N and S
[2002] FMCAfam 61
•4 March 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| N & S (No.1) | [2002]FMCAfam 61 |
| FAMILY LAW – Practice and procedure – interlocutory decision – issuing of section 128 certificate – Evidence Act 1995 (NSW) – privilege against self incrimination. Evidence Act 1995, s.128 Atkinson and Atkinson (1997) FLC 92-728 |
| Applicant: | S N N |
| Respondent: | R S |
| File No: | PAM1898 of 2001 |
| Delivered on: | 4 March 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 4 March 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Stewart |
| Solicitors for the Applicant: | Ms Coleman Kings Lawyers DX 9803, Newtown |
| Counsel for the Respondent: | Ms Devere |
| Solicitors for the Respondent: | Ms Vincent Watts McCray Solicitors DX 8224 Parramatta |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM1898 of 2001
| S N N |
Applicant
And
| R S |
Respondent
REASONS FOR JUDGMENT
Application
The issue to be decided in this case is whether a witness in residence proceedings before the Court should be given a certificate under section 128 of the Evidence Act 1995 in respect of the evidence he proposes to give. The Applicant proposes to call one Neil Hayes to give evidence in support of her case. Mr Hayes has prepared an affidavit, setting out what he proposes to be his evidence in chief. Counsel for the Applicant, who does not appear for Mr Hayes, has indicated to the Court that Mr Hayes is reluctant to give that evidence without the assurance that the Court will grant him a certificate under section 128, as he fears that some of the material in his affidavit may tend to prove that he has committed an offence arising under an Australian law.
When this matter was last before the Court, the Applicant was granted leave to file Mr Hayes’ affidavit in court. The Applicant was also granted leave to rely upon that affidavit. In his written submission, Counsel for the Applicant, Mr Stewart, states:
“The Applicant seeks the issue of a certificate for Mr Hayes before the Applicant is in a position to finally determine whether she will rely upon the evidence of Mr Hayes, both on affidavit and viva voce.”
Counsel for the Respondent, Ms De Vere, opposes the application. The bases for the Respondent’s objection are:
a)that the application can only be made by the witness himself, not by Counsel for the Applicant;
b)that the application is premature, as it is only when the deponent to an affidavit is required to adopt it that the provisions of the section come into play;
c)that the witness is only entitled to the issue of a section 128 certificate if he or she is compelled to give that evidence; and
d)a section 128 certificate does not necessarily cover all the evidence given by a witness, only that part of the evidence that may tend to incriminate the witness.
The affidavit by Mr Hayes contains some allegations that the Respondent has continued to involve himself in the use of heroin and has sold an amount of methadone. Parts of that affidavit describes incidents that tend to show an involvement by the witness in certain matters involving prohibited drugs, either on his own account or jointly with the Respondent.
The application of section 128 of the Evidence Act in civil proceedings
The relevant provisions of section 128 of the Evidence Act (Cth), which are virtually identical with those of s.128 of the Evidence Act 1995 (NSW), are:
“(1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness:
e)has committed an offence against or arising under an Australian law or a law of a foreign country; or
f)is liable to a civil penalty.
(2)Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:
(a)that he or she need not give the evidence; and
(b)that, if he or she does give the evidence, the court will give a certificate under this section; and
(c)of the effect of such a certificate.
(3)If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence.
(4)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.
(5)If the court is satisfied that:
(a)the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and
(b)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
(c)the interests of justice require that the witness give the evidence;
the court may require the witness to give the evidence.
(6)If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence.
(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 8 applies only to criminal proceedings).
(9)A reference in this section to doing an act includes a reference to failing to act.”
Subsections (10) through to (13) are not relevant to this matter.
Section 128 has been considered by the Full Court of the Family Court of Australia in Atkinson and Atkinson (1997) FLC 92-728, and by a single judge of the Federal Court in Versace v Monte [2001] FCA 1572 (6 November 2001). Section 128 of the NSW legislation, which is essentially similar, has been considered by the NSW Court of Appeal in Vasil v National Australia Bank Limited [1999] NSWCA 161, and by single judges of the Supreme Court of NSW in HMP Industries Pty Ltd v Graham (No. 2728/96, Young J, unreported, 17 July and
27 August 1996); National Australia Bank Limited v Rusu (No. 4371/96 Cohen J, unreported, 13 February 1997; Hamilton J, unreported, 6 April 1998 and 7 May 1998), AMP General Insurance Ltd v Prasad [1999] NSWSC 252 (23 March 1999) and [1999] NSWSC 349 (16 April 1999) (Hamilton J); and Bax Global v Evans [1999] NSWSC 815 (10 August 1999) (Austin J).
It is noteworthy that in each of the above cases the party claiming the privilege against self-incrimination in other proceedings was a party to the litigation, unlike the proposed witness in the proceedings before this court. The significance of this fact is that each of the parties claiming the privilege was under some form of compulsion to give evidence. The party concerned in Atkinson was the respondent to a property application, who was required under Order 17 Rule 3 of the Family Law Rules to make a “full and frank disclosure” of his financial circumstances. In Versace v Monte, the first respondent sought to invoke the privilege against self-incrimination in respect of cross-examination on two particular topics.
The cases under the NSW legislation all concerned the obligation of defendants to make affidavits and produce documents subject to disclosure orders ancillary to Mareva orders. In each case except HMP Industries v Graham, there were concurrent criminal proceedings against the defendants. Quite clearly, the likelihood of orders made by a civil court to compel the defendants to make self-incriminatory disclosures was a very real issue.
Applicability to affidavit evidence
In Bax Global v Evans (at paragraph 32), Austin J referred to “some uncertainty as to whether the deponent of an affidavit is a ‘witness’ for the purpose of s.128 unless he or she gives oral evidence”, noting that Young J in HMP Industries had suggested that “Section 128 seems to envisage the situation where a person is in the position of objecting to giving particular evidence…This scenario suggests that it is applicable only where the witness is in Court. Accordingly…the witness should be asked to give oral evidence.”
In his judgment, however, Austin J adopted the reasoning of Hamilton J in AMP General Insurance Ltd v Prasad, where he said (at paragraph 35):
“The Evidence Act is silent as to the giving of evidence in chief in trials by affidavit, perhaps strangely in that, certainly now (and, indeed, by 1995) evidence in chief is given in almost all trials, at least in this division, by affidavit, and the same is substantially so in the Federal Court of Australia. However, because this practice subsisted at the time of the Act, in my view the Act must be taken to contemplate the giving of evidence in this fashion, and it is also my view that the reading of the affidavit is the most convenient course in this case.”
In adopting Hamilton J’s reasoning, his Honour went on to say (at paragraph 36):
“It appears to me, with respect, that although the giving of oral evidence may be a preferable approach on occasions, the giving of evidence by affidavit is appropriate to attract s.128 for the reasons stated by Hamilton J, and will often be the more convenient procedure.”
Similarly, in Atkinson v Atkinson, Lindenmayer J was in no doubt that the provisions of s.128 of the Commonwealth legislation applies to affidavit evidence:
“I have no difficulty in concluding that a litigant in proceedings in this Court who, in accordance with the rules and/or practice directions which govern practice and procedure in the proceedings, swears and files an affidavit intended to be used as that party’s evidence-in-chief on the hearing of the proceedings, is a witness who may avail himself or herself of the right given by that sub-section to object to giving particular evidence which, in accordance with those rules or directions, he or she would otherwise be obliged to give in that affidavit. This is so notwithstanding that the affidavit will only become “evidence” in the proceedings when it is read or otherwise formally relied upon at the hearing. In such a case, I think it entirely appropriate that the litigant witness state his or her objection and the basis for it, in the affidavit, as the husband in this case purported to do…”[i]
I am of the opinion that the same situation applies in the Federal Magistrates Court. Section 64 of the Federal Magistrates Act 1999 empowers the Court to give directions for evidence to be given orally or by affidavit, and it is the usual practice in this court for evidence in chief in proceedings under the Family Law Act to be given by affidavit.
