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  • Writer's pictureGeoff Harrison

Privilege Against Self-Incrimination


Criminal Barrister, Criminal Solicitor, Criminal Lawyer, Privilege Against Self-Incrimination

Published by Geoff Harrison | 16 November 2023


The right against Self-Incrimination is a common law right essentially that a person should not have to be a witness against themselves. It is also part of our common law adversarial system, that it is for the Crown to prove its case against an accused. Under s128 of the Evidence Act 1995 ('the Act'), if a person who is giving evidence does not wish to incriminate themselves by answering a particular question or questions, then they must object to answering on the basis that they may incriminate themselves and be possibly subject to criminal prosecution or civil penalty. However, the court may provide the witness with a certificate as per s128(5) of the Act and still require the witness to answer the question/s.


Other Sources:

Cases:

Extracted Legislation:


EVIDENCE ACT 1995 - SECT 128

Privilege in respect of self-incrimination in other proceedings


(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 a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence--

(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.


Note : This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an "Australian Court" instead of a "NSW court".


(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 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.


(13) For the purposes of subsection (12), a prescribed State or Territory provision is 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 that subsection.


(14) Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than 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.


Notes :

1 Bodies corporate cannot claim this privilege. See section 187.

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

3 Section 128 (12)-(14) of the Commonwealth Act give effect to certificates in relation to self-incriminating evidence under the NSW Act in proceedings in federal and ACT courts and in prosecutions for Commonwealth and ACT offences.

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[#93] HCA 12 (22 March 2007).


EVIDENCE ACT 1995 - SECT 128A

Privilege in respect of self-incrimination--exception for certain orders etc


(1) In this section--


"disclosure order" means an order made by a NSW court in a civil proceeding requiring a person to disclose information as part of, or in connection with, a freezing, search or other order under Part 25 of the Uniform Civil Procedure Rules 2005 but does not include an order made by a court under the Proceeds of Crime Act 2002 of the Commonwealth or the Confiscation of Proceeds of Crime Act 1989 or Criminal Assets Recovery Act 1990 of New South Wales.


"relevant person" means a person to whom a disclosure order is directed.


(2) If a relevant person objects to complying with a disclosure order on the grounds that some or all of the information required to be disclosed may tend to prove that the person--

(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,

the person must--

(c) disclose so much of the information required to be disclosed to which no objection is taken, and

(d) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken (the

"privilege affidavit" ) and deliver it to the court in a sealed envelope, and

(e) file and serve on each other party a separate affidavit setting out the basis of the objection.


(3) The sealed envelope containing the privilege affidavit must not be opened except as directed by the court.


(4) The court must determine whether or not there are reasonable grounds for the objection.


(5) Subject to subsection (6), if the court finds that there are reasonable grounds for the objection, the court must not require the information contained in the privilege affidavit to be disclosed and must return it to the relevant person.


(6) If the court is satisfied that--

(a) any information disclosed in the privilege affidavit may tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and

(b) the information does not tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and

(c) the interests of justice require the information to be disclosed,

the court may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties.


(7) If the whole or any part of the privilege affidavit is disclosed (including by order under subsection (6)), the court must cause the relevant person to be given a certificate in respect of the information referred to in subsection (6) (a).


(8) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence--

(a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section, and

(b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information,

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned.


(9) Subsection (8) does not prevent the use against the relevant person of any information disclosed by a document--

(a) that is an annexure or exhibit to a privilege affidavit prepared by the person in response to a disclosure order, and

(b) that was in existence before the order was made.


(10) Subsection (8) 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.


(11) If a person has been given a certificate under a prescribed State or Territory provision in respect of information of a kind referred to in subsection (6) (a), the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.


(12) For the purposes of subsection (11), a prescribed State or Territory provision is 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 that subsection.


(13) Subsection (11) applies to a proceeding in relation to which this Act applies because of section 4, other than 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.


Note : Section 87 of the Civil Procedure Act 2005 makes provision with respect to protection against self-incrimination in relation to certain matters to which this section does not apply.


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