or
(b)had a state of mind the existence of which is a fact in issue.
(11)A reference in this section to doing an act includes a reference to failing to act.
(12)If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by the person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.
In Field v Kingston [2018] FamCAFC 145 the Full Court considered the question as to what was required before evidence in chief could receive the protection of a s 128 certificate. In that case the wife sought a certificate before she filed an affidavit containing information that may have incriminated her. The Full Court stated, at [17]:
To “object” to giving evidence, in the sense relevant to s 128(1) of the Evidence Act, means more than being disinclined to give the evidence. As the authorities demonstrate, the objection is to being “required” or “compelled” to give evidence which may tend to incriminate the witness. This is to be contrasted with a witness seeking the protection of a s 128 certificate for evidence in chief in order to gain a forensic or tactical advantage as to how the evidence is adduced.
The Full Court then cited Cornwell v The Queen (2007) 231 CLR 260:
As to the meaning of the word ‘object’ in the context of section 128 the plurality said:
112.The view that the accused’s claim of privilege in all the circumstances answered the requirements of section 128(1) has difficulties. It strains the words ‘objects’ in section 128(1). It also strains the words ‘require’ in section 128(5) for how can it be said that a defendant witness is being required to give some evidence when his counsel has laid the grounds for manoeuvres to ensure the defendant witnesses desire to give evidence is fulfilled?...
Thus before a section 128 certificate can be sought, the witness must be “required” or “compelled” to give the objected to evidence. That issue was further considered in Song v Ying [2010] NSWCA 237 …
20.Plainly, in my opinion, if a witness gives evidence in chief because actually compelled to do so (by subpoena or threat of imprisonment or because of the availability of such compulsion if he or she does not do so) there is no reason why that witness may not object to giving evidence in chief on the grounds that the evidence may tend to incriminate. The question in my opinion is not whether or not the evidence is given in chief or in cross-examination but rather whether an objection under section 128 is limited to an objection to giving evidence which the witness would otherwise be compellable to give.[1]
[1] Field v Kingston [2018] FamCAFC 145, [21]-[22].
The Full Court then referred to the decision in Ross v Internet Wines Pty Ltd [2004] NSWCA 195, confirming that if a s 128 certificate is to issue in relation to evidence in chief then it can issue for oral or affidavit evidence. The Full Court also concluded that the existence of rules requiring full and frank disclosure is not sufficient to support an argument that a party is compelled to provide evidence that may incriminate them. The rules cannot impugn or abrogate that party’s privilege against self-incrimination which is a basic and substantive common law right.[2] The discussion of Ross v Internet Wines Pty Ltd by their Honours in Field v Kingston is extracted below:
… The court made a suite of orders which included an order that Ross swear an affidavit disclosing and identifying all funds removed by him from the relevant bank accounts. The orders, clearly contemplating that the evidence may tend to incriminate Ross, further provided that if Ross wished to make a claim for privilege against self-incrimination in relation to the affidavit he was ordered to swear, he must deliver to the primary judge’s associate the sworn affidavit as ordered together with an affidavit supporting the claim to privilege with the intention that the documents would be inspected by the primary judge who would then assess the claim of privilege. Ross appealed.
In allowing the appeal, the New South Wales Court of Appeal considered the effect of the ordered disclosure on a claim for privilege against self-incrimination and concluded that the order to make disclosure had the effect of compelling Ross to give evidence but by requiring the delivery of the affidavit in advance of making a claim to privilege, the orders had infringed the privilege against self-incrimination. Giles JA said:
101.... But by compliance with the obligation [to swear the affidavit] his fundamental common law right would already be infringed. In order to have his claim to privilege determined, he would have to disclose the material which he said was incriminatory and should not be disclosed. There would be offence to the principle underlying the observation of Lord Denning MR in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 574, that a witness “should not be compelled to go into detail – because that may involve his disclosing the very matter to which he takes objection”. See also Accident Insurance Mutual Holdings Ltd v McFadden (at 447 [90] supra) stating that the Court will determine a claim to privilege “without requiring the witness fully to explain how the effect would be produced, for if it were necessary, the protection which the rule is designed to afford the witness would be annihilated”.
