662. Self-Incrimination under Aboriginal Customary Laws: The Issue. A separate, though related, question is whether the law should compel a respondent to answer questions in court where the answer would disclose a past violation of Aboriginal customary laws which might bring ‘shame’ to the witness, or render the witness liable to some retaliation. Should there be a privilege against self-incrimination under Aboriginal customary laws in relation to such information? At common law the privilege against self incrimination applies where:
the answer … would in the opinion of the judge have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for.
The privilege has been held to apply to admissions of adultery, or of matters which might expose the witness to ecclesiastical censure (though this may not represent Australian law now). There is controversy about whether there is a privilege against self-incrimination under foreign law. According to Cross:
There must clearly be a reasonable probability the criminal proceedings would be taken abroad, which means that there must be some likelihood that the witness would go, or be extradited to the country whose law was in question. Furthermore, there may be a difference between cases in which the foreign law is admitted or easily proved and those in which the criminating tendency of the question could only be ascertained by an elaborate consideration of expert evidence on the subject …
Whether the incrimination relates to foreign or local law, in each case the court must determine from the circumstances, and from the nature of evidence that the witness is called to give, that there is reasonable ground to suspect that the witness will be endangered by his answer. Cross states that the danger must be real and appreciable, not imaginary and unsubstantiated. Often the witness may have to disclose incriminating information to the court in order to demonstrate that the privilege applies. Proceedings to satisfy the court on the existence of the privilege may be held in camera. Wigmore states that the better view is that the privilege will not apply where disclosure does not place the accused in appreciable danger of conviction, nor where the motive of non-disclosure is not related to the fear of self-incrimination in any substantial way. The common law rules continue to apply in South Australia. Elsewhere in Australia the matter is governed by legislation, which reflects the common law in the Northern Territory, New South Wales and Queensland, and also (though limited to disclosure of indictable criminal offences) in Victoria. In Western Australia, Tasmania and the Australian Capital Territory, a ‘certification’ system applies , under which a witness can be compelled to answer a question despite its incriminating tendency, but in each of those jurisdictions either the answer may not be used in future proceedings against the witness, or proceedings in relation to the disclosed offence cannot be brought at all. Compliance with a certificate which protected the witness in one of these ways could only be assured within a jurisdiction where the legislation applied, or where its effect was recognised.
663. Justifications for the Privilege. The privilege has been justified on the grounds that it protects a basic right of persons not to be forced to incriminate themselves, and that it encourages the giving of evidence and militates against perjury. Critics argue that the privilege makes the prosecution of offences more difficult. In its Interim Report on Evidence, this Commission has recommended that the privilege be retained and that it take the form of the Australian Capital Territory legislation with some modification. Under the Commission’s proposals, if the judge considered that there were reasonable grounds for the claim of privilege, the judge would advise the witness that the question need not be answered, but that, if it were answered, a certificate would be issued preventing the answer being used against the witness in future proceedings. The privilege would not apply to incrimination under ecclesiastical law, nor to the refusal to answer on grounds that the answer would ‘disgrace’ the witness. The privilege would also not apply to evidence given by a party of a fact in issue.
664. Application to Incrimination under Aboriginal Customary Laws. There have been instances of Aboriginal people seeking to avoid disclosing evidence on the grounds that it might ‘incriminate’ them under their customary laws. To refuse to extend the privilege to cover incrimination under customary laws would appear to deny the significance of customary laws in the lives of many Aborigines. To allow the privilege to be raised in matters of foreign law but not in matters of Aboriginal customary laws also seems unjustified. The certification procedure which now exists in several jurisdictions could not be applied to subsequent ‘proceedings’ under Aboriginal customary laws taken in response to the incriminating facts: a court could not certify that such ‘proceedings’ would not be taken, nor that information disclosed would not be used as a basis for such responses.
665. A Specific Privilege. A court should not compel a witness to answer questions tending to incriminate the witness under Aboriginal customary laws unless there are good reasons for doing so. An absolute privilege, applicable in all cases, is not desirable. There are other ways of protecting confidential or secret information (including the proposal made in para 661) and it is undesirable to create new heads of absolute privilege preventing relevant evidence being presented to a court. But it is possible to provide a measure of protection against incrimination in some cases. Accordingly the court should be given power to excuse a witness from answering a question which tends to incriminate the witness under his or her customary laws. This power should be exercised unless the court finds that the desirability of admitting the evidence outweighs the likelihood of harm to the witness, to some other person concerned, or to the Aboriginal community itself. Relevant factors in making that finding should include: