Ewin v Vergara

REASONS FOR JUDGMENT 1 In this proceeding, the applicant, Ms Ewin, claims that she was sexually harassed and unlawfully discriminated against in breach of ss 14 and 28B of the Sex Discrimination Act 1984 (Cth). Broadly speaking, Ms Ewin claims that in the period 12 to 15 May 2009 the respondent, Mr Vergara, subjected her to unwelcome conduct of a sexual nature, including by making comments containing sexual innuendo, making sexual propositions and requests for sexual favours and ultimately, on the evening of 15 May 2009 by subjecting her to non-consensual acts of sexual intercourse and assault. 2 Ms Ewin alleges that the acts on the evening of 15 May 2009 were non-consensual because given her impaired state, she was unable to consent. Ms Ewin's case has sought to raise the suggestion that her impaired state was possibly the result of the spiking of her beverage with a drug whilst she was at a bar called the Insignia Bar with Mr Vergara and others at a time shortly prior to the alleged sexual intercourse and assault. 3 In relation to the events on the evening of 15 May 2009, Ms Ewin complained to the Victoria Police alleging that she had been raped. Between 6 June 2009 and early 2010 the Victoria Police conducted inquiries in relation to Ms Ewin's complaint. In the course of those inquiries Mr Vergara was interviewed by police. It is common ground that the Victoria Police decided not to charge Mr Vergara. I am informed that the decision not to proceed on Ms Ewin's complaint was made by the Office of the Victorian Director of Public Prosecutions. 4 Mr Vergara denies the conduct alleged against him in this proceeding. He has conducted his defence without the assistance of legal representation other than at a very early stage of the proceeding. That Mr Vergara is not legally represented is a matter of deliberate choice made by him. He has resisted encouragement given to him to obtain representation, including efforts made by the Court to facilitate pro bono representation. His attention has been drawn to the existence of the privilege in respect of self-incrimination contained in s 128 of the Evidence Act 1995 (Cth) ("the Act") on a number of occasions, including prior to and at the outset of the trial, as well as during the course of his cross-examination. 5 Mr Vergara elected to give evidence in support of his defence. He did so by tendering a written statement of his evidence in chief. That occurred on day 6 of the trial after Ms Ewin's case had been closed. Mr Vergara's evidence given in chief was wide-ranging but included his account of events in the period 12 to 15 May 2009 and, broadly speaking his account of the conversations and other activities upon which Ms Ewin relies in relation to her allegations involving the making of sexual propositions and sexual innuendo. 6 Mr Vergara's evidence also dealt with the events of the evening of 15 May 2009, and that evidence described various activities and conversations that occurred at the Insignia Bar; later, as Mr Vergara and Ms Ewin travelled between the Insignia Bar and the office at which they both worked; and then the sexual conduct at or about the office, including evidence going to the nature and extent of that conduct and the willing participation of Ms Ewin in it. 7 Mr Vergara's evidence then dealt with returning with Ms Ewin to the Insignia Bar and conversations between them when travelling from the Bar to the Southern Cross Train Station. All of that evidence, as well as other evidence given by Mr Vergara in relation to events in the week of 18 May 2009 bear on the nature and extent of the sexual conduct which occurred between Mr Vergara and Ms Ewin, including whether and to what extent the conduct was consensual. 8 On day 7 of the hearing, after many hours of cross-examination, Mr Vergara objected to answering a question relying upon s 128 of the Act. Section 128 of the Act provides: (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) If the court determines that there are reasonable grounds for the objection, the court 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. Note: Subsection 128(7) differs from subsection 128(7) of the NSW Act. The NSW provision refers to a NSW Court instead of an Australian 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 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). (15) Until the day fixed under subsection 4(6), subsection (12) applies to a proceeding for an offence against a law of the Australian Capital Territory or for the recovery of a civil penalty under such a law, other than a proceeding referred to in paragraph (14)(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: The NSW Act does not contain provisions corresponding to subsections (12) to (15). Note 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] HCA 12 (22 March 2007). 9 Relying upon the fact that s 128(1) extends to an objection to giving evidence on "a particular matter", Mr Vergara characterised his objection as extending to evidence relevant to the complaint of sexual assault and rape made by Ms Ewin against him, including the allegation that he unlawfully administered a drug to Ms Ewin. I note that the administration of a drug with the intent of rendering a person incapable of resisting an act of sexual penetration or resisting an indecent act is an offence under s 53 of the Crimes Act 1958 (Vic). Rape and indecent assault are dealt with by ss 38 and 39 of that Act. 10 Counsel for Ms Ewin contended that the objection raised by Mr Vergara should be disallowed on the ground that there was no reasonable grounds for the objection, as required by s 128(2) of the Act. Counsel's first proposition was that the mere exposure to the possibility of prosecution was insufficient to establish reasonable grounds. Here, he contended, the Police have already investigated and declined to charge Mr Vergara, and therefore the risk of a prosecution was so minimal as to deny the existence of reasonable grounds. 11 Whilst I accept that there would not be reasonable grounds where a person has been convicted and punished for an offence, or where the risk of prosecution could not be increased because the evidence which could be compelled has already been disclosed, those circumstances are not present here. Reasonable grounds may be established by the existence of a recognisable risk. As Lord Justice Shaw said in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (1978) AC 547 at 581: The precise measure or degree of the risk to the witness is something which the court is not called upon to assess so long as there is a degree of risk which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance. 12 The possibility that evidence sought to be adduced from Mr Vergara may lead to a reconsideration by Victoria Police of whether Mr Vergara should be charged is a risk which, in my view, cannot be dismissed as tenuous, illusory, or so improbable as to be virtually without substance. I therefore reject Ms Ewin's first contention. 13 The second contention initially put on behalf of Ms Ewin but now not pressed, was that s 128 was inapplicable to Mr Vergara because the provision did not apply to a witness who had given evidence voluntarily on the subject matter of the objection, because in those circumstances it could not be said that the witness "objects" within the terms of s 128(1). Reliance was placed on the obiter expressed by Gleeson CJ, Gummow, Heydon and Crennan JJ in Cornwell v R (2007) 231 CLR 260 at [111] to [113]. 14 Ms Ewin relied on the evidence given in chief by Mr Vergara which, as I have earlier outlined, dealt with a range of conversations, activities, events or circumstances relevant to the subject matter of the objection now sought to be taken by Mr Vergara. The tendering of that evidence was said to characterise Mr Vergara as a voluntary witness on the subject matter of the objection rather than an objecting witness as s 128(1) of the Act requires. Whilst the contention has some attraction, in my view it relies upon an overly broad construction being placed on the word "objects". 15 In Song v Ying (2010) 79 NSWLR 442, Hodgson J with whom Giles and Basten JJ agreed, referred to the obiter in Cornwell and a number of other judgments where the meaning of "objects" in s 128(1) has been considered. His Honour reasoned at [26]-[28] that compellability was the touchstone to the intended meaning of the word "objects". If an element of compulsion or potential compulsion in relation to the giving of the evidence to which objection is taken exists, then it seems to me that an objecting witness exists for the purpose of s 128(1) of the Act. Given the compulsion involved in evidence given under cross-examination, I consider Ms Ewin's counsel was correct in not pressing this contention. 16 Ms Ewin's third contention is that the objection should be overruled because Mr Vergara has waived any privilege he had against self-incrimination. At common law, a privilege is waived either expressly or impliedly by conduct engaged in by the privilege holder which is inconsistent with the maintenance of the privilege. In Mann v Carnell (1999) 201 CLR 1, the majority emphasised that the inconsistency which brings about the waiver may be informed by considerations of fairness as between the conduct of the privilege holder and the maintenance of the privilege. 