Song v Ying

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.