102.If the information in the disclosure affidavit tended to incriminate the appellant, he was imperilled because he had brought into existence an incriminatory document: the Respondents’ acceptance of infringement if it had been found that whatever was in the disclosure affidavit would infringe the appellant’s privilege recognised the peril. The Respondents submitted that the appellant was no more imperilled than a person who was ordered by subpoena to produce a document at Court, the order being good and the claim to privilege being made at the time appointed for production. But that is different. The appellant was compelled to make a document which did not previously exist, and no longer had control of the document after its delivery to the judge’s associate: all this without any s 128 certificate.[3]
[2] Ibid [37]-[38].
[3] Ibid [26]-[27]. Emphasis in original.
The Court did say, however, at [44], that
… where a party is directed to file an affidavit and the order specifies the subject matter of the affidavit, the requisite degree of compulsion may well arise permitting the issue of a certificate, for as we have said, it is being compelled to give the evidence which enlivens the privilege, not the means by which the compulsion arises (see Crawford v Crawford (No 3) [2016] NSWSC 704).
The Full Court also confirmed that, pursuant to s 128(2), if an objection is taken to the provision of certain evidence then the court must determine whether or not there are reasonable grounds for the objection. The question for the court is whether
… from the circumstances of the case and the nature of the evidence which the witness is called to give, there are reasonable grounds to apprehend danger to the witness from being compelled to answer.[4]
[4] Sorby v Commonwealth (1983) 152 CLR 281, 289 (Gibbs CJ).
This question of compellability was also considered in Paviello v Paviello [2019] FamCA 735. There, Henderson J allowed a s 128 certificate for a third party before the relevant affidavit was filed. Her Honour distinguished the facts before her from those in Field v Kingston, noting that the third party had been ordered to give evidence by filing an affidavit for the purposes of an arbitration and, as such, was compelled to comply with that order.[5]
[5] Paviello v Paviello [2019] FamCA 735, [38].
I do also note that, although there was no specific order in that case as to what the affidavit was to address, leave had been earlier given for the third party to file an Application in a Case seeking the s 128 certificate.[6] The issue was therefore alive when the order for the filing of the affidavit was made.
[6] Ibid [9].
In Prendergastv Prendergast [2019] FamCA 136, Loughnan J considered whether interlocutory orders, made by consent, for the husband to file and serve submissions in support of an application for a s 128 certificate, compelled the husband to give evidence that May incriminate him. His Honour states:
Given that the orders of 21 September 2018 were made at the husband’s request, the words of Gleeson CJ in Cornwell v The Queen … as recorded in Construction, Forestry, Mining and Energy Union (CFMEU) v Australian Building and Construction Commissioner (2018) 351 ALR 168 are apposite. The husband has conferred on himself the right to give evidence to his own advantage of his criminal conduct and seeks to immunise himself against the consequences of that conduct.[7]
[7] Prendergast v Prendergast [2019] FamCA 136, [31].
His Honour went on to state:
There is no question in my mind that the orders of 21 September 2018 compel the husband to provide evidence. The terms of the orders reveal that the Court was alive to the husband’s claim for a certificate under section 128. There is no challenge to the orders of 21 September 2018 and, in any event, being an order of a superior Court of record, the order stands unless varied. To repeat the words of Hodgson JA in Song v Ying at 221:
26.… A party giving evidence in chief in response to question from that party’s own legal representative is not generally giving evidence which that party is, in a real sense, compelled to give unless called by another party and asked questions in chief by that other party. A party’s evidence in chief is given entirely at the choice of that party and is not evidence that that party is compellable to give at the insistence of anyone else. It is true that a party’s legal representative can ask questions in chief without specific instructions to ask them but if the party instructed the representative to withdraw such questions there would, in my opinion, be no possibility of the witness being compelled to answer the question, at least until it was pressed by another party or the judge in which case, no doubt, section 128 could apply.[8]
[8] Ibid [32]. Emphasis added.
Submissions
Ms Wilson, for the Applicant, submits that there are three reasons, taken together, as to why the Court should find that the Applicant was compelled to give the evidence that he did at paragraph 11 of his 17 May 2022 affidavit as already extracted.
The first is that, by virtue of an order made on 24 November 2021, the Applicant was required to
produce to the Respondent’s solicitors the following documents within 28 days:
(a)any Centrelink records containing details as to the Applicant’s relationship status as declared to Centrelink from January 2014 to 1 June 2021 …
The second reason, it was submitted, is that the Respondent alleges that the Applicant did not comply with the order of 24 November 2021.[9] The Respondent also annexed to her affidavit correspondence between the parties about that issue. The Applicant’s affidavit in reply, it was submitted, therefore had to respond to that allegation.
[9] Respondent’s affidavit, filed 13 May 2022, [109].
The third reason, as submitted, was that there were trial directions made 8 March 2022 by Alstergren CJ which included the following at paragraph 4(a):
4. No later than five days prior to the trial date:
(a)the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondent’s affidavits
It was submitted that these three factors combined resulted in the Applicant being compelled to include the information that he does at paragraph 11 of his affidavit in reply filed 17 May 2022.
Mr Rothschild, for the Respondent, essentially submitted that those three reasons did not actually compel the Applicant to provide the information contained in paragraph 11 of his 17 May 2022 affidavit. Referring to Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354, Mr Rothschild also submitted that once evidence has been given without objection it cannot be said the witness has been compelled to provide it, therefore s 128 cannot apply.
I do note that in both Prendergast and Paviello neither party had yet filed their affidavits and were seeking the protection of a s 128 certificate before they did so. I also note that in the decision of Construction, Forestry, Mining and Energy Union (CFMEU) v Australian Building and Construction Commissioner [2018] FCAFC 4, mentioned earlier, the Full Court adopted the dicta in Cornwell v The Queen and Song v Ying — a witness who is being asked questions during examination in chief, from their own counsel, was not compelled to give such evidence unless called on to do so by another party, and then asked questions in chief by that party or on questioning from a judge.[10]
[10] Construction, Forestry, Mining and Energy Union (CFMEU) v Australian Building and Construction Commissioner [2018] FCAFC 4, [53]-[54], [57]-[58].
In Meiko the Court stated, referring to the Evidence Act 1995 (NSW):
The purpose of s 128 of the Evidence Act may be gleaned from the tenor of the words used within it. Throughout, references are to the giving of future evidence, to which a certificate shall attach: “to giving particular evidence” in s 128(1); “the court is not to require the witness to give that particular evidence” in s 128(2); “If the witness gives the evidence” in s 128(3); “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” in s 128(4); “ … the court may require the witness to give the evidence” in s 128(5). Section 128 does not contemplate that a certificate might issue in respect of evidence already given save where the evidence is given over an objection by the witness to giving evidence.
The terms of s 128 clearly contemplate that a certificate, if granted, is granted prior to the giving of evidence not to evidence which has already been given, particularly where no objection was taken.
To the extent that a certificate can be issued after the giving of evidence, this may occur where the court has ruled but not granted a certificate: Cornwell v R [2006] NSWCCA 116 at [87]–[94]. The certificate in that proceeding concerned answers concerning specific matters, in cross-examination.
A retroactive application of s 128 is unwieldy and is not contemplated by that section. It also undermines the purpose of the section, which is to prevent witnesses from being coerced into giving evidence which tends to incriminate them. Once the evidence has been given, it cannot be said that the witness has been compelled.[11]
[11] Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354, [183]-[186].
Ms Wilson countered by submitting that s 128 contemplates retrospective application in s 128(6):
(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.
The difficulty with that submission is that s 128(6) relates to circumstances in which an objection to evidence being given has been overruled but where, after receiving the evidence, a court finds that there were reasonable grounds for the objection. Here, the Applicant gave his evidence before there has been any objection. Thus, arguably, he was not compelled to give that evidence.
Consideration
I find that the Applicant’s evidence at paragraph 11 of his affidavit filed 17 May 2022, and the annexure, provides a reasonable ground to apprehend danger to the witness.
It is also arguable that the Applicant was compelled to give the evidence as contained in paragraph 11 of his 17 May 2022 affidavit. The order made requiring him to disclose the Centrelink documents, coupled with the order made requiring him to file a responsive affidavit to that filed by the Respondent, when considered together, arguably compelled him to provide the evidence as he did at paragraph 11.
The difficulty is, however, that no objection was taken to the provision of that evidence before it was given. The making of an objection to the giving of the evidence is, in my view, fundamental to the operation of s 128. That section starts, with emphasis added, as follows:
(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, or
(b)is liable to a civil penalty.
(2)The court must determine whether or not there are reasonable grounds for the objection.
Courts have not generally favoured the application of a s 128 certificate to evidence already given. In Uniform Evidence Law, Stephen Odgers SC states:
A distinct issue arises where evidence is given and subsequently an issue of self-incrimination is raised. On the face of it this provision is expressed in the present tense (“objects to giving particular evidence”) and it would be too late to make an objection after the evidence in question has been given. Section 128(6) deals with a situation where an objection is made and wrongly overruled (with the protection given “after the evidence has been given” when the court finds the objection was proper) but not the situation where no objection is made before the evidence is given. It might perhaps be argued that a (very) broad interpretation of “objects” could be extended to the evidence already given but that is unlikely to be successful …[12]
[12] Stephen Odgers, Uniform Evidence Law (Lawbook, 16th ed, 2021), 1168, [EA.128.120].
Later in the text, referring to s 128(6):
This provision does not deal with a situation where no objection is made before the evidence is given. It is unlikely that an “objection” first made after the evidence is given could fall within the scope of section 128(1), though the provision has been applied retrospectively.[13]
[13] Ibid 1176, [EA.128.420].
The footnotes refer to Lewis Securities Ltd v Carter [2017] NSWSC 412 and to a Full Court of the Family Court decision of LGM v CAM [2011] 328 FLR 227, upon which the author remarks further in the footnote:
The Full Court of the Family Court appeared to express the view that s 128 permitted a retrospective grant of a certificate even where no objection had been taken prior to the evidence being given but this view has been rejected as “plainly wrong” by Hammerschlag J in New South Wales Supreme Court in Shanahan v Jatese Pty Ltd [2018] NSWSC …[14]
[14] Ibid.
The commentary goes on to say:
… Of course, one view may be that, in the absence of prior objection, there is no justification for protection to be conferred. That would certainly be the case if there was an informed decision not to make objection prior to giving the evidence. However, that is likely to be rare. In many cases, the witness is either unaware of the right to object or mistakenly believes that protection will be conferred whether or not objection is made.[15]
[15] Ibid
In Shanahan v Jatese Pty Ltd [2018] NSWSC 1097 the court stated:
The question is whether s 128(1) has the effect that s 128 applies if a witness objects to ‘giving’ particular evidence, or evidence on a particular matter after the evidence has been given.
For the reasons which follow, the answer is no. The plain meaning of the text and the structure of s 128 do not accommodate another answer.
…
First, s 128(1) is in the present tense. Section 128 applies only if a witness objects to giving evidence, not to objecting to evidence that has been given.
