Under Section 128 Evidence Act 1995 (Cth) a witness can seek a certificate that protects them from adducing self-incriminating evidence in Court. Under the law, a Section 128 Certificate could be useful where the evidence of a party or witness could lead to criminal charges. The issue is some lawyers do not know when to seek a s 128 Certificate.

Section 128 Evidence Act 1995 and Self-Incriminating Evidence

A witness or party in a family law court proceeding can claim protection under Section 128(1) of the Evidence Act if the evidence is likely to establish that the witness:

Firstly,  has committed an offence against or arising under an Australian law or a law of a foreign country; or Secondly,  is liable to a civil penalty.

How can I obtain a Section 128 Certificate?

The general view is that before an affidavit that includes incriminating evidence is sworn and filed, the witness or party must first obtain a Section 128 Certificate, as it may be too late to apply for the  Section 128 Certificate once the witness has provided evidence.  An alternate view is that the witness providing self-incriminating evidence can apply for a Section 128 Certificate after the affidavit has been sworn but prior to filing and serving it. Another alternative view is that the Court can grant a Section 128 Certificate prior to the witness relying on their affidavit regardless of whether it has already been filed and served.

To obtain the Section 128 Certificate you can apply, using one of the following ways:

Firstly, prior to filing the affidavit.

Or secondly, by filing an Application in a Case seeking a certificate with respect to any incriminating evidence to be disclosed in affidavit. 

Or thirdly, by preparing an affidavit including the self-incriminating evidence relating to the application for a Section 128 Certificate and providing an unsworn copy of the affidavit or proof of evidence on the other party’s lawyers, confirming that you will seek a certificate as soon as possible. 

The Affidavit is then sworn if and when the certificate is granted.

To successfully apply for a Section 128 Certificate the following must apply:

Firstly, the party to adduce the evidence must object to giving it.

Secondly, the party must have reasonable grounds to justify their objection to give evidence.

Thirdly, the party will give evidence in reliance on a Section 128 Certificate.

Fourthly, such evidence must be incriminating. 

Finally, it is necessary for the interest of justice for the witness to give evidence.

Is Section 128 Certificate full proof from prosecution?

Section 128 does not provide full proof of freedom from prosecution given the Court also has  the powers to refer a matter to an appropriate agency or department for investigation and actions. For example, in the case of Vasilias & Vasilias the Court referred the matter to Centrelink, as it was concerned that in granting a Section 128 Certificate, where the parties may have wrongfully benefitted from Centrelink payments, the Commonwealth will be precluded from recovering the funds in any criminal or civil action.

However, given that family court judges have wide discretion, unsurprisingly other judges have taken the view that Section 128 certificate guarantees an absolute and appropriate remedy.

Self-Incriminating Evidence: A conclusion

Like every family law matter, there is a degree of uncertainty surrounding Section 128 certificate, such as when to apply for the certificate and whether the certificate offers full proof from prosecution in family law matters. Therefore, it could be prudent not to file and serve a sworn affidavit until a certificate has been granted. It is also more sensible to consider the view that a Section 128 Certificate cannot be granted retrospectively except prior notice to the objection of giving evidence without the protection of a certificate has been previously overruled.

An experienced family law lawyer will act cautiously when applying for a s 128 Certificate including providing clients with sound advice on the process and timing.

This article is not meant as legal advice. Please contact an experienced Family Law lawyer for more information. 

New South Lawyers’ communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.

To find out more, chat with a member of New South Lawyers' Family Law Team today.