Ewin v Vergara (No 2) [2012] FCA 1518

FEDERAL COURT OF AUSTRALIA

Ewin v Vergara (No 2) [2012] FCA 1518 Citation: Ewin v Vergara (No 2) [2012] FCA 1518

Parties: JEMMA EWIN v CLAUDIO VERGARA

File number: VID 494 of 2011

Judge: BROMBERG J

Date of judgment: 12 December 2012

Catchwords: EVIDENCE – privilege against self incrimination – Evidence Act 1995 (Cth) s 128 – objection by respondent to give evidence under cross-examination – whether reasonable grounds for the objection as required by s 128(2) – whether the existence of reasonable grounds denied by the low risk of potential prosecution – whether the privilege conferred by s 128 was inapplicable to a witness who had given evidence voluntarily on the subject matter of the objection – whether in those circumstances such a witness "objects" within the terms of s 128(1) – whether reasonable grounds for the objection were denied because the respondent had waived the privilege – whether common law principles of waiver applicable – whether privilege waived because the respondent voluntarily gave a record of interview to Police – whether privilege waived by reference to the admission of particular facts in a defence – whether privilege waived by reason of the respondent giving evidence in chief or giving evidence without objection in cross-examination on subject matters in respect of which an objection is later sought to be taken under s 128(1) – whether such conduct is inconsistent with the maintenance of the privilege – objection disallowed – whether an objection confined to the giving of evidence without the protection of a certificate given pursuant to s 128 may have led to a different result.

Legislation: Crimes Act 1958 (Vic) ss 38, 39, 53 Evidence Act 1995 (Cth) s 128 Evidence Act 1995 (NSW) s 9(1) Sex Discrimination Act 1984 (Cth) ss 14, 28B Heydon JD, Cross on Evidence (8th ed, LexisNexis Butterworths, 2010) Odgers S, Uniform Evidence Law (10th ed, Thomson Reuters, 2012) Cases cited: Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (1978) AC 547 Cornwell v R (2007) 231 CLR 260 Song v Ying (2010) 79 NSWLR 442 Mann v Carnell (1999) 201 CLR 1 Workcover Authority (NSW) v Tsougranis (2002) 117 IR 203 Versace v Monte [2001] FCA 1572 BTR Engineering (Australia) (Formerly Borg-Warner Australia Ltd) v Patterson (1990) 20 NSWLR 724 Reid v Howard (1995) 184 CLR 1 Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 Registrar of the Supreme Court of South Australia v Zappia (2003) 86 SASR 388 Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32 Registrar, Court of Appeal (NSW) v Craven (1994) 126 ALR 668