Self-Incrimination

Giving testimony in a trial or other legal proceeding that could subject one to criminal prosecution.
The right against self-incrimination forbids the government from compelling any person to give testimonial evidence thatwould likely i
ncriminate him during a subsequent criminal case. This right enables a defendant to refuse to testify at acriminal trial and "privileges
him not to answer official questions put to him in any other proceeding, civil or criminal, formalor informal, where the answers might i
ncriminate him in future criminal proceedings" (Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L. Ed. 2d 274 [1973]).
Confessions, admissions, and other statements taken from a defendant in violation of this right are inadmissible against himduring a
criminal prosecution. Convictions based on statements taken in violation of the right against self-incriminationnormally are overturne
d on appeal, unless there is enough admissible evidence to support the verdict. The right of self-incrimination may only be asserted
by persons and does not protect artificial entities such as corporations (Doe v. UnitedStates, 487 U.S. 201, 108 S. Ct. 2341, 101 L.
Ed. 2d 184 [1988]).
This testimonial privilege derives from the Fifth
Amendment to the U.S. Constitution. Most state constitutions recognize asimilar testimonial privilege. However, the term selfincrimination is not actually used in the Fifth Amendment. It providesthat "[n]o person shall be compelled in any criminal case to b
e a witness against himself."
Although the language of the Fifth Amendment suggests that the right against self-incrimination applies only during criminalcases, t
he Supreme Court has ruled that it may be asserted during civil, administrative, and legislative proceedings as well.The right applies
during nearly every phase of legal proceedings, including Grand
Jury hearings, preliminary investigations,pretrial motions, discovery, and the trials themselves. However, the right may not be assert
ed after conviction when theverdict is final because the constitutional protection against Double
Jeopardy protects defendants from a secondprosecution for the same offense. Nor may the privilege be asserted when an individu
al has been granted Immunity fromprosecution to testify about certain conduct that would otherwise be subject to criminal punishm
ent.
At the same time, the right against self-incrimination is also narrower than the Fifth Amendment suggests. The FifthAmendment allo
ws the government to force a person to be a witness against herself or himself when the subject matter ofthe testimony is not likely t
o incriminate the person at a future criminal proceeding. Testimony that would be relevant to acivil suit, for example, is not protected
by the right against self-incrimination if it does not relate to something that iscriminally inculpatory. By the same token, testimony tha
t only subjects a witness to embarrassment, disgrace, oropprobrium is not protected by the Fifth Amendment.
The right against self-incrimination is sometimes referred to as the right to remain silent. The Self-Incrimination Clauseaffords defen
dants the right not to answer particular questions during a criminal trial or to refuse to take the witness standaltogether. When the ac
cused declines to testify during a criminal trial, the government may not comment to the jury abouthis or her silence. However, the p
rosecution may assert during closing argument that its case is "unrefuted" or"uncontradicted" when the defendant refuses to testify (
Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973[1978]). However, before the jurors retire for deliberations, the court
must instruct them that the defendant's silence is notevidence of guilt and that no adverse inferences may be drawn from the failure
to testify.
In Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court extended the right toremain silent to pretrial CU
STODIAL INTERROGATIONS.

The Court said that before a suspect is questioned, the police must apprisehim of his right to remain silent

and that if he gives up this right, any statements may be used against him in a subsequentcriminal prosecution. Under Miranda, sus
pects also have a Fifth Amendment right to consult with an attorney before theysubmit to questioning. Miranda applies to any situati
on in which a person is both held in "custody" by the police, whichmeans that he is not free to leave, and is being "interrogated," whi
ch means he is being asked questions that are designedto elicit an incriminating response. A person need not be arrested or formall
y charged for Miranda to apply.
In Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), the Supreme Court held that a personwho plead
s guilty to a crime does not waive the self-incrimination privilege at sentencing. The Court acknowledged that it iswell established th
at a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke thePrivilege against SelfIncrimination when questioned about the details. However, the Court found a significant differencebetween the waiver of the right a

gainst self-incrimination in a trial and in a sentencing hearing. The concerns, which justifythe cross-examination when the defendant
testifies, are absent at a plea hearing. Treating a guilty plea as a waiver of theself-incrimination clause would allow prosecutors to in
dict a person without specifying the quantity of drugs at issue, obtaina guilty plea, and then put the defendant on the witness stand t
o tell the court the quantity. Such a scenario would make thedefendant "an instrument of his or her own condemnation." This would
undermine constitutional Criminal Procedure,turning an adversarial system into an inquisition.
In Miranda the Supreme Court examined a number of police manuals outlining a variety of psychological ploys andstratagems that t
hey employed to overcome the resistance of defiant and stubborn defendants. Such interrogationpractices, the Court said, harken b
ack to the litany of coercive techniques used by the English government during theseventeenth century.
The Founding Fathers drafted the Fifth Amendment to forestall the use of torture and other means of coercion to secureconfessions
. The founders believed that coerced confessions not only violate the rights of the individual being interrogatedbut also render the co
nfession untrustworthy. Once a confession has been coerced, it becomes difficult for a judge or jury todistinguish between those def
endants who confess because they are guilty and those who confess because they are tooweak to withstand the coercion.
Defendants may waive their Fifth Amendment right to remain silent. However, the government must demonstrate to thesatisfaction o
f the court that any such waiver was freely and intelligently made. The Supreme Court ruled that a confessionthat was obtained after
the suspect had been informed that his wife was about to be brought in for questioning was not theproduct of a free and rational cho
ice (Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 [1961]). It also heldthat a statement was not freely and intelli
gently made when a defendant confessed after being given a drug that had theproperties of a truth serum (Townsend v. Sain, 372 U
.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 [1963]).
Congressional anger at the Miranda decision led to the passage in 1968 of a law, 18 U.S.C.A. 3501 (1985), that restoredvoluntarin
ess as the test for admitting confessions in federal court. As long as a court could conclude that the defendant'sstatements were vol
untary, the confession was admissible. The Justice
Department refused to employ the law, believingthe law was unconstitutional. However, in the late 1990s the law was briefly revive
d when the Fourth Circuit Court ofAppeals ruled that Congress had the authority to invalidate Miranda. The Supreme Court, in Dick
erson v. United States, 30U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), overturned this ruling. The Court reaffirmed that it had
announced aconstitutional rule in Miranda. Therefore, Congress could not revoke the decision by statute; the only option for Congre
sswas a constitutional amendment.
The right against self-incrimination is not absolute. A person may not refuse to file an income tax return on Fifth Amendmentgrounds
or fail to report a hit-and-run accident. The government may compel defendants to provide fingerprints, voiceexemplars, and writing
samples without violating the right against self-incrimination because such evidence is used for thepurposes of identification and is
not testimonial in nature (United States v. Flanagan, 34 F.3d 949 [10th Cir. 1994]). Despitethe dubious grounds for the distinction bet
ween testimonial and non-testimonial evidence, courts have permitted the use ofvideotaped field sobriety tests over Fifth Amendme
nt objections.

Further readings
Garcia, Alfredo. 2002. The Fifth Amendment: A Comprehensive Approach. Westport, Conn.: Greenwood.LaFave, Wayne R.,Jerold I
srael, and Nancy J. King. 2000. Criminal Procedure. St. Paul, Minn.: West Group.
Levy, Leonard W. 1999. Origins of the Fifth Amendment: The Right Against Self-Incrimination. Chicago: Ivan R. Dee.
O'Neill, Michael Edmund. 2002. "The Fifth Amendment in Congress: Revisiting the Privilege Against Compelled Self-Incrimination."
Georgetown Law Journal 90 (August).
Savage, David G. 2003. "Speaking Up About Silence: Supreme Court Takes Another Look at Miranda Warnings." ABAJournal 89 (N
ovember).

