Ying v Song [2009] NSWSC 1344
Section 128 of the Evidence Act 1995 (NSW) is not enlivened where a defendant seeks to give evidence in chief by affidavit but is under no legal compulsion to do so; the privilege against self-incrimination does not apply to voluntary testimony in such circumstances and no certificate can be issued.
- Jurisdiction
- Australia
- Judgment Date
- 03 December 2009
- Procedural Posture
- Civil / Interlocutory Application (application for Certificate Under S 128 Evidence Act 1995 (nsw))
- Outcome
- Defendant's application dismissed
- Legal Topics
- ['privilege Against Self Incrimination' 'section 128 Evidence Act Certificates' 'procedure in Civil Cases' 'authority and Precedent']
Case Brief
Summary, issues, holding and outcome
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Procedural Posture
Civil / Interlocutory Application (application for Certificate Under S 128 Evidence Act 1995 (nsw))
Legal Issues
- 1 ['Whether s 128 of the Evidence Act 1995 (NSW) applies to permit a certificate for evidence in chief proposed to be given by a defendant in affidavit form where the defendant is not otherwise compelled to give the evidence' "Whether a witness in such circumstances can be regarded as having 'objected' within the meaning of s 128(1)"]
Ratio Decidendi
Section 128 of the Evidence Act 1995 (NSW) is not enlivened where a defendant seeks to give evidence in chief by affidavit but is under no legal compulsion to do so; the privilege against self-incrimination does not apply to voluntary testimony in such circumstances and no certificate can be issued.
Court Disposition
Defendant's application dismissed
Orders
- ['Application for certificate under s 128 Evidence Act 1995 (NSW) refused']
Full Case Text
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