26 Moreover, notwithstanding the focus in the above passages upon the extent to which dicta are "considered", it is not sufficient for a judge simply to make such an enquiry. Lord Dunedin makes this point in his speech (Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 at 864):
In my view I respectfully think that the Master of the Rolls and Warrington L.J. ought not to have confined themselves to the question of whether the dicta in Dreyfus were carefully considered - their conclusion is one with which I cordially agree - but ought to have considered whether their own opinions or the dicta in Dreyfus were right, and if they thought that their view was right, to have said so and let a higher Court, if it was so minded, go back to Dreyfus .
27 In Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208, McLelland J dealt with conflicting non-binding statements in the High Court and the House of Lords and said the following (at 218) of the approach he should follow:
I am not bound by obiter dicta of the High Court although such dicta are entitled to great weight and respect. Nor am I bound by a decision of the High Court constituted by a single justice (cf Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651, at 654, 664), or by a decision of the House of Lords, although in either case such a decision is also entitled to great weight and respect. My duty in these circumstances, as I conceive it, is to decide for myself, invidious task as that may be, what the relevant principles are or should be, obtaining such assistance as I can from the persuasive authorities to which I have referred . In this connection I refer to what I said in Sharah v Healey [1982] 2 NSWLR 223, at 227, 228, and to the passage from the speech of Lord Dunedin in Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851, there quoted.
(My emphasis)
28 In Sharah v Healey [1982] 2 NSWLR 223 at 227, McLelland J had earlier said:
This Court is not bound by a decision of the English Court of Appeal. As Murphy J said in Day & Dent Constructions Pty Ltd (In Liq) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed) (1982) 56 ALJR 347, at p 358: "The only judicial authorities binding on courts in Australia are Australian courts" (leaving aside the special position of the Privy Council). A decision of the English Court of Appeal is however of persuasive authority in this Court (cf Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336, at p 341, per Barwick CJ and at p 349, per Gibbs J), although the weight of the authority will vary directly with its tendency to persuade. It is the duty of this Court to apply the law as (rightly or wrongly) it finds it to be, not as another court states it to be in a manner by which this Court is not bound.
29 In light of the above, it seems to me that my duty is to consider the proper construction of s 128 in the circumstances, obtaining such assistance as I can from those persuasive authorities to which I have referred. It seems to me that both the ratio in Ferrall and the dicta in Cornwell are to be treated as persuasive authorities and entitled to significant weight. However, insofar as they conflict with each other, the weight each bears must be moderated having regard to its tendency to persuade and the particular circumstances of this case. While I consider it relevant that the High Court declined to express a concluded view on the issue (it not having been fully argued before it and recognising the importance of such a question to the day to day conduct of trials), I must also have regard to the force of the observations which fell from their Honours in that case in circumstances where there is no binding authority on the point.
Reasons
30 The privilege against self-incrimination is a privilege against being compelled to answer questions. At common law, the giving of evidence voluntarily would be treated as inconsistent with the maintenance of the privilege. It was only when a witness had invoked the privilege but had been wrongly compelled to give evidence by the presiding judicial officer that the witness would be protected from the use of the evidence given in subsequent proceedings (see R v Clyne (1985) 2 NSWLR 740 at 746-747 per Street CJ, Glass and Samuels JJA agreeing). That the invocation of the privilege is intrinsically linked to, and determinative of, whether the witness is compelled to answer is apparent from R v Garbett (1847) 1 Den 236 at 257-258; 169 ER 227 at 235-236, where it was held that:
If a witness clams the protection of the Court, on the ground that the answer would tend to criminate himself, and there appears reasonable ground to believe that it would do so, he is not compellable to answer; and if obliged to answer, notwithstanding, what he says must be considered to have been obtained by compulsion and cannot be given in evidence against him. They did not decide, as the case did not call for it, whether the mere declaration of the witness on oath, that he believed that the answer would tend to criminate him, would or would not be sufficient to protect him from answering, where sufficient other circumstances did not appear in the case to induce the Judge to believe that it would not. The above nine Judges also thought that it made no difference in the right of the witness to protection, that he had chosen to answer in part; being of the opinion that he was entitled to it at whatever stage of the inquiry he chose to claim it, and that no answer forced from him by the presiding Judge (after such a claim), could be given in evidence against him, and they did not consider themselves bound by the ruling of Best CJ, in Dixon v Vale , 1 C & P278, and of Lord Tenterden, in East v Chapman, 2 C & P 573.
31 In the present case, there is no compulsion upon Mr Song to give the evidence which he seeks to give. As Mr Lawson noted in oral argument it would be open to Mr Song to make a "no case" submission at the close of the plaintiff's case. Equally, it would be open to Mr Song to go into evidence, but not to adduce the evidence in respect of which a certificate is sought. The question before me on the present application is whether Mr Song can be said to have objected to giving evidence for the purposes of s 128 when he is under no legal compulsion to give that evidence.
32 It is submitted for Mr Song that any witness, if properly advised, would be unwilling to give evidence even in his or her own cause if that evidence could expose the witness to criminal sanction or civil penalty. If a certificate could not issue in these circumstances, then it is submitted that this would produce the result that a party to a fraudulent transaction could rely upon contrived documents with impunity on the basis of a confidence that the other party would probably not run the risk of putting the true position before the court.
33 Mr Song apparently wishes to divulge a course of conduct (in which Mr Ying presumably will be said to have participated or of which he had knowledge) amounting to an attempt to provide false information to the Department of Immigration. But for the need for him to defend the claims now made against him, which relate to the very transactions the subject matter of the evidence for which the certificate is sought, Mr Song would presumably not proffer such evidence. In this sense, it is submitted, in effect, that there is a practical compulsion for Mr Song to give such evidence.
34 This is redolent of the debate which took place in Cornwell, during which Gleeson CJ observed that "An objection does not mean I do not want to do something, it is not a sort of emotional state… It is a formal stance taken in the course of adversarial proceedings." (Cornwell v The Queen [2006] HCATrans 543 at line 2037. In having regard to the transcript of the debate before the High Court, I am mindful of the aversion expressed by Kirby P, as his Honour then was, in Rajski v Bainton [1991] NSWCA 231 (at p 3, line 7), to attempting to "divine" the intention of the High Court from the transcript of a special leave application, his Honour noting that "judges frequently put propositions in order to test them, without necessarily expressing any concluded opinion".) Here, of course, the statements made in the course of argument found expression in the court's published reasons.
35 An expressed refusal or unwillingness to give evidence on the ground that it might incriminate the witness meets the description of a formal stance taken in the course of adversarial proceedings. However, an expressed unwillingness to do so at a time when the witness is not under any legal compulsion is another matter. At common law, the giving of voluntary testimony is treated as a waiver of the privilege against self-incrimination and inconsistent with there being an objection of that kind.
36 Mr Lawson submits that the same considerations should apply to the giving of evidence in chief by the defendants in this case as were applied by Campbell J in Ollis in relation to the giving of evidence in re-examination. (In that regard, I note that there would not appear to be, in the former situation, the procedural unfairness identified by his Honour in Ollis, where the topic had been opened up in cross-examination (under the protection of a certificate but, absent a similar certificate in re-examination, the witness would have been deprived of the opportunity to clarify any misleading or incomplete impression left at the conclusion of cross-examination).
37 I accept the force of Campbell J's observation in Ollis that the language of s 128 should not be construed as confined to the situation where an objection is formally taken in response to a particular question. However, I do not understand his Honour to be saying that, for the purposes of the application of s 128, there need not be a basis for the invocation of privilege in support of a refusal or expressed unwillingness to give evidence. I do not read Campbell J's reasons as suggesting that the word "objects" extends to a witness expressing an unwillingness to give evidence, which the witness is under no compulsion to give, on particular topics unless afforded the benefit of a certificate. His Honour, rather, seemed to be referring to an expression of unwillingness in contradistinction to a necessity that there be a formal objection by the words "I object".
38 The crux of Campbell J's reasoning in Ollis was that once a witness had objected in cross-examination to giving evidence on a particular topic, that objection ought to be taken to cover the giving of evidence both in cross-examination and in re-examination, the phrase "particular evidence" being properly construed as meaning not answers to particular questions, but evidence on particular topics. I do not disagree with that conclusion and I note that the introduction into s 128 of the words "or evidence on a particular matter" by the Evidence Amendment Act 2007, strengthens the reasoning that s 128 extends to evidence given in re-examination on a particular topic where objection had been taken to giving evidence on that particular topic in cross-examination.
39 What is meant by the words "objects" and "objection" in the Evidence Act, it seems to me, must be an expressed unwillingness (whether phrased in the language of refusal or objection or declinature or otherwise) to give evidence where otherwise required to do so, on the ground that that evidence would tend to incriminate. It is, in that sense, a formal stance taken in the course of adversarial litigation though it need not necessarily be expressed in formal terms. That this is how "objection" has historically been used is clear from cases such as R v McDonald (1983) 50 ALR 471 at 483, in which Davies J described an objection in the following way:
Even if one assumes that a witness before a Commission may take an objection to answering a question on the ground that it may incriminate the witness, nevertheless, if a question be put, with the authority of the Commission, it must be answered unless the objection is taken: see Phipson on Evidence , 12th ed, para 615. The witness remains bound to answer the question unless he takes the objection on that ground and swears or affirms that the answer will or may tend to incriminate him. In the absence of an objection taken on that ground, a Commission may insist that the question be answered. In the absence of an objection, a Commission is not bound to disallow a question even if to the Commission's knowledge the answer may tend to incriminate the witness: see Cross on Evidence , 2nd Aust ed, para 11.17. It is for the witness to take the objection in his answer. The taking of the objection thus serves as an answer to the question.
Even if one assumes that a witness before a Commission may take an objection to answering a question on the ground that it may incriminate the witness, nevertheless, if a question be put, with the authority of the Commission, it must be answered unless the objection is taken: see Phipson on Evidence , 12th ed, para 615. The witness remains bound to answer the question unless he takes the objection on that ground and swears or affirms that the answer will or may tend to incriminate him. In the absence of an objection taken on that ground, a Commission may insist that the question be answered. In the absence of an objection, a Commission is not bound to disallow a question even if to the Commission's knowledge the answer may tend to incriminate the witness: see Cross on Evidence , 2nd Aust ed, para 11.17. It is for the witness to take the objection in his answer. The taking of the objection thus serves as an answer to the question.
40 I should note that Ms Winfield submitted that I should distinguish Ferrall in that there the evidence sought to be adduced was an admission of wrongdoing which benefited the other party but that here the evidence sought to be covered by the certificate was evidence which benefited the defendants. In other words, she submits that the evidence is self-serving and that by the tendering of such evidence the witnesses are seeking to benefit from their own wrongdoing. I do not understand how it is said (if that is what this submission is suggesting) that conduct which (if the evidence which the defendants are yet to give is to be believed) was engaged in with a view to assisting the plaintiff to obtain a permanent residency visa was conduct amounting to a wrongdoing for Mr Song's benefit (unless indirectly if, from a family point of view, it was in his interest for his then brother-in-law to remain in Australia as a permanent resident). The initial wrongdoing, if any, can only logically have been for Mr Ying's benefit. (I say this noting that there may well be an issue as to whether this kind of conduct could have been of benefit to Mr Ying, who did not admit in the witness box that it would have been of any assistance to his permanent residency application - nevertheless, that is the argument for which Mr Song wishes to contend.) If so, then I assume that what Ms Winfield is submitting is simply that here it is the admission of wrongdoing which is self-serving. I accept that this may be the case, but I do not see it as a reason to distinguish Ferrall.
41 Ms Winfield submits that "These witnesses want it both ways" - namely, that they want to give the evidence because it benefits them but they want a certificate as well (ie so as not to suffer the consequences of their admission of wrongdoing). That submission seems to one which says, in effect, that if the witnesses (or, more precisely, Mr Song) wish to establish a defence to the claim on the basis of a wrongdoing in which (if they are accepted) Mr Ying must have been complicit, then they must do so at the price of exposing themselves to liability for criminal sanctions or a civil penalty. That seems to me to beg the question.
42 Under the common law, a person who, without objection, gave self-incriminating evidence was not protected from the use of that evidence in subsequent proceedings, whereas a person who, after objection, was wrongly compelled to give self-incriminating evidence was protected from the use of that evidence in subsequent proceedings. As noted by Gleeson CJ and Heydon J during argument in Cornwell, the construction for which the defendants contend in this case would effect a radical alteration of the common law in circumstances where such a change has been contemplated in none of the relevant law reform reports leading to the enactment and amendment of the uniform evidence laws:
GLEESON CJ: You may be right about that, but if you are right it means, does it not, that this legislation had a very far-reaching purpose and made a very far-reaching change to the law. It conferred upon people a right to give evidence to their own advantage of criminal conduct in which they had engaged and immunised them against the consequences of that.