17 Ms Ewin contended that despite there being no provision in the Act for waiver of the privilege which s 128 confers, the common law nevertheless applies. Reliance was substantially placed upon the judgment of Haylen J in Workcover Authority (NSW) v Tsougranis (2002) 117 IR 203 at [40]. However, in that case Haylen J relied on s 9(1) of the Evidence Act 1995 (NSW) which provides as follows: This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment. 18 There is no equivalent provision in the Commonwealth Act. Further, there are significant differences between the common law privilege against self-incrimination and the privilege provided by s 128 of the Act. The inclusion of a scheme for the grant of certificates and the circumstances in which the giving of evidence may be compelled or willingly given in the context of that scheme creates a regime somewhat different to that of the common law and suggests that common law principles dealing with the negation of the privilege were not intended to have direct applicability. I need not determine that issue as I accept the alternative submission of Ms Ewin, that the considerations which inform the common law principle of waiver are relevant to s 128 and may be taken into account in the Court's determination of whether or not there are reasonable grounds for the objection pursuant to s 128(2) of the Act. A number of authorities support that approach: see Workcover Authority (NSW) v Tsougranis at [40] (Haylen J); Versace v Monte [2001] FCA 1572 at [7], [12] (Tamberlin J); Odgers S, Uniform Evidence Law (10th ed, Thomson Reuters, 2012) at [1.3.13030]. 19 At common law, the privilege against self-incrimination is capable of waiver: BTR Engineering (Australia) (Formerly Borg-Warner Australia Ltd) v Patterson (1990) 20 NSWLR 724 at 727-730 (Giles J); Reid v Howard (1995) 184 CLR 1 at 5 (Deane J), 12 (Toohey, Gaudron, McHugh and Gummow JJ); Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 431 (Clarke JA), 423 (Kirby P) and 437-8 (Meagher JA); Registrar of the Supreme Court of South Australia v Zappia (2003) 86 SASR 388 at [44] (Bleby J). However, courts may be less ready to infer waiver where the privilege against self incrimination applies, than in circumstances where other kinds of privilege apply: Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 431 (Clarke JA); see also Heydon JD, Cross on Evidence (8th ed, Lexis Nexis Butterworths, 2010) at [25010]. 20 Ms Ewin contends that Mr Vergara has waived the privilege because he voluntarily gave a record of interview with the Victoria Police over the exact subject matter of the current claim; he has filed a defence in the proceedings drawn by his then legal representatives, including counsel; and having had notice of s 128 of the Act, elected to put a statement into evidence and submit to cross-examination. 21 I reject Ms Ewin's contention that there would be, at common law, a waiver of the privilege by reason of Mr Vergara voluntarily making a statement to the Police in a record of interview on the subject of his claim for privilege. As Clarke JA said in Accident Insurance Mutual Holdings Ltd v McFadden at 432: All that is put in support of the waiver is the making of the earlier statements. In principle it would seem to me that that conduct could not constitute a waiver of a right to decline to provide self-incriminating answers to questions put during the course of a trial. If it were otherwise it would mean that persons who had made admissions to police could be taken to have waived the right to remain silent. This has never been suggested and, if correct, it would constitute an enormous infringement of an ancient and fundamental right of all citizens. 22 There is, however, one qualification to be made to the position to which I have just referred. In Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32 at [24], Finkelstein J agreed with the observations of Clarke JA extracted above, subject to the following qualification: A person who has made a statement before trial can be compelled to repeat that statement in court. His Honour cited Registrar, Court of Appeal (NSW) v Craven (1994) 126 ALR 668 at 685. 23 The question of whether the filing of a defence may constitute a waiver of the privilege against self-incrimination was also dealt with by Finkelstein J in Australian Securities and Investments Commission v Mining Projects Group Ltd. His Honour, at [24] went on to say: Putting the qualification aside, in my opinion a defendant who admits a particular fact in his defence does not thereby waive his right to claim the privilege for all other facts. That is to say the waiver goes no further than what has been admitted or asserted. There is nothing unfair in this result. By way of contrast, it has been said in relation to legal professional privilege that partial disclosure in court of privileged material might result in unfairness and the interests of justice rightly demand that there should be full disclosure. However, this rule cannot be carried over into pleadings the purpose of which is merely to put the parties on notice about the scope of a trial. 