Relevant Authorities
10 In Ferrall v Blyton [2000] FamCA 1442 the Full Court of the Family Court (Nicholson CJ, Lindenmayer and Kay JJ) considered whether a s 128 certificate had been erroneously granted to a party to a proceeding. The party had obtained the certificate in relation to evidence given in chief by way of affidavit. The Full Court reasoned that the party concerned was objecting in the sense required by s 128(1) because he was not prepared to give the evidence unless a certificate was issued (at [90]). On that basis, the Full Court held that the trial judge was correct to hold that it was within his discretion to grant the s 128 certificate. Ferrall was followed by Brereton J in Chao v Chao [2008] NSWSC 584 at [3] and a willingness to follow it was indicated by Rein J in Sheikholeslami v Tolcher (2009) 75 NSWLR 418 at [13]. In Ollis v Melissari [2005] NSWSC 1016, Campbell J held that a s 128 certificate could be issued in relation to questions put to a witness by his own counsel in re-examination.
11 The meaning of "objects" next came to be considered in Cornwell v The Queen (2007) 231 CLR 260. In Cornwell, the claim for a section 128 certificate was triggered by questions put to an accused by his own counsel. That occurred in circumstances which the majority regarded as indicating that the accused wanted to give the evidence the subject of the objection taken and to do so with impunity (at [110]). At [111]-[112] the plurality (Gleeson CJ, Gummow, Heydon and Crennan JJ) said this (footnotes omitted, emphasis in original):
[111] This characterisation raises a question whether s 128(1), and hence s 128 as a whole, applies where a witness sets out to adduce in chief evidence revealing the commission of criminal offences other than the one charged. A criminal defendant might wish to present an alibi, the full details of which would reveal the commission of another crime. A civil defendant might wish to prove the extent of past earnings, being earnings derived from criminal conduct. This raises a question whether witnesses who are eager to reveal some criminal conduct in chief, because it is thought the sting will be removed under sympathetic handling from their own counsel or for some other reason, are to be treated in the same way as witnesses who, after objection based on genuine reluctance, give evidence in cross-examination about some crime connected with the facts about which evidence is given in chief.
[112] The view that the accused's claim of privilege in all the circumstances answered the requirements of s 128(1) has difficulties. It strains the word "objects" in s 128(1). It also strains the word "require" in s 128(5) - for how can it be said that a defendant-witness is being "required" to give some evidence when his counsel has laid the ground for manoeuvres to ensure that the defendant-witness's desire to give the evidence is fulfilled? And it does not fit well with the history of s 128(8). For one thing, s 1(e) of the 1898 Act and its Australian equivalents provided that an accused person called pursuant to the legislation could be "asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged", which implies that the protection of the accused's position in chief or in re-examination was a matter between the witness's counsel and the witness. For another thing, the Australian Law Reform Commission, in summarising the pre-s 128(8) law, assumed that s 1(e) and its Australian equivalents were to be construed as applying to questions in cross-examination only.
12 For the reasons explained by the plurality at [113], those observations were obiter and made in circumstances where the majority thought it undesirable to express a final view.
13 The issue was then considered by the Court of Appeal of New South Wales in Song v Ying (2010) 79 NSWLR 442. Proceedings had been brought against Mr Song arising out of an alleged agreement for the sale of shares and an alleged loan agreement in favour of Mr Ying. Mr Song made an application for a s 128 certificate on the basis that he would give evidence that the loans and directorship held by Mr Ying were created to give the false impression that Mr Ying had greater assets and business interests in Australia than he in fact had and that that was done in order to influence the consideration of Mr Ying's application for permanent residency by the Department of Immigration.
14 The primary judge rejected the application and Mr Song appealed.
15 Hodgson JA, with whom Giles and Basten JJA agreed, noted that in both Ferrall and Cornwell the focus of the discussion appeared to be on whether the application of s 128 is restricted to evidence arising in the cross-examination of a witness. His Honour thought that discussion missed the real issue and that the touchstone for the engagement of s 128 was the compellability of the witness.
16 At [20] Hodgson J stated that where a witness gives evidence in chief because he or she was actually compelled to do so, there is no reason why that witness may not object to giving evidence in chief on the ground that the evidence may tend to incriminate. To that extent, Hodgson JA recorded his agreement with Ferrall. However, his Honour regarded the reasons in Ferrall as otherwise "flawed in that they do not advert at all to the question of whether the witness was otherwise compellable to give the evidence objected to" (at [22]).
17 At [24] Hodgson JA expressed his understanding that the High Court's reasoning in Cornwell was not authority for restricting s 128 to cross-examination. Whilst his Honour agreed that Cornwell focused on the distinction between examination in chief and cross-examination, his Honour considered that was so because in that case the evidence was being given by a party to the proceeding. In relation to evidence given by a party in chief pursuant to questions asked by the witness's own counsel, Hodgson JA observed that "there would rarely if ever be a question that the evidence in chief is given under compulsion or because of liability to compulsion" (at [24]).
18 The dispositive reasoning of Hodgson JA is at [26]-[28]:
[26] In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence. A party giving evidence in chief, in response to questions from that party's own legal representative, is not generally giving evidence which that party is, in any real sense, compellable to give: unless called by another party and asked questions in chief by that other party, a party's evidence in chief is given entirely at the choice of that party and is not evidence that the party is compellable to give at the instance of anyone else. It is true that a party's legal representative can ask questions in chief without specific instructions to ask them; but if the party instructed the representative to withdraw such a question, there would in my opinion be no possibility of the witness being compelled to answer the question, at least unless it was pressed by another party or the judge, in which case no doubt s 128 could apply.
[27] In all cases apart from a party giving evidence in chief or re-examination in response to questions from the party's own legal representative, witnesses are compellable to give evidence either at the instance of the party calling them, or the party directing questions in cross-examination, or the judge (if the judge asks questions). It is compellability of this nature that gives sense to the word "objects" in s 128(1) and makes sense of the word "require" in s 128(4). In my opinion, such motivation as a defendant may have to give evidence to avoid having a judgment entered against him or her does not amount to relevant compellability.
[28] In my opinion, having regard to the wording of s 128 and the scope of the common law privilege which it displaced, it is not the case that a party to proceedings who is also a witness, giving evidence in chief in response to questions from the party's own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of a s 128 certificate, "objects" to giving that evidence within the meaning of s 128(1). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsion or potential compulsion which makes the expression "objects" apposite.
19 Song has since been followed in the Supreme Court of New South Wales (Crawford v Crawford (No 3) [2016] NSWSC 704 at [47]-[53] (Stevenson J); Re Lime Gourmet Pizza Bar (Charlestown) Pty Ltd (formerly under administration) [2014] NSWSC 1898 at [8] (Black J); Health Services Union NSW v Mylan [2014] NSWSC 1026 at [30] (Hammerschlag J)), the Family Court of Australia (Aitken v Murphy [2011] FamCA 785 at [121] (Young J)) and has been both followed (Chong v CC Containers Pty Ltd [2015] VSCA 137 at [236]-[238] (Redlich, Santamaria and Kyrou JJA)) and given otherwise favourable treatment (Clayton Utz v Dale (2015) 47 VR 48 at [169]-[180] (Tate JA, with whom Ashley and Ferguson JJA agreed)) by the Victorian Court of Appeal.