Section 128 of the Evidence Act – Protecting yourself against self-incrimination.

This case involves the following issues:

The client in this matter has raised that he and his ex partner were both trying to alter the dates on their Centrelink forms. While they both engaged in the process they have made admissions about potentially committing centrelink fraud. This could lead to charges and can only be avoided by seeking the protection pursuant to a certificate s128 of the Evidence Act.

Interestingly, the client nor the victim are aware that they have admitted to the fraud because they are too distracted by the allegations of assault.


The accused resides at unit 31 Park Avenue. The victim was married to the defendant. Six months ago the relationship ended and the couple have 4 children they care for in a joint arrangement. He has two dependants that reside with him at the location. The accused is on welfare benefits.


The victim has sent the accused messages on his personal mobile phone to confirm her attending the accused address to sign some Centerlink papers. About 12.00pm on both victim’s attended Park Ave and has driven the victim down the driveway of the unit complex and parked the vehicle on the northern side of the driveway facing towards the Avenue opposite the accused unit.

The victim has exited the vehicle and approached the accused who was standing on the veranda remained inside the vehicle at this stage. The victim was standing on the grass area were she has had a verbal confrontation with the accused who was still standing on the veranda of his unit that faces the driveway.

Friends of the accused who were also at the location have engaged in a physical and verbal argument.

The partner of the victim has come to the aid of the victim and instructed the victim to get back in the car. Both victims have re entered the car, where the front windows were down.

The accused has come down stairs from his unit and ran towards the vehicle and approached the passenger side of the vehicle where the victim was seated. It is alleged that the accused has reached through the open window grabbing hold of the victims jumper and with a closed right fist punched the victim on the side of her face 2 to 3 times.

The accused has then walked around to the drivers side of the car and, with a clenched right fist, has punched in the mouth causing it to bleed. The accused then went back to the front passenger side of the car yelling at the victim who then tried to close the front passenger side electric window to stop further assaults. The accused grabbed the window preventing it from closing. The accused, using both hands grabbed the front of her jumper and screamed ”I told you, you fucking slut I’d get you. See what I can do”. The accused then spat in the victim’s face before walking back towards the entrance to his unit.

Side notes

This is based on true events and ETB Legal attended court for this matter that resulted in the matter being dismissed entirely.

The accused was charged with common assault for the punched and assault occasioning actual bodily harm due to the bleeding mouth. The accused had a prior record of assault and terms of prison. The police in the matter failed to seek witness statements after a number of neighbours watched the incident. This included a video. The neighbours had called the police. The police also failed to take photos of the victims and their injuries. The police brief of evidence was not complete.

The accused was advised from the first consultation that he was to seek a certificate at hearing before a Magistrate to protect himself against self incrimination on giving evidence about the Centrelink matters raised through the common assault case.


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 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 3: 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).

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