Second, the objection is taken in relation to particular evidence or evidence on a particular matter. If the objection is taken after the evidence is given, it can only relate to particular evidence. That evidence will then be known. The provision for the objection to be to evidence on a particular matter caters for the fact that the exact scope of the evidence will not yet be known. This is a further indication that the objection must be before the evidence is given.
Third, s 128(2) requires the court to rule on the objection. The remainder of s 128 operates depending on that ruling. If there are no reasonable grounds for the objection, the matter ends there and the witness can be required to give the evidence subject to a certificate later being given under s 128(6) if, after the evidence, the Court considers there were reasonable grounds for the objection.
Fourth, if there are reasonable grounds, the witness gets an option to give the evidence willingly under the protection of a certificate. No option can be exercised as to willingness once the evidence is given. If the witness is unwilling, the court may require the witness to give the evidence if the requirements of s 128(4) are met.
Fifth, s 128(6) operates where there has been an objection which has been overruled and where, after the evidence has been given, the court finds that there were reasonable grounds for the objection.
Finally, s 128(3) has no work to do once the evidence is given because the court will no longer be in a position to require the witness to give it.
…
However, a different conclusion was reached by the Full Court of the Family Court of Australia in LGM v CAM (2011) 46 Fam LR 118 (LGM). A brief exposition of the relevant factual circumstances in LGM is appropriate.
A judge of the Family Court (O’Ryan J) had made orders on 28 November 2007, in property proceedings, that the wife (W) be restrained from withdrawing or disbursing any monies from any bank account except for expenses in the ordinary course of business or for ordinary living expenses. At the conclusion of the hearing of the property proceedings, the husband (H) brought contempt proceedings against W based on alleged breaches of the orders which were said to have been admitted by her in her evidence in the property proceedings.
W was found by a different judge of that Court (Barry J) to have contravened the orders and she was sentenced to imprisonment. The contravention found was that W had written out cheques against her superannuation account. There was a dispute about whether she had dated the cheques, and whether the dates were written approximately at the time of their presentation. Her position was that she had not dated the cheques and had entered into the transactions prior to the date of the orders, and the cheques had been banked by someone else.
The evidence upon which the conviction was based included evidence of W given under cross-examination by counsel on behalf of H during the property proceedings on 20 March 2008 and 29 April 2008. The judgment records that on both of these occasions the cross-examination of W spanned a number of days over periods of months. It also records that she was in prison on both of these occasions.
After extensive cross-examination, it was ultimately put to her that the withdrawals had been directed by her in the full knowledge that the transactions were in breach of the Court’s orders. Counsel for another party raised with the trial judge whether W needed ‘a warning’.
O’Ryan J then said ‘I’ve decided simply to give you the warning, that you’re not bound to answer any questions that may incriminate you, that is to say that may, for example, lead to proceedings against you for breach of those orders.’
After further cross-examination, the same counsel suggested to the trial judge that W again be warned, and counsel for H agreed that W should be warned and he would not object to a certificate being granted. Counsel for H submitted that the certificate be limited to questions asked that day and that it should not apply retrospectively to questions asked of W prior to that day. His Honour apparently accepted this submission.
During the contempt proceedings, counsel for H said that to his recollection the granting of a s 128 certificate occurred in mid or late May, in response to which, Barry J observed that the evidence being relied on pre-dated the granting of the certificate. No further consideration to this issue was given in exchange between counsel and his Honour or in his Honour’s judgment.
The appeal papers before the Full Court apparently did not include the relevant certificate.
The unfairness to which W was exposed is manifest.
In overturning W’s conviction, the Full Court relevantly said of s 128 of the Evidence Act at [155]–[162]:
155.It is obvious from the transcript that at this time O’Ryan J knew that the contempt and/or contravention applications were in the wings because he referred to those proceedings.
156.His Honour granted the wife a certificate but, on the application of the husband’s counsel restricted its operation to prospective evidence, leaving the evidence that the wife had given on the previous occasions unprotected. His Honour did not explain to the wife the effect of the certificate given nor that had he limited its scope.
