The State of Western Australia v Dawson [No 2] - [2021] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DAWSON [No 2] [2021] WADC 17
CORAM:   GETHING DCJ
HEARD:   9 FEBRUARY 2021
DELIVERED          :   8 MARCH 2021
FILE NO/S:   IND 404 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
MICHAEL BRIAN DAWSON
AND
THANH SON VO

Catchwords:

Criminal law - Evidence - Whether an accused person in a criminal trial is able to seek a certificate pursuant to Evidence Act 1906 (WA) s 11

Evidence - Privilege against self‑incrimination - Immunity certificate

Legislation:

Evidence Act 1906 (WA), s 8, s 11, s 24
Evidence Act 1995 (NSW), s 128

Result:

Application by an accused person for an immunity certificate pursuant to Evidence Act 1906 (WA) s 11 refused

Representation:

Counsel:

The State of Western Australia	:	Mr S L Dworcan
First Accused	:	Ms K A Dowling
Second Accused	:	Mr D J A Hockton

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
First Accused	:	Katherine Dowling
Second Accused	:	Angus Hockton

Case(s) referred to in decision(s):

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Chao v Chao [2008] NSWSC 584
Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4
Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260
Cullen v The Queen (Unreported, WASCA, Library No 6450, 25 September 1986)
Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178
Field & Kingston [2018] FamCAFC 145
George v The State of Western Australia [2020] WASCA 139
Johnstone v The State of Western Australia [2019] WASCA 67
Jones v Director of Public Prosecutions [1962] AC 635
Jones v The Queen [2009] HCA 17; (2009) 83 ALRJ 671
Meiko Australia Pacific Pty Ltd v Hinchcliffe [2009] NSWSC 354
Ollis v Melissari [2005] NSWSC 1016
Pendergast v Pendergast [2019] FamCA 136
Reliance Financial Services NSW Pty Ltd v Sobbi [2009] NSWSC 1375
Russell v The State of Western Australia [2011] WASCA 246
Sheikholeslami v Tolcher [2009] NSWSC 920
Smith v The State of Western Australia [2021] WASCA 17
Song v Ying [2010] NSWCA 237
Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281
Woods v Smith [1976] WAR 13

GETHING DCJ:

Introduction

Michael Brian Dawson stood trial a number of weeks ago on the charge that on 6 December 2018 at Landsdale he had in his possession a trafficable quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. At the conclusion of the trial, the jury found Mr Dawson guilty of this offence.
Mr Dawson elected to give evidence. During the course of his evidence‑in‑chief the issue arose as to whether he could be given a certificate pursuant to Evidence Act 1906 (WA) (EA) s 11. His concern was that in order to properly defend the offence in the indictment, he would have to disclose other criminal conduct.
I declined to provide the certificate sought on the basis that an accused person in a criminal trial is not entitled to seek a certificate pursuant to EA s 11. I said that I would provide written reasons for this ruling, which are as follows.