The privilege against self-incrimination is clearly provided in the U.S. Constitution. US Const. Amend. 5 provides that, no
person should be compelled in any criminal case to be a witness against himself. In Ronson v. Commissioner of
Correction, 551 F. Supp. 450 (S.D.N.Y. 1982), the court held that the privilege against self-incrimination may be claimed in
any proceeding, including administrative proceedings. However, the privilege against self-incrimination may not be claimed
in administrative sanctions that are not criminal or penal in nature[i]. Also, the privilege may not be claimed, when
criminal penalties result as a mere incident of an administrative search[ii]. In re Vitamins Antitrust Litig., 120 F. Supp. 2d

58 (D.D.C. 2000), the court held that the U.S. Const. amend. 5 right serves to protect individuals from criminal liability and
not from civil liability.
The privilege against self-incrimination may be waived[iii]. The waiver of the privilege against self-incrimination is limited
to the proceeding in which it occurs. Similarly, the waiver of privilege in one proceeding does not affect the right of a
witness or accused to invoke the privilege as to the same subject matter in another independent proceeding[iv].
The U.S. Const. Amend. 5 privilege is a personal privilege[v]. It adheres basically to the person and not to information
that may incriminate him. In Murphy v. Waterfront Commn of New York Harbor, 378 U.S. 52 (U.S. 1964), the court held
that the constitutional privilege against self-incrimination has two primary interrelated facets; 1) the Government may not
use compulsion to obtain self-incriminating statements and 2) the Government may not permit the use in a criminal trial of
self-incriminating statements obtained by compulsion.
[i] Kimm v. Rosenberg, 363 U.S. 405 (U.S. 1960)
[ii] Board of County Commrs v. Grant, 264 Kan. 58 (Kan. 1998)
[iii] In re Vitamins Antitrust Litig., 120 F. Supp. 2d 58 (D.D.C. 2000)
[iv] id
[v] Garner v. United States, 501 F.2d 228 (9th Cir. 1974
- See more at: http://administrativelaw.uslegal.com/administrative-agency-investigations/constitutional-issues-regardingself-incrimination/#sthash

Definition of SELF INCRIMINATION

1.

: incrimination of oneself; specifi cally : the giving of

testimony which will likely subject one to criminal prosecution
.YTafSEg4.dpuf

The common law privilege against self-incrimination entitles a person to refuse to answer any question, or produce
any document, if the answer or the production would tend to incriminate that person.[123] Although broadly referred to
as the privilege against self-incrimination, the concept encompasses three distinct privileges: a privilege against selfincrimination in criminal matters; a privilege against self-exposure to a civil or administrative penalty (including any
monetary penalty which might be imposed by a court or an administrative authority, but excluding private civil
proceedings for damages); and a privilege against self-exposure to the forfeiture of an existing right (which is less
commonly invoked).
15.90 Section 128(1) of the uniform Evidence Acts applies where a witness objects to giving particular evidence that
may tend to prove that the witness has committed an offence under Australian or foreign law, or is liable to a civil
penalty.[124] Under s 128(2):

Subject to subsection (5), if the court finds that there are reasonable grounds for the objection,
the court is not to require the witness to give that particular evidence, and is to inform the
witness:
(a) that he or she need not give the evidence; and
(b) that, if he or she gives the evidence, the court will give a certificate under this section; and
(c) of the effect of such a certificate.
15.91 Section 128(5) states:

If the court is satisfied that:

(a) the evidence concerned may tend to prove that the witness has committed an offence
against or arising under, or is liable to a civil penalty under, an Australian law; and
(b) 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
(c) the interests of justice require that the witness give the evidence;
the court may require the witness to give the evidence.
15.92 In this regard, the Acts differ from the common law, which grants an absolute right to claim the privilege. [125] If the
witness chooses to give evidence or is compelled to give evidence under s 128(5), the court must give the witness a
certificate which grants that person use and derivative use immunity in relation to the particular evidence (except in
criminal proceedings in respect of the falsity of the evidence).[126] A form of certificate granted under s 128 is contained
in Form 1 of the Evidence Regulations (Cth).[127] Regulation 7 of both the Commonwealth and the New South Wales
Regulations states that a certificate can, but need not be, in accordance with Form 1.[128]
15.93 Where the court has denied a claim for privilege and where, after the giving of evidence, the court finds that
there were indeed reasonable grounds for the claim, the witness must also be given a certificate.[129] The section does
not apply to defendants in criminal proceedings who give evidence that they did, or omitted to do, an act which is a
fact in issue, or that they had a state of mind the existence of which is a fact in issue. Corporations cannot claim the
privilege under s 128.[130]
15.94 The process of certification in s 128 was based on a model adopted in the (then) Australian Capital Territory
Court of Petty Sessions. ALRC 26 noted that the procedure was invoked around 25 times a year and elicited useful
additional information from witnesses.[131] Section 128 differs from the ALRCs original proposal, which provided only
for an optional certificate, and did not allow a court to compel a witness to give the evidence.[132]
15.95 In DP 69, it was noted that concerns with s 128 centred on the procedure of certification, rather than the aims
or scope of the section. Judges, in particular, told the Inquiry that the process under s 128 is cumbersome and hard to
explain to witnesses. They also argued that the necessity to invoke the process in relation to each question is clumsy.
It should be the broader subject matter of the evidence (rather than particular evidence) that is protected, for
example, the use of cocaine by the witness when living in Kings Cross in 199798. They further argued that it should
be sufficient for a judge to confirm the grant of the certificate in the record of proceedings, rather than having to
create an actual document; and that the Acts should require a prosecutor to keep a permanent record of all
certificates granted under s 128 in any proceedings.[133]
15.96 The Commissions agreed in DP 69 that s 128 should be amended to clarify its procedures. Submissions were
sought on how these changes might best be achieved.

Submissions and consultations

15.97 The CDPP is supportive of amendments that would allow more flexibility in the use of certificates, as is ASIC.
[134]
The Law Society of New South Wales agrees that there would be benefits in streamlining the process under s 128.
[135]

15.98 The Law Institute of Victoria (LIV) is critical of the reasonable grounds test in s 128, and argues that the
operation of an absolute right to claim the privilege should prevail. The LIV is supportive of the suggestion that a
witness should be able to make a claim in relation to particular topics to avoid the need repeatedly to make claims in
response to particular topics.[136]

15.99 The Family Court of Australia submits that the current s 128(2) procedure of inducing rather than compelling
self-incriminatory evidence is problematic. In the view of the Family Court, s 128(2) enables an unscrupulous witness
to obtain an unintended forensic advantage in subsequent criminal proceedings by volunteering information to the
court that it does not really need or want and which would not have been compelled under the exception in s 128(5).
An induced or volunteered answer under s 128(2) will arm the witness with an indemnity certificate giving him or her
both use and derivative use immunity in respect of the evidence (except in the criminal proceeding in respect of the
false giving of evidence). The protection extends to the use of the evidence as a prior inconsistent statement. This will
have the practical effect of putting any later prosecuting authority in the position of having to prove affirmatively that
the evidence relied on in the proceeding is derived from a legitimate source wholly independent of the induced
testimony.[137]
15.100 The Family Court further submits that the effect of paragraph (b) of s 128(5) is that an answer cannot be
compelled, even in the interests of justice, where the court is satisfied that the evidence could prove that the witness
has committed a criminal or civil offence under a foreign law. The Family Court argues that the paragraph is nearly
always overlooked and probably has a much wider operation than the legislature intended. Almost every criminal
offence and most civil breaches have international counterparts. Giving s 128(5)(b) its full scope would therefore
render the certificate procedure almost useless in most cases.[138]
15.101 Finally, the Family Court questions the application of the process under s 128(1) to affidavits. Under
the Family Law Rules 2004, evidence in chief at a hearing or trial is required to be given by affidavit unless the
witness refuses to swear one. No specific provision is made in the Rules for a witness to take objection on the
grounds that the witness may incriminate himself or herself.[139]

The Commissions view

15.102 The Family Courts concerns in regard to parties volunteering information in family law proceedings for their
own advantage are noted. As s 128 is presently drafted, once a party objects to giving evidence, the court is required
to make a determination if there are reasonable grounds to the objection. Under s 128(2), if the court finds that there
are reasonable grounds for the objection, the court is not to compel the witness to give evidence, but must inform him
or her that if he or she does give the evidence, a certificate will be given. This process allows the witness to consider
giving the evidence in exchange for a certificate, before the test under s 128(5), as to whether the evidence can be
compelled, is applied.
15.103 The Family Courts concern has not been raised elsewhere. In ALRC 26, the ALRC considered that the
appropriate balance between the rights of the individual and the state could be struck by a procedure whereby a
witness could be encouraged to testify but the state would be prevented from using that evidence against him or her
in later proceedings.[140]This view was endorsed by the New Zealand Law Commission in its consideration of the
privilege against self-incrimination in 1996.[141] Whilst the ALRCs proposal was later modified to allow that a witness
could also be compelled to give the evidence, the option of voluntarily giving the evidence in exchange for a
certificate remained. It is not considered that a sufficient problem has been identified at this stage to warrant
fundamental reconsideration of the provision.
15.104 In relation to the criticisms of s 128(5)(b) by the Family Court, an exception for an offence or civil penalty
against or arising under a law of a foreign country was not part of the ALRCs original proposal. However, because
the legislated section was drafted in such a way that a person could be compelled to give evidence (which was not
part of the ALRC proposal) it was considered that, as an Australian court cannot guarantee that any certificate of
immunity issued by it will be respected in a foreign jurisdiction, the court should not use its discretion to overrule a
legitimate claim of privilege in this regard. The width of the provision is not as great as asserted in the submission of
the Family Court. It is not the existence of equivalent offences in foreign jurisdictions which removes the courts ability

to compel answers in the interests of justiceit is the risk of incrimination in relation to such offences. That risk will
usually only exist where the evidence relates to actions within a foreign country.
15.105 It has been noted by the New Zealand Law Commission that a court faces real difficulties in determining
whether claims based on a liability arising overseas are legitimate.[142] The Evidence Bill, which at the time of writing
this Report is presently under consideration by the New Zealand Parliament, confines the privilege to offences under
New Zealand law. However, in the case of an offence in another jurisdiction, the Bill grants the judge a discretion to
direct that the person cannot be required to provide the information if the judge thinks that it would be unreasonable
to require the person to incriminate himself or herself by providing the information.[143] Although the concerns of the
Family Court are noted, the Commissions support the policy behind the current s 128(5)(b). The underlying policy of s
128 is that the privilege against self-incrimination should only be overridden when an immunity is available to the
witness in relation to other proceedings.
15.106 The Commissions believe that the best way to clarify the procedure under s 128 is by simplifying the order in
which the process of certification is outlined in the section. This would involve moving the current s 128(5), where the
court may require the witness to give evidence, closer to s 128(2), where the witness makes the objection.[144] In
addition, rather than the current practice, where a certificate is required to be issued for each question, the
Commissions support the view that particular evidence under the section should be defined to include evidence
both in response to questions and evidence on particular topics.
15.107 Rather than including the requirements for the court to inform the witness of his or her rights and the effect of
the section, it will be simpler for the section to provide:

that the witness may object to giving the evidence on the grounds that it may incriminate him or her (or make
him or her liable to a civil penalty);

that the court shall determine whether or not that claim is based on reasonable grounds;

if the claim is reasonable, that the court can then tell the witness that he or she may choose to give the
evidence or the court will consider whether the interests of justice require that the evidence be given;

if the evidence is given, either voluntarily or under compulsion, that a certificate shall be granted preventing
the use of that evidence against the person in another proceeding.

15.108 The general provisions regarding the duty of the court to inform witnesses and parties of their rights in relation
to privileges under Part 3.10 will remain applicable.[145] A recommended provision based on these amendments is
contained in Appendix 1.
Recommendation 157 Section 128 of the uniform Evidence Acts should apply where a witness objects to giving
evidence either to a particular question, or a class of questions, on the grounds that the evidence may tend to prove
that the witness has committed an offence against or arising under an Australian law or a law of a foreign country or
is liable to a civil penalty under such law. The section should provide that:
(a) the court is to determine whether or not that claim is based on reasonable grounds;
(b) if the court is so satisfied, the court must inform the witness that the witness may choose to give the evidence or
the court will consider whether the interests of justice require that the evidence be given;

(c) the court may require that the witness give the evidence if the interests of justice so require, but must not do so if
the evidence would tend to prove that the witness has committed an offence against or arising under a law of a
foreign country or is liable to a civil penalty under a law of a foreign country; and
(d) if the evidence is given, either voluntarily or under compulsion, a certificate is to be granted preventing the use of
that evidence against the person.

Application of s 128 to pre-trial proceedings

15.109 Section 128 provides a mechanism for allowing a witness to object to answering questions on the grounds
that to do so may expose the witness to the risk of criminal and other proceedings. Its policy aim is premised on the
desirability of encouraging witnesses to testify. The common law privilege against self-incrimination can be invoked in
pre-trial and non-curial contexts. The policy considerations supporting a certification procedure in relation to evidence
do not support the extension of the certification procedure to pre-trial matters. In this case, the common law rules
regarding the privilege against self-incrimination will continue to apply.[146]

Definition of use in any proceeding and court

15.110 Section 128(7) of the Evidence Act 1995 (Cth) states:

In any proceeding in an Australian court:

(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.
15.111 The term proceeding is not defined, although Australian court is given a wide definition.[147] Odgers argues
that both concepts should be given a liberal interpretation based on the underlying protective purpose of granting the
privilege.[148]Section 128(7) is mirrored in the other uniform Evidence Acts, although, for example, under the Evidence
Act 1995 (NSW), the section applies to any proceeding in a NSW court.

Application to a retrial
15.112 One issue raised by the term any proceeding is the status of a retrial. In R v Cornwell,[149] the accused was
granted a certificate under s 128 in his first trial for evidence given by him that might incriminate him in relation to
other possible charges. The jury at the trial could not decide on a verdict and a re-trial commenced before Blackmore
DCJ in the District Court of New South Wales. Blackmore DCJ determined that the trial before him was a different
proceeding for the purposes of s 128(7). Therefore, the certificate issued by Howie J in the Supreme Court of New
South Wales would apply to the proceeding in the District Court, preventing the tendering of the evidence that was
the subject of the certificate. The issue was whether a retrial could be considered a proceeding for the purpose of a s
128 certificate or whether it is part of the original proceedings.[150]
15.113 Following Blackmore DCJs ruling, the parties appeared before Howie J regarding the issuing of the certificate
from the first trial. The Crown contended that the certificate should not be issued because of the defence delay in
seeking it and the use to be made of it in the District Court proceedings.

15.114 Howie J considered whether there was any basis on which the certificate could be limited or amended to
prevent its use in keeping the evidence out of the retrial. He found that there was no ground to refuse the certificate
on the basis of events that occurred after the accused was told he must answer the questions asked but that a
certificate would be issued in respect of those answers.[151] The process set out by s 128 is mandatory, not
discretionary, once the requirements of the section are met.
15.115 Howie J expressed concern about the situation in Cornwell, stating that it was difficult to see any justifiable
policy which would permit an accused to give evidence in a trial on the basis that some or all of it could not be used
against him in any subsequent proceedings for the same offence.[152] On this basis, he suggested that either it is
incorrect to include a retrial in the definition of a proceeding for the purpose of s 128(7) or the section needs to be
amended.[153]

It is clear from the reasons for judgment and the transcript of proceedings that the purpose of
issuing the certificate was to protect the applicant from prosecution for other offences not
charged before the Court As the Crown has sought to lead evidence of uncharged criminal
activity as part of its case in proving the offence charged, it seemed to me that the applicant was
entitled to defend himself free of running the risk of his evidence being used against him in
subsequent proceedings for criminal activity for which he was then not being tried. It was not my
intention, nor was it ever suggested during the course of argument, that the certificate could be
used by the accused to protect himself from the use of his evidence in a proceeding for the
charge in respect of which the evidence was given.
[154]

Submissions and consultations

15.116 To correct the situation in Cornwell, in DP 69 it was proposed that s 128(7) of the uniform Evidence Acts be
amended to clarify that a proceeding under that section does not include a retrial for the same offence or an offence
arising out of the same circumstances.[155]
15.117 In submissions, the CDPP and the NSW DPP agreed that s 128 should be amended to reflect the view of
Howie J inCornwell.[156] However, other submissions argued that the decision of Blackmore DCJ in Cornwell is an
anomaly because of the facts in that case, and one that is likely to be corrected by the courts without the need for
legislative amendment.[157]
15.118 The Commissions believe it is worthwhile to clarify s 128(7) to reflect this position and eliminate the possibility
for further confusion. The proposed provision is set out in Appendix 1.
Recommendation 158 Section 128(7) of the uniform Evidence Acts should be amended to clarify that a
proceeding under that section does not include a retrial for the same offence or an offence arising out of the same
circumstances.

