Ø Privileged evidence under Part 3.10 is inadmissible (s 134) as is evidence privileged under the CL.
Ø NB: if witness/party appears to have grounds to object, court must satisfy itself W/P aware of right (s 132).
Ø Privilege is personal to the witness and must be claimed re individual pieces of evidence – it is a way witnesses who are otherwise competent and compellable may refuse to give or produce evidence.
(1) Privilege against Self-Incrimination (‘PSI’)
On the facts, [witness] may claim that [evidence] need not be given under the privilege against self- incrimination, a fundamental common law right (Sorby) since modified by statute.
1.1 Pre-trial proceedings
Ø Per s 131A, s 128 – the statutory PSI – will not apply if a person is required to give information under a disclosure requirement.
o S 131A(2): disclosure requirement means: process or order of court requiring disclosure of info or docs and includes: (a) a summons or subpoena; (b) pre-trial discovery; (c) non-party discovery; (d) interrogatories; (e) a notice to produce; (f) a request under Division 1, Part 4.6; (g) a search warrant.
Thus, as [witness] is claiming privilege in relation to a disclosure requirement – [requirement per s 131A(2)(a)-(g))] he/she will have to rely on the common law.
Ø Can rely on CL PSI if there is a real danger or an appreciable risk of self-incrimination and privilege being used for a bona fide purpose (Brebner).
Brebner: witness involved in crim offences with P. W called by Crown & argued PSI. S had already admitted involvement to police (already SI).
No real danger – damage already done + he was claiming to help P, not bona fide – no PSI.
Ø PSI applies to derivative evidence as well as other evidence – Sorby
Sorby: cannot force person to say whether they have the key to a particular locker if that would imply the drugs within were theirs and that would SI
Ø NB: the PSI is more than merely an evidential rule and is inherently capable of applying in non-judicial proceedings (Pyneboard)
Ø PSI is also “deeply ingrained in common law” and requires a clear intention of Parliament to abrogate Sorby – c.f. the provision of use immunity in Cth Act did not abrogate PSI. Later amendment with express intention to abrogate did
Ø Cannot be claimed by corporations – it is a fundamental human right (s 187 EA; EPA v Caltex).
Topic 4: Privilege
1.2 PSI at trial
[Witness] may object to the giving evidence of [X] as it has a tendency to prove that [witness]:
o Has committed [offence], an offence against an Australian/Foreign law (s 128(1)(a)); or o Is liable to a civil penalty, [penalty] (s 128(1)(b)).
1.2.1 Does the witness object?
Ø Witness will not be objecting if they are not compelled (i.e. they are willingly giving evidence) or if they refuse to give evidence unless they are given a s 128 certificate of immunity (Song v Ying).
1.2.2 Reasonable grounds for objection?
The court must determine if there are reasonable grounds for the objection (s 128(2))
Ø Brebner: is there a real or appreciable danger of self-incrimination? Is the evidence given for W’s own protection/bona fide purpose or another collateral purpose?
If RG made out, Court must not require W to give E (unless required by (4)) and must inform W (s 128(3)):
Ø W need not give evidence – (a);
Ø Court will give certificate if witness willingly gives evidence or is forced to under (4) – (b)(i)-(ii); and Ø Effect of certificate – (c).
1.2.3 Interests of justice exception
Even if RG made out, Court may require [witness] to give [the evidence] if court is satisfied that the evidence does not tend to prove an offence or is liable to civil penalty and the interests of justice require it – s 128(4).
Ø The interests of justice require examination of complex matters which are not determinative (Lodhi).
Lodhi factors Explanation
Nature of proceedings Public has greater interest in prosecution of crim offences – more likely IOJ requires.
Crim: who is calling? Crown – IOJ no more likely. Defence – more likely. D needs to be equipped to defend.
Importance of E Relative importance given other available evidence – Lodhi: not trivial but evidence is circumstantial, not direct evidence – would merely add to mosaic of Crown case.
Nature of charges against accused
Serious charges with high likelihood of substantial imprisonment points towards maintenance of privilege – terrorism in Lodhi.
Likelihood of prosecution/penalty
How likely is it the witness will be prosecuted or penalised as a result of the evidence being given?
Interests of witness in getting fair trial
Lodhi: Ul-Haque (W) likely prejudice own interests if compelled under (4). Little other Crown evidence against him, likely to be cross-examined on that evidence. Certificates not absolute protection: prejudice standing in community, relationship with lawyer etc.
Reliability of
evidence Even if evidence forced, W’s evidence may be unreliable given interest in present SI.
As a conspirator, less reliable – points away from forcing.
Lodhi: Crown wanted to order witness to give evidence against accused (L) re involvement in terrorist acts. W argued PSI – pending own trial for receiving terrorist training. IOJ did not require W to give evidence here.