157.We are of the view that his Honour failed to afford the wife the protection provided by s 128 by not giving her the opportunity of raising her privilege when the questions were first asked in March 2008.
158.It was open to his Honour at any time to grant a certificate notwithstanding that the evidence had already been given. Section 128(6) makes that clear …
159.Section 128 is protective in its operation. It seems to us that answers may at the time of being given appear innocuous but later, in the context of other evidence or answers, take on another complexion that require a warning to be given and a certificate considered. To interpret the section in a way so as to limit the power to grant a certificate only to the point in time at which the condemning evidence is given would be to rob the section of its intent.
160.The very answers in relation to which we believe a warning should have been given formed the basis of the applications for contempt and contravention heard by Barry J.
161.His Honour Barry J was clearly concerned as to whether the wife had been warned as the passages extracted from the transcript of proceedings before him indicate. He derived little assistance from counsel in alleviating his concern. It seems that both his Honour and counsel considered the fact that the certificate eventually given postdated the evidence precluded further consideration of the matter.
162.It was open to his Honour Barry J to exclude the evidence given by the wife under compulsion of cross-examination because she had not been informed or properly informed of her privilege against self-incrimination.
I am mindful that the Full Court is an intermediate Court of Appeal and that, unless I consider it to be plainly wrong, I should follow it. In my respectful opinion, the Full Court was plainly wrong that it was open to his Honour at any time to grant a certificate notwithstanding that the evidence had already been given.
Such circumstances may have the effect that the evidence elicited may not be permitted to be used, but not by dint of issue of a certificate.
I agree with the Full Court that the trial judge had failed to afford W the protection provided by not giving her the opportunity of raising her privilege when the questions were first asked in March 2008.
However, s 128(6) which the Court said made it clear that it was open to his Honour at any time to grant a certificate, in fact, makes the opposite clear.
The sequence contemplated in s 128(6) is that there has been an objection, the objection has been overruled, the evidence has then been given and the court then finds that there were reasonable grounds for the objection after all. In other words, if after the evidence is given, it becomes apparent from that evidence that the objection which was overruled should have been upheld, a certificate is given. The operation of the section is predicated on the fact that the evidence, once given, reveals that an earlier objection taken and overruled should have been upheld. It is protection against an incorrect ruling, not against no ruling. That is the mischief which s 128(6) seeks to avoid.
As the High Court said in Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (2009) 239 CLR 27 at [47]:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
It may be accepted that s 128 is protective in its operation, but that operation is to be determined in accordance with the text of the section.
I observe that in Lewis Securities Ltd (in liq) (2017) 120 ACSR 327 Rein J took, after expressing reservations about it, the approach taken in LGM. His Honour’s judgment does not indicate that he was referred to Meiko.
Mr Chynoweth is not entitled to a certificate under s 128 of the Evidence Act.[16]
[16] Shanahan v Jatese Pty Ltd [2018] NSWSC 1097, [11]-[12], [21]-[26], [28]-[47].
I am reluctant to suggest that the Full Court of this Court has adopted an incorrect approach as stated in Jatese. I do note, however, that the Full Court in Field v Kingston has now adopted, what might be termed a stricter interpretation of s128, when rejecting the earlier Full Court decision on Ferrall v McTaggart [2000] FamCA 1442.
I also note the decision in LGMv CAM related to evidence given whilst the witness was in the witness box as opposed to evidence given in an affidavit. In this case it is not a circumstance where seemingly innocuous answers, given under cross-examination, later took on another complexion. The danger for the Applicant contained in paragraph 11 of his 17 May 2022 affidavit was clear and obvious at the time his affidavit was drafted. Certainly, it would have remained obvious by the time the Applicant’s affidavits were read into evidence at 2:22pm on 19 May 2022.