Definition of a NSW Court

15.119 As noted in Chapter 2, the definition of an Australian court in the Evidence Act 1995 (Cth) is broader than the
definition of a NSW court in the Evidence Act 1995 (NSW). A NSW court is defined in the Dictionary as the Supreme
Court or another court created by parliament including a body, other than a court, that is required to apply the rules of
evidence.[158] The definition of an Australian court under the Commonwealth Act includes a person or body authorised
under an Australian law to hear, receive and examine evidence (regardless of whether the rules of evidence must be
applied). This means that the protection offered by a s 128 certificate under the Evidence Act 1995 (NSW) is more
limited than under the Commonwealth Act as it does not extend to tribunals that are not required to, but may, apply
the rules of evidence, such as disciplinary tribunals and other administrative bodies.[159]

15.120 In DP 69, the Commissions expressed the view that the current definition of a NSW court under
the Evidence Act 1995 (NSW) unduly limits the application of s 128 certificates. In order to reflect the policy basis of
the section, the ambit of the protection of a certificate under the uniform Evidence Acts should be the same. As under
the Evidence Act 1995 (Cth), the protection offered by a s 128 certificate should extend to administrative tribunals and
disciplinary bodies authorised to receive and examine evidence. The Commissions proposed amendment of the
Dictionary of the Evidence Act 1995 (NSW) to reflect the position under the Evidence Act 1995 (Cth) in this regard.[160]
15.121 Few submissions address this proposal. However, there is support for the change from the NSW DPP and the
Law Society of New South Wales.[161] The Commissions have noted a concern that an amendment to the definition of a
NSW Court in the Dictionary of the Evidence Act 1995 (NSW) could affect the application of the Act to bodies
beyond those to which it was intended to apply. As the desired outcome of the amendment was only that a certificate
under the Evidence Act 1995(NSW) have the same scope as under the Commonwealth Act, it is suggested that the
amendment be given effect by amendment to s 128(7) of the Evidence Act 1995 (NSW) instead. A draft provision is
located Appendix 1.
Recommendation 159 Section 128(7) of the Evidence Act 1995 (NSW) should be amended to provide that for the
purposes of that provision a NSW court means any New South Wales court or any person or body authorised by a
New South Wales law, or by consent of the parties, to hear, receive and examine evidence.

Application of s 128 to ancillary proceedings

15.122 As noted above, at common law, the privilege against self-incrimination is a fundamental right recognised
within the legal system. It has been said that the rule is not simply a rule of evidence, but a basic and substantive
common law right.[162]The application of both the common law privilege and the procedure available under s 128 to
proceedings which involve asset preservation or searching orders, such as Mareva and Anton Piller orders,[163] has
been the subject of considerable case law and confusion.
15.123 The High Court established in Reid v Howard that a defendant could object to a compulsory disclosure order
by invoking the privilege against self-incrimination.[164] This decision was in line with the House of Lords decision
in Rank Film Distribution Ltd v Video Information Centre[165] where it was decided that a person who was the subject of
an Anton Pillerorder or a Mareva order could invoke the privilege against self-incrimination.
15.124 In a number of cases, s 128 was held to apply to ancillary proceedings in the context of orders made ancillary
to asset preservation orders requiring an affidavit of assets.[166] Part of a courts power to grant asset preservation
orders is the ability to require a person against whom such an order is made to attend court for an oral examination
as to his or her assets. This examination usually occurs following the preparation of an affidavit of assets. In New
South Wales, the Equity Division of the Supreme Court attempted to overcome the decision in Reid v Howard and to
use the process under s 128 to require a party to provide an affidavit of assets.[167]
15.125 In Bax Global (Australia) Pty Ltd v Evans, Austin J described the practice of the Equity Division of the New
South Wales Supreme Court. The court attempted to protect an affidavit of assets by using the following procedure
when granting a s 128 certificate.

The Court initiates the disclosure procedure by making an order that a disclosure affidavit be
prepared and delivered to the judges associate in a sealed envelope, together with directions
that the affidavit not be filed or served on any other party, and that the further hearing be notified
to the Director of Public Prosecutions. At that hearing the judge opens the envelope and
inspects the affidavit. Any affidavit or oral evidence to support the witness objection is then
adduced, and submissions are heard as to whether for the purposes of s 128(2) there are

reasonable grounds for the objection, even though at that stage the plaintiffs counsel has not
had access to the affidavit which is the subject of the objection. The judge then rules on that
question Once the affidavit has been read, the s 128 certificate is given and attached to it.
If the witness elects not to give the evidence, then the Court hears any further submissions as to
whether it should require the witness to give the evidence under s 128(5), and makes a
determination accordingly. If the Court decides to require the witness to give the evidence, then
it follows the procedure for the reading of the affidavit as outlined above. If the Court decides not
[to] require the witness to give the evidence, the judge directs that all copies of the affidavit be
returned to the witness legal representative and authorises their destruction.
[168]

15.126 In Ross v Internet Wines Pty Ltd, the New South Wales Court of Appeal disapproved of the practice in Bax.
The Court held, in effect, that a respondent could not be compelled to disclose assets before any claim to the
privilege against self-incrimination was adjudicated upon. Giles JA (with whom Spigelman CJ and McColl JA agreed)
held that
[169]

it is impermissible for the court to substitute for a persons fundamental common law right the
statutory balance of rights, supplemented by court-devised additional protection by way of
artificially making the disclosing party a witness, closure of the Court, limitations on who can see
the disclosure affidavit, or if the privilege is upheld and no certificate is granted return of the
affidavit to its maker; all not pursuant to statute but by the court devising procedure intended to
inhibit the direct or derivative use against the person of information tending to incriminate.
[170]

15.127 It was also unclear whether the use of the term witness in s 128 includes a person who is not giving evidence
in court. In Ross v Internet Wines Pty Ltd, the Court of Appeal was prepared to assume (but not decide) that a
deponent of a disclosure affidavit would fall within the scope of witness envisaged by s 128(1).[171]
15.128 The Supreme Court of New South Wales, in Pathways Employment Services v West,[172] considered
the Bax practice in some detail. Campbell J questioned whether the approach taken in Bax is correct, because in
essence it is the court directing the defendant to become a witness only so that the privilege against self-incrimination
can be compromised.[173]

It is only by the active involvement of the Court, in setting a time and place for a special hearing
which otherwise would never occur, that the first defendant would become a witness. I am not
persuaded that these are circumstances within the scope of the circumstances for which
Parliament intended section 128 of the Evidence Act 1995 to provide an exception to the
privilege against self-incrimination.
[174]

15.129 Campbell J commented that there was no coherence in the interaction between the law concerning privilege
against self-incrimination and the law concerning compulsory disclosure of information for the purpose of civil
proceedings.[175] His Honour noted that a conflict has been long apparent between the policy underlying the privilege
against self-incrimination and the policy that underlies the procedures, originally equitable, of discovery and
interrogatories.[176] For example, there are inherent tensions between the privilege against self-incrimination and the
desire to prevent its use by a criminal defendant to avoid discovery and interrogatories in associated civil proceedings
for the recovery or administration of property.[177]
15.130 Campbell J argued that the Commissions present Inquiry was an appropriate place to consider and clarify the
application of s 128 (or similar powers in other legislation where the privilege is abrogated) to ancillary proceedings
for the compulsory disclosure of information in civil matters.[178]
15.131 In Macquarie Bank Ltd v Riley Street Nominees Pty Ltd,[179] Campbell J made orders designed to meet the
requirements of the Court of Appeal decision in Ross v Internet Wines. One of the orders stated that if the

respondents considered that the order to produce an affidavit of assets may incriminate them, they had to file and
serve within seven days an affidavit setting out their claim to the privilege against self-incrimination. If that claim for
privilege was upheld, then the respondents did not need to disclose that information.

Proposal to abrogate the privilege

15.132 A committee of the Council of Chief Justices of Australia and New Zealand is currently investigating the
question of the harmonisation of rules of court, practice notes and forms in relation to Mareva orders and Anton
Piller orders. Following the release of IP 28, the Committee made a submission to the Inquiry suggesting that, to
overcome the problems identified in the case law, the uniform Evidence Acts be amended to abrogate the privilege so
that an order for disclosure must be obeyed.[180]
15.133 This position has been adopted in a number of other jurisdictions. Following the decision in Rank Films,
[181]
theSupreme Court Act 1981 (UK) was amended to provide that privilege against self-incrimination cannot be
invoked in civil proceedings for intellectual property infringement. These are the kinds of proceedings where Anton
Piller orders are most commonly made. The section provides a use immunity for any statements that are elicited in
the course of obeying the order but no use immunity for any documents that are produced.[182]
15.134 In New Zealand, the new Evidence Bill[183] will follow the United Kingdom approach and prevents parties
to Anton Pillerorders from claiming the privilege against self-incrimination. Under cl 59 of the Bill, there is no privilege
for pre-existing documents. However, the privilege can be claimed if the party is required to answer potentially selfincriminating questions or supply information in compliance with the order. If satisfied that self-incrimination is
reasonably likely if a party provides the information sought by the order, the judge must make an order that the
information provided not be used in any criminal proceeding against the person providing the information.

