Protection against self incrimination — Criminal Lawyer

Relevant law: Section 128 of the Evidence Act 2008 (Victoria)

In a nutshell: A witness is entitled to refuse to answer questions on the basis that it would be self-incriminating.

The use of this section arises when a witness who, whilst giving evidence, objects to answering a question or a series of questions on the basis that, if answered truthfully, “may tend to prove” that the witness has committed a criminal offence.

Example: Mary sees the getaway car in an armed robbery driving off. She was, at the time, dealing illegal drugs to an unknown person on the street and close to where the robbery took place.

Mary has provided a written statement to the police.

She is called to be the witness for the Prosecution in the criminal proceedings against the accused in the armed robbery to give evidence. She objects to answering questions that address the purpose of her movements on the day in question on the grounds that it might incriminate her for the offence of trafficking drugs.

How the law operates:

Step 1: The witness or the person who called the witness to give evidence in court (in the above example, the prosecution), generally makes an objection to the court.

Step 2: The court then determines if there are “reasonable grounds” for the objection.

Step 3: If the court determines that there are reasonable grounds for an objection then the Court informs the witness that they are not required to give evidence unless:-

  1. a) they are required to give evidence because the court is satisfied that the evidence does not tend to prove that the witness has committed an offence, or;
  2. b) they are required to give evidence on the basis that it is in the interests of justice that they give evidence

The court must inform the witness that the court will provide a certificate (essentially a document that affords the witness immunity) if the witness gives evidence after the court compels the witness to do so (either under Step 3 (a) or (b)).

If the court overrules the objection as there were no reasonable grounds for that objection and rules that the witness must give evidence, then after the evidence is given and the court then finds that it now transpires that there were, in fact, reasonable grounds for objection, the court will grant a certificate at that point.

Once the certificate is granted, the evidence given by a witness cannot be used against them.

How I can help:

If you find yourself facing a similar problem  or are apprehensive about giving evidence in court, you should feel free to ring Brendan Wilkinson on 0438-670-198  or email