Latest word, 4 February 2018: Ying v Song approved by Full Federal Court: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4.
Further update, 30 August 2017: Elliott J refused an application for a s. 128 certificate made by a plaintiff who sought it in respect of certain paragraphs of a witness statement he had voluntarily filed: De Lutis v De Lutis [2017] VSC 505. His Honour considered the Court of Appeal’s decision in Clayton Utz (a firm) v Dale (2015) 47 VR 48 which in turn had considered the NSWCA’s decision in Song v Ying (2010) 79 NSWLR 442, both cases which post-date what is written below.
Update, 4 December 2009: A single judge of the NSW Supreme Court, Justice Julie Ward (NSW’s equivalent of Victoria’s Justice Kyrou, having been appointed from the ranks of solicitors last year), declined to follow the decision discussed below, Sheikholeslami v Tolcher [2009] NSWSC 920. Twelve thousand words is a pretty good effort for an evidentiary ruling. In Ying v Song [2009] NSWC 1344, her Honour concluded:
‘I am unable to conclude that, on its proper construction, s 128 is enlivened in the present circumstances. Someone who chooses to adduce incriminating evidence (albeit because he or she feels forced to make such a disclosure to defend a claim made against him or her) is not in any real sense “unwilling” or averse to doing so. At common law such a person would not have been able to invoke the privilege against self-incrimination unless under a legal compulsion to give such evidence and I do not read s 128(1) as introducing a right to claim privilege which otherwise would not have existed.’
See also Einstein J in Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354 at [188]ff. This passage from Ying v Song also seems worthy of squirrelling away for future reference:
‘There might be an argument that, even if a certificate were given to protect Mr Song from the consequences of giving evidence by reading his affidavits in the present case, that certificate would not protect him from the consequences of having prepared and disseminated those documents in the first place (see generally, Brebner v Perry [1961] SASR 177 per Mayo J and BTR Engineering (Australia) (Formerly Borg-Warner Australia Limited) v Patterson (1990) 20 NSWLR 724 at 729 per Giles J). There might also be an argument that, having prepared and sworn documents (ie the affidavits), which have been filed and served, containing admissions which could be tendered against him in any criminal proceedings, Mr Song has waived, for the purposes of these proceedings, any privilege in relation to matters attested to in those affidavits or would be placed in no greater jeopardy of prosecution by reading those affidavits in the present proceedings and swearing (for a second time) to their accuracy (BTR Engineering at 730 per Giles J; Microsoft Corp at 381 [41] per Lindgren J; R v Bikic at [15] per Giles JA). However, as these arguments were not raised in argument before me and as I am otherwise satisfied that a certificate cannot be given in the present circumstance, it is not necessary for me to decide them.’
Original post: Section 128(7) of the Evidence Act, 1995 (Cth.) says:
‘In any proceeding in an Australian court: (a) evidence provided 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’.
A pretty useful certificate. Victorian practitioners in the Federal Court, Federal Magistrates’ Court, and Family Court should already be familiar with the section. Victoria’s Evidence Act, 2008, which commences on 1 January 2010 (thankfully after I have spent a week doing Advanced Evidence at Melbourne University with Professor Palmer), has a similar s. 128.
Pursuant to s. 132, courts have an obligation to warn parties and witnesses who they think might be in need of a certificate of their availability.
Typically, these certificates are granted when a witness objects to giving evidence, or answering certain questions, on the basis that to do so would be liable to incriminate them, or expose them to a civil penalty such as a fine or the suspension of a practising certificate. Sub-section (1) says:
‘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 …’.
A recent case, Sheikholeslami v Tolcher [2009] NSWSC 920, makes clear that on the present state of the law, a party or witness may apply for such a certificate even where what would be liable to incriminate him or her is evidence which he or she wishes to adduce in favour of their own case — the plaintiff’s affidavit evidence, a counterclaimant’s witness’s answers in re-examination. Justice Rein doubted the correctness of this interpretation of ‘objects to giving evidence’, but said by reference to Ferrall v Blyton [2000] FCA 1442; (2000) 27 Fam LR 178, Ollis v Melissari [2005] NSWSC 1016, and Chao v Chao [2008] NSWSC 584 that he was more or less bound to accept it.
Just how useful the section might be is exemplified by the facts and outcome of Ferrall v Blyton. As described by Justice Rein in Sheikholeslami at [8]:
‘The husband had engaged in a scheme to attempt to thwart his wife’s legitimate claims to the share of assets held by him which scheme had lead to the husband losing assets to the person whose scheme he was implementing (the applicants). The husband wanted to give evidence of those activities to assist in him obtaining orders that property which had been transferred was in reality his (and his wife supported that process). The Full Court of the Family Court rejected the applicants’ arguments that the certificate should not have been granted. The Full Court said at [89] – [90]:
“[89] We think the trial judge was clearly correct in holding that it was within his discretion to grant such a certificate. First, 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.[90] 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.”
It should be noted that notice had been given to the Commonwealth Attorney-General whose representative supported the husband’s position on the appeal.’