DP 69 proposal
15.135 In DP 69, the Commissions noted there are a number of potential ways in which the uniform Evidence Acts
could be amended to require a person to provide information that is sought pursuant to the granting of
a Mareva order or Anton Pillerorder.
15.136 For example, s 128 could be amended to abrogate the privilege in civil proceedings generally, where any
order is made against an individual or a question is put to an individual. Alternatively, the privilege could be
specifically abrogated where an order is made requiring an individual to disclose assets or other information (or to
attend court to testify regarding assets or other information) or to permit premises to be searched. The information
would not, however, be available to be used against that individual in any criminal proceeding or in any proceeding
that would expose the individual to a penalty (except a proceeding for perjury or contempt of court). In DP 69, the
Commissions considered that a general abrogation of the privilege in civil proceedings is unwarranted and preferred
the limited abrogation of the privilege to specific types of orders to rectify the present problem with s 128.
15.137 A draft provision, s 128A, was set out in Appendix 1 of DP 69.[184] This provision had the effect that a person is
not excused from complying with a court order on the ground that compliance with it may tend to prove that the
person has committed an offence or is liable to a civil penalty. Any information given in those proceedings could not
be used against the relevant person in any subsequent proceedings under the provision.
15.138 Since DP 69 was published, the Civil Procedure Act 2005 (NSW) has come into force. Section 87 of that Act
extends the certificate procedure under s 128 to interlocutory proceedings. It has been put to the Inquiry that this may
mean that the process under Bax will now be allowed, meaning the court can compel a person to comply with the

order and then issue a certificate.[185] Nonetheless, it is suggested that, as a matter of policy, explicit abrogation of the
privilege in relation to these orders is preferable.

Submissions and consultations

15.139 The NSW DPP supports the Commissions proposal, although some minor drafting amendments are
suggested.[186]ASIC also supports the proposal.[187] The NSW PDO argues that, as the proposed provisions relate only
to forfeiture proceedings, abrogation of the privilege is better dealt with in statutes dealing with those processes.[188]
15.140 The CDPP is concerned that the proposal can operate to give immunity from prosecution to a person who is
being asked to comply with legitimate court orders. It opposes any provision which allows a person to give such
evidence without the consequence that they may face prosecution. The CDPP is also concerned that the
Commissions draft proposal contains a derivative use immunity. In its view, this can be open to abuse. A person can
engineer a compulsory disclosure so that the prosecution in any subsequent trial is obliged to prove that none of its
evidence derives directly or indirectly from the compulsory disclosure.[189]
15.141 A general concern is expressed that the words used in the Commissions proposal are too broad and could
capture, for example, any orders for discovery.[190] One Federal Court judge submits that any abrogation of the
privilege and accompanying immunity must not defeat the object of the provisionwhich is ultimately to assist in the
proper resolution of the dispute. For example, in relation to an Anton Piller order, a person can be obliged to provide
material falling under theCopyright Act 1968 (Cth). Under the proposal in DP 69, that information can be obtained
compulsorily, but then a person will be able to claim privilege in the proceedings instituted as a result of information
obtained from the execution of the order.[191]
15.142 Since DP 69 was published, the Committee of the Council of Chief Justices of Australia and New Zealand has
given further consideration to these issues. The Committee revised its original submission to the Inquiry and submits
that Australia should follow New Zealand. The privilege against self-incrimination should not apply to documents
which existed prior to the making of an order for disclosure and should apply only to documents which are brought
into existence in compliance with the order. The Committee further submits that, unlike the position in New Zealand,
both Anton Pillar orders and Mareva orders should be encompassed in the amendments.[192] The Committee proposes
that provisions having the following effect be inserted in the uniform Evidence Acts, following s 187.[193]

187A No Privilege Against Self-Incrimination for Pre-Existing Documents

At no stage of any proceeding is any person entitled to refuse or fail to comply with an order for
production of a pre-existing document or thing that was not created pursuant to a court order, or
to object to the inspection or admissibility of evidence of such a document or thing, on the
ground that to do so might tend to incriminate the person or make the person liable to a civil
penalty.
187B No Privilege Against Self-Incrimination Re Disclosure Orders etc in Civil
Proceedings
(1) At no stage of a civil proceeding is a person entitled to refuse or fail to comply with an order
of the court requiring the person to do one or more of the following:
(a) disclose information
(b) permit the premises to be searched

(c) permit inspection, copying or recording or documents or things

(d) secure or deliver up or permit removal of documents or things.
(2) If the court finds, on application being made at any time, that the evidence of any
information, document or thing disclosed found or obtained in direct or indirect compliance with
the court order might tend to incriminate the person or make the person liable to a civil penalty,
the court is to cause the witness to be given a certificate under this section in respect of the
evidence. Evidence in respect of which a certificate has been given under this section cannot be
used against a person in any criminal or civil penalty proceedings in [an Australian court][a
[name of State] court].
(3) Subsection (2) does not apply to a pre-existing document or thing referred to in section
187A.
(4) Subsection (2) does not apply to a criminal proceeding in respect of the falsity of the
information disclosed in compliance with the court order.
(5) If a person has complied with an order of the kind referred to in subsection (1) made by an
Australian court to which subsection (1) does not apply, subsections (2), (3) and (4) apply in the
same way as if the order was made by a court to which subsection (1) applies.

The Commissions view

15.143 The availablility of the privilege against self-incrimination in the context of compulsory disclosure orders needs
to be addressed. The Commissions agree with the Committee of the Council of Chief Justices that the express
abrogation of the privilege against self-incrimination is required in relation to orders made in a civil proceeding
requiring a person to disclose information about assets or other information (or to attend court to testify regarding
assets or other information) or to permit premises to be searched. This must be accompanied by a protection in
relation to the subsequent use of that information.
15.144 The Commissions support the submission of the Committee that a distinction should be drawn between a
witness testifying or preparing a document in response to an order (for example, an affidavit), and orders for the
production of documents already in existence. At common law, unless abrogated expressly or by necessary
implication, the privilege against self-incrimination applies to any documents that an individual is required to produce.
[194]
However, some case law recognises that some documents can be considered to be real evidence, which is not
protected by the privilege.
15.145 In Environment Protection Authority v Caltex Refining Co Pty Ltd (Caltex), Mason CJ and Toohey J explained
the distinction as follows:

It is one thing to protect a person from testifying as to guilt; it is quite another thing to protect a
person from the production of documents already in existence which constitute evidence of guilt
[documents] are in the nature of real evidence which speak for themselves as distinct from
testimonial oral evidence which is brought into existence in response to an exercise of
investigative power or in the course of legal proceedings.
[195]

15.146 McHugh J in Caltex cited Lord Templeman in Istel v Tully to the effect that it was difficult to see why in civil
proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant
and even vital documents that are in his possession or power and which speak for themselves.[197]
[196]

