EVIDENCE ACT 2011 - SECT 128 Privilege in relation to self-incrimination in other proceedings

EVIDENCE ACT 2011 - SECT 128

    (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 decide whether or not there are reasonable grounds for the objection.

    (3)     Subject to subsection (4), if the court decides that there are reasonable grounds for the objection, the court must not require the witness to give the evidence and must tell 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 the certificate.

    (4)     The court may require the witness to give the evidence if the court is satisfied that—

        (a)     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

        (b)     the interests of justice require that the witness give the evidence.

    (5)     If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must give the witness a certificate under this section in relation to the evidence.

    (6)     The court must also give a witness 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.

    (7)     In any proceeding in an ACT court or before any entity authorised by a territory law, or by consent of parties, to hear, receive and examine evidence—

        (a)     evidence given by a person in relation to 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.

Note     This subsection differs from the Commonwealth Act

, s 128 (7). The Commonwealth provision refers to an ‘Australian court' instead of an ‘ACT court'.

    (8)     However, subsection (7) does not apply to a criminal proceeding in relation to the falsity of the evidence.

    (9)     Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate.

    (10)     If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.

    (11)     In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, if the evidence is 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.

    (12)     A reference in this section to doing an act includes a reference to failing to act.

    (13)     If a person has been given a certificate under a prescribed State or Territory provision in relation to evidence given by a person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.

    (14)     For subsection (13), a prescribed State or Territory provision is a provision of a State or Territory law declared by regulation to be a prescribed State or Territory provision for that subsection.

    (15)     Subsection (13) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a Commonwealth law or for the recovery of a civil penalty under a Commonwealth law.

Note 1     The Commonwealth Act

, s 128 (12) to (14) gives effect to certificates in relation to self-incriminating evidence under this Act in proceedings in federal courts and in prosecutions for Commonwealth offences.

Note 2     Bodies corporate cannot claim this privilege—see s 187.

Note 3     The dictionary, pt 2, s 3 sets out what is a civil penalty.

Note 4     The Commonwealth Act

, s 128 (12) to (14) gives effect to certificates in relation to self-incriminating evidence under this Act in proceedings in federal courts and in prosecutions for Commonwealth offences.

Note 5     Subsections (9) and (10) were inserted as a response to the decision of the High Court in Cornwell v The Queen [2007] HCA 12 (22 March 2007).