Sec 128 Certificate - self-incriminating evidence in family law

Application of Section 128 Certificate

A “Section 128 Certificate” or Section 128 under the Evidence Act 1995 is a remedy to the dilemma of providing an otherwise illegally obtained evidence to the court without incriminating the witness providing said evidence. A Section 128 Certificate protects the witness from self-incrimination when said witness is called upon by the Court to provide the self-incriminating evidence in the interests of justice. Under the protection of a Section 128 Certificate, the witness cannot be sued in the future using the self-incriminating evidence against them. 

Thus, this was the remedy used in the case of Churchill & Raske. The mother, Ms. Raske, obtained a Section 128 Certificate and she was able to provide evidence regarding the contents of Mr. Churchill’s emails without incriminating herself.

Other related jurisprudence

In Cornwell v The Queen [2007] HCA 12, it was proposed that a Section 128 Certificate cannot be issued if the party giving the evidence used it to benefit their own case. This view is similar to that adopted in the cases of Song v Ying [2010] NSWCA 237 and Reliance Financial Services NSW Pty Ltd v Sobbi [2009] NSWSC 1375.

However, the Full Court in Ferral & Blyton (2009) 27 FLR 178, supported the view that a Section 128 Certificate may be issued and can be given as evidence by a party in their affidavit and to include as part of their evidence-in-chief. This analysis was adopted by Jarvis & Pike [2013] FamCAFC 196.

The case of Churchill & Raske [2014] FamCA 848 discussed the gray area in evidence law which is the matter of providing self-incriminating evidence in family law. The application of a Section 128 Certificate was likewise discussed in said case.

Facts of the case

Ms. Raske and Mr. Churchill were former spouses. In their case, Ms. Raske obtained information without authority from the email account of the father, Mr. Churchill. Ms. Raske was said to have, without authority from Mr. Churchill, diverted, printed or otherwise copied his emails.

Issues

Ms. Raske wanted to give as evidence to the Family Court the information she gained by accessing the email account of Mr. Churchill. This poses a legal problem because the unauthorized actions of Ms. Raske may be an offence under the Criminal Code 1995 specifically Section 478 which provides that it is an offence to knowingly access or modify any restricted data without authorization. Ms. Raske is in danger of incriminating because by testifying on the information from the email she will in effect be admitting to the court that she accessed the email account of Mr. Churchill without his permission