[113] The present point was not raised by the DPP either in the courts below or in this Court. It was raised by this Court in the course of oral argument, but was not embraced by counsel for the DPP. "Sometimes this Court will decide a question which has not been referred to or discussed by an intermediate court of appeal but that is not the course which should ordinarily be followed." The present question could be of considerable importance in the day-to-day conduct of trials, since counsel for the accused submitted that in practice s 128 was often employed by prosecutors to elicit evidence in chief. It is not necessary finally to decide this issue, since the appeal is to be allowed on other grounds. And it is not desirable to do so in view of the absence of dispute between the parties on the question and the importance of the question.
24 It is true that in par [112] the High Court focussed on the distinction between examination in chief and cross-examination; but that was in a context of evidence being given by a party to the case, namely the accused. When a witness is a party to the case, giving evidence in chief pursuant to questions asked by the witness's own counsel, there would rarely if ever be a question that the evidence in chief is given under compulsion or because of liability to compulsion. I do not understand the High Court's reasons to be authority for restricting s 128 to cross-examination.
25 In circumstances where there is conflict between a decision of the Full Court of the Family Court and dicta (albeit tentative dicta) of the High Court, I think it is appropriate for this Court simply to reach its own view, while paying regard to relevant persuasive authority.
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.
29 This approach would not mean that a friend of a party (plaintiff or defendant) called to give evidence in the party's case may not "object" to giving evidence within the meaning of s 128(1). Whether or not this friend wishes to support the party, this friend is compellable at the instance of the party and cannot give instructions to the party's legal advisers as to what questions are to be asked. In those circumstances, I would not suggest that the Court would need to enquire whether the friend is giving evidence because compellable, or because of a wish to give the evidence to help the party: I would say that the compellability of the witness to give the evidence at the instance of the party (subject to the provisions of s 128), and the lack of legal entitlement to refrain from giving that evidence if compulsion is sought (again subject to the provisions of s 128), is sufficient.
30 Similarly, witnesses called by the prosecution in a criminal case could, if the requirements of s 128 are otherwise satisfied, obtain a s 128 certificate.
31 This approach could raise difficulties where the party is a company, and the witness is a director of the company. The witness then is compellable at the instance of the company, and (at least unless the witness is the alter ego of the company) the witness may not be in a position either to prevent the company compelling the witness to give evidence or to give instructions as to what evidence is to be given. I would leave that question to be determined in a case when it arises.
32 In my opinion, there is nothing inconsistent with this approach in the decision of Campbell J in Ollis. At that time there was a different version of s 128, and s 128(1) was expressed in terms of a witness objecting to giving "particular evidence" (and did not include reference to "evidence on a particular matter"). Campbell J said this:
[5] It will be seen that the first step in the application of s 128 is the witness objecting to giving particular evidence, on one of the grounds set out in s 128(1). In my view, the expression "if a witness objects to giving particular evidence" is not to be construed in a narrow way, by reference only to someone saying "I object" in response to a particular question, in the course of taking evidence in court, in the way barristers traditionally do. Rather, the expression is to be construed more broadly, so that it also relates to the witness expressing an unwillingness to give the evidence. Further, it seems to me that the "particular evidence" which is referred to is not confined to particular questions, as they are asked one by one. Rather, it is capable of extending to a witness expressing an unwillingness to giving evidence on particular topics.