Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Acts(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, 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.
(2) The court must decide whether or not there are reasonable grounds for the objection.
(3) If the court decides that there are reasonable grounds for the objection, the court must tell the witness—
(a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b) that the court will give a certificate under this section if—
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii) the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of the certificate.
(4) The court may require the witness to give the evidence if the court is satisfied that—
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b) the interests of justice require that the witness give the evidence.
(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must give the witness a certificate under this section in relation to the evidence.
(6) The court must also give a witness a certificate under this section if—
(a) the objection has been overruled; and
(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(7) In any proceeding in an ACT court or before any entity authorised by a territory law, or by consent of parties, to hear, receive and examine—
(a) evidence given by a person in relation to which a certificate under this section has been given; and
(b) any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person.
Note This subsection differs from the Commonwealth Act, s 128 (7). The Commonwealth provision refers to an ‘Australian court' instead of an ‘ACT court'.
(8) However, subsection (7) does not apply to a criminal proceeding in relation to the falsity of the evidence.
(9) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate.
(10) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.
(11) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, if the evidence is the defendant—
(a) did an act the doing of which is a fact in issue; or
(b) had a state of mind the existence of which is a fact in issue.
(12) A reference in this section to doing an act includes a reference to failing to act.
Note 1 Bodies corporate cannot claim this privilege—see s 187.
Note 2 The dictionary, pt 2, s 3 sets out what is a civil penalty.
Note 3 The Commonwealth Act, s 128 (12) to (14) gives effect to certificates in relation to self-incriminating evidence under this Act in proceedings in federal courts and in prosecutions for Commonwealth offences.
Note 4 Subsections (9) and (10) were inserted as a response to the decision of the High Court in Cornwell v The Queen [2007] HCA 12 (22 March 2007).