24 I propose to follow the approach taken by Finkelstein J. It seems to me however, that what has been admitted or asserted by Mr Vergara's defence has likely been overtaken by the more comprehensive factual assertions given by Mr Vergara in his testimony. 25 In my view, the giving of evidence in chief or the giving of evidence without objection in cross-examination by a privilege holder on subject matters in respect of which objections are later sought to be taken under s 128(1) of the Act, is clearly conduct inconsistent with the maintenance of the privilege. In that circumstance there is direct inconsistency with the maintenance of the privilege. Considerations of fairness as between the conduct of the privilege holder and the maintenance of the privilege demonstrate the inconsistency. It would be manifestly unfair for a privilege holder to voluntarily give evidence in support of his or her position in circumstances where the privilege holder could then, in reliance on the privilege, decline to allow that evidence to be tested through cross-examination. That kind of unfairness is reflected in the provisions of the criminal law to which Finkelstein J in Australian Securities and Investments Commission v Mining Projects Group Ltd referred at [20] where his Honour said: A person would also lose the privilege if he goes into the witness box to give evidence at his criminal trial. The various statutes that make a defendant a competent witness in a criminal trial provide that if he gives evidence he can be cross-examined in relation to the charge the subject of the trial: see eg, Crimes Act [1958] (Vic)], s 399. He can, however, claim the privilege in relation to other offences. 26 In my view, Mr Vergara has failed to establish that there are reasonable grounds for the objection he has sought to make. Insofar as that objection extends to evidence which may be adduced in the cross-examination of him in relation to the evidence which he has already given, it seems to me that the waiver involved in Mr Vergara having given that evidence denies the existence of reasonable grounds. 27 The waiver ought not be regarded as extending beyond the compass of the evidence already given. As Kirby P, then the President of the New South Wales Court of Appeal said in Accident Insurance Mutual v Holdings Ltd v McFadden at 423-4: The point of difficulty will be presented by the definition of the subject matter of the waiver. This will require assessment of the reasonable interpretation to be placed upon the conduct of the witness said to amount to the waiver. 28 I intend, therefore, to overrule the objection in its broad form. However, Mr Vergara will be at liberty to raise further objections in relation to evidence which is sought to be adduced from him which goes to a matter or topic which is not the subject of the evidence already given by him. Given the fundamentally protective nature of the privilege against self-incrimination I intend to adopt a strict rather than a broad approach to the characterisation of the matters or topics already dealt with in the evidence given by Mr Vergara. 29 I should indicate that I would have arrived at a different conclusion on the question of the existence of reasonable grounds if Mr Vergara had put his objection on the basis that it was confined to the giving of evidence without the protection of a certificate given by the Court pursuant to s 128 of the Act. 30 The regime created by s 128 contemplates that a privilege holder may waive his or her privilege by willingly giving evidence. It encourages that to be done by providing the capacity for a certificate to be given by the Court. In that context, it seems to me that a prior waiver by a privilege holder in circumstances where the objection is only taken to the giving of evidence in the absence of a certificate, ought not ordinarily be a disqualifying factor which precludes the capacity of the Court to provide a certificate. The fact that the witness will give the evidence under the cover of a certificate removes the unfairness upon which the inconsistency in the maintenance of the privilege would have otherwise been based. 31 I disallow the objection sought to be taken by Mr Vergara. I will give Mr Vergara an opportunity to consider whether he wishes to take an objection of the kind I have just referred to. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.