COUNSEL: M R LAWSON (appellant) R WINFIELD (respondent)
SOLICITORS: Colin Biggers & Paisley (appellant) Excelsior Lawyers (respondent)
CATCHWORDS: EVIDENCE – Privilege against self-incrimination – compellability of witnesses – Certificate under s 128 of the Evidence Act 1995 – Whether certificate available to a party giving evidence in chief.
DECISION: (1) Appeal dismissed. (2) Appellant to pay respondent’s costs of the application for leave and the appeal
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
2006/257653
GILES JA HODGSON JA BASTEN JA
15 SEPTEMBER 2010
Lida SONG v Ming YING
Headnote
Facts
Section 128 of the Evidence Act 1995 (the Act) 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 has committed an offence against or arising under an Australian law or a law of a foreign country, or is liable to a civil penalty: s 128(1). Under sub-s (4), a court may require the witness to give the evidence if the interests of justice so require. If the witness gives the evidence willingly, or after being required to do so under sub-s (4), the court must cause the witness to be given a certificate under s 128 in respect of the evidence: s 128(5). Evidence given by a person in respect of which a certificate under s 128 has been given cannot be used against the person in any proceeding in a NSW court: s 128(7)(a).
The respondent brought proceedings against the appellant and a company BSS in the Equity Division seeking declarations and consequential orders. The appellant made an application for a certificate under s 128 of the Act in respect of the giving of particular evidence in chief by the appellant.
The appellant appeals against the primary judge’s dismissal of the application.
Issues
Issues arising on appeal:
(i)Whether a certificate under s 128 of the Act is available only in respect…
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.
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Details
AGLC
Song v Ying [2010] NSWCA 237
Case
[2010] NSWCA 237
Decision Date
CaseChat Overview and Summary
The appeal concerned Mr Song (the appellant) and Mr Ying (the respondent) regarding the application of section 128 of the *Evidence Act 1995* (Cth). The central dispute revolved around whether a party giving evidence in chief could avail themselves of the privilege against self-incrimination under section 128. The matter was heard by the Court of Appeal of New South Wales, comprising Giles, Hodgson, and Basten JJA.
The legal issues before the court were whether the availability of a section 128 certificate was contingent on a witness being compelled to give evidence, and more specifically, whether such a certificate was available to a party giving evidence in chief. The appellant argued that the availability of the objection, rather than the compulsion to give evidence, was the determining factor, and that section 128 could apply to parties in chief in certain circumstances, such as when a defendant must disclose their own criminal conduct to defeat a fraudulent claim.
The Court of Appeal dismissed the appeal, finding that the distinction between evidence given in chief and cross-examination was not the primary issue. The court affirmed that under section 12 of the *Evidence Act*, witnesses are generally compellable to give evidence, with refusal carrying penalties. Therefore, if a witness gives evidence in chief under compulsion, or the threat of compulsion, they are entitled to object under section 128 if that evidence may tend to incriminate them. The court adopted the reasoning from *Ferrall*, which held that it would be unrealistic to limit section 128 to cross-examination, as this would grant an inappropriate forensic advantage to the opposing party. The court also noted that in the Family Court, evidence-in-chief is often given by affidavit, and an objection to filing an affidavit without a certificate was analogous to objecting to answering questions in person.
Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the application for leave and the appeal.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Appellant to pay respondent’s costs of the application for leave and the appeal
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Mr Lawson submitted that the application of s 128 could not be determined by reference to whether the witness would be compelled to give the evidence, but for the availability of the objection; and even if it were, that would not exclude the availability of s 128 to parties giving evidence in chief in all circumstances. For example, where a fraudulent claim is made against a defendant, and in order to defeat the fraudulent claim the defendant would have to disclose criminal conduct by himself or herself, there is compulsion on the defendant to give the evidence, because otherwise an unjust judgment will go against the defendant. Again, when a party is giving evidence in the witness box, the conduct of the case is left with the party’s barrister, who can make decisions on forensic aspects of the case and can ask questions that the barrister considers to be in the best interests of the client. If the barrister asks a question, and the witness/party considers that the answer may tend to incriminate him or her, there is no reason why the party should not be able to object under s 128. Decision I would note first that although both in Ferrall and in Cornwell, the focus of the court’s discussion appeared to be on whether s 128 is restricted to questions in cross-examination, in my opinion this is not the real issue. Under s 12 of the Evidence Act, except as otherwise provided in the Act, a person who is competent to give evidence is also compellable to give it. That compulsion can be exercised by use of subpoenas to get witnesses to court and into the witness box; and refusal to answer questions which a witness is compellable to answer (whether in chief or in cross-examination) can result in imprisonment. Plainly, in my opinion, if a witness gives evidence in chief because actually compelled to do so (by subpoena and 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 ground that that evidence may tend to incriminate. The question in my opinion is not whether the evidence is given in chief or in cross-examination, but rather whether an objection under s 128 is limited to an objection to giving evidence which the witness would otherwise be compellable to give. In Ferrall, the Court’s reasons for holding that it was within the discretion of the trial judge to grant a s 128 certificate were: [89]We think the trial judge was clearly correct in holding that it was within his discretion to grant such a certificate. First, we think it would be unrealistic to limit the availability of a certificate to a situation where a witness is asked a particular question in cross-examination. We think the availability of a certificate clearly applies to evidence given in chief, otherwise an inappropriate forensic advantage would rest with the other party who would be in a position to prevent the question of an objection arising by simply not seeking to cross-examine. [90]In the particular circumstances of the Family Court of Australia, evidence-in-chief is normally given by affidavit. We think that in the circumstances of the present case, the witness was objecting, in the sense required by s 128, by indicating that he would not file the affidavit unless a certificate was given. We see the situation as no different from that which would have been the case if he had been sworn in and asked to answer questions concerning the matter in evidence-in-chief, and had objected to doing so without the issue of such a certificate.