15.147 In its report on Abrogation of the Privilege against Self-Incrimination, the Queensland Law Reform
Commission found that one of the justifications for abrogation of the privilege could be, in the case of information in
documentary form, whether the document was in existence at the time the requirement to provide the information was
imposed.[198]
15.148 In the United States, pre-existing documents that must be kept as part of a requirement of a regulatory
scheme are not protected by the privilege.[199] After considering the United States case law, the New Zealand Law
Commission similarly recommended that the privilege should not apply to pre-existing documents or real evidence.
The fact that there is no compulsion at the time of creation means that the likelihood of compulsion causing the
evidence to be unreliable, or for the information to be created from an abuse of power, is minimal.[200] Under cl 59 of
the New Zealand Evidence Bill, there is no privilege for pre-existing documents, as the section relates only to the
giving of incriminating information which is defined as information prepared or created after and in response to the
requirement of an order.[201]
15.149 The Commissions note the drafting concerns that were raised in submissions in relation to the proposed s
128A that was contained in DP 69. The Commissions recommend that the section still contain a use and derivative
use immunity over the information, which is consistent with the provisions of the current s 128. There were also
concerns about proposed s 128A being used to prevent the production of documents obtained as a result of a search
order being used in later criminal proceedings. This will be overcome by the proposal to limit the availability of the
privilege to documents prepared for the purpose of the order, and not pre-existing documents.
15.150 The Commissions therefore recommend that the uniform Evidence Acts should be amended to provide that
the privilege against self-incrimination cannot be claimed in respect of orders made in a civil proceeding requiring a
person to disclose information about assets or other information (or to attend court to testify regarding assets or other
information) or to permit premises to be searched. However, evidence obtained in compliance with such orders
should not then be able to be used against the person in a criminal or civil penalty proceeding against the person,
where the court finds that the evidence might tend to incriminate the person, or make the person liable to a civil
penalty. This use immunity should only apply to documents or information created pursuant to the court order, and not
to a pre-existing document or thing.
15.151 The Commissions note that it is not clear at present how such a recommendation would interact with the new
s 87 of the Civil Procedure Act 2005 (NSW). Any amendments to that section that are required should be considered
if Recommendation 1510 is adopted. The Commissions have not included a draft provision for the implementation of
this recommendation in Appendix 1.
Recommendation 1510 The uniform Evidence Acts should be amended to provide that the privilege against selfincrimination cannot be claimed in respect of orders made in a civil proceeding requiring a person to disclose
information about assets or other information (or to attend court to testify regarding assets or other information) or to
permit premises to be searched. However, it should be provided that evidence obtained in compliance with such
orders cannot be used against the person in a criminal or civil penalty proceeding against the person, where the court
finds that the evidence might tend to incriminate the person, or make the person liable to a civil penalty. This use
immunity should only apply to documents or information created pursuant to the court order, and not to a pre-existing
document or thing.
[123]

Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 335.

Clause 3 of Pt 2 of the Dictionary in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW) defines a civil
penalty as a penalty (other than a criminal penalty) arising under Australian law or a law of a foreign country. The
[124]

protection of a certificate does not appear to extend to use of the evidence for administrative purposes, such as
cancellation of a licence or a banning order under the Corporations Act 2001 (Cth). Administrative actions have been
traditionally held by the courts to have a protective purpose, rather than that of a penalty or punishment: eg, ASC v
Kippe (1996) 67 FCR 499. However, in relation to the common law privilege against self-exposure to a penalty, the
High Court has found that disqualification orders may have both a protective and a penal purpose, and therefore the
privilege may apply: Rich v Australian Securities and Investments Commission (2004) 209 ALR 271.
See J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform
Evidence Acts (2002), [128.05].
[125]

Under the Evidence Act 1995 (Cth) the protection afforded under the certificate only extends to any proceeding in
a NSW court. However, under s 128(10) and 128(11) of the Evidence Act 1995 (Cth), a certificate given under the
NSW Act operates as though it were given under the federal Act, thereby extending the protection to any Australian
court. That extended effect also applies to the direct and derivative use immunities contained in s 128(7).
[126]

[127]

And in the equivalent Evidence Regulations (NSW).

[128]

See also S Odgers, Uniform Evidence Law (6th ed, 2004), [

[129]

Uniform Evidence Acts s 128(4).

[130]

Ibid s 187.

[131]

Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [861].

[132]

Australian Law Reform Commission, Evidence, ALRC 38 (1987), [215].

1.3.13060].

Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform
Commission,Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [13.223]
[13.226], see Proposal 139 and Question 132.
[133]

Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005; Australian Securities &
Investments Commission, Submission E 97, 20 September 2005;
[134]

The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South
Wales,Submission E 103, 22 September 2005.
[135]

[136]

Law Institute of Victoria, Submission E 116, 27 September 2005.

[137]

Family Court of Australia, Submission E 80, 16 September 2005.

[138]

Ibid.

[139]

Ibid.

[140]

Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [860].

[141]

New Zealand Law Commission, The Privilege Against Self-Incrimination: A Discussion Paper (1996), 119.

[142]

Ibid, 77.

[143]

See Evidence Bill 2005 (NZ) cl 56(1)(b) and cl 57.

[144]

S McNicol, Consultation, Melbourne, 17 March 2005.

[145]

See s 132 of the uniform Evidence Acts.

[146]

Although see Recommendation 1510 below.

S Odgers, Uniform Evidence Law (6th ed, 2004), [

proceeding in Ch 2.
[147]

[148]

[149]

Ibid, [

1.3.13100]. See discussion of what is meant by

1.3.13100].

R v Cornwell [2004] NSWSC 45.

[150]

Ibid.

[151]

Ibid, [12].

[152]

Ibid, [11].

[153]

Ibid, [18].

[154]

Ibid, [9][10].

Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform
Commission,Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13
11.
[155]

Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005; Director of Public
Prosecutions (NSW), Submission E 87, 16 September 2005.
[156]

The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South
Wales,Submission E 103, 22 September 2005; New South Wales Public Defenders Office, Submission E 89, 19
September 2005.
[157]

[158]

The definition of a Tasmanian court is substantially the same in Evidence Act 2001 (Tas) s 3.

[159]

S Odgers, Uniform Evidence Law (6th ed, 2004), [

1.3.13100].

Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform
Commission,Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13
12. See also Rec 21.
[160]

The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South
Wales,Submission E 103, 22 September 2005; Director of Public Prosecutions (NSW), Submission E 87, 16
September 2005.
[161]

[162]

Reid v Howard

(1995) 184 CLR 1, 1112.

Both types of orders are interim orders designed to preserve the status quo for parties to a matter while they await
a judgement or further orders. A Mareva order is a freezing order which is designed to prevent a respondent from
removing assets from the jurisdiction prior to judgment. An Anton Piller order is a search order allowing inspection
and seizure of evidence which is in danger of being destroyed, concealed or removed, and that is needed to prove
the applicants claim: P Biscoe, Mareva and Anton Piller Orders: Freezing and Search Orders (2005), [1.1].
[163]

[164]

Reid v Howard

(1995) 184 CLR 1.

[165]

Rank Film Distribution Ltd v Video Information Centre [1981] 2 All ER 76.

J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform
Evidence Acts (2002), [128.10].
[166]

[167]

J Hunter, C Cameron and T Henning, Litigation I: Civil Procedure (7th ed, 2005), [8.88].

[168]

Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538, [41][46].

[169]

Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436.

[170]

Ibid, 452.

Ibid, 451. Although see In the Marriage of Atkinson

(1997) 136 FLR 347, where Lindenmayer J held that
litigants in the Family Court who are required to file affidavits prior to a hearing may make an application under s 128:
J Hunter, C Cameron and T Henning, Litigation I: Civil Procedure (7th ed, 2005), [8.82].
[171]

[172]

Pathways Employment Services v West (2004) 212 ALR 140.

[173]

Ibid, [40].

[174]

Ibid, [40].

[175]

Ibid, [46].

[176]

Ibid, [12].

[177]

Ibid, [13].

[178]

Ibid, [49].

[179]

Macquarie Bank Ltd v Riley Street Nominees Pty Ltd [2005] NSWSC 162.

[180]

Committee of the Council of Chief Justices of Australia and New Zealand, Submission E 52, 22 April 2005.

[181]

Rank Films Distributors v Video Information Centre [1982] AC 380.

[182]

Supreme Court Act 1981 (UK) s 72.

At the time of writing the Bill was under consideration by the Justice and Electoral Parliamentary Committee see:
<http://www.clerk.parliament.govt.nz/Programme/Committees/Submissions/jee....
[183]

Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform
Commission,Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [13.236]
[13.237]; Appendix 1.
[184]

[185]

P Biscoe, Consultation, Sydney, 28 July 2005.

[186]

Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[187]

Australian Securities & Investments Commission, Submission E 97, 20 September 2005.

[188]

New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[189]

Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.

[190]

P Biscoe, Consultation, Sydney, 28 July 2005.

[191]

Justice C Branson, Consultation, Sydney,

When and Where Can You Assert the Privilege?

Witnesses can assert the privilege against self-incrimination in civil proceedings as well as
criminal ones, despite the seemingly limiting language of the Fifth Amendment. They can
assert it in state or federal court, in a wide variety of proceedings (including trials,
depositions, administrative law proceedings, and investigatory proceedings like grand jury
hearings). But interestingly, if the witness fears exposure to prosecution in a country other
than the U.S., the privilege does not apply. (United States v. Balsys, 524 U.S. 666, 672
(1998).)

How Damaging Must the Disclosures Be?

