Szabo & Associates News & Updates
Privilege Against Self-Incrimination in Family Law Proceedings: Field & Kingston (2018)
Section 128(1) of the uniform Evidence Acts applies where a witness objects to giving particular evidence that "may tend to prove" that the witness has committed an offence under Australian or foreign law or is liable to a civil penalty. It contains a version of the common law privilege against self-incrimination which entitles a person to refuse to answer a question or produce a document if the answer or production would tend to incriminate that person. If the court determines that there are reasonable grounds for the objection, the Court is obliged to give the witness a certificate which prevents the evidence from being used against the witness in any proceedings in an Australian court. A certificate is, for example, sometimes sought to protect a client from charges of tax fraud.
In Field & Kingston (2018) a husband made allegations against his wife that there were discrepancies between the wife's expenditure and the financial losses in her business and that she may have other undisclosed sources of income. The wife sought protection of a certificate regarding her evidence, but when this was dismissed, she appealed to the Full Court.
The Full Court decided that there was no basis for the wife to be granted a certificate as the Family Law Rules 2004 do not compel evidence to be given and an Order of the Court compelling a witness to give evidence is required first.