Privilege against self-incrimination

The privilege against self incrimination is intrinsic to our common law justice system.

The privilege against self incrimination is intrinsic to our common law justice system. Whilst the privilege has of course been abrogated in various ways over the years (most notably through the introduction of Commissions that have the power to require the giving of evidence from suspects, even if it incriminates the giver of the evidence) within the criminal courts the privilege is generally still respected and given its full effect.

The exception of course, is when the person who might be incriminated is not in fact the defendant, but rather a material witness to the present matter. S128 of the Evidence Act 1995 ensures that a court can require the evidence to be given (where it is considered in the interests of justice to do so) but still ensure that the giver of the evidence is protected.

However, the privilege is generally regarded as not protecting the defendant when questions are asked by the defendant's own representative (Song v Ying [2010] NSWCA 237). Moreover, the court has on occasion taken a fairly narrow view as to whether the evidence is such that the interests of justice require that the evidence be given.

importantly, and logically, the giving of a certificate is not itself susceptible to appeal, in the sense that a person who gives evidence under the protection of certificate does not have to fear that the giving of the certificate might be successfully appealed after the evidence is given (s128(8) of the Evidence Act).

 

Bikic

R v Bikic [2001] NSWCCA 537

“But it seems to me to be a matter of commonsense that reasonable grounds for an objection must pay regard to whether or not the witness can be placed in jeopardy by giving the particular evidence.”