Song v Ying
[2010] NSWCA 237
•15 September 2010
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Song v Ying [2010] NSWCA 237
FILE NUMBER(S):
2006/257653
HEARING DATE(S):
6 August 2010
JUDGMENT DATE:
15 September 2010
PARTIES:
Lida SONG (appellant)
Ming YING (respondent)
JUDGMENT OF:
Giles JA Hodgson JA Basten JA
LOWER COURT JURISDICTION:
Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):
3706/2006
LOWER COURT JUDICIAL OFFICER:
Ward J
LOWER COURT DATE OF DECISION:
1 December 2009
LOWER COURT MEDIUM NEUTRAL CITATION:
Ying v Song [2009] NSWSC 1344
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.
LEGISLATION CITED:
Evidence Act 1995 ss 12, 128
CATEGORY:
Principal judgment
CASES CITED:
R v Bikic [2001] NSWCCA 537
Chao v Chao [2008] NSWSC 584
R v Clyne (1985) 2 NSWLR 740
Cornwell v R [2007] HCA 12; (2007) 231 CLR 260
Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178
R v Garbett (1847) 1 Den 236; 169 ER 227
Meiko Australia Pacific Pty Ltd v Hinchliffe [2009] NSWSC 354
Ollis v Melissari [2005] NSWSC 1016
Sheikholeslami v Tolcher [2009] NSWSC 920
Ying v Song [2009] NSWSC 1344
TEXTS CITED:
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 JA15 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 of evidence given under cross-examination.
(ii)Whether a party who is also a witness, and who wishes to give evidence in chief but will only do so under the protection of a s 128 certificate, “objects” to giving that evidence within the meaning of s 128(1).
HELD (dismissing the appeal)
In relation to (i)—Availability of a certificate only under cross-examination
(Per Hodgson JA, Giles and Basten JJA agreeing)
(1)The question 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.
Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178 and Cornwell v R [2007] HCA 12; (2007) 231 CLR 260, considered.
(2)It is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence.
(3)There is no reason why a certificate originally granted could not have been expressed to extend to evidence on a particular topic, whether elicited in cross-examination or in re-examination; or if the original certificate was no so expressed, why a further certificate could not be granted.
Ollis v Melissari [2005] NSWSC 1016, considered.
In relation to (ii)—Meaning of “objects” under s 128(1)
(Per Hodgson JA, Giles and Basten JJA agreeing)
(4)In all cases apart from a party giving evidence in chief or re-examination in response to questions from the party’s own legal representative, witnesses are compellable to give evidence. It is compellability of this nature that gives sense to the word “objects” in s 128(1) and makes sense of the word “require” in s 128(4).
(5)It is not the case that a party to proceedings who is also a witness, giving evidence in chief in response to questions from the party’s own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of a s 128 certificate, “objects” to giving that evidence within the meaning of s 128(1). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsion or potential compulsion which makes the expression “objects” apposite.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
2006/257653
GILES JA
HODGSON JA
BASTEN JA15 SEPTEMBER 2010
Lida SONG v Ming YING
Judgment
GILES JA: I agree with Hodgson JA.
HODGSON JA: Proceedings have been brought in the Equity Division by the respondent Mr Ying against the appellant Mr Song and a company Budget Scaffold Supplies Pty Limited (BSS) seeking declarations and consequential orders. On 1 December 2009 Ward J heard what was initially an application by Mr Song and BSS for a certificate under s 128 of the Evidence Act 1995 in respect of the giving of particular evidence by Mr Song and by a Mr Yang (not a party to the proceedings, but proposed to be called as a witness by the defendants) regarding the circumstances in which certain loans were recorded in the records of companies associated with Mr Song and the circumstances in which Mr Ying was made a director of companies associated with Mr Song. However, it appears that this application was modified at the hearing to an application by Mr Song alone in respect of evidence to be given by Mr Song.
On 3 December 2009, the primary judge dismissed that application. Mr Song sought leave to appeal from that decision. Leave to appeal was granted on 29 April 2010.
