S 128 of the Evidence Act
The privilege against self-incrimination is a ‘basic and substantive right’ which prevents a person being questioned, against their will, on matters which may uncover criminal conduct engaged in by that person.
This right has been adopted in section 128 of the Evidence Act 1995 (NSW) and in Uniform Evidence Acts throughout various jurisdictions in Australia. As such, when a witness indicates an unwillingness to give evidence on the basis that their evidence may incriminate them, it is commonly referred to as ‘a s. 128 issue’.
Who can object?
Section 128 applies when:
- A witness objects to giving particular evidence or evidence on a particular matter
- On the ground that the evidence may tend to prove that they have committed an offence under Australian law or an offence against a law of a foreign country or make them liable for a civil penalty.
An objection can only be raised when a witness is compelled to give evidence. This means that an objection cannot be raised when an accused personal voluntarily elects to give evidence in their own case and is questioned by their own lawyer. Circumstances in which ‘s. 128 issues’ most commonly arise include:
- When a person is subpoenaed to give evidence as a witness in proceedings and then questions are asked which tend to suggest or relate to the commission of an offence by that person.
- When an accused person elects to give evidence, but is then cross-examined on matters which tend to suggest or relate to the commission of an offence, other than the offence for which that person is charged.
Practically, the objection is made by the witness verbally objecting to giving the evidence after being sworn or affirmed and prior to giving evidence in response to a particular topic.
What evidence can a person object to giving?
A s. 128 objection can be raised in relation to multiple forms of self-incrimination. An objection is not limited to disclosure of criminal conduct alone.
For example, an objection can be raised should a witness be concerned their evidence may give rise to liability to a fine or civil penalty. A demotion or dismissal form employment can also be regarded as a ground for objection, as a form of civil penalty.
Fear of reputational damage or embarrassment alone is not enough to raise an objection under s. 128. The provision cannot be used for example to protect against the giving of evidence on topics including adultery, bankruptcy or medical issues.
The granting of a certificate
If a witness fears their evidence in response to questions may later be used against them, the Court is empowered under s. 128 to grant a certificate prohibiting the future use of that evidence in separate proceedings.
First, the Court must determine whether there are reasonable grounds for the objection (i.e. whether or not the witness can be placed in jeopardy by giving the particular evidence).
If the court is not satisfied that there are reasonable grounds for the objection, the witness will be required to give the evidence.
Second, if the Court is satisfied there are reasonable grounds for the objection, the Court must then determine:
- Whether the witness should be excused from giving evidence on that topic entirely; or
- Whether the witness should give the evidence, under the protection of a certificate.
In determining this question, the Court must consider whether it is in the interests of justice that the evidence be given under objection. The balancing exercise requires consideration of, on the one hand, the public interest in the court not being deprived of relevant evidence and on the other, an individual’s right not to disclose the commission of a criminal offence or an offence that would attract a civil penalty.
A certificate can be granted globally, in relation to questioning on a particular topic or in relation to a specific question. It is not necessary that an objection be raised in response to each individual question asked of the witness once an objection is first made.
The effect of a certificate
If a witness is granted a certificate under s.128, the evidence they give, in respect of which the certificate is issued, cannot be used against that person in any proceeding in a NSW court or before any person or body authorised by a law of NSW, or by consent of parties, to hear, receive and examine evidence.
As such, a certificate is not an ‘immunity’ from future prosecution, but rather a mechanism which prevents the use of a witness’ evidence against them in any future proceedings.
Comparable regimes also operate in other jurisdictions in Australia meaning that a s. 128 certificate issued is recognised in many, but not all jurisdictions of Australia.
An example of s. 128 in practice
To illustrate how a s. 128 issue may arise and play out in practice, consider the following hypothetical example:
John Smith is served with a subpoena to give evidence in civil proceedings. The civil proceedings concern a dispute between Mr Smith’s employer (Compony A) and a contractor (Company B) as to the award of tender’s to a separate company. Mr Smith works in a management role for Company A.
Mr Smith engages his own lawyer. In conference, he informs his lawyer that he had been accepting cash bribes from Company B for a number of years and in return, had been assigning Company B work on a preferential basis.
The civil proceedings progress to trial. Mr Smith attends Court in compliance with his subpoena. When Mr Smith is called and questioned by lawyers acting for Company A about his dealings with Company B, Mr Smith objects on the basis that his answer is likely to incriminate him. Mr Smith’s lawyer makes submissions on why there are reasonable grounds for objection.
After hearing submissions from the parties, the Court is satisfied that reasonable grounds exists for the objection and that evidence should only be given under the protection of a s. 128 certificate. After this order is made, Mr Smith gives full and truthful evidence on his dealings with company B while working for company A, including the acceptance of unlawful bribes.
At the conclusion of proceedings Mr Smith receives a s. 128 certificate from the Presiding Judge. This certificate means that the evidence given by Mr Smith at trial cannot be used against him in separate proceedings. Law enforcement cannot use a transcript of Mr Smith’s evidence to instigate an investigation in relation to the bribery. Similarly, the evidence given under s. 128 certificate cannot be sued by Company A in any civil proceedings brought against Mr Smith.
When a section 128 issue arises, it is essential that you receive legal advice at an early stage to ensure your privilege against self-incrimination is adequately protected. To arrange a conference to discuss your options, call our Sydney Office of Hugo Law Group on (02) 9696 1361 or Canberra Office on (02) 5104 9640 to make an appointment to speak to one of our lawyers.
Damien Mahon , Senior Lawyer