Not every disclosure can be the subject of a Fifth Amendment assertiononly those that
the witness reasonably believes could be used in a criminal prosecution or could lead to
other evidence that might be so used. (Kastigar v. United States, 406 U.S. 441, 444-445
(1972).) The key word here is reasonably. Responses to questions that would be of no use
to prosecutors, or that couldnt contribute to a prosecution because of the passing of the
statute of limitations, cannot take refuge within the Fifth. But if the prosecution can make

use of the answer itself or any evidence it might lead to, the witness is entitled to claim the
privilege against self-incrimination.

Parallel Civil and Criminal Proceedings

Often, witnesses are involved in two cases at the same time: one civil and one criminal. For
example, a witness might be called to testify before a governmental body while a criminal
case against her is in the investigative stages. The witnesss lawyer will likely advise her to
invoke the Fifth Amendment. Why is this a good idea?
First, because the potential consequences of a criminal proceeding (including jail or prison)
are more dire than those of a civil case, a witness may be able to get a judge to stay, or
postpone, the civil matter until the criminal one is concluded. Even if theres no stay, a
witness is usually better off asserting the privilege if truthful answers will tend to incriminate
her with respect to the criminal case.
Theres a real risk that innocent mistakes or omissions in a civil matter thats held before the
completion of a criminal investigation will come back to haunt the defendant. Its even
possible that a mistake in a civil proceeding will lead to a prosecution not just for the
underlying criminal act, but also for being untruthful, in which case eventual charges might
include obstruction of justice or even perjury.

Waiving Your Fifth Amendment Privilege

A witness can waive the right to invoke the Fifth by later making statements about the topic
in question. For example, if a witness invokes the Fifth, but goes on to selectively answer
questions about the same subject matter, a judge might decide that the later answers
vitiated the initial waiver. But judges are hesitant to declare the privilege waived because of
its importance. For instance, a brief and general statement about ones innocence, following
invocation of the Fifth, probably wont constitute a waiver.
Importantly, even if a judge finds that a person waived the privilege, that waiver will extend
only to the current proceeding. A witness who answers questions subsequent to invoking
the Fifth, who is ordered by a judge to continue answering based on waiver, can reassert
the privilege in a later, different proceeding. For example, a defendant who waives the
privilege while testifying in one case can assert it when called to testify in another.
Additionally, a witness can begin testifying but invoke the privilege when answers to later
questions would be incriminating. If the prosecutor commences by asking benign questions
that the witness answers (What were you wearing that night?), but moves into questions

that go to the heart of the matter (How many times did you meet with the defendant?), the
witness may claim the privilege.

Is It Ever Unwise to Invoke the Fifth?

At first blush, it might seem that whenever answers to questions might incriminate oneself, it
makes sense to decline to answer. Many times claiming the Fifth is the best course of
action, but there may be instances when it will do more harm than good. For example:

In some civil cases (though not in California), the opposition may be entitled to an
instruction advising jurors that they can draw an adverse inference against a
witness who claims the Fifth. This can be a very damaging instruction, as it allows
the jury to presume that, had the defendant answered the relevant questions, the
answers would have been adverse to his interests.

In most civil cases, a party who invokes the Fifth before trial, such as during
discovery, will be barred from later offering evidence or testimony on that issue.

The public often perceives claiming the privilege against self-incrimination as a tacit
admission of guilt or responsibility. If the court of public opinion is important to the
matter at hand, the publicity fallout can be vicious.

Yet, a witness who could claim the Fifth but is tempted to answer should first discuss the
issue thoroughly with an attorney. Suppose a witness in a civil case may be able to supply
credible answers that could form the basis for a strong defense against a future criminal
proceeding. A prosecutor confronting these convincing, under-oath answers might decide
not to file charges. Of course, if the witness fibs, omits something, or gets confused on
cross-examination, she may doom herself. Thats why the guidance of a knowledgeable
attorney is crucial.

Consult Your Lawyer

The decision as to whether to invoke ones Fifth Amendment right against self-incrimination
in a civil or criminal proceeding is very complicated, involving an assessment of both the
facts and the relevant law in your jurisdiction. Only careful discussion and preparation with
your lawyer will enable you to make a wise decision. Never head into a situation where
testimony could end up hurting you without professional advice.

Self Incrimination and the right to privacy in

a criminal proceeding.

DecTuesday,13,
Milton
If you order your
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The Fifth amendment protects a person against being incriminated by his or her own compelled testimonial communication. This
protection is applicable to the states through the due process clause of the Fourteenth Amendment. To be testimonial, a
communication must itself, explicitly or implicitly relate to a factual assertion or disclose information that is the expression of the
contents of an individuals mind. Therefore, the privilege against self-incrimination is not violated by compelling a person to appear
in a line-up, produce voice exemplars, hand writing samples, fingerprints, shave mustache or beard, or take blood-alcohol or
breathalyzer test.

The U.S. Supreme Court said

the privilege afforded not only extends to answers that would in themselves support a conviction under a criminal statute but like
wise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a crime.

But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct
answer. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked,
that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious
disclosure could result. The trial judge in appraising the claim must be governed as much by his personal perception of the
peculiarities of the case as by the facts actually in evidence.

In other words, not only the confession to the commission of a crime is protected under the Fifth Amendment. Also protected are
incriminating admissions that, while not sufficient in and of themselves to support a conviction, would provide a link in the chain of
evidence needed to prosecute.

Self incrimination and immunity are very much related given that both are protecting the individual who is providing information
and/or volunteering an admission to a crime. There are types of immunity that may be granted are transactional immunity and use
immunity.

Transactional immunity, a witness may be compelled to testify despite the privilege against self incrimination, but witness is
protected from any prosecution for crimes to which his or her compelled testimony relates. Under the use immunity a witness may
be compelled to testify despite the privilege against self incrimination, but witness is protected from the use of the compelled
testimony and any evidence derived from it. Use immunity would still permit prosecution for related offenses based upon evidence

derived from independent sources. A witnesss failure to answer questions or produce evidence within the subject of the
investigation as ordered by the court constitutes contempt of court.

Immunity. A person who has been a witness in a legal proceeding, and who cannot, except as otherwise provided in this
subdivision, be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction matter or thing
concerning which he gave evidence therein, possesses immunity from any such conviction, penalty or forfeiture. A person who
possesses such immunity may nevertheless be convicted of perjury as a result of false testimony in such legal proceeding, and may
be convicted of or adjudged in contempt as result of having contumaciously refused to give evidence therein. (Penal Law 50.10[1])

The law of criminal procedure is bound to weigh the intended investigation of the truth against the interest of the person charged
with a criminal offense and in protecting his privacy. While the majority of the courts are making an effort to reinforce the protection
provided to the accused, there is a tendency of allowing increasingly too much invasion of privacy. Self-incrimination and privacy
tend to overlap because enforced self-incrimination will often entail invasion of privacy.

Having immunity doesnt mean that you can commit perjury. In the case of matter of Altieri v. Holder this, this held to be true. A man
posing as Robert Smith had admitted himself to a hospital under a false name in order to avoid paying his bill. Rebecca Altieri had
spoken to an investigator with the Westchester Country District Attorneys office and a Federal Bureau of Investigation agent. She
allegedly told them she had seen Mr. Smith at the hospital and he admitted to her that he had given a wrong name. When she was
subpoenaed to appear before the grand jury she was given transactional immunity under Criminal Procedure Law 10.40. During her
testimony Ms. Altieri denied meeting with the investigators and said she had told them about any conversation with Mr. Smith. Due
to the false testimony, the matter was presented to a second grand jury and Ms. Altieri ultimately was charged with misdemeanor
perjury in the third degree. She tried to use Matter of Rush v. Mordue (68 NYd 48) to seek writ of prohibit since the man who testified
to a grand jury under immunity had previously given a false statement to police and was not prosecuted for perjury. Ms. Altieri was
not being prosecuted for her statement to the investigators; rather she was being prosecuted for her later false testimony.

In New York v. Quarles, (467 US 64, 65-65) a woman claiming that she had been raped at gunpoint flagged down a police officer.
She told him that the perpetrator fled into a supermarket. The police briefly pursued the suspect through the supermarket before
apprehending him. As they were frisking him, the officer discovered that the man was wearing a shoulder holster. The officer asked
where the gun was and the suspect directed him to a cardboard carton in the supermarket where he had hidden it. The United
States Supreme Court held that, not withstanding the fact that the suspect was in custody, he had not been read his Miranda rights
before being questioned. The question about the whereabouts of the gun was permissible because of the concern for public safety.
As long as there is an objective made to ask the question in order to protect the public, it does not matter that the officers may also
have desired to obtain incriminating evidence. This case presents basic public safety concerns. What would happen if an
accomplice or any other criminal got a hold of the gun and an innocent bystander came across it and would be injured?