Section 128 of the Evidence Act provides as follows:
128Privilege in respect of self-incrimination in other proceedings
(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)If the court determines that there are reasonable grounds for the objection, the court 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 a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence:
(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.
Note. This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an “Australian Court” instead of a “NSW court”.
(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.
Notes.
1Bodies corporate cannot claim this privilege. See section 187.
2Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.
3The Commonwealth Act includes subsections to give effect to certificates in relation to self-incriminating evidence under the NSW Act in proceedings in federal and ACT courts and in prosecutions for Commonwealth and ACT offences.
4Subsections (8) and (9) were inserted as a response to the decision of the High Court of Australia in Cornwell v The Queen [2007] HCA 12 (22 March 2007).
Decision of primary judge
The primary judge set out the circumstances in which the certificate was sought (Ying v Song [2009] NSWSC 1344):
[2]The claim by Mr Ying is a claim variously put as a claim against Mr Song arising out of an alleged agreement for the sale of shares by Mr Song and as a claim against the second defendant company for a debt arising out of an alleged loan agreement. Broadly, as I understand it, a s 128 certificate is sought on the basis that evidence to be given by each of Mr Song and Mr Yang (if such a certificate issued) would be to the effect that the loans/directorships were to create the false impression that Mr Ying had greater assets and business interests in Australia than he in fact did, in order favourably to influence the consideration by the Department of Immigration of Mr Ying’s then application for permanent residency, and would tend to incriminate Mr Song, who had signed a statutory declaration in relation to those matters.
The primary judge identified the question to be determined as follows:
[7]The question before me, therefore, is limited to whether s 128 applies in circumstances where a witness wishes to give particular evidence in chief but only if he or she is protected from the consequences of the giving of that evidence. In those circumstances, can the witness be said to “object” to giving particular evidence or evidence on a particular matter so as to enliven the operation of s 128?
The primary judge then considered authorities bearing on that question.
The primary judge referred to Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178, where the Full Court of the Family Court held that the trial judge had been correct in holding that it was within his discretion to grant a s 128 certificate, in circumstances where a party had indicated he would not file an affidavit in chief unless such a certificate was given. This decision was followed by Brereton J in Chao v Chao [2008] NSWSC 584; and in Sheikholeslami v Tolcher [2009] NSWSC 920, Rein J indicated willingness to follow that decision.
The primary judge also referred to Ollis v Melissari [2005] NSWSC 1016, in which Campbell J held there was power to grant such a certificate in relation to questions put to a witness in re-examination.
The primary judge then noted that in Cornwell v R [2007] HCA 12; (2007) 231 CLR 260, a majority of the High Court (Gleeson CJ, Gummow, Heydon and Crennan JJ) expressed doubt whether s 128 could apply in circumstances where an accused had objected to a question in chief asked by his counsel, on the grounds that his answer might tend to incriminate him. The primary judge noted that similar reasoning was applied by Einstein J in Meiko Australia Pacific Pty Ltd v Hinchliffe [2009] NSWSC 354.
The primary judge then discussed what approach she should take where there was a decision of the Family Court on appeal, and apparently contrary dicta in the High Court; and she concluded her duty was to consider the proper construction of s 128 in the circumstances, obtaining such assistance as she could from the persuasive authorities to which she had referred.
The primary judge noted that the privilege against self-incrimination was a privilege against being compelled to answer questions, referring to R v Clyne (1985) 2 NSWLR 740 at 746-747 and to R v Garbett (1847) 1 Den 236 at 257-258; 169 ER 227 at 235-236; and that there was no compulsion upon Mr Song to give the evidence which he seeks to give. A similar approach to s 128 was suggested in R v Bikic [2001] NSWCCA 537 at [14]-[15].
The primary judge expressed a preference for a construction of “objects” in s 128 as referring to a circumstance where a witness protests against giving evidence in circumstances where, but for the privilege, they would be compelled to do so; and she expressed disagreement with the view that all that is required is an unwillingness, without a certificate to give evidence, in circumstances where there is no compulsion that evidence be given.
