Evidence Act

It has been suggested that the privilege against self incrimination is so heavily modified by the certification procedure in s 128 of the Evidence Act (NSW) that it is outmoded and should be simply abolished

It is almost a universal law that no person can be compelled to give evidence against himself. It is known as privilege against self incrimination. It derives from the Latin maxim nemo tenetur se ipsum prodere which literally means that no one can be compelled to betray oneself. This is to preclude exposure to conviction for a crime. The privilege gives right to silence and not to produce documentary evidence which is self incriminating. It becomes an immunity for a citizen considered as a suspect from being compelled to assist the prosecution since the State is expected prove its case without any assistance from the suspect being prosecuted. It is questionable this privilege considered as cornerstone of any adversarial criminal justice system is still valid. Many state led legislations have encroached upon this immunity, that it will soon be symbolic rather reality. This privilege is now being given to criminal suspects as a due process entitlement rather than for reasons of human autonomy or presumption of innocence.

Overriding the privilege

In a bid to circumvent the privilege at common law, uniform evidence legislation through section 128(2) provides for the exchange of protection of this immunity for the protection of use immunity certificate. Identical provision is to be found in the Evidence Act of 1995 of New South Wales. By virtue of this section 128, a court can order a witness to answer self incriminating questions in exchange for the aforementioned certificate which precludes any information, document or anything borne of evidence adduced by the witness from being used against the suspect i.e. witness in Australian proceedings. The certificate in effect confers both ‘direct use’ and ‘derivative use’ immunity. The latter renders any evidence inadmissible as a result of the testimony of the witness. But such an eventuality is likely to open up doors for further investigation which otherwise would not have been possible. If the new information is brought against the witness giving evidence under the certificate would pose questions or problems to decide whether or not, material tendered by the prosecution was as a direct or indirect result of the witness’ act of giving evidence. The relevant amendment providing for the said certificate is to be found in section 128 A (8) of the Evidence Act 1995 (NSW). It reads as follows.

(8) In any proceeding in a NSW court or before any person or body authorized by a law of this State, or by consent of parties, to hear, receive and examine evidence:
(a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section, and
(b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned.

It should be noted that the witness has no protection if the evidence he has given is false.
In retrospect, it can be found that the self incrimination or self exposure provision has four privileges.

1) The privilege against self incrimination or self exposure to incrimination.

This is an international human right and part f common law in Australia. This confers a right on a person to refuse a document or to make an oral statement if it has a tendency to expose him to a criminal charge. This immunity cannot be claimed by corporations as held in Environment Protection Authority v Caltex Refining Co Pty Ltd. In this case, the majority decision of the High Court of Australia held that the privilege is purely personal intended to protect the individual from duress of the state on the individual and to ensure integrity the personal material. This rational cannot be applied to corporations as they are not natural body to be subjected to physical punishment or ecclesiastical censure and as such it cannot testify against its officers. It has been held in Smorgan v Australia & New Zealand Banking Group Ltd that testimony of an officer of the corporation is that of a witness and not the Corporation. Thus if summons are issued to the corporation, officer representing it would not be deemed to give in his personal capacity. It is not necessary that the person concerned should be guilty of an offence to be convicted if he were to answer an incriminating question. It is enough if the answer contributes to an action being brought against him as held in lamb v Munster (1882)

2) The privilege against self exposure to a penalty.

This is the right of a person to decline to answer a question which would have a tendency to expose him to proceedings to recover a penalty other civil proceedings. It is similar to the right against producing a document as held in Refrigerated Express Lines (Australia) Pty Ltd v Australian Meat & Livestock Corp. The principle being applied for a quite a long time is that a defendant to a proceeding mainly for recovery of penalty cannot be compelled to disclose information or produce documents which help court to establish his liability to the penalty sought to be imposed as held Environment Protection Authority case mentioned above. This principle is applicable to future proceedings to refuse disclosure as there is a risk of subsequent action to recover a penalty.

3) The privilege against self exposure to forfeiture.

