Introduction

The court process can feel overwhelming, especially when it seems like the process is working against you. While some of the law may feel this way, there are fundamental rules in place to help protect you and your right to liberty. The privilege against self-incrimination is a crucial legal right that protects individuals from being compelled to provide evidence that could incriminate them. In New South Wales, this privilege is codified under section 128 of the Evidence Act 1995 (NSW), ensuring that individuals are not forced to act as witnesses against themselves in criminal or civil proceedings. This right is crucial for upholding justice and protecting individual freedoms, reflecting principles such as the presumption of innocence and the right to a fair trial.

This guide provides essential information about the privilege against self-incrimination in NSW, focusing on section 128 of the Evidence Act 1995. It explains how the privilege works, the conditions under which it can be invoked, and the legal protections it offers. Whether you are a witness in a criminal proceeding or involved in a civil matter, understanding this privilege is vital for navigating the legal landscape effectively.

Understanding the Privilege Against Self-Incrimination

Definition and Scope of the Privilege

The privilege against self-incrimination is a legal right that allows individuals to refuse to answer questions or provide evidence that may incriminate them. This privilege applies in various legal contexts, including criminal investigations, court proceedings, and civil matters. It is codified in section 128 of the Evidence Act 1995 (NSW) and is available to individuals, not corporations. Additionally, the privilege protects against self-incrimination under both Australian law and foreign law. It applies when a witness objects to giving evidence on the ground that it may tend to prove they have committed an offence or are liable for a civil penalty.

Key aspects of the privilege include:

• Compelled Testimony: It applies to compelled testimony, not voluntary statements.
• Scope of Proceedings: The privilege covers both criminal and civil proceedings.
• Eligibility: It is available to individuals, not corporations.
• Legal Codification: The privilege is codified in section 128 of the Evidence Act 1995 (NSW).

Purpose and Legal Basis

The privilege against self-incrimination exists to protect individuals from being compelled to provide evidence that could be used against them in criminal or civil proceedings. This protection is rooted in the principles of the presumption of innocence and the right to a fair trial. By ensuring that individuals are not forced to act as their own accusers, the privilege maintains the integrity of the legal process.

The privilege is part of the common law and is codified in section 128 of the Evidence Act 1995 (NSW). It ensures that the burden of proof remains with the prosecution, preventing individuals from being compelled to provide incriminating evidence.

Key principles upheld by the privilege include:

• Protection of the Right to a Fair Trial: Ensures that the legal process remains fair and unbiased. 
• Maintenance of the Presumption of Innocence: Upholds the foundational legal principle that one is considered innocent until proven guilty. 
• Burden of Proof: Ensures that the prosecution bears the burden of proving the accused’s guilt. The accused does not have to prove their innocence; it is already presumed.

Section 128 of the Evidence Act 1995 (NSW): Overview and Relevance

Key Provisions of Section 128

Section 128 of the Evidence Act 1995 (NSW) establishes the privilege against self-incrimination, allowing a witness to object to giving evidence that may incriminate them under Australian or foreign law. The court must determine if there are reasonable grounds for the objection.

If reasonable grounds exist, the court has two options:

• Excuse the witness from giving the evidence, or
• Grant a certificate protecting the evidence from being used in future proceedings

This certificate ensures that the evidence, or any information derived from it, cannot be used against the witness in other NSW legal processes. However, it’s important to note that it does not offer immunity from prosecution.

When and How Section 128 Applies

The privilege is invoked when a witness objects to giving evidence during legal proceedings, citing the risk of self-incrimination. Following this objection, the court assesses whether there is a real and reasonable risk of incrimination.

If the objection is upheld, two possible outcomes may follow:

• The witness may be excused from testifying, or
• The witness may be compelled to testify under the protection of a certificate

It’s worth noting that the certificate’s scope is limited to NSW courts, excluding other jurisdictions or foreign legal systems. This mechanism effectively balances the need for evidence with individual rights, ensuring fairness and protection against self-incrimination.

The Process of Claiming the Privilege and Granting a Certificate

Objection Procedure under Section 128

When a witness objects to giving evidence under section 128 of the Evidence Act 1995 (NSW), the court must determine if there are reasonable grounds for the objection. Here’s how the process unfolds:

The objection process involves several key steps:

• Raising the Objection: The witness informs the court of their objection, typically during a voir dire (a trial within a trial) held without the jury. During this process, the witness must demonstrate that the evidence could incriminate them under Australian law or expose them to a civil penalty.
• Court’s Assessment: Following the objection, the court assesses whether there are reasonable grounds for it. This assessment involves evaluating if the evidence might lead to criminal charges or civil liability.
• Outcome of the Assessment: Based on this evaluation, the court will reach one of two conclusions:
  • If reasonable grounds exist, the court may excuse the witness from answering or allow the evidence under a certificate.
  • If no reasonable grounds are found, the witness may be compelled to provide the evidence without a certificate.

Implications of a Granted Certificate

If the court grants a certificate under section 128, it offers specific protections to the witness.

The certificate provides important safeguards:

• Protection from Use in Future Proceedings: Evidence given under the certificate cannot be used against the witness in any future NSW court or tribunal. This protection extends to any information derived from that evidence.
• Scope of Protection: The certificate applies to evidence given willingly or under compulsion. Through this mechanism, it ensures that the witness’s testimony cannot be used to incriminate them in separate legal proceedings.

However, the certificate does have limitations:

• It does not grant immunity from prosecution; it merely prevents the use of the specific evidence covered by it.
• If the evidence provided is false, the witness may still face charges for perjury.

By understanding this process, individuals can navigate legal proceedings with clarity, ensuring their rights are protected while fulfilling their obligations as a witness.

Conclusion

The privilege against self-incrimination is a fundamental legal right in New South Wales, codified under section 128 of the Evidence Act 1995. This right protects individuals from being compelled to provide evidence that could incriminate them in criminal or civil proceedings, ensuring fairness and upholding the principles of justice. Understanding this privilege is crucial for anyone involved in legal proceedings, as it safeguards individual freedoms and maintains the integrity of the legal process.

If you have questions about the privilege against self-incrimination or need guidance on how it applies to your specific situation, contact the experts at Daoud Legal. Our team of criminal law specialists in Sydney can provide tailored advice and support to help you navigate complex legal matters with confidence.

Frequently Asked Questions