2.5 – Witness invoking Evidence Act 2008 s128

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  1. Evidence Act 2008 s128 governs the exercise of the privilege against self-incrimination by witnesses. The section provides that:
  2. A s128 certificate is different from an indemnity from prosecution. Witnesses who receive a certificate can still be prosecuted for offences disclosed during their evidence. The certificate merely provides use and derivative use immunity in respect of the witness’ evidence, except in proceedings regarding the falsity of the evidence (Spence v R [2016] VSCA 113 at [68]).
  3. A judge should correct erroneous statements made by parties about the effect of a s128 certificate, such as a suggestion that the certificate means the witness is immune from prosecution, or could give false evidence with impunity (Trudigan v WA (2006) 33 WAR 163 at [29]-[30]).

    Procedure

  4. Where it appears to the court that a witness may have the right to claim the privilege against self-incrimination, the judge must satisfy him or herself, in the absence of the jury, that the witness is aware of that right (Evidence Act 2008 s132).
  5. Witnesses who may have the right to claim the privilege against self-incrimination may need independent legal advice to decide whether to exercise that right, whether to volunteer answers under the protection of a s128 certificate and matters that may be relevant to whether the court should compel an answer in the interests of justice.
  6. As a matter of practice, where the issue of self-incrimination arises, the court will need to consider what steps should take place in the presence of the jury and what should occur in the absence of the jury.
  7. It is not permissible to draw an adverse inference against a witness from the witness’ claim of the privilege against self-incrimination (R v Roberts (2004) 9 VR 295 at [83]).
  8. It may therefore be appropriate in some cases to identify in the jury’s absence whether the witness will raise the privilege and whether to grant a s128 certificate. However, there is no absolute rule that claiming and determining the privilege must occur in the jury’s absence.

    Relevance of a s128 certificate

  9. The mere grant of a certificate does not automatically put the witness into a special category where the defence can say that the witness’ evidence is unreliable (Spence v R [2016] VSCA 113 at [85]).
  10. However, there are cases where it is necessary to inform the jury of the fact that evidence was given under a certificate, as the grant of a certificate may affect the witness’ credibility. Whether the existence of a certificate will require a direction on unreliability will necessarily depend on the facts of the case (Spence v R [2016] VSCA 113 at [85]-[87]).
  11. Where the jury are informed of a s128 certificate, the judge should explain the effect of the certificate and explain that the certificate does not provide immunity from prosecution, or allow the witness to lie with impunity because the certificate does not protect against perjury (Spence v R [2016] VSCA 113 at [88]).

Last updated: 22 August 2018

In This Section

2.5.1 – Charge: Witness invoking Evidence Act 2008 s128 – Jury information

2.5.2 – Charge: Explanation of Evidence Act 2008 to a witness

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings