Privilege against self-incrimination

What is the privilege against self-incrimination

If you are called to give evidence in a criminal or AVO case, you can object to giving some evidence if it may prove that you have committed an offence. This is known as the privilege against self-incrimination.

If the court decides that your objection is justified, it may give you a section 128 certificate (certificate) so that you can still give evidence. A certificate prevents your evidence from being used against you later in court. This extends to information or anything else that is found as a consequence of your evidence. However, a certificate does not give you absolute immunity against prosecution.

If you give false evidence, you may be charged with perjury. The evidence that relates to the certificate may then be used against you in court.

A certificate also does not protect you from prosecution if there is other evidence that proves you committed the offence.

If you want to object to giving evidence, you should get legal advice.

When you can object

You can object to giving particular evidence, or evidence on a particular topic, if it may prove you have committed an offence, in Australia or overseas.

This includes producing any document or thing.

You can object at any time while giving evidence.

If the court thinks that you may have grounds for objecting to giving evidence, it must be sure that you know of your right to object.

When you cannot object

You can’t object to giving evidence because it may incriminate someone else, like your partner or a family member.

If you have applied for an AVO, you can’t object to giving evidence during your evidence-in-chief. This is because you decide what evidence you give. You can only apply for a certificate if you are objecting to giving evidence that you are forced to give. You can apply for a certificate during cross-examination, because you are compelled to give evidence at that point.

A defendant in criminal proceedings can’t object to giving evidence about whether they:

• did an act, or failed to act, which is a fact in issue, or
• had a state of mind, which is a fact in issue.

A fact in issue is a key disputed fact in the case. It is usually an element of the offence that must be proved for the defendant to be found guilty.

How to object

You can object during your evidence after you have been asked a question the answer to which may incriminate you. You need to object before you give your answer to the question.

If the party that has called you as a witness knows you are going to object to giving evidence, they should notify the court before you are called to give evidence. They should also have a draft certificate prepared to give to the court. You can see an example of a certificate below.

You can’t object until you are asked a question about the relevant topic. However, it is important that all parties are aware that you will be objecting, in case the other party wants to make submissions to the court.

What the court will consider

If you object to giving evidence, the court must decide whether there are reasonable grounds for your objection. The court decides this on the balance of probabilities.

There will be reasonable grounds if giving evidence puts you at risk of prosecution. There won’t be reasonable grounds if the evidence shows that you can’t be prosecuted or if too much time has passed for someone to take action against you.

If the court decides that there are no reasonable grounds for your objection, you will have to answer the questions.

If the court finds there are reasonable grounds for your objection, it must uphold the objection. The court will then give you the choice of:

• giving the evidence willingly under the protection of a certificate, or
• refusing to give the evidence.

If you refuse, the court can still force you to give evidence if it is in the interests of justice to do so. The party that has asked you the question must prove to the court that it is in the interests of justice for you to give evidence on the matter. There are several factors that they may rely on:

• the importance of your evidence
• whether your evidence is likely to be reliable
• the nature of the case
• the nature and seriousness of the offence
• which party is calling the evidence
• the likelihood that you will be prosecuted for the offence that your evidence relates to
• unfairness to a party
• the defendant’s right to a fair trial.

If the court orders you to answer the questions, it must give you a certificate. You must comply with the court orders. If you don’t, you may be charged with an offence.

If the court grants you a certificate, it will publish the order and attach it to the transcript pages that are covered by the certificate.

Certificates from another State or Territory

If you have a certificate from a court in one of the following State or Territories, it has the same effect as a certificate issued by a court in NSW:

• ACT
• Norfolk Island
• Northern Territory
• Tasmania
• Victoria
• Western Australia.

Protection in foreign countries

You can’t get a certificate to protect you from prosecution in a foreign country.

If you need protection, you will need to get legal advice from a lawyer in the country in the country where you think you might be prosecuted.

Last updated: June 2026