For the above reasons, I am satisfied that affidavit evidence in this Court is appropriate to attract s.128 of the Evidence Act 1995.
The operation of section 128
Both Lindenmayer J in the Full Court of the Family Court and Austin J in the Supreme Court of NSW make it clear that the operation of the section is a logical progression, beginning with the objection by a witness (whether that person is a party or not) to giving evidence. In Atkinson, Lindenmayer J said:
“Subsection (1) of that section defines the scope of operation of the section. It applies if (and only if) ‘a witness objects to giving particular evidence on the ground that the evidence may tend to prove’ one of two things, namely that the witness either ‘(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’.”[ii]
His Honour went to say that, in order to make the objection, the witness must state the ground with some precision, such as whether the evidence would tend to prove the commission of an offence against an Australian law or the law of a foreign country and identify the particular law or class of laws involved.
In Bax Global v Evans, Austin J said:
“Section 128(1) gives a witness the statutory right to object to giving evidence on the ground that the evidence may tend to incriminate the witness. If it finds that there are reasonable grounds for the objection, the court must not require the witness to give the evidence and must inform the witness that the evidence need not be given but that if it is given, the court will issue a certificate under the section (s.128(2)). If a certificate is given, the evidence and any information obtained as a direct or indirect consequence cannot be used against the witness (s.128(7)). However, s.128(5) allows the court to require the witness to give evidence if it is satisfied of certain things, including that ‘the interests of justice require that the witness give the evidence’. If the court so requires, it must issue a certificate and accordingly the evidence is protected in the same way.”[iii]
In Vasil v National Australia Bank Ltd [1999] NSWCA 161, the appellant had applied to discharge a disclosure order on the basis that it infringed his privilege against self-incrimination. Meagher JA, dissenting, held that an objection on the ground of self-incrimination should be taken, if at all, at the time when the information is required to be given, and not earlier. The majority (Stein and Fitzgerald JJA) held that the judge’s disclosure order was defective because it made no provision for the appellant to claim the privilege, and therefore the real effect of the disclosure order would be to abrogate the privilege itself.[iv]
In my opinion, the effect of s.128 is to give the witness the right to claim the privilege against self-incrimination, when placed in a position where he or she is required to give that evidence. The privilege is that of the witness, not the party seeking to call that person as a witness. The witness may invoke that privilege either by stating that objection in an affidavit, if he or she is required to make an affidavit, or orally, if called upon to give oral evidence.
Conclusions
I am of the view, for the reasons stated above, that the purported objection by the witness has not been properly taken. There is no evidence that the witness is under any compulsion to give evidence. It is not sufficient for the party intending to call a person as a witness to seek a ‘blanket’ certificate on behalf of the witness before deciding whether or not to call that person to give evidence. If a witness chooses to give evidence voluntarily, that person’s evidence in chief will not attract the protection of a certificate under s.128. In such a case, the witness may still invoke the privilege in respect of cross-examination, as Tamberlin J ruled in Versace v Monte (ibid).
Section 128 of the Evidence Act 1995 only applies where a witness objects to giving particular evidence in a situation where he or she is under some compulsion to do so. On the evidence before me,
Mr Hayes is under no such compulsion. Unless and until he is required to give evidence on a particular topic, there are no grounds for issuing a certificate under s.128 of the Evidence Act.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 24 July 2002
[i] Atkinson and Atkinson, (1997) FLC 92-728, at 83817, para 7.21
[ii] ibid at 83817, para 7.20
[iii] Bax Global v Evans, para 29.
[iv] Ibid, discussed by Austin J in para 28.
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