Commissioner of the Australian Federal Police v Zhang (Ruling No 2)
[2015] VSC 437
•6 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 02407
| THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Applicant |
| v | |
| HENG JIE ZHANG | First Respondent |
| and | |
| YING SHEN | Second Respondent |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 3, 4, 5, 6 August 2015 |
DATE OF RULING: | 6 August 2015 |
CASE MAY BE CITED AS: | Commissioner of the Australian Federal Police v Zhang & Anor (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 437 |
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PROCEEDS OF CRIME – Application for forfeiture of property – Admissibility of evidence – Hearsay – Documentary evidence – Business records – Whether inference of authenticity can be drawn from document itself – Opinion evidence – Evidence Act 2008 (Vic) – ss 48, 58, 59, 64, 67, 69, 76, 79, 142, 170, 171, 183, 190, Proceeds of Crime Act 2002 (Cth).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Burton | Australian Federal Police |
| For the Respondents | Mr N J Clelland QC Mr C G Juebner | Tony Hargreaves & Partners |
HIS HONOUR:
Introduction
The Commissioner of Australian Federal Police (‘the Commissioner’) has applied to this court for orders of forfeiture of property restrained under the Proceeds of Crime Act 2002 (Cth). The respondents in this matter, Hengjie Zhang and Ying Shen, each claim an interest in the restrained property and resist the Commissioner’s forfeiture applications. In support of his applications, the Commissioner alleges that activities relating to the movement of certain monies in the lead up to the purchase of the restrained property is indicative that that property is the proceeds of crime.
In his evidence the Commissioner seeks to tender portions of an affidavit of Detective Senior Constable Amanda Glover (‘DSC Glover’) of the Australian Federal Police sworn 13 May 2013 (‘DSC Glover’s affidavit’). Exhibited to that affidavit are, inter alia, series of documents marked as follows: ‘Exhibit AG3: ATO profile report for Heng Jie ZHANG obtained on 18 January 2013 from Peter French at the ATO’; ‘Exhibit AG5: Commonwealth Bank of Australia Business Transaction Account statements and other documents (CBA records)’; and, ‘Exhibit AG6: AUSTRAC report number 293748896 in relation to the $300,000 deposit on 9 July 2012’.
I am asked to determine the admissibility of various portions of DSC Glover’s affidavit and of the documentary exhibits mentioned above. The respondents raised two categories of objections: first, that representations contained in documentary exhibits and relied upon in DSC Glover’s affidavit were inadmissible hearsay; and second, that parts of DSC Glover’s affidavit constituted inadmissible opinion evidence.
The hearsay objections
I shall deal with the hearsay objections first. Counsel for the respondents contended that if they were successful in their objections to the documentary exhibits, it would follow that the paragraphs of DSC Glover’s affidavit referring to or dependent on those documents would likewise be excluded from the evidence. Counsel for the Commissioner did not take issue with this position and also addressed me on the documents alone.
The parties agreed that the disputed documentary evidence fell into three categories:
(a) An ATO profile report (AG3);
(b) An AUSTRAC report (AG6); and
(c) Documents apparently emanating from the Commonwealth Bank of Australia (AG5) (‘CBA records’).
It is necessary to describe the evidence in dispute. In oral submission, Counsel initially agreed that I need only consider one representative sample document from each category – the respondents’ objection to each was identical. During the Commissioner’s submissions, however, it became evident that the Commissioner’s view was that differential admissibility arguments were applicable to certain documents within ATO report and the CBA records. For this reason, I will go into some detail about the documents making up these categories.
The ATO profile report
The ATO report consists 35 pages.[1] The first page includes a table, apparently a compilation of the information contained the rest of the document. The table surmises that Hengjie Zhang’s income tax return status for the years 2003 – 2012 was ‘not lodged’. The following 34 pages appear to be computer print outs of ATO records concerning Mr Zhang’s tax record for the years 2005 – 2012. Notably, these records are blank – that is, no information is entered into the series of tables relating to income, deductions and the like. The only exceptions are: page 19, which appears to record that in 2011 Mr Zhang eared $22.51 interest on a CBA account; page 2, which provides the name Heng Jie Zhang listed against the relevant tax file number; page 3, which lists an address ‘as per last tax return lodged’; and page 21, which provides ‘details of listed business relationships that the client has with other clients listed in the Tax Office’s records’ and lists three business relationships. All pages are headed ‘This information is provided by the Australian Taxation Office pursuant to the Taxation Administration Act 1953’. The exhibit sheet indicates that DSC Glover obtained the report on 18 January 2013 from a Mr Peter French.
The AUSTRAC report
[1]The document itself is number ‘page 1 of 35’ to ‘page 35 of 35’ and corresponds to court book pages 60 – 94.
The relevant AUSTRAC report is headed by an Australian coat of arms and the text ‘Australian Government: AUSTRAC’. It is two pages in length and appears to contain information concerning a deposit of $300,000.00 by a Miss Phoi Hang Tat on 9 July 2012. The report is dated 27 March 2013.
The CBA records
These documents were obtained by the AFP pursuant to a request under s 49 of the Anti-money Laundering – Counter Terrorism Financing Act 2006 (Cth).[2] In oral submission, Ms Burton confirmed that the Commissioner did not press certain of the documents contained in this bundle. The remaining documents included: documents relating to an account styled Hengjie Investments, Business Transaction Account Statements for Hengjie Investments, transaction records, a copies of cheques, bank cheques and credit vouchers apparently evidencing monies coming into the Hengjie Investments account, and a large bank cheque dawn on the account in favour of Alderuccio Solicitors’ Trust Account.
[2]Affidavit of DSC Glover sworn 13 May 2013, paragraph 20.
Relevant legislation
I now turn to the provisions of the Evidence Act 2008 (Vic) (‘the Act’) relevant to parties’ submissions and to my following analysis:
(a) The hearsay rule is set out in s 59 of the Act, which states that “(e)vidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation”.[3]
[3]Evidence Act 2008 (Vic), s 59(1).
(b) Section 69 provides the ‘business records exception’ to this rule:
(1) This section applies to a document that—
(a) either—
(i)is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b)contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2)The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made—
(a)by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b)on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
…
Note 1: Sections 48, 49, 50, 146, 147 and 150 are relevant to the mode of proof and authentication of business records.”[4]
[4]Evidence Act 2008 (Vic), s 69.
(c) Section 170 of the Act states that “Evidence of a fact that is, because of a Provision of this Act referred to in the table, to be proved in relation to a document or thing may be given by a person permitted under s 171 to give such evidence”.[5] The following table includes “s 69: Hearsay exception for business records”[6]. Section 171 provides:
[5]Evidence Act 2008 (Vic), s 170(1).
[6]Evidence Act 2008 (Vic), s 170(