Ying v Song [2009] NSWSC 1344 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
1 December 2009
JUDGMENT DATE :
3 December 2009
JURISDICTION:
Equity Division
JUDGMENT OF:
Ward J
DECISION:
Defendant's application dismissed.
CATCHWORDS:
EVIDENCE - facts excluded from proof - privilege in respect of self-incrimination – application for a certificate to be given under s 128 of the Evidence Act for evidence proposed to be given by a defendant in chief by affidavit - whether the defendant in those circumstances “objects” within the meaning of s 128(1) - consideration of Ferrall v Blyton (2000) 27 Fam LR 178 and Cornwell v R (2007) 231 CLR 260 - held that defendant did not object within the meaning of s 128 as defendant not otherwise compelled to give the evidence - PROCEDURE - courts and judges generally - precedents - decisions of particular courts - conflict between ratio of Full Family Court judgment and dicta of High Court majority judgment - both entitled to significant deference but neither strictly binding upon New South Wales Supreme Court - consideration of phrase “seriously considered dicta” - consideration of proper approach to conflicting non-binding authorities
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ying v Song [2009] NSWSC 1344
Case
[2009] NSWSC 1344
Decision Date
CaseChat Overview and Summary
The matter of Ying v Song was heard in the New South Wales Supreme Court. The case involves a dispute concerning the admissibility of evidence under the Evidence Act 1995 (NSW), specifically in relation to the privilege in respect of self-incrimination. The defendant, Song, seeks to give evidence by affidavit and has applied for a certificate under section 128 of the Evidence Act. The application raises the question of whether Song's circumstances amount to an "objection" within the meaning of section 128(1) of the Act.
The legal issue before the court was whether Song's decision to give evidence by affidavit constituted an objection as required by section 128(1) of the Evidence Act. This required consideration of previous cases such as Ferrall v Blyton and Cornwell v R. The court also needed to reconcile conflicting precedents between the Full Family Court and the High Court. The Full Family Court had held that a defendant does not object if they are not compelled to give evidence, while the High Court's majority had suggested otherwise in its dicta.
The court found that Song did not object within the meaning of section 128(1) because Song was not compelled to give evidence in the traditional sense. The court acknowledged the significant deference owed to both the Full Family Court and the High Court, but held that neither decision was strictly binding. The court adopted the approach of "seriously considering dicta" from the High Court's decision in Ferrall v Blyton, which it deemed appropriate given the conflicting precedents. Ultimately, the court concluded that Song's circumstances did not meet the threshold of an "objection" required by section 128(1).
The court denied the application for a certificate, holding that Song's evidence could not be excluded under the privilege in respect of self-incrimination. The court's decision was based on the specific facts of Song's case and the interpretation of the Evidence Act, reflecting a careful consideration of the relevant legal principles and precedents.