In the case of New York v. Robles the question presented was if people were allowed to present select portions of videotape at trial
in order to prove a defendants intoxication. When a defendant has been properly arrested based on probable cause for the crime of
driving while intoxicated, the police may ask the defendant to consent to submit to a chemical test for the presence of alcohol in the
defendants system, and the defendant has no constitutional right to refuse. This is so because a chemical test does not require the
defendant to provide evidence of a testimonial or communicative character and therefore does not implicate defendants rights
against self-implication. Due to New York Vehicle and Traffic Law Section 1141()(f) a defendant who has been arrested for driving
while intoxicated will not be forced to take a chemical test for alcohol but will faced certain adverse consequences if he refuses to
take such a test. Law requires in substance that a defendant who has been arrested on a charge of drunken driving shall be advised
that his (or her) drivers license will be suspended for refusal to take a chemical test whether or not, the defendant is subsequently
found guilty of the criminal charge. If the defendant nevertheless refuses to take the chemical test, the police must immediately
prepare a written report of the defendants refusal. The defendant Rafael Robles was arrested on or about January 14, 18 and was
charged with violations of Penal Law Section 0.0 and Vehicle and Traffic Law Section 11 (). Robles refused to submit himself to a
chemical test, so his license was suspended. The video showed that the defendant approached a female undercover officer who

was posing as a prostitute and offered her twenty dollars in return for a sexual act. When he was pulled over, Police Officer
Rosenberg smelled strong alcohol from the car and appeared to be very intoxicated. They then arrested him and gave him refusal
warnings in a pre-recorded Spanish language videotape. Robles was so intoxicated that they decided to stop the refusal warning. As
a result, the officer never finished the process, so Robles was not aware that his refusal to take the chemical test would be used
against him at trial.

Bibliography

1. Alden, B. (17), Immunity No Shield to Perjury Charge.

The New York Law Journal. (Page 1, column 5)

. New York v. Robles. (1) 1 NY Lexis 16.

Lexis-Nexis Universe State Case Law. [Reed Elsevier Inc.]

. Annotated Book 11A. Criminal Procedure Law 50.10

(McKinneys Consolidated Laws of NY 1)

4. Criminal Procedure Law of the State of New York. (1)

Fresh Meadows, NY; Looseleaf Law Publications

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Privilege against Self-Incrimination

Privilege against Self-Incrimination

The privilege against self-incrimination forbids the government from compelling any person to give testimonial evidence thatwould lik
ely incriminate him or her during a subsequent criminal case. This right enables a defendant to refuse to testify at acriminal trial and,
according to the U.S. Supreme Court, "privileges him not to answer official questions put to him in anyother proceeding, civil or crimi
nal, formal or informal, where the answers might incriminate him in future criminalproceedings." Lefkowitz v. Turley, 414 U.S. 70, 94
S. Ct. 316, 38 L. Ed. 2d 274 (1973).
Confessions, admissions, and other statements taken from defendants in violation of this right are inadmissible againstthem during
a criminal prosecution. Convictions based on statements taken in violation of the right against Self-Incrimination normally are overt
urned on appeal, unless sufficient admissible evidence is available to support the verdict.The right against self-incrimination may onl
y be asserted by persons and does not protect artificial entities such ascorporations. Doe v. United States, 487 U.S. 201, 108 S. Ct.
2341, 101 L. Ed. 2d 184 (1988).

Witness Privilege
A witness may refuse to answer questions or give documentary evidence only if the answer or document would incriminatethe witne
ss. An answer is considered self-incriminating if it would lead to criminal liability in any jurisdiction. The answerneed only furnish a li
nk in the chain of Circumstantial
Evidence necessary for a conviction Blau v. United States, 340 U.S.159, 71 S. Ct. 223, 95 L. Ed. 170 (1950). The answer does not
have to be one that would be admissible as evidence in acriminal trial.
The privilege does not allow a witness to refuse to answer a question because the response may expose the witness to civilliability,
social disgrace, loss of status, or loss of private employment. A witness may not claim the privilege on the groundsthat an answer or
document may incriminate a third party: it may be declared only by the witness for the witness.
In some criminal cases, a prosecutor may grant to a witness Immunity from prosecution. This immunity comes in twoforms: transac
tional and testimonial. Transactional immunity gives the witness immunity from prosecution for the criminalacts to which the witness
refers in his or her statements. Testimonial immunity merely prevents the prosecution from usingthe statements the witness makes i
n a subsequent prosecution of the witness. Prosecutors have the right to grant onlytestimonial immunity and thereby force witnesse
s to testify. If the witness refuses to testify after being given testimonialimmunity, he or she could be jailed for Contempt of court. Fu
rthermore, if a witness with testimonial immunity testifiesfalsely, the false statements may be used against the witness in a subsequ
ent prosecution for perjury.
By contrast, if police or prosecutors summon a witness to produce self-incriminating documents, the witness may claim theprivilege
because a summons to produce documents is similar to a demand for testimony. Curcio v. United States, 354 U.S.118, 77 S. Ct. 11
45, 1 L. Ed. 2d 1225 (1952). However, police and prosecutors may force a witness to relinquish self-incriminating documents if the r
ecords pertain to a regulated public matter, such as price records kept by businesses underprice regulation statutes.

Criminal Defendant Privilege

In Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court extended the right toremain silent to pretrial CU
STODIAL INTERROGATIONS.

The Court held that before a suspect is questioned, the police must apprisethe suspect of his or her right t

o remain silent and that if he or she gives up this right, any statements may be used againstthe suspect in a subsequent criminal pr
osecution. Under Miranda, suspects also have a Fifth
Amendment right to consultan attorney before they submit to questioning. Miranda applies to any situation in which a person is bot
h held in custody bythe police, which means that he or she is not free to leave, and is being interrogated, which means he or she is
being askedquestions that are designed to elicit an incriminating response. A person need not be arrested or formally charged forMi
randa to apply.
Miranda has been scrutinized by law enforcement personnel and others since it was first decided. In 1968, Congressenacted a law,
codified at 18 U.S.C.A. 3501, that restored voluntariness as a test for admitting confessions in a federalcourt. The U.S. JUSTICE DEP
ARTMENT,

however, under attorneys general of both major political parties, refused to enforce theprovision, believing it to be unconsti

tutional. The Supreme Court, in Dickerson v. United States, 30 U.S. 428, 120 S.Ct.2326, 147 L.Ed.2d 405 (2000), ruled that this law
could not revoke Miranda because the 1966 decision had been made onconstitutional grounds.
For criminal defendants, the privilege against self-incrimination includes the right to refuse to testify at trial. A defendantmay testify a
t a Preliminary

Hearing on the admissibility of evidence without waiving the right to not testify at trial.Incriminating statements made by a defendant
in a preliminary hearing are not admissible at trial, and the prosecutor maynot comment on them.
The Court has held that the privilege is not compromised by laws that require persons to surrender identification to lawenforcement
personnel. California v. Byers, 402 U.S. 424, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971). A person who is suspectedof a crime may be co
mpelled to testify before a Grand
Jury, a legislative body, or an administrative board. The person mustappear and answer questions, but he may claim the privilege a
gainst self-incrimination when necessary.

Further readings
"Criminal Law and Procedure; Privilege Against Compelled Self-Incrimination." 1994. SMH Bar Review.
"Evidence; Self-Incriminating Testimony." 1994. SMH Bar Review.
"Self-Incrimination." 2002. Harvard Law Review 302.

Cross-references
Circumstantial Evidence; Immunity; Testimony; Witnesses.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

privilege against self-incrimination

n. a right to refuse to testify against oneself in a criminal prosecution or in any legal proceeding which might be used againstthe pers
on. This privilege is guaranteed by the Fifth Amendment to the Constitution which provides: "No person....shall becompelled in any c
riminal case to be a witness against himself..." Therefore, refusing to answer questions during a trial ("Irefuse to answer on the grou
nd it may tend to incriminate me") is called "taking the Fifth."
(See: Bill of Rights)
Copyright 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

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