PRIVILEGE AGAINST SELF-INCRIMINATION

PRIVILEGE AGAINST SELF-INCRIMINATION

1. Evidence of the Accused

   • s 128(10) - DOES NOT APPLY to evidence given by the accused, being evidence that the accused - (a) did an ACT which is a fact in issue or (b) had a STATE OF MIND which is a fact in issue
     • Accused may want to claim RIGHT TO SILENCE
     • s 165 reliability warning?
     • s 135 discretion to exclude?
     • s 136 discretion to limit?
     • s 136 Mandatory exclusion? (Criminal only)
   • Accused can claim the privilege where evidence doesn't relate to s 128(10) (a) or (b)
     • Note: High Court in Cornwell v The Queen held that evidence of doing a fact in issue might include circumstantial evidence

2. Evidence of a Witness

   • Court to inform W of rights (s 132)
     • CLAIM PRIVILEGE - object to giving evidence under s 128
       • Court to determine whether there are 'reasonable grounds' for objection (s 128(2))
         • The test for 'reasonable grounds' (Brebner v Perry)
           • Must be a real and appreciable danger that the giving of evidence will expose the W to some crime
           • For a bona fide purpose (i.e. not to protect TP)
         • If satisfied as to reasonable grounds, court to inform W that W need not give evidence unless required under 128(4)
           • s 128(4) - Court can require W to give evidence if
             • evidence does not tend to prove W committed offence/liable to civil penalty under law of foreign country
             • Interests of justice require W to give evidence
               • 'Interests of justice' (R v Lodhi)
                 • Nature of proceedings
                 • Called by Prosecution or Defence?
                 • Importance of the evidence
                 • Nature of chances (likelihood of prosecution/imposition of penalty)
             • Court must give certificate under s 128(5)
               • s 128(7)(a) Evidence given by W and any info, document or thing obtained as a direct or indirect consequence of the person having given evidence cannot be used against the person
     • WAIVE PRIVILEGE
       • W can volunteer to give evidence under s 128(3)(b)(i)
         • Court must give certificate under s 128(5)
           • s 128(7)(a) Evidence given by W and any info, document or thing obtained as a direct or indirect consequence of the person having given evidence cannot be used against the person