Witnesses should be aware of their right to claim the privilege
against self-incrimination, and when and how it can be claimed. It
is important to not inadvertently waive the privilege by
voluntarily giving incriminating evidence.
When a person is compelled by the Australian Securities and
Investments Commission ("ASIC") to
attend an examination, it is important to be aware of the right to
claim the privilege against self-incrimination, and how to claim
the privilege. It prevents ASIC from using the information against
the person in future criminal proceedings. Even if the witness
believes no crime has been committed, the safest course is to claim
the privilege, as the witness' personal opinion may be
incorrect at law. A witness appearing before an ASIC examination
ought to attend with a legal practitioner with experience in such
Section 128 certificate
Another context in which the privilege is important is when a
person is requested to or required to give evidence in civil
litigation. A Court may grant a certificate under s.128 of the
Uniform Evidence Act (applicable in some states, including
New South Wales and Victoria, and in the Federal jurisdiction) if a
witness objects to giving particular evidence on the ground that
the evidence may tend to prove that he/she has committed an
offence, or is liable to a civil penalty.
The Court must determine whether there are reasonable grounds
for the objection. The witness may still be required to give the
evidence, but the certificate means the evidence cannot be used
against the witness in subsequent proceedings.
An exception is if the evidence given under the protection of
the certificate was false, then evidence can be used in prosecuting
the witness for giving false evidence.
A s.128 certificate is only available if the witness objects to
giving evidence. In Tim Barr Pty Ltd v Narui Gold Coast Pty
Ltd  NSWSC 29 (5 February 2010), Barrett J held that
where a witness voluntarily gives evidence (including affidavit
evidence) without being compelled to do so, he/she cannot be said
to have objected to giving the evidence, and the protection under
s.128 is not available.
It is important for witnesses to not inadvertently waive the
privilege, and to seek legal advice before giving potentially
For example, if director A of a company is sued for breaches of
director's duties with potential criminality and asks
director B to give evidence which potentially also discloses
breaches of duties by director B, director B should not provide an
affidavit as the privilege cannot be claimed at trial. Director A
may subpoena director B if he/she believes director B's
evidence will assist. Director B should have legal representation
present at the trial to seek orders for s.128 certificates where
Published: 23 June 2010
The assistance of Peggy Wong, solicitor, of Addisons in the
preparation of this article is noted and greatly
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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