Issues on appeal
The appellant relies on the following grounds of appeal:
1.Her Honour erred in law in holding that a certificate under s.128 Evidence Act 1995 as amended was not available in relation to evidence adduced in chief by a Defendant even if the other aspects of section 128(1) are made out (Judgment pars 43, 44, 47).
2.Her Honour erred in finding that the privilege against self-incrimination granted to a witness by section 128 is only available when a witness is being cross-examined;
3.Her Honour erred in finding that the word “objects” as used in section 128(1) of the Evidence Act was to be construed as meaning an objection by the non cross-examining party under cross-examination.
4.Her Honour erred in law in holding that on its proper construction s.128 does not introduce a new right to claim privilege (Judgment pars 51 – 52).
Submissions
Mr Lawson for the appellant submitted that the limitation on s 128 suggested by the primary judge is not justified by the wording of the section. The word “objects” in s 128 extends to any case where the witness expresses unwillingness to give evidence on the ground that the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty. This expression of unwillingness amounts to an objection, even if it may be that the witness is willing to give the evidence so long as a certificate is granted. This is confirmed by s 128(3)(b)(ii), which presupposes that the taking of the objection is by no means inconsistent with the witness being willing to give the evidence.
Mr Lawson submitted that s 128 was not limited in its application to questions asked in cross-examination; and to the extent that the dicta of the High Court in Cornwell suggested the contrary, it was to be noted that these dicta were expressed as not being a decision on the issue, and were made in circumstances where the question had not been the subject of appropriate argument before the High Court. The contrary view expressed in Ferrall should be preferred.
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.
While I agree with the view that the availability of s 128 is not limited to questions in cross-examination, in my opinion these reasons are flawed in that they do not advert at all to the question of whether the witness was otherwise compellable to give the evidence objected to.
The relevant passages of the decision of the High Court in Cornwell are as follows:
[106]Finally, one other aspect of s 128 may be referred to. The opening words of s 128(1) provide that s 128 only applies if "a witness objects to giving particular evidence". A fair characterisation of the exchanges between counsel for the accused and Howie J set out earlier is that while in one sense the accused "objected" to the 35th question he was asked in chief when he claimed privilege, in another sense he did not object at all. He evidently wanted to give some evidence about the Diez-Lawrence conversations. He could only be sure of giving it in the way he would have liked if he gave it in chief; if he took the risk of leaving its reception to the chance of particular questions in cross-examination, he ran the risk of not being able to give it, or not in the way perceived to be most favourable to his interests. Hence his claim of privilege was arguably not a means by which he "objected", but was an attempt to ensure that s 128 protected him from some potentially adverse consequences of evidence which he did not "object" to giving, but strongly wanted to give.
[107]The accuracy of that characterisation is supported by the following factors.
[108]First, counsel for the accused carefully spent time in the days preceding 5 May 2003 seeking to prepare the ground for a favourable ruling on the evidence. He had hopes of a favourable ruling before the accused's case opened. While Howie J was resistant to blandishments seeking a favourable ruling, the course being charted for the accused was plainly driven by the desire of the accused to give evidence in chief about the Diez-Lawrence conversations.
[109]Secondly, the 34th question was leading and the 35th question explicitly triggered the claim to privilege which the accused made: what was happening was no surprise to the accused.
[110]Thirdly, if the accused had objected to counsel's question in the sense of not wanting to answer it, or not wanting it to be asked, the issue probably would have been sorted out before the accused entered the witness box, or the accused could have reacted in such a way as to cause counsel to withdraw the question. The fact that the thirty-fifth question, and all the later questions in chief about the Diez-Lawrence conversations, were asked supports the conclusion that the accused wanted to give evidence about them and instructed counsel to structure events so that he could do so with a measure of impunity.
[111]This characterisation raises a question whether s 128(1), and hence s 128 as a whole, applies where a witness sets out to adduce in chief evidence revealing the commission of criminal offences other than the one charged. A criminal defendant might wish to present an alibi, the full details of which would reveal the commission of another crime. A civil defendant might wish to prove the extent of past earnings, being earnings derived from criminal conduct. This raises a question whether witnesses who are eager to reveal some criminal conduct in chief, because it is thought the sting will be removed under sympathetic handling from their own counsel or for some other reason, are to be treated in the same way as witnesses who, after objection based on genuine reluctance, give evidence in cross-examination about some crime connected with the facts about which evidence is given in chief.
