New South Wales Supreme Court Ollis v Melissari [2005] NSWSC 1016 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 5 October 2005 JUDGMENT DATE : 5 October 2005 JURISDICTION : Equity JUDGMENT OF : Campbell J DECISION : Certificate given CATCHWORDS : EVIDENCE - facts excluded from proof - whether certificate under section 128 Evidence Act 1995 can be given concerning evidence in re-examination - PROCEDURE - miscellaneous procedural matters - whether certificate under section 128 Evidence Act 1995 can be given in relation to evidence in re-examination LEGISLATION CITED : Evidence Act 1995 Victor Warren Ollis - Plaintiff/Cross-Defendant PARTIES : Mary Melissari - First Defendant Colin Coveny - Second Defendant/Cross-Claimant FILE NUMBER(S) : SC 1376/05 M.G. McHugh - Plaintiff COUNSEL : M Lawson - Defendants Hussein Karimjee - Plaintiff SOLICITORS : Hancocks Solicitors - Defendants LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J WEDNESDAY 5 OCTOBER 2005 1376/05 VICTOR WARREN OLLIS v MARY C MELISSARI (T/AS AUSTATES CONVEYANCERS) & ANOR JUDGMENT – Ex Tempore 1 HIS HONOUR: Earlier in this trial, in the course of cross-examination of a witness in the case of the second defendant, objection was taken to particular questions which were asked of the witness on the ground that the answers may tend to incriminate the witness. I accepted the submission that there were reasonable grounds for the objection. Both counsel accept that I gave the witness the warning which is required by section 128 Evidence Act 1995. I then ruled that I would give a certificate in relation to certain of the evidence contained in the cross-examination, under section 128 Evidence Act 1995. 2 The stage has now been reached of re-examination of the same witness. Counsel who called that witness wishes to re-examine him, on the same topic as the evidence concerning which the certificate has been given. 3 A question has arisen as to whether it is possible for the Court to grant a certificate under section 128, in relation to questions asked in re-examination of a witness, by the counsel who had called the witness. Counsel for the plaintiff does not oppose the granting of the certificate, but draws attention to whether the Court has power to give such a certificate. 4 In my view, there is that power. The precondition for the operation of section 128 is expressed in section 128(1) as follows: "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". 5 It will be seen that the first step in the application of section 128 is the witness objecting to giving particular evidence, on one of the grounds set out in section 128(1). In my view, the expression "if a witness objects to giving particular evidence" is not to be construed in a narrow way, by reference only to someone saying "I object" in response to a particular question, in the course of taking evidence in court, in the way barristers traditionally do. Rather, the expression is to be construed more broadly, so that it also relates to the witness expressing an unwillingness to give the evidence. Further, it seems to me that the "particular evidence" which is referred to is not confined to particular questions, as they are asked one by one. Rather, it is capable of extending to a witness expressing an unwillingness to giving evidence on particular topics. 6 In the present case, objection has already been taken by the witness to evidence being given on those topics. The re-examination, assuming for the moment that it is proper re-examination, will be confined to those topics which have been opened up by the evidence which has been given by the witness under cover of the section 128 certificate. It seems to me that the objection of the witness to giving evidence on the topic extends also to the giving of evidence on the topic, even in re-examination in response to questions from his own counsel. It is not necessary to go through the artificial procedure of counsel asking the questions, and the witness objecting to the question asked by his own counsel. 7 I am strongly influenced in reaching this conclusion by the evident policy behind section 128. Part of that policy is that a way should be provided in which the claiming of a privilege against self-incrimination does not prevent a court hearing a civil case from obtaining relevant evidence, while at the same time to the extent the New South Wales Parliament has power to do so, not prejudicing in a subsequent criminal trial, the person who gives such evidence. That policy would be carried through only imperfectly if a section 128 certificate were not available concerning evidence given in re-examination. Further it would be a fundamental unfairness if a witness were encouraged by the giving of a section 128 certificate, to give evidence in relation to which he had a right to remain silent, and for the topic so opened up not to be able to be clarified by legitimate re-examination, if the cross-examination on that topic left a misleading or incomplete impression. I decline to believe that it was the intention of parliament to bring about a situation which caused that sort of fundamental procedural unfairness. 8 Thus, the policy of the section seems to me to strongly favour the giving of the wide interpretation to the expression "if a witness objects to giving particular evidence" which I have earlier outlined. That wider meaning is one which is open as a matter of the ordinary meaning of the words, and when policy favours the adoption of the wider meaning rather than a narrower meaning, that is the reading which should be adopted. Thus, I shall give a certificate in relation to the questions in re-examination. 9 These reasons should be understood in the context that the only way in which a witness before me is presently being asked to "give evidence" is by answering questions in the witness box. It is not necessary for me to decide whether "giving evidence" extends any wider, for example, to the situation where counsel asks a witness whether he or she has a particular document, and if so whether he or she would bring it to court the next day. ********** 18/10/2005 - Typographical error in name of defendant on coversheet - Paragraph(s) coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.