The context in which the issue arose at trial

Facts which were not in issue

At the point in the trial at which the ruling was made, a number of the facts surrounding the offending were not in issue.
In early October 2018, police began an investigation which they called 'Trident Alpha 20'. The primary person of interest in this investigation was Ms Diem Thi Nguyen. They obtained a warrant to legally monitor a number of mobile phones being used by Ms Nguyen. Some 8,000 hours of conversation were monitored.[1]
[1] ts 259, ts 292.
As part of this investigation, on the evening of 29 November 2018 police stopped a Jeep Grand Cherokee being driven by Ms Nguyen. A search of the vehicle found what was later analysed to be 998 g of methylamphetamine at a purity of 73%. The methylamphetamine was in a vacuum sealed bag, inside a white plastic shopping bag, inside a green Woolworths shopping bag. The green shopping bag was in the front passenger side foot well.[2]
[2] ts 168, exhibit 6.
Ms Nguyen was charged with possession of this methylamphetamine with intent to sell or supply. She was then released on bail. Ms Nguyen's charge proceeded on a separate indictment to that of Mr Dawson. She pleaded guilty and was sentenced, by me as it turned out, on 8 December 2020.
When the police stopped the Jeep Grand Cherokee, one Thanh Son Vo was sitting in the front passenger seat.[3] Police also charged Mr Vo with being in possession of the methylamphetamine in the green shopping bag with intent to sell or supply. Mr Vo's charge was on the same indictment as Mr Dawson, and the two were tried together. At the conclusion of the trial, the jury found Mr Vo not guilty of this offence.
[3] ts 378.
Police continued to monitor the mobile phones being used by Ms Nguyen. As a result of this monitoring, at about 3.35 pm on 6 December 2018 police executed a search warrant at an address on Landsdale Road, Landsdale. On entering the house, the only person present was Mr Dawson. Mr Dawson was seated in the study area near the front of the house.[4]
[4] ts 500.
Police conducted a search of the Landsdale house. On a study desk immediately adjacent to where Mr Dawson was sitting, and in plain sight, police located a small amount of methylamphetamine, a glass implement used to smoke methylamphetamine, a set of electronic scales and $2,750 in cash.
Police also located a small metal tin hidden in an air‑conditioning vent directly above where Mr Dawson was found sitting. Inside the metal tin the police found a number of clipseal bags, three of which contained a white crystalline powder.[5] Later analysis revealed that the three clipseal bags contained a total of 30.85 g of methylamphetamine at a purity of between 59% and 77%.[6]
[5] ts 235, exhibit 15.
[6] Exhibits 24, 25 and 26.
It was this methylamphetamine which Mr Dawson was charged with being in possession of.
Mr Dawson was also charged on the same indictment that on 6 December 2018 at Landsdale he was in possession of a thing capable of being stolen, namely $2,750 in cash, that was reasonably suspected to have been unlawfully obtained. At the commencement of the trial, in the presence of the jury, Mr Dawson pleaded guilty to this offence. Before the close of the State's case, his counsel tendered on his behalf a series of admissions in relation to this offending pursuant to EA s 32 in the following terms:[7]
1.On 6 December 2018 at approximately 3.45 pm, various officers from the Organised Crime Squad of the WA Police conducted a Misuse of Drugs Act search warrant at … Landsdale Road, Landsdale, Western Australia.
2.The WA Police had identified this as an address used for distributing prohibited drugs by Ms Diem Thi Nguyen through telephone intercepts and surveillance.
3.Upon entry, the WA Police found Mr Dawson in the study area. He was the only person present at the property at this time.
4.In the study area on the desk were small amounts of methylamphetamine, a glass smoking implement, silver electronic scales and $2,750 cash.
5.Mr Dawson accepts that the $2,750 cash, which is the subject of the indictment, was in his possession and that it was reasonably suspected to have been unlawfully obtained.

The State's case at the point at which the ruling was made

[7] Exhibit 30.

The State's case was that the Landsdale house was used by Ms Nguyen to run her methylamphetamine business. Mr Dawson was in joint possession of the methylamphetamine with Ms Nguyen. He had knowledge that the methylamphetamine was hidden in the air‑conditioning vent and had an intention to exercise control over it.[8]
[8] ts 127 - ts 132.
The State called a total of eight police officers. The State's case as to Mr Dawson's knowledge and intention was circumstantial, relying on:
•Telephone intercept material to the effect that Mr Dawson was involved in dealing in drugs in the period immediately prior to the execution of the search warrant on 6 December 2018.
•Telephone intercept material to the effect that Mr Dawson was dealing in drugs, or had some involvement with drugs, on 6 December 2018, including a transaction involving a sale of drugs to someone named 'Leanne'.
•The fact that items commonly used in dealing in illicit drugs were found on the desk, right next to where Mr Dawson was sitting.
•The fact that Mr Dawson told police that he was a drug user and that he had just smoked some of the methylamphetamine which was on the desk.
•Mr Dawson's proximity to the air‑conditioning vent in which the methylamphetamine was hidden.
•The fact that while the police were still at the Landsdale house, a person by the name of Viet William Tu arrived.[9] His car was searched by police and he was found in possession of approximately 2 g of methylamphetamine.[10]

Mr Dawson's case at the point at which the ruling was made

[9] ts 219.

[10] ts 241.

In her opening, counsel for Mr Dawson told the jury that his position was that he did not take possession of the methylamphetamine that was found in the ceiling. They were not his drugs, and he was not aware that that methylamphetamine was up there. Rather, Mr Dawson was in the house for a 'different reason'.[11]
[11] ts 139.
It became apparent during cross‑examination of the police witnesses that this 'different reason' was that Mr Dawson was at the house to collect the $2,750 found on the table, which was the proceeds from a sale of heroin to someone called Leanne.[12]
[12] ts 312.
Before Mr Dawson gave evidence Mr Vo elected to give evidence. Mr Vo also called Ms Nguyen.
Mr Dawson's position became clearer in the cross-examination of Ms Nguyen. His counsel led evidence from Ms Nguyen to the effect that on the day of the search warrant she had arranged for a heroin user by the name of Leanne to purchase '2B' (7 g) of heroin from her.[13] The heroin would be left at the Landsdale house. Ms Nguyen arranged for Mr Dawson to attend the Landsdale house to collect the cash from this heroin deal, a little bit over $2,500.[14] Counsel for Mr Dawson also adduced evidence from Ms Nguyen to the effect that the methylamphetamine in the metal tin was hers and that she did not have any conversation with Mr Dawson about this. Rather, Mr Dawson only assisted her with heroin transactions from time to time.[15]

The s 11 certificate given to Ms Nguyen

[13] ts 413.

