In the recent Family Court case of Field & Kingston  FamCA 208 (7 April 2017) Hannam J dismissed the wife’s application at an interim hearing for a certificate against self-incrimination under s128 of the Evidence Act 1995 (Cth). The husband alleged that the wife, who ran a business alone during the marriage, indulged in an extravagant lifestyle; that there were “significant discrepancies between her expenditure and the losses of her business”; and that she may have undisclosed income.
The Court stated that in the Wife’s affidavit, she deposed that providing particulars as requested by the Husband may tend to prove that she has committed an offence under Australian law or is liable to a civil penalty.
The Court raised that relevant case law in Australia indicated that the applicant for a certificate is required to identify the particular offences for which the applicant may be liable. Only then the wife produced a draft certificate in respect of evidence provided in these proceedings “as that evidence may tend to prove that she has committed an offence under Division 2 of Part 3 of the Tax Administration Act 1953(Cth), Division 4 of Part 7 of the Crimes Act 1900 (NSW) or Section 268.102 of the Criminal Code Schedule to the Criminal Code Act 1995 (Cth)”.
The Counsel for the husband objected to a section 128 certificate being granted in these terms on the basis that these terms were too broad. The Counsel further submitted that the usual procedure when making an application for a section 128 certificate is that the applicant provide to the court an unsigned or unfiled affidavit outlining the evidence to be given requiring the protection of the certificate.
The wife did not provide further evidence in the form of a draft affidavit or otherwise to the Court.
The Court stated that a section 128 certificate may be granted for evidence required to be given by a party under cross-examination or evidence given in chief. The Court further added that the party claiming the privilege should not be required to fully explain or disclose matters causing the party to seek a certificate. However, the Full Court in Atkinson (1997) FLC 92-728 held that before a claim for privilege may be upheld the court must be satisfied that there is a bona fide apprehension of prosecution for some particular offence on reasonable grounds. It is not sufficient, to properly raise an objection under s 128 for the litigant to merely say that he or she declines to give the relevant evidence on the ground that it may incriminate them.
The Court said that merely declining to provide the particulars as doing so may incriminate her did not provide sufficient evidence in the Court’s view to determine whether there were reasonable grounds for the wife objecting to providing the evidence.
The Wife’s application for a s 128 certificate was dismissed.