Turner and Brown (No 2)

[2014] FamCA 226

FAMILY COURT OF AUSTRALIA

TURNER & BROWN (NO. 2) [2014] FamCA 226

FAMILY LAW – EVIDENCE – where the respondent and witness make an application in respect of s 128 of the Evidence Act 1995 (Cth) – certificates granted.

Crimes Act 1914 (Cth)
Evidence Act 1995 (Cth) ss 128, 132
Family Law Rules 2004 (Cth)

APPLICANT: Mr Turner

RESPONDENT: Ms Brown

INDEPENDENT CHILDREN’S LAWYER: T J Mulvany

FILE NUMBER: MLC 4102 of 2009

DATE DELIVERED: 3 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 3 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Benjamin

SOLICITOR FOR THE APPLICANT: Berry Family Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: T J Mulvany

Orders

1. Pursuant to s 128 of the Evidence Act 1995 (Cth) a certificate be given to the respondent in relation to the evidence given willingly by her contained in her affidavit filed 25 February 2014 and any further evidence she gives during the proceeding and any question she asks of witnesses as that evidence may tend to prove that she has committed an offence against or arising under Australian law.

2. Pursuant to s 128 of the Evidence Act 1995 (Cth) a certificate be given to the witness, Ms A, in relation to the evidence given willingly by her in cross-examination and re-examination this day as that evidence may tend to prove that she has committed an offence against or arising under Australian law.

AND THE COURT NOTES THAT

It is noted that both Certificates do not apply to a criminal proceeding in respect of the falsity of the evidence.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turner & Brown (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4102  of 2009

Mr Turner

Applicant

And

Ms Brown

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. An issue has been raised in relation to the giving of evidence in the current proceedings before me, which concern the parenting arrangements for the three children of the relationship B, aged nine years, J, aged six years, and T, aged three years. 

2. Both the respondent and a witness for the applicant have objected to the giving of evidence which may subject them to prosecution, particularly pursuant to the Crimes Act 1914 (Cth). The respondent mother and the witness both make an oral application under s 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”) in connection with the giving of evidence on the ground that the evidence may tend to prove that they have committed an offence under an Australian law or are liable to a civil penalty

The respondent mother

1. Pursuant to s 132 of the Evidence Act, I have brought to the respondent’s, Ms Brown’s, attention last Friday that there may be grounds for her making an objection to giving evidence on the grounds that it might incriminate her under section 128 of the Evidence Act.

2. Section 128 of the Evidence Act provides:

   Privilege 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.

3. The effect of the certificate under s 128(7) of the Evidence Act is that in any proceeding in an Australian court, the evidence given by the respondent, covered by the certificate and any information, document or thing obtained as a direct or indirect consequence of her having given evidence cannot be used against her. However, this exception does not apply to a criminal proceeding in respect of the falsity of the evidence. Whilst that is the exception, the certificate is granted in relation to any other potential offences or civil penalty that might apply.

4. The respondent has now obtained independent legal advice from a member of the Victorian Bar Association, Mr Mellas. Upon having now taken that advice, she has made an objection under s 128 of the Evidence Act to the giving of evidence on the ground that the evidence may tend to prove that she has committed an offence under an Australian law or is liable to a civil penalty.

5. The respondent has taken such objection in relation to her affidavit evidence, being the affidavit of Ms Brown, which was sworn on 21 February 2014 and filed 25 February 2014.  She has also objected in relation to evidence that may be provided by her in cross-examination or in re-examination.  As the respondent is representing herself in this proceeding and is not legally represented, the objection may also apply to questions she might put to the witnesses. 

6. In relation to the affidavit material, there is a notation to part 15.2 of the Family Law Rules 2004 (Cth) that the filing of an affidavit does not make that affidavit a part of the evidence and affidavits only become evidence when they are relied on by a party at a trial.

7. So where the witness has objected, the question for the Court then is whether there are reasonable grounds for the objection to the giving of evidence having been made.

8. I am satisfied on the balance of probabilities that there are reasonable grounds for the respondent’s objection having regard to the potential for criminal charges, such as a conspiracy to bring a false accusation under the Crimes Act 1914 (Cth), and possibly other offences, but the respondent may also be liable to a civil penalty as well. For that reason, I propose to grant the respondent a s 128 certificate.

The witness, Ms A

1. The witness, Ms A, has also indicated to the Court that she is willing to give the evidence and has made an application for the Court to grant a certificate under s 128 of the Evidence Act.

2. Under s 132 of the Evidence Act, it became apparent to the Court during these proceedings that the witness may have grounds for making an objection under s 128. I made the witness aware of that section when she was in the witness box. The matter was then stood down in order for the witness to obtain independent legal advice. The witness was given independent legal advice from a senior member of the Victorian Bar, Mr Dan Sweeney.

3. The witness then made an objection and made an application for a certificate under s 128 of the Evidence Act in respect of her cross-examination in Court. She objected to the giving of evidence on the ground that the evidence may tend to prove that she has committed an offence under an Australian law or is liable to a civil penalty which does not include an offence in relation to the falsity of the evidence.

4. The test to be applied is not whether the witness has established on reasonable grounds that they have committed an offence or are liable to a civil penalty, rather it is whether the evidence may tend to prove that they have committed an offence or are liable to a civil penalty. 

5. I have determined on the balance of probabilities that there are reasonable grounds for the objection having regard to the potential for charges, such as a conspiracy to bring a false accusation under the Crimes Act 1914 (Cth).

6. I have informed the witness that she need not give evidence unless she has a certificate. The witness has informed me that she would willingly give the evidence so there is no need for a requirement for her to do so under s 128.

7. Accordingly, I must cause the witness to be given a certificate under s 128 and I must clarify the evidence for which the certificate has been granted. In the case of the witness, I grant the certificate for her cross-examination in this proceeding by all parties and for re-examination.

8. The effect of the certificate under s 128(7) of the Evidence Act is that in any proceeding in an Australian court, the evidence given by the witness covered by the certificate and any information, document or thing obtained as a direct or indirect consequence of her having given evidence cannot be used against her. However, as indicated above, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 3 March 2014.

Associate: 

Date:  9 April 2014