[14] ts 410 ‑ ts 415.

[15] ts 414, ts 417.

In the cross‑examination of Ms Nguyen by counsel for the State, it became apparent that she was being asked questions the answers to which would tend to incriminate her in dealing in prohibited drugs beyond her conviction for the possession of the methylamphetamine found in the Jeep Grand Cherokee, and that she appeared to be reluctant to answer the questions. I explained to Ms Nguyen her right to seek a certificate pursuant to EA s 11.[16] At a later point in her cross‑examination, when asked whether she was selling ounces of heroin, Ms Nguyen declined to answer the question on the basis that it would tend to incriminate her. I formed the view that it was expedient to the ends of justice for her to give this evidence, and told her that if she gave evidence to my satisfaction, I would provide her with a certificate pursuant to EA s 11.[17] Ms Nguyen gave evidence to my satisfaction, so I provided her with an EA s 11 certificate.[18]

Mr Dawson's evidence

[16] ts 441 - ts 442.

[17] ts 449 ‑ ts 450.

[18] ts 450, ts 496; MFI 5.

Mr Dawson then elected to give evidence. In the course of examination‑in‑chief, his counsel asked him a question about his knowledge of the people from whom Ms Nguyen would purchase heroin. Mr Dawson asked whether he could refuse to answer the question on the ground that it would incriminate him. Counsel for Mr Dawson requested me to direct him to answer the question. I did so, then immediately had second thoughts. I asked the jury to step out, and raised the concern with counsel as to whether I had the power to direct an accused person to answer a question in examination‑in‑chief.[19] The issue which ultimately percolated to the surface from the discussion with counsel was whether an accused person could seek a certificate pursuant to EA s 11. I sent the jury home and adjourned for the day so that this issue could be the subject of further submissions from counsel.
[19] ts 472 - ts 473.
Counsel for Mr Dawson provided some short written submissions.
The following morning I ruled that an accused person could not seek a certificate pursuant to EA s11, providing short reasons, and advising that I would publish full written reasons after the trial.[20] I also explained my ruling to the jury in the following terms:[21]
Good morning, members of the jury. Thank you once again for your punctual attendance. Let me tell you where we ended up from the legal issue that was raised yesterday. Now, as you heard … an accused person has an election as to whether or not they give evidence. And I'll tell you a bit more about that in my closing remarks, hopefully later on today. Once the accused elects to give evidence, then there's a number of consequences. The first is in examination-in-chief, the general rule is that an accused is not compellable to - doesn't have to answer any question asked by their lawyer, and that makes sense. So Mr Dawson doesn't have to answer any question asked by Ms Dowling. The position is different in cross-examination. In cross-examination, an accused person having elected to give evidence must answer any questions asked by, in this case, Mr Dworcan for the prosecution and Mr Hockton, [He] must answer any relevant questions. Now, in terms of the certificate which you heard me give Ms Nguyen, that certificate, I've ruled, as a matter of a law is not available to an accused person in a criminal trial. So an accused person in a criminal trial is not entitled to apply for the same sort of certificate that a witness is, like Ms Nguyen. So that's the net effect of the rulings which I've made this morning, having heard some argument from counsel.
[20] ts 488 - ts 495.
[21] ts 496.

Reasons for the ruling

Relevant provisions of the EA

It is instructive to begin the analysis by quoting EA s 11 (so far as is relevant):
11.Court may compel answer to incriminating question
(1)Whenever in any proceeding any person called as a witness, or required to answer any interrogatory, declines to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him, the judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question or interrogatory, tell such person that, if he answers such question or interrogatory, and other questions or interrogatories that may be put to him, in a satisfactory manner, he will grant him the certificate hereinafter mentioned.
(2)Thereupon such person shall no longer be entitled to refuse to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him; and thereafter if such person shall have given his evidence to the satisfaction of the judge, the judge shall give such person a certificate to the effect that he was called as a witness or interrogated in the said proceeding and that his evidence was required for the ends of justice, and was given to his satisfaction.
(2a)Where in a proceeding a person is given a certificate under subsection (2) in respect of any evidence, a statement made by him, as part of that evidence, in answer to a question or interrogatory is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceeding.
The law relating to EA s 11 was recently summarised by the Court of Appeal in Smith v The State of Western Australia, which I respectfully adopt.[22] The Court of Appeal did not consider the issue of whether of an accused person in a criminal trial could seek to rely on EA s 11 in examination‑in‑chief. It did, however, confirm long standing authority that EA s 11 is available to both a defence witness and a prosecution witness.[23]
[22] Smith v The State of Western Australia [2021] WASCA 17 [76] - [109] (judgment of the court) (Smith).
[23] Smith [87]; Woods v Smith [1976] WAR 13, 15 (Jackson CJ), 19 - 20 (Burt J), 22 (Wallace J).
One point to add to the principles set out in Smith is that a certificate pursuant to EA s 11 could be given in relation to questions put to a witness (who is not a party) in re-examination.[24]
[24] Ollis v Melissari[2005] NSWSC 1016 [1] - [8] (Campbell J) (the reasoning in relation to Evidence Act 1995 (NSW) (EA(NSW)) s 128 being apposite to EA s 11). See also Reliance Financial Services NSW Pty Ltd v Sobbi [2009] NSWSC 1375 as regards the portion of a party who is a witness (Reliance).
The position as regards to potentially incriminating evidence from an accused person is specifically addressed in EA s 8, in the following terms:
8.Accused persons in criminal cases
(1)Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows -
(a)a person so charged shall not be called as a witness except upon his own application;
(b)[deleted]
(c)the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;
(d)a person charged and being a witness in pursuance of this section may be asked any question in cross‑examination, notwithstanding that it would tend to criminate him as to the offence charged;
(e)a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless
(i)the proof that he has committed or been convicted of such other offence is admissible in evidence to show that he is guilty of the offence wherewith he is then charged; or
(ii)he has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or a person who died as a result of the offence wherewith he is then charged; or
(iii)he has given evidence against any other person charged with the same offence;
(f)when paragraph (e)(ii) or (iii) is or becomes applicable to any person charged who gives evidence for the defence, it shall be open to the prosecution, or to any other person charged against whom he has given evidence, to call evidence, that such person is of bad character or has been convicted of or charged with any offence other than that with which he then stands charged, notwithstanding that the case for the prosecution or of such other person charged may already have been closed;
(g)every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.
Four observations can be made about the effect of EA s 8 for present purposes.
The first is that an accused is not a compellable witness. So the 'right to silence' has not been abrogated by EA s 8. Indeed, the law jealously guards the accused's right to silence by requiring a trial judge to carefully instruct the jury on an accused's election not to give evidence.[25] If an accused gives evidence it is in the exercise of a voluntary election to do so.
[25] See for example: Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [51] (Gaudron, Gummow, Kirby & Hayne JJ); George v The State of Western Australia [2020] WASCA 139 [72] - [88] (Quinlan CJ & Mitchell JA), [193] - [ 229] (Mazza JA); Johnstone v The State of Western Australia [2019] WASCA 67 [29] - [45] (judgment of the court).

The second is that, if an accused does elect to give evidence, the privilege against self-incrimination has been abrogated in relation to matters relevant to offending the subject of the trial.[26] An accused who elects to give evidence, 'may be asked any question in cross‑examination, notwithstanding that it would tend to criminate him as to the offence charged': EA s 8(1)(d). The same position applies in relation a question in cross-examination of the accused 'tending to show that he has committed … any offence other than that wherewith he is then charged' where 'the proof that he has committed … such other offence is admissible in evidence to show that he is guilty of the offence wherewith he is then charged': EA s 8(1)(e)(i).
[26] Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260 [58] (Gleeson CJ, Gummow, Heydon & Crennan JJ) (Cornwell).
The third is that if the accused declines to answer a question in cross‑examination by the State, he can be 'compelled' to do so under threat of contempt of court. Specifically, an accused who elected to give evidence would be a 'person … being … examined as a witness in any cause [who] refuses to … answer any lawful questions' within District Court Act 1969 (WA) s 63(1)(d), and so be liable for contempt within that section. The decision in Cullen v The Queen is an example of an accused person on trial in the District Court being held liable for contempt as a result of his persistent refusal to answer a question while he was under cross-examination in the course of giving evidence.[27] The position is the same if the accused gives evidence against any other person charged with the same offence by operation of EA s 8(1)(e)(iii).
[27] Cullen v The Queen (Unreported, WASCA, Library No 6450, 25 September 1986).
The fourth is that, properly construed, EA s 8(1)(e) does not preclude an accused in examination‑in‑chief from giving evidence which might tend to incriminate him in the commission of another offence. A purely grammatical reading of EA s 8(1)(e) would suggest that counsel for the accused could not ask the accused about other offending said to be relevant by way of defence to the offence the subject of the indictment: 'a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed … any offence other than that wherewith he is then charged' (the three exceptions having no application). However, there is long established authority that the phrases 'shall not be asked' and 'if asked shall not be required to answer' are 'quite inappropriate for examination in chief' to quote Lord Reid in Jones v Director of Public Prosecutions.[28] His Lordship went on to observe:[29]
The proviso is obviously intended to protect the accused. It does not prevent him from volunteering evidence, and does not in my view prevent his counsel from asking questions leading to disclosure of a previous conviction or bad character if such disclosure is thought to assist in his defence.
[28] Jones v Director of Public Prosecutions [1962] AC 635, 660 (Lord Reid) (Jones). See also: Cornwell [112].
[29] Jones (660).
Rather, if an accused does not wish to answer a question asked of him by his counsel, he can simply instruct his counsel to withdraw the question, in which case there would be no possibility of the accused being compelled to answer the question.[30] The scope of the evidence which an accused may give is limited to that which is relevant: [31]
It is trite to observe that all evidence, including that adduced by an accused in order to raise a doubt as to guilt, must be relevant in the sense that it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.

Cornwell v The Queen

[30] Song v Ying [2010] NSWCA 237 [26] (Hodgson JA, with whom Giles & Basten JJA agreed) (Song).

[31] Jones v The Queen [2009] HCA 17; (2009) 83 ALRJ 671[22] (French CJ, Heydon, Kiefel & Bell JJ); Russell v The State of Western Australia [2011] WASCA 246 [84] (McLure P).

The issue of whether an accused in a criminal trial could object to answering a question asked by his counsel in examination‑in‑chief was considered by the High Court in Cornwell v The Queen. The accused was charged with conspiring to import a very large quantity of cocaine. At trial, the accused declined to answer questions asked of him in cross‑examination on the ground that it might incriminate him. In general terms, the questions related to recorded conversations involving the accused concerning the supply of drugs to buyers in Australia, referred to as the 'Diez-Lawrence conversations'. The majority (Gleeson CJ, Gummow, Heydon & Crennan JJ) observed that 'counsel for the accused carefully spent time in the days preceding … seeking to prepare the ground for a favourable ruling on the evidence'.[32] And that 'the accused wanted to give evidence about the Diez-Lawrence conversations and instructed counsel to structure events so that he could do so with a measure of immunity'.[33] The trial judge foreshadowed that he would grant the accused a certificate pursuant to the New South Wales equivalent of EA s 11, EA(NSW) s 128. The accused gave the evidence. The jury members were unable to agree on the charge against the accused. A second trial occurred. In between the first trial and second trial the judge presiding over the first trial granted the immunity certificate. The judge presiding over the second trial disagreed that an immunity certificate could be granted for reasons that I will come back to in a moment. This judge went on to admit the evidence of the accused from the first trial over which the certificate had been granted. The accused was convicted. The conviction was set aside on appeal and a new trial ordered. The majority in the High Court allowed the Crown appeal on the key point of the application of EA(NSW) s 128, and remitted the remaining questions to the NSW Court of Appeal to resolve. The remaining member of the High Court in Cornwell, Kirby J agreed with the analysis of the NSW Court of Appeal.[34]
[32] Cornwell [108].
[33] Cornwell [110].
[34] Cornwell [186].
The key point of application concerned EA(NSW) s 128(8). That section in full provides:
(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:
(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)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 gives 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 a NSW 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)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.
(9)A reference in this section to doing an act includes a reference to failing to act.
The specific issue was whether evidence as to the supply of drugs to buyers in Australia was 'evidence that the defendant … did an act the doing of which is a fact in issue, or … had a state of mind the existence of which is a fact in issue' for the purposes of EA(NSW) s128(8). The judge at the first trial answered in the negative, meaning that EA(NSW) s 128 could apply. The judge in the second trial answered in the affirmative, meaning that EA(NSW) s 128 had no application. The NSW Court of Appeal agreed with the judge at the first trial. The High Court, by majority (Kirby J dissenting), agreed with the judge in the second trial. Specifically, the majority held that the words of EA(NSW) s 128(8) 'are not limited to direct evidence that the defendant did the act or had the state of mind; they extend also to the giving of evidence by the defendant of facts from which the doing of the act or the having of the state of mind can be inferred'.[35] This had the effect that a certificate could not be issued pursuant to EA(NSW) s 128.
[35] Cornwell [84].
The majority made two points which are apposite to the present application. Their Honours set out a comprehensive review of the history of legislation by which an accused became a competent, but not compellable, witness, including the equivalents of EA s 8 and s 11. As part of this review, the majority observed that 'the Australian legislatures achieved unanimity on the proposition that the defendant's privilege against self-incrimination was abolished so far as matters of fact tending to criminate the accused as to the crime charged were concerned'.[36]
[36] Cornwell [58].
The second is that the majority cast doubt on whether an accused when giving evidence‑in‑chief could 'object to' answering, and be 'required' to answer, a question tending to incriminate him for the purposes of EA(NSW) s 128. It is instructive to quote their observations in full:[37]
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 [the judge in the first trial] set out earlier … is that while in one sense the accused 'objected' to the thirty-fifth 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.
The accuracy of that characterisation is supported by the following factors.
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.
Secondly, the thirty-fourth question was leading and the thirty-fifth question explicitly triggered the claim to privilege which the accused made: what was happening was no surprise to the accused.
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.
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.
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 … .
[37] Cornwell [106] - [112] (footnotes omitted).
The decision in Cornwell has not been the subject of any further consideration by the High Court.

Cases subsequent to Cornwell

The issue of whether a party to a case may seek an immunity certificate for potentially incriminating evidence in examination‑in‑chief has been considered in a number of cases since the decision in Cornwell. However, before doing so, it is necessary to consider one significant decision which predated it.
In Ferrall v Blyton[38] the judge at first instance had granted the husband in family court proceedings a certificate pursuant to EA(NSW) s 128 in relation to his proposed evidence‑in‑chief. The evidence concerned a scheme devised by the husband's accountant to place assets and resources out of the husband's ownership and control until the family law proceedings had been completed. Under the protection of the certificate the husband filed an affidavit in essence admitting to the scheme and disclosing his true financial worth. The Full Court held that it was within the discretion of the judge at first instance to grant the certificate, observing:[39]
We think the trial Judge was clearly correct in holding that it was within his discretion to grant such a certificate. Firstly, 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.
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.
[38] Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178.
[39] Ferrall [89] - [90].
In Chao v Chao Brereton J followed the decision in Ferrall and granted a certificate pursuant to EA s 128 to the plaintiff in a civil case in relation to evidence as to the circumstances in which she recorded a telephone conversation with the defendant.[40] His Honour did not refer to the decision in Cornwell.
[40] Chao v Chao [2008] NSWSC 584 [3] (Brereton J).
In Sheikholeslami v Tolcher, a civil case, Rein J felt bound to follow the decision in Ferrall notwithstanding expressing doubts as to the correctness of that decision based on the observations of the majority in Cornwell.[41]
[41] Sheikholeslami v Tolcher [2009] NSWSC 920 [13] (Rein J).
In Meiko Australia Pacific Pty Ltd v Hinchcliffe[42] Einstein J declined to grant a certificate pursuant to EA(NSW) s 128 to a defendant in civil proceedings in relation to evidence sought to be adduced by affidavit in evidence‑in‑chief. His Honour observed:[43]
Section 128 applies 'if a witness objects to giving particular evidence 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) ...': s 128(1).
Accordingly, it appears that a certificate should extend only to questions to which objection might be taken, that is, to questions put in cross-examination. Although no objection to any questions was in fact made on behalf of the first defendant, that an objection in reliance of the privilege against self-incrimination would be made to the entirety of the cross-examination is implied from the making of the application.
However, in relation to the first defendant's own affidavit material, there would not have been any such similar objection, not least of all but including because that material was freely sworn and filed and … read by the first defendant at earlier hearings.
All of the affidavits were read in the course of evidence in chief of the first defendant and so cannot be said to have in any way been the subject of an objection, implied or otherwise.
[42] Meiko Australia Pacific Pty Ltd v Hinchcliffe [2009] NSWSC 354 (Meiko).
[43] Meiko [187] - [190].
In Reliance Financial Services NSW Pty Ltd v Sobbi[44] the issue arose in the context of a civil debt recovery action. The evidence which the defendant sought to adduce in evidence‑in‑chief was to the effect that earlier evidence which he had given was false. Hall J adopted the reasoning of the majority in Cornwell (noting that it was obiter) and held that EA(NSW) s 128 was not intended to apply to parties who wish to adduce evidence‑in‑chief or by way of affidavit.[45] Hall J also declined to give a certificate in relation to potentially incriminating evidence sought to be given in re-examination, observing that in the particular circumstances, the effect would essentially be to give a wholly new version of the facts which is not the permissible function of re‑examination'.[46]
[44] Reliance.
[45]Reliance [102].
[46] Reliance [106].

The issue was next considered by the New South Wales Court of Appeal in Song v Ying.In that case, Mr Ying had commenced proceedings against Mr Song and a company Budget Scaffold Supplies Pty Ltd (BSS). Mr Song applied for a certificate pursuant to EA(NSW) s 128 in respect of certain evidence which he wished to give in defence to the proceedings. The judge at first instance held that a certificate pursuant to EA(NSW) s 128 was not available in relation to evidence adduced in chief by a defendant. The Court of Appeal agreed, adopting the reasoning in Cornwell and declining to follow Ferrall.
Hodgson JA, with whom Giles and Basten JJA agreed, identified the key issue as being whether an objection under EA(NSW) s 128 is limited to an objection to giving evidence which the witness would otherwise be compellable to give.[47] His Honour referred to the passages from the decision in Cornwell which I have quoted above ([38]). His Honour then made the following observations on the comments by the majority in Cornwell:[48]
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 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.
[47] Song [20].
[48] Song [24], [26] - [29].
The observations in the last quoted paragraph reflect the factual situation in Smith. In that case, the WA Court of Appeal's decision is to the effect that while the 'friend/brother' can be given a certificate pursuant to EA s 11, he can also be cross-examined as to his motives for doing so.[49]
[49] Smith [107].
The issue was the subject of more recent consideration at an intermediate appellate level by the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner.[50] The issue arose in the context of civil penalty proceedings brought by the Australian Building and Construction Commissioner against one Mr MacDonald and others. Mr MacDonald sought a certificate in the course of giving evidence‑in‑chief in defence of the proceedings. The judge at first instance declined to grant the certificate. The Full Court upheld this decision, following the decision in Song and declining to follow the decision in Ferrall.
[50]Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4 (CFMEU).
The leading decision was given by Bromwich J (with whom Kenny & Tracey JJ agreed). His Honour reviewed legislative and contextual history, relevantly observing:[51]
What was lost in the statutory bargain that was ultimately legislated for by the enactment of s 128 was, in the confined circumstances in which that provision applied, the right to remain silent. The introduction of a means of compelling the giving of evidence that would otherwise be covered by the privilege was to be compensated for by protection from the use of that evidence in subsequent proceedings. The putative witness was, at least in a formal sense, worse off, but only to the extent that his or her evidence, which would otherwise be protected by the certificate, might be both known publicly and used in some way in the proceedings in which the evidence was given. To that extent, the privilege was wound back in a protected way, trading a private right or interest for a public interest. It was not a gain for the witness but, rather, a compensated loss.
By contrast, to extend that statutory bargain to a party witness in the absence of compulsion would be to bestow a gain on an individual to advance his or her private interest in litigation, protected from the adverse consequences that might otherwise arise from use of that evidence. Such an outcome would be divorced from the clear historical roots of the privilege as an immunity from compulsion that is closely related to the right to silence, as opposed to a positive right to advance a forensic desire. Even if there is any public interest to be had from such an outcome, it would be incidental and secondary to the private interest …
[51] CFMEU [35] - [36].
After reviewing the decision in Song, Bromwich J observed that the reasoning in that case 'reinforces an understanding of [EA(NSW)] s 128 as being directed to preserving a witness' common law right to refuse compulsion to give evidence on the ground that it might be self‑incriminatory, and providing compensation and protection to the witness for the circumstances in which that right to silence is to be overruled under the provision'.[52]
[52] CFMEU [58] (emphasis in original).
In conclusion, His Honour observed:[53]
As observed in Cornwell, the construction advanced by the appellants strains the word 'objects' in s 128(1). It is not to the point that s 128 would, in theory, be capable of applying to a witness who happens to be a party. An objection to giving evidence is, in history and context, directed to resisting compulsion, and is not merely a means of electing for the protection of a certificate to advance a forensic desire. This much is reflected in the ordinary meaning of 'objects' as used in s 128(1).
[T]he certification procedure was not enacted simply as a way to maximise the available evidence to a court by narrowing the operation of the privilege against self-incrimination. Rather, it reflected a balance struck between the public interest in evidence being available to the Court, and the individual right to refuse to answer any question, or produce any document, if the production would tend to incriminate that person. To that end, the s 128 procedure offered a measure of protection for the circumstances in which the privilege was to be overridden by requiring a witness to give evidence that may tend to incriminate him or her. The need for compulsion as part of that equation is inescapable.
[53] CFMEU [62] - [63].
In Field & Kingston the Full Court of the Family Court followed the decision in CFMEU, viewing the earlier decision of that court in Ferrall as being incorrect.[54] The Full Court placed emphasis on the requirement that there be compulsion to answer the question. After considering the decisions in Cornwell and Song the court observed:[55]
Thus while a s 128 certificate can be available in relation to a witness's evidence in chief, the legal foundation for the granting of a certificate lies in the witness being compelled to give the evidence which the witness fears may tend to prove that he or she has committed an offence or tend to render him or her liable to a civil penalty. Merely because it would be forensically or tactically advantageous for him to give the evidence with the protection of a certificate is insufficient to found an application pursuant to s 128.
[54] Field & Kingston [2018] FamCAFC 145 [46] (judgment of the court).
[55] Field & Kingston [24].
And:[56]
Clearly, then where the requisite element of compulsion exists, a s 128 certificate may be available for a witness's evidence in chief. There appears to be no relevant distinction to be drawn as to the form in which the evidence is given, that is whether given orally or by affidavit sworn and filed in the proceedings.
…
Thus the foundation for the granting of a s 128 certificate lies not in the manner in which the evidence is to be given but in the witness being compelled to give the evidence.
[56] Field & Kingston [28], [30].
Consequently, the court expressed the principle 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'.[57]
[57] Field & Kingston [44].
On the facts, the Full Court upheld the first instance decision not to grant a certificate pursuant to EA(NSW) s 128 to the wife in relation to her evidence‑in‑chief in proceedings as there was no element of compulsion:[58]
We therefore conclude that in this case, there was no basis on which a certificate could have been granted in relation to the wife's proposed evidence in chief because the necessary element of compulsion was lacking. She had not been ordered to give the evidence, nothing in the Rules 'required' her to give it in infringement of her right against self‑incrimination and she could, as she had thus far, decline to give evidence in relation to the allegations raised by the husband.
[58] Field & Kingston [47].
The decision in Field & Kingston was applied by Loughnan J in Pendergast v Pendergast.[59]His Honour viewed the central question in the following terms:[60]
As the Full Court identified in Field & Kingston, it is the Court's task to assess whether 'from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer' (Sorby v Commonwealth (1983) 152 CLR 281 at 289 per Gibbs CJ).
On the particular orders made in that case, his Honour held that the husband was being compelled to provide evidence, and granted a certificate pursuant to EA(NSW) s 128.[61]

