Aitken and Murphy (No. 4)

[2012] FamCA 495

FAMILY COURT OF AUSTRALIA

AITKEN & MURPHY (NO. 4) [2012] FamCA 495

FAMILY LAW – PROPERTY - Defended division of property proceedings pursuant to s 90SM – Cross examination of applicant – Issues arising as to his financial conduct – Objection to answer questions under cross examination – Request for a further Certificate to issue – Protection against self incrimination – Certificate having previously been granted in earlier proceedings to cover evidence in affidavits – Further certificate granted covering cross examination in these proceedings – Certificate to be executed by Court and issued to parties

Family Law Act 1975 (Cth)
Commonwealth Evidence Act 1995 – s 128

APPLICANT: Mr Aitken

RESPONDENT: Mr Murphy

FILE NUMBER: MLC 11907 of 2010

DATE DELIVERED: 29 October 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 29 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ackman QC with him Mr Werner

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

COUNSEL FOR THE RESPONDENT: Mr North SC with him Ms Smallwood

SOLICITOR FOR THE RESPONDENT: T J Mulvany & Co

Orders

IT IS ORDERED:

1. THAT a Certificate be issued pursuant to s 128 of the Evidence Act 1995 (Cth) to cover the oral evidence of the Applicant in these proceedings given under cross examination and in re-examination.

2. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

FILE NUMBER: MLC 11907 of 2010

AT MELBOURNE

BETWEEN:

MR AITKEN

(Applicant)

and

MR MURPHY

(Respondent)

BEFORE THE HONOURABLE JUSTICE YOUNG
THE 29^TH DAY OF OC TOBER 2012

CERTIFICATE PURSUANT TO SECTION 128 OF THE EVIDENCE ACT 1995 (CTH)

This Court certifies under section 128 of the Evidence Act 1995 (Cth) that MR AITKEN is to be given a certificate in respect of the particular evidence given by him willingly in these proceedings, brought pursuant to section 90SM of the Family Law Act 1975 (Cth), insofar as that evidence may tend to prove that he has committed an offence under Division 2 of the Tax Administration Act 1953 (Cth) or ss 1.1, 1.4 or 1.5 of the Criminal Code 1995 (Cth) or Division 2 of the Crimes Act 1958 (Vic) or any other offence (wherever committed) which would constitute an offence under Division 2 of the Crimes Act 1958 (Vic) if such offence were committed in Victoria, and relevant to his oral evidence given under cross examination and in re-examination in the defended hearing in these proceedings which commenced this day.

BY THE COURT

JUDGE

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aitken & Murphy (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11907 of 2010

Mr Aitken

Applicant

And

Mr Murphy

Respondent

REASONS FOR JUDGMENT

1. In the hearing of the division of property application between these parties, the Applicant is currently under cross-examination from Mr North, Senior Counsel for the Respondent.  Questions are being asked of and related to paragraph 111 of his trial affidavit, and more particularly paragraphs 29-37 (inclusive) of an earlier affidavit filed 9 November 2011 by this party.

2. In that context, questions are now asked and further will be asked of his conduct, or failure to act in relation to financial matters including proper disclosure, the filing of taxation returns and/or amended taxation returns, and in particular his conduct when employed by R Pty Ltd. 

3. These matters have been foreshadowed by questions asked by Senior Counsel for the past 20 minutes or thereabouts. With that background, I pause to identify that in my previous reasons for judgment delivered 12 October 2011 I had considered at length the application which the Applicant had then before the Court for a certificate to issue under section 128 of the Evidence Act 1995. 

4. I gave detailed and considered reasons for judgment. The Certificate that I granted on that occasion provided that it be issued in relation to particular evidence given willingly by the Applicant in these s 90SM proceedings, and coverage was to extend to his benefit insofar as it may be alleged that he had or could be shown to have committed an offence, either against the Taxation Administration Act or against the Crimes Act.

5. I limited that certificate at that time to affidavits, both Financial Statements and interlocutory affidavits in the proceedings, or further such documents, including a trial affidavit, that would be filed in the property division proceedings.  I refer to paragraph 130 of my reasons for judgment where I recorded:

   It is unnecessary to now extend the coverage of the section 128 certificate to oral evidence given by the applicant in these section 90SM proceedings. As he has the right to claim privilege under that section at the time he gives oral evidence in relation to questions posed to him in examination-in-chief, in cross-examination or in re-examination, it is likely, based on these reasons, that such a claim would be granted.

6. Senior Counsel for the Applicant, Mr Ackman, has risen, not necessarily by way of objection but to raise issues of the questioning and the manner in which the direction of the questions were proceeding, and indeed has now invited me to accept that he was foreshadowing an objection as is required by subsection (1) of s 128 of the Evidence Act 1995(Cth).

7. Once that objection is made, the Court must determine whether or not there are reasonable grounds for the objection. Mr North, in response, has indicated that he would not be heard in seeking to address this issue, and raised no grounds by way of any submission or argument against the granting of a Certificate, or more particularly, the extension of the current s 128 Certificate.

8. These matters, however, are matters for the Court and not for the consent of the parties, or for the Court to act on a consent basis.  It is for the Court to determine if there are reasonable grounds for the granting of such a Certificate, and as such, must then give the appropriate warning to the witness that he is not required to answer, and to grant a Certificate.

9. On balance, and given that there is now no opposition to the granting of an extended Certificate, and I observe that is very much in contrast to my original hearing and determination of this matter in September and October of last year where the issue was forcefully opposed, I would now consider on all of the evidence before the Court and the issues foreshadowed, that it is appropriate to extend the Certificate to incorporate oral evidence given under cross-examination and in re-examination as is now the case.

ORDERS DELIVERED

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 29 October 2012.

Associate: 

Date: