The Victorian Supreme Court has recently considered the operation of s 128 of the Evidence Act 2008 (Vic) (the Act) and whether it was in the interests of justice to require an alleged perpetrator of sexual abuse to give evidence in civil proceedings. His Honour rejected the defendant’s application to call the key witness because it was likely that the allegations would become the subject of a related criminal investigation or prosecution. This decision highlights the Court’s preparedness to find that it is not in the interests of justice to compel an alleged perpetrator to give evidence in civil proceedings. Importantly, it is a timely reminder of the factors relevant to the application of s 128 of the Act and the obligation to address this evidentiary issue in the early stages of civil litigation.
His Honour, Justice Keogh considered whether:
- it was in the interest of justice under s 128 of the Act to require the alleged perpetrator to give evidence in the historical abuse civil proceeding, in circumstances where a criminal investigation and/or prosecution was foreshadowed and likely;
- the forensic purposes of the alleged perpetrator’s evidence in the trial and the likely implications on the alleged perpetrator’s ability to respond to foreshadowed criminal matters; and
- the interests of preserving the s 128 self-incrimination privilege outweighed the interests of the plaintiff and defendant in the civil proceeding.
In civil proceedings commenced in the Victorian Supreme Court (civil proceeding), the plaintiff brought historical sexual abuse allegations (allegations) against the defendant, naming the alleged perpetrator of the alleged abuse (claim). The defendant denied the allegations and intended to call the alleged perpetrator as its witness.
Prior to the civil proceeding trial (trial) commencing, the plaintiff had not made a complaint to police regarding the abuse, however on day 3 of the trial, he indicated an intention to do so. The defendant subsequently applied for a discharge of the jury without verdict, on the basis that it was necessary for the alleged perpetrator to obtain independent legal advice about the operation of s 128 of the Act and the potential consequences of his evidence at trial. His Honour granted the application and upon receiving legal advice, the alleged perpetrator objected to giving evidence on self-incrimination grounds, pursuant to s 128 (1) of the Act.
S 128 of the Act applies where a witness objects to giving evidence on the grounds that it may be self-incriminating. The Court must then determine if there are reasonable grounds for the objection. If the Court is satisfied there are reasonable grounds, it cannot require the witness to give evidence unless it is satisfied that the evidence is not self-incriminating, and it is in the interests of justice that the witness give evidence.
The decision at trial
His Honour found that it would not be in the interests of justice to compel the alleged perpetrator to give evidence at the trial, because the plaintiff’s allegations would likely be mirrored in a subsequent criminal investigation and/or prosecution.1 In reaching this decision, His Honour distinguished the case circumstances from Lucciano v The Queen2 and amongst other things, considered:
- the possibility that if the alleged perpetrator was not required to give evidence, the defendant would be unable to fairly defend the claim due to the lack of substantial evidence, other than the account of the plaintiff;
- there was a real prospect of the alleged perpetrator being charged with very serious offences and of being exposed to a significant imprisonment term if found guilty;
- the alleged perpetrator was not a party to the civil proceeding, had not been required to answer the plaintiff’s allegations and there was no public record of the response he would give;
- evidence given by the alleged perpetrator would determine or restrict forensic choices open to him in any criminal prosecution brought against him;
- alleged perpetrator credibility or reliability issues which may arise in the trial transcript and be unfairly used in a criminal investigation; and
- the likelihood of the defendant applying for an indefinite stay application of the civil proceeding (based on the lack of a defence without the alleged perpetrator’s testimony), the merits of such an application proceeding and the prejudice to the plaintiff in being unable to pursue his claim.
Ultimately, His Honour acknowledged that any required stay of the civil proceeding would be limited to the conclusion of the related criminal investigation or prosecution, and therefore the decision did not permanently deprive the plaintiff of fairly pursuing his cause of action. Whilst His Honour’s decision was confined to the consideration of relevant facts, circumstances and available evidence, it is clear that “steps should be taken in other cases with similar circumstances to identify and resolve such issues well prior to trial”.
Implications for you
This decision emphasises the responsibilities of parties to civil litigation to carefully consider the potential difficulties associated with relying on the witness evidence of an alleged perpetrator in an attempt to prove or defend civil allegations of a criminal nature. Noting the broad application of section 128 of the Act, it is incumbent on parties to navigate evidentiary issues which may present at trial as early and proactively as possible. With a view to avoiding costs issues associated with trial vacation and the late commencement of stay applications, reasonable steps may involve ascertaining the status of police reports, related criminal investigations, possible alleged perpetrator prejudice and consequential stay applications claims sooner, rather than later.
1X7 v Australian Crime Commission (2013) 248 (CLR)92.
2Lucciano v The Queen  VSCA 12 (McLeish, Niall and T Forrest JJA)