Determination

[59] Pendergast v Pendergast [2019] FamCA 136 [36] (Pendergast).

[60] Pendergast [36].

[61] Pendergast [32], [54] (Loughnan J).

The proper construction of EA s 11 in the present case involves the same question as was identified by the majority in Cornwell, being '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'.[62]
[62] Cornwell [111] (quoted in context at [38] above).
Consistent with the approach taken by the High Court in Cornwell, and the intermediate appellate courts in Song, CFMEU and Field & Kingston, it is appropriate to construe EA s 11 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.[63] The comments made by each court as to the legislative and contextual history of EA(NSW) s 128 which I have quoted above are instructive in interpreting EA s 11. As each of these decisions emphasises, the issue of whether the person seeking the certificate is being compelled to give the evidence is central to the potential application of EA s 11.
[63] See in particular: Song [26].
The requirement of compulsion was also highlighted by the WA Court of Appeal in Smith. The Court of Appeal stated that at 'common law, the privilege against self-incrimination entitles a natural person to refuse to answer any question and to refuse to produce any document if the answer or the document would expose, or would have a tendency to expose, him or her, either directly or indirectly, to the risk of criminal conviction'.[64] The court then quoted the following passage from the decision of Gibbs CJ in Sorby v The Commonwealth of Australia:[65]
It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.
[64] Smith [76].
[65] Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281, 294 (Gibbs CJ); Smith [78].
The requirement of compulsion is reflected in the words of EA s 11. The issue for the judge is whether the witness should be 'compelled to answer such question or interrogatory'. If a certificate is granted, the witness 'shall no longer be entitled to refuse to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him'. Using the language of the majority in Cornwell, it 'strains' the word 'compelled' and the phrase 'entitled to refuse' to apply them to a situation in which an accused in criminal proceedings, who has voluntarily elected to give evidence, seeks to decline to answer a question that he or she has instructed counsel to ask. Adopting the observation of the Full Court in Field & Kingston, merely 'because it would be forensically or tactically advantageous for [an accused] to give the evidence with the protection of a certificate is insufficient to found an application pursuant to' EA s 11.[66] As I have already observed [33], if an accused does not wish to answer a question asked of him by his counsel, he can simply instruct his counsel to withdraw the question, in which case there would be no possibility of the accused being compelled to answer the question.[67]
[66] Field & Kingston [24]. See also: CFMEU [35] - [36].
[67] Song [26].
As set out above ([29] ‑ [32]), the effect of EA s 8 is that an accused person in a criminal trial in Western Australia is under no compulsion to give evidence until such time as he or she is asked a question in cross-examination. At that point in time, the accused may be compelled to answer a question in circumstances where the privilege against self-incrimination has been expressly abrogated.
This conclusion is reinforced by EA s 24, which provides that '[e]xcept as hereinbefore provided, nothing in this Act shall render any person compellable to answer any question tending to incriminate himself'. As I have said, EA s 8 only has the effect of compelling an accused person to answer a question put in cross-examination. Section 24 thus has the effect that an accused person when giving evidence‑in‑chief may not be compelled to answer any question tending to incriminate him. He may voluntarily choose to give (relevant) evidence‑in‑chief which tends to incriminate him in the commission of another offence, but may not be compelled to do so.
For these reasons I am of the view that an accused person in a criminal trial is not entitled to seek a certificate pursuant to EA s 11 in relation to evidence to be given in evidence‑in‑chief. Accordingly, I declined to give Mr Dawson such a certificate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SVH
Associate
10 MARCH 2021