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

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[This direction should only be given where, because of particular features of the case, the jury have been informed that a witness’ evidence is covered by a s128 certificate.]

Members of the jury, you have heard references to the fact that NOW gave evidence ‘under a certificate’. I need to explain this legal shorthand to you.

The law says that a witness may object to giving evidence on the basis that the evidence may incriminate them. That is, a witness may object to giving evidence which may tend to prove they have committed a crime.

To protect this important right, but also to allow juries to hear important evidence, the law has struck a balance.

If the judge thinks there was a reasonable basis for the witness’ objection, then judge can issue a certificate which protects the witness from having [his/her] evidence used against [him/her] in other proceedings. In this case, I gave NOW this certificate. This meant that NOW could give evidence to you without needing to worry about having [his/her] evidence used against [him/her].

There are two limitations to a certificate which I must tell you about. First, the certificate does not prevent the witness’ evidence being used where the witness is charged with giving untrue evidence. So if it could be proved that NOW lied to you, [he/she] could be charged with perjury, and the certificate would not protect [him/her] in that circumstance.

Second, the certificate does not render [him/her] immune from prosecution. NOW could still be charged with [identify relevant crime], if the prosecution has independent evidence. The certificate only prevents the prosecution from using the evidence [he/she] gave in this case, and any evidence discovered as a result of [his/her] answers, in later proceedings.

The certificate does not mean the witness is telling the truth or was accurate. It is for you to decide whether NOW told you the truth and was accurate. You will make your decision based on all of the evidence and the matters each party has raised about NOW’s credibility and reliability.

[If a warning about the witness’ potential unreliability is required, add it here. See Charge: Unreliable Evidence. But see Spence v R [2016] VSCA 113 at [85]-[87] on the limited circumstances in which the grant of a certificate will itself justify an unreliability warning.]

Last updated: 22 August 2018

See Also

2.5 – Witness invoking Evidence Act 2008 s128

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