[112]The view that the accused's claim of privilege in all the circumstances answered the requirements of s 128(1) has difficulties. It strains the word "objects" in s 128(1). It also strains the word "require" in s 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 ground for manoeuvres to ensure that the defendant-witness's desire to give the evidence is fulfilled? And it does not fit well with the history of s 128(8). For one thing, s 1(e) of the 1898 Act and its Australian equivalents provided that an accused person called pursuant to the legislation could be "asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged", which implies that the protection of the accused's position in chief or in re-examination was a matter between the witness's counsel and the witness. For another thing, the Australian Law Reform Commission, in summarising the pre-s 128(8) law, assumed that s 1(e) and its Australian equivalents were to be construed as applying to questions in cross-examination only.
[113]The present point was not raised by the DPP either in the courts below or in this Court. It was raised by this Court in the course of oral argument, but was not embraced by counsel for the DPP. "Sometimes this Court will decide a question which has not been referred to or discussed by an intermediate court of appeal but that is not the course which should ordinarily be followed." The present question could be of considerable importance in the day-to-day conduct of trials, since counsel for the accused submitted that in practice s 128 was often employed by prosecutors to elicit evidence in chief. It is not necessary finally to decide this issue, since the appeal is to be allowed on other grounds. And it is not desirable to do so in view of the absence of dispute between the parties on the question and the importance of the question.
It is true that in par [112] the High Court focussed on the distinction between examination in chief and cross-examination; but that was in a context of evidence being given by a party to the case, namely the accused. When a witness is a party to the case, giving evidence in chief pursuant to questions asked by the witness’s own counsel, there would rarely if ever be a question that the evidence in chief is given under compulsion or because of liability to compulsion. I do not understand the High Court’s reasons to be authority for restricting s 128 to cross-examination.
In circumstances where there is conflict between a decision of the Full Court of the Family Court and dicta (albeit tentative dicta) of the High Court, I think it is appropriate for this Court simply to reach its own view, while paying regard to relevant persuasive authority.
In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence. A party giving evidence in chief, in response to questions from that party’s own legal representative, is not generally giving evidence which that party is, in any real sense, compellable 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 the party is compellable to give at the instance 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 a question, there would in my opinion be no possibility of the witness being compelled to answer the question, at least unless it was pressed by another party or the judge, in which case no doubt s 128 could apply.
In all cases apart from a party giving evidence in chief or re-examination in response to questions from the party’s own legal representative, witnesses are compellable to give evidence either at the instance of the party calling them, or the party directing questions in cross-examination, or the judge (if the judge asks questions). It is compellability of this nature that gives sense to the word “objects” in s 128(1) and makes sense of the word “require” in s 128(4). In my opinion, such motivation as a defendant may have to give evidence to avoid having a judgment entered against him or her does not amount to relevant compellability.
In my opinion, having regard to the wording of s 128 and the scope of the common law privilege which it displaced, it is not the case that a party to proceedings who is also a witness, giving evidence in chief in response to questions from the party’s own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of a s 128 certificate, “objects” to giving that evidence within the meaning of s 128(1). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsion or potential compulsion which makes the expression “objects” apposite.
This approach would not mean that a friend of a party (plaintiff or defendant) called to give evidence in the party’s case may not “object” to giving evidence within the meaning of s 128(1). Whether or not this friend wishes to support the party, this friend is compellable at the instance of the party and cannot give instructions to the party’s legal advisers as to what questions are to be asked. In those circumstances, I would not suggest that the Court would need to enquire whether the friend is giving evidence because compellable, or because of a wish to give the evidence to help the party: I would say that the compellability of the witness to give the evidence at the instance of the party (subject to the provisions of s 128), and the lack of legal entitlement to refrain from giving that evidence if compulsion is sought (again subject to the provisions of s 128), is sufficient.
Similarly, witnesses called by the prosecution in a criminal case could, if the requirements of s 128 are otherwise satisfied, obtain a s 128 certificate.
This approach could raise difficulties where the party is a company, and the witness is a director of the company. The witness then is compellable at the instance of the company, and (at least unless the witness is the alter ego of the company) the witness may not be in a position either to prevent the company compelling the witness to give evidence or to give instructions as to what evidence is to be given. I would leave that question to be determined in a case when it arises.
In my opinion, there is nothing inconsistent with this approach in the decision of Campbell J in Ollis. At that time there was a different version of s 128, and s 128(1) was expressed in terms of a witness objecting to giving “particular evidence” (and did not include reference to “evidence on a particular matter”). Campbell J said this:
[5]It will be seen that the first step in the application of s 128 is the witness objecting to giving particular evidence, on one of the grounds set out in s 128(1). In my view, the expression “if a witness objects to giving particular evidence” is not to be construed in a narrow way, by reference only to someone saying “I object” in response to a particular question, in the course of taking evidence in court, in the way barristers traditionally do. Rather, the expression is to be construed more broadly, so that it also relates to the witness expressing an unwillingness to give the evidence. Further, it seems to me that the “particular evidence” which is referred to is not confined to particular questions, as they are asked one by one. Rather, it is capable of extending to a witness expressing an unwillingness to giving evidence on particular topics.
[6]In the present case, objection has already been taken by the witness to evidence being given on those topics. The re-examination, assuming for the moment that it is proper re-examination, will be confined to those topics which have been opened up by the evidence which has been given by the witness under cover of the s 128 certificate. It seems to me that the objection of the witness to giving evidence on the topic extends also to the giving of evidence on the topic, even in re-examination in response to questions from his own counsel. It is not necessary to go through the artificial procedure of counsel asking the questions, and the witness objecting to the question asked by his own counsel.
[7]I am strongly influenced in reaching this conclusion by the evident policy behind s 128. Part of that policy is that a way should be provided in which the claiming of a privilege against self-incrimination does not prevent a court hearing a civil case from obtaining relevant evidence, while at the same time to the extent the New South Wales Parliament has power to do so, not prejudicing in a subsequent criminal trial, the person who gives such evidence. That policy would be carried through only imperfectly if a s 128 certificate were not available concerning evidence given in re-examination. Further it would be a fundamental unfairness if a witness were encouraged by the giving of a s 128 certificate, to give evidence in relation to which he had a right to remain silent, and for the topic so opened up not to be able to be clarified by legitimate re-examination, if the cross-examination on that topic left a misleading or incomplete impression. I decline to believe that it was the intention of parliament to bring about a situation which caused that sort of fundamental procedural unfairness.
[8]Thus, the policy of the section seems to me to strongly favour the giving of the wide interpretation to the expression “if a witness objects to giving particular evidence” which I have earlier outlined. That wider meaning is one which is open as a matter of the ordinary meaning of the words, and when policy favours the adoption of the wider meaning rather than a narrower meaning, that is the reading which should be adopted. Thus, I shall give a certificate in relation to the questions in re-examination.
Campbell J’s wide interpretation to “particular evidence” is now confirmed by the inclusion of the alternative formulation “evidence on a particular matter” in the new version of s 128, which was substituted by a 2007 amending Act. Given the wide interpretation of “particular evidence” as extending to evidence on a particular topic, there is no reason why a certificate originally granted could not have been expressed to extend to evidence on this topic, whether elicited in cross-examination or in re-examination; or if the original certificate was not so expressed, why a further certificate could not be granted to avoid the fundamental procedural unfairness referred to by Campbell J.
Accordingly, in the present case, the primary judge was correct not to grant a s 128 certificate to the appellant. However, if the appellant now seeks to lead evidence from Mr Yang, I would see no reason why Mr Yang could not object, and if the requirements of s 128 are otherwise satisfied, obtain a certificate under s 128.
Conclusion
I propose the following orders:
(1)Appeal dismissed.
(2)Appellant to pay respondent’s costs of the application for leave and the appeal
BASTEN JA: I agree with the orders proposed by Hodgson JA and with his reasons.
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LAST UPDATED:
15 September 2010
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