Noticeboard
| Published date | 01 October 2007 |
| Date | 01 October 2007 |
| DOI | http://doi.org/10.1350/ijep.2007.11.4.329 |
| Subject Matter | Noticeboard |
NOTICEBOARD
NOTICEBOARD
NOTICEBOARD
Recent cases with commentary
Privilege against self-incrimination—that of the accused in the witness box:
Australia
Until the era of the Uniform Evidence Act 1995, all Australian jurisdictions had
legislation virtually identical to the Criminal Evidence Act 1898, s. 1 (UK) and five
still do. As is well known, that sectionwas a compromise. The defendant was given
the right to testify upon his own application in all criminal proceedings, but his
privilege against self-incrimination was abolished with respect to the offence
charged. If he went into the witness box, he could be ‘asked any question in
cross-examination notwithstanding that it would tend to criminate him as to the
offence charged’ (s. 1(e)), unless able to rely on the s. 1(f) shield which curtailed
questions about his bad character. During the 105 years that s. 1(f) was in force
until its repeal by the Criminal Justice Act 2003, Sched. 36, Pt 5, its relationship to
s. 1(e) was never satisfactorily settled. The meaning of s. 1(e) is at the heart of that
relationship. In 1985 the Australian Law Reform Commission (ALRC) considered
the Australian counterparts of s. 1(e) and s. 1(f) and recommended amending the s.
1(f) provision. This reform was implemented as s. 104 of the Evidence Act 1995
(NSW). The ALRC did not see any problem about the meaning of s. 1(e) but recom-
mended that the defendant be allowed to waive that part of the privilege to
self-incrimination retained under s. 1(e) in exchange for the protection of a certif-
icate forbidding use of the evidence in other proceedings. This option was
converted in the Evidence Act 1995 (NSW) into a duty to accept such a certificate
where the judge decided the privilege against self-incrimination was an imped-
iment to justice. The relevant NSW provision is s. 128 of the Evidence Act 1995
which, except for subs. (8), applies to both civil and criminal proceedings. No
distinction is made between criminal defendants and other witnesses. Section 128
provides:
(1) This section applies if a witness objects to giving particular evidence on
the ground that the evidence may tend to prove that the witness:
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2007) 11 E&P 329–351 329
(a) has committed an offence … arising under an Australian law…
(2) … if the court finds that there are reasonable grounds for the objection,
the court is not to require the witness to give that particular evidence,
and is to inform the witness:
(a) that he or she need not give the evidence, and
(b) that, if he or she gives the evidence, the court will give a certificate
under this section and
(c) of the effect of such a certificate. …
(5) If the court is satisfied that:
(a) the evidence concerned may tend to prove that the witness has
committed an offence … arising under … an Australian law, and
…
(c) the interests of justice require that the witness give the evidence,
the court may require the witness to give the evidence.
(6) If the court so requires, it is to cause the witness to be given a certificate
under this section in respect of the evidence.
(7) In any proceeding in a NSW Court:
(a) evidence given by a person in respect of which a certificate under
this section has been given … cannot be used against the person ...
(8) 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. (emphasis
supplied)
Section 128(8) is the successor to s. 1(e) of the Criminal Evidence Act 1898.
The appellant and co-defendants in Cornwell vThe Queen [2007] HCA 12 were
charged with importing a commercial quantity of cocaine into Australia, an
offence under the federal Customs Act 1901. During his first trial before Howie J
the prosecution introduced into evidence bugged conversations between the
appellant and two co-defendants which were concerned with domestic
trafficking in drugs. The appellant successfully applied for a certificate against
self-incrimination under s. 128 on the grounds that his evidence about these
conversations tended to prove his involvement in large-scale local drug distri-
bution,anoffencewithwhichhewasnotcharged.Asthejurywasunableto
agreeonaverdictfortheappellant,hefacedasecondtrialforthesameoffence
before Blackmore J and another jury. At the second trial, he chose not to testify.
At the retrial, the prosecution contended that the appellant’s testimony about
the bugged conversations was admissible despite the s. 128 certificate.
Blackmore J ruled (the High Court held erroneously) that the second trial was a
330 E & P
NOTICEBOARD
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