It is the right of a person, who is questioned, to decline to answer for the reason that it would lead to expose him to proceedings for forfeiture of an existing right. It is applicable in requirement to produce a document also. It is an important privilege in view of the legislation requiring forfeiture of the proceeds of crime as per Proceeds of Crime Act 1987 (cth) and Proceeds of Crime Act 1989 (NSW)

4) The privilege against self exposure to ecclesiastical censure.

This is the right against answering a question or producing a document which would have the tendency to implicate the person doing so for being censured in ecclesiastical courts though Australian courts have not applied this privilege so far. Murphy J has commented in Pyneboard case as

Any rationale for this privilege in England, where there is an established Church, does not apply to Australian circumstances. In Australia ecclesiastical censure is irrelevant to judicial procedures as well as to non judicial procedures for obtaining information for public purposes. The privilege should not be recognized as any part of the common law in Australia.

The above privileges have the origin in Redfern v Refern which postulates that no party can be compelled to discover that which if answered would incriminate him any punishment, penalty, forfeiture or ecclesiastical censure.

Discussion

The rationale behind the age old protection was the reason of death penalty for most of the criminal offences which no longer exist in the modern age. However this is sought to be extended even today in view of human autonomy or as human dignity or human right.

Northern Territory Law Reform Committee Report on Privilege against self incrimination quotes Mr Tippet as a counsel of great experience, as saying that the Certificate should not be used in evidence later or in other proceedings. The privilege may only be withdrawn only on the assurance that Coroner will accord full indemnity against prosecution. Failure to do so will lead to attempts to circumvent protection available. If there is absolute indemnity, there will be no nice distinctions. To cause the evidence to be used by a court in the absence of the right against conviction by one’s own mouth is but a small step to ensure no complete indemnity is given. Even the experienced criminals are not totally on par with to state investigators and prosecutors. They also depend on the need to set certain limits on the power of the State to extricate and control information from an individual. This is apart from any judicial control for admission of evidence at the trial. It is felt that some protection is necessary as otherwise it will lead to creation of a society hell bent against suppression of crime, wherein innermost thoughts alone would become privileged materials.

Conclusion

Reasons for both continuation and abrogation of the privilege against self incrimination have equal force. As said earlier, the privilege in the first place came about only to protect against death penalties invariably being handed out for all crimes. Now death penalty is given only in the rarest of the rare circumstances. But in view of the emergence of human rights recognition in the modern era, even if it is a small torture, it is considered against human autonomy. Hence weighing both the extremes, it would be only fair in the interest of humanity that abrogation of the privilege is allowed provided the State is prohibited to rely on the self incriminating evidence alone for a conviction. It goes without saying that the judiciary must cause the prosecution to produce supporting evidences apart from self incriminating evidence that are real to justify conviction.

References

Asche Austin, 2001, Report of the Law Reform committee on privilege against self incrimination.
Environment Protection Authority v Caltex Refining Co Pty Ltd. (1993) 178 CLR 477; 68 ALR 127.
Evidence Amendment (Miscellaneous) Regulation 2008, NSW 2008 No 596
Lamb v Munster (1882) 10 QBD 110, Filed J at 111, Stephen J at 113
Palmer Andrew and Gans Jeremy, (2004) Australian Principles of Evidence, ed 2 Routlege Cavendish, p 107
Pyneboard pty Ltd v Trade Practices Commn (1983)152 CLR 328
Redfern v Redfern (1891) P 139 (CA), per Bowen LJ at 147
Refrigerated Express Lines (Australia) Pty Ltd v Australian Meat & Livestock Corp 42 FLR 204 9fed ct), Dean J at 207
Sharpe Sybil, 1998, The privilege against self incrimination: do we need a preservation order, Anglo American Law Review, 27 (494 524)
Smark Kieran, Waye Vicky, The privilege against self incrimination or self exposure comprises four separate privileges. Available at <http://legalonline.thomson.com.au.ezproxy.aut.ac.nz/tla/resultDetailed.jsp?id=16.7.56>accessed 21 Aug 2009
Smorgan v Australia & New Zealand Banking Group Ltd (1976)134 CLR 475

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