128Privilege in respect of
self-incrimination in other proceedings
(1)
This section applies if a witness objects to
giving particular evidence on the ground that the evidence may tend to prove
that the witness:
(a)
has committed an offence against or arising under
an Australian law or a law of a foreign country, or
(b)
is liable to a civil
penalty.
(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.
(3)
If the witness gives the evidence, the court is
to cause the witness to be given a certificate under this section in respect
of the evidence.
(4)
The court is also to cause a witness to be given
a certificate under this section if:
(a)
the objection has been overruled,
and
(b)
after the evidence has been given, the court
finds that there were reasonable grounds for the
objection.
(5)
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.
(6)
If the court so requires, it is to cause the
witness to be given a certificate under this section in respect of the
evidence.
(7)
In any proceeding in a NSW 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.
Note—
This subsection differs from section 128 (7) of
the Commonwealth Act. The Commonwealth provision refers to an
“Australian Court” instead of a “NSW
court”.
(8)
In a criminal proceeding, this section does not
apply in relation to the giving of evidence by a defendant, being evidence
that the defendant:
(a)
did an act the doing of which is a fact in issue,
or
(b)
had a state of mind the existence of which is a
fact in issue.
(9)
A reference in this section to doing an act
includes a reference to failing to act.
Notes—
1
Bodies corporate cannot claim this privilege. See
section 187.
2
Clause 3 of Part 2 of the Dictionary sets out
what is a civil penalty.
3
The Commonwealth Act includes subsections
(10)–(13). The subsections give effect to certificates in relation to
self-incriminating evidence under the NSW Act in proceedings in federal and
ACT courts and in prosecutions for Commonwealth and ACT
offences.
s 128: Am 1995 No 99,
Sch 2.6; 1997 No 55, Sch 1.7 [9].
s 128, note: Am 1997
No 55, Sch 1.7 [10].