Given that an objection was not made before the Applicant’s evidence was read, he cannot receive the protection of a certificate pursuant to s 128. This approach adopts the same reasoning as Berman J in Forlan v Forlan [2017] FamCA 58 where it was stated:
It is understood that the expectation of the husband is that if a certificate is granted it would have retrospective effect.
Counsel for the husband referred to the most recent Full Court decision of LGM & CAM (2011) FLC 93-481. In that case the husband sought a s 128 Certificate granted to the unrepresented wife not be retrospective although there were pending contravention and contempt proceedings. The Full Court set aside the orders of the trial judge and the sentence imposed on the wife. The Full Court held that it was open to the trial judge “at any time to grant a certificate notwithstanding that the evidence had already been given”: at [158].
…
The decision of the Full Court in LGM & CAM (supra) may not necessarily be the last word on the matter.
In Cornwell v R (2007) 231 CLR 260 the High Court considered but did not decide whether in the context of criminal proceedings a witness could object to giving evidence when it was part of the material that they were attempting to adduce by way of evidence in chief from themselves.
The New South Wales Court of Appeal in Song v Ying (2010) NSWCA 237 took a different approach and considered that a witness who was compellable by way of subpoena or other process may obtain the benefit of a certificate under s 128 by virtue of that compulsion. The court made it clear that it would not apply to parties who gave evidence in answer to questions from their own counsel as the element of compulsion was not present.
Even if it is accepted that a s 128 Certificate can be given to cover evidence in chief given by a party by way of affidavit (see Ferrall and McTaggart (as trustees for the Sapphire Trust & Blyton & Blyton & A-G (Cth)) (2000) FLC 93-054) and that the certificate can have retrospective effect, I consider that s 128 of the Evidence Act can only have application in circumstances where “a witness objects to giving particular evidence or evidence on a particular matter” for the purposes of a hearing.
The affidavits that have been filed are not filed in preparation of a trial and as Thornton J noted in Turner & Brown (No 2) [2014] FamCA 226 Pt 15.2 of the Rules contains a note that the filing of an affidavit does not make that affidavit part of the evidence, but that affidavits only become evidence when they are relied upon by a party at trial.
Accordingly, it is yet to be ascertained that the affidavit material filed by the father which is the potential focus of a certificate pursuant to s 128 of the Evidence Act was filed in circumstances that may amount to compulsion. It could be argued that the obligations under the Act and the Rules are predicated on the parties making full and frank disclosure, but that does not necessarily equate to the husband being compelled to provide the evidence.
Consequently, I do not consider that s 128 of the Evidence Act has application in the present circumstances and in particular where there has not been any attempt to identify any part or portion of affidavits filed which might give rise to the potential for self-incrimination. The affidavits have not been filed in contemplation that if adopted that they would be used as evidence in chief in any trial setting.[17]
[17] Forlan v Forlan [2017] FamCA 58, [50]-[51], [53]-[59]. Emphasis added.
As stated, the evidence the Applicant sets out in paragraph 11 of his 17 May 2022 affidavit provides a reasonable ground to apprehend danger to the witness being compelled to give the evidence. The difficulty is that the witness gave the evidence without objection. As such, s 128(1) cannot apply to the Applicant’s evidence at paragraph 11 of that affidavit, nor to annexure 6. As a result, a certificate will not issue in relation to that evidence.
I am asked by the Applicant, without opposition, to provide a certificate pursuant to s 128 to the evidence to which the Applicant objected giving whilst being cross-examined in relation to his representations made to Centrelink. The questions from Mr Rothschild, in this respect, began at 11:28am on 20 May 2022, on the second day of the hearing. An objection was made by Ms Wilson at the time the questions were being asked.
In my view, the evidence the Applicant is asked to provide under cross-examination may incriminate him. As such, there is a reasonable ground for the objection and I will provide a certificate pursuant to s 128 of the Evidence Act 1995 for the Applicant’s evidence from 11:28am on 20 May 2022.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 14 July 2022
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