Commonwealth Consolidated Acts

EVIDENCE ACT 1995 - 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 determine whether or not there are reasonable grounds for the objection.

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

  (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 cause the witness to be given a certificate under this section in respect of the evidence.

  (6)   The court is also to cause a witness to be given 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 Australian court:

  (a)   evidence given 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. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

  (8)   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 concerned.

  (9)   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.

  (10)   In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that 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.

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

  (12)   If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by the 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.

  (13)   The following are prescribed State or Territory provisions for the purposes of subsection   ( 12):

  (a)   section   128 of the Evidence Act 1995 of New South Wales ;

  (b)   a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of subsection   ( 12).

  (14)   Subsection   ( 12) applies to:

  (a)   a proceeding in relation to which this Act applies because of section   4; and

  (b)   a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth, other than a proceeding referred to in paragraph   ( a).

Note 1:   Bodies corporate cannot claim this privilege: see section   187.

Note 2:   Clause   3 of Part   2 of the Dictionary sets out what is a civil penalty.

Note 4:   Subsections   ( 8) and (9) were inserted as a response to the decision of the High Court of Australia in Cornwell v The Queen [2007] HCA 12 (22   March 2007).