Commissioner of the Australian Federal Police v Chauhan (Ruling No 2)

[2025] VCC 854

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

CONFISCATION LIST

Case No. CI-16-00930

IN THE MATTER of the Proceeds of Crime Act 2002 (Cth)
and
IN THE MATTER of the suspect, Baljinder Humar Chauhan
and
IN THE MATTER of an application by the Commissioner of the Australian Federal Police
BETWEEN
THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Applicant
V
BALJINDER KUMAR CHAUHAN	First Respondent
KANCHAN CHAUHAN	Second Respondent

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JUDGE:	HER HONOUR JUDGE MANOVA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2025
DATE OF RULING:	24 June 2025 Ruling revised in accordance with the principles in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257
CASE MAY BE CITED AS:	Commissioner of the Australian Federal Police v Chauhan & Anor (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2025] VCC 854

RULING
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Subject:EVIDENCE

Catchwords:              evidence – admissibility – hearsay – business record – prepared or obtained for the purposes of conducting or in connection with legal proceedings

Legislation Cited:      Evidence Act 2008 (Vic), s69; Proceeds of Crime Act 2002 (Cth), s179E

Cases Cited:

Ruling:  The “Ghana Documents” and the “Nigeria Documents” are hearsay and inadmissible

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Craig KC with Ms C Mintz with Ms L O’Rorke	Solicitor for the Commissioner of the Australian Federal Police
For the Respondent	Mr M Pena-Rees	Lewenberg & Lewenberg Solicitors

HER HONOUR:

1I accept the Commissioner’s submission that two sets of documents relating to Mr Chauhan’s taxation position in Ghana (in 2005 – 2011) (“the Ghana documents”) and in Nigeria (2012 – 2015) (“the Nigeria Documents”), have been prepared or obtained for the purposes of conducting, or in connection with this proceeding.

2This proceeding is an application by the Commissioner for an unexplained wealth order under s 179E of the Proceeds of Crime Act 2002 (Cth).

3The relevant provision pursuant to which the Commissioner objects is s 69(3)(a) of the Evidence Act 2008 (Vic).

4The Ghana documents are dated 28 August 2024[1] and the Nigeria documents are dated 11 September 2024.[2]

[1]Exhibit R 13 for identification – Affidavit of Frank Kpobi sworn 6 February 2025 documents contained in Exhibit FGK-1 (Supplementary Court Book (“SCB”) 149-152) (exhibit number given in Chambers)

[2]Exhibit R 14 for identification – Affidavit of Joseph Odianosen Eimunjeze sworn 5 March 2025 documents contained in Exhibit JOE-11 (SCB 162-165) (exhibit number given in Chambers)

5I consider that this proceeding was the occasion for the documents having been made and having been sought to be tendered on Mr Chauhan’s behalf.[3]  Therefore, the Commissioner has made out his objection.

[3]On 15 August 2024, after the Commissioner completed their closing submissions, Mr Chauhan applied for and I granted leave for him to obtain the following additional documents in support of his case: 1. Nigerian Taxation Clearance Certificate (relevant to his employment in Nigeria); 2. Transcript of evidence given on his behalf in his criminal trial at the District Court in New South Wales before Judge Woods in 2016 of an unnamed witness described as a “Ghanian Taxi driver”; 3. Regulations or Bank Circular for banks in Dubai explaining why funds could not be transmitted though banking channels in 2014.

6The dates of the documents and the circumstances in which I granted leave for Mr Chauhan to obtain additional documents, support the proposition that they were obtained for the purposes of this proceeding. They are sought to be tendered pursuant to that leave.[4]

[4]Save that no leave had been sought or granted on 15 August 2024 for documents from Ghana to be provided (see T609).

7The documents are hearsay. Therefore, they are not admissible, as they do not fall within any known exception to the hearsay rule. The business records exception under s 69 does not apply because the documents were obtained for the purpose of this proceeding.

8The Commissioner objects to their tender in their current form.[5] If Mr Chauhan wishes to lead evidence of the contents of those documents, he will have to call the maker of each document.[6]

[5]The basis of the Commissioner’s objection was that the provenance of the documents is in question and the Commissioner would have sought to tender the affidavits of Mr Kpobi and Mr Eimunjeze in support of the Commissioner’s objection.

[6]In the case of the Ghana documents the maker is Mr Frank Kpobi Head of Ashaiman Ghana Revenue Authority. In the case of the Nigeria documents, the maker is Ayodele Adebayo Director, Personal Income Tax Lagos State Internal Revenue Service.