128Privilege in respect of self-incrimination in other proceedings

### 128 Privilege in respect of self-incrimination in other proceedings > [*\[Section 128 Substituted by No. 46 of 2010, s. 36, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2010-046#GS36@EN) > > > (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)](#GS128@Gs4@EN) , if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence or evidence on a particular matter, and 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)](#GS128@Gs4@EN) ; 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)](#GS128@Gs4@EN) ; or > > > > > > > > > > > (ii) the witness gives the evidence after being required to do so under [subsection (4)](#GS128@Gs4@EN) ; 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)](#GS128@Gs4@EN) , 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 a Tasmanian court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence – > > > > > > (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)](#GS128@Gs7@EN) 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)](#GS128@Gs7@EN) 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 a 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)  For the purposes of [subsection (12)](#GS128@Gs12@EN) , a prescribed State or Territory provision is 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 that subsection. > > > (14)  [Subsection (12)](#GS128@Gs12@EN) applies to a proceeding in relation to which this Act applies because of [section 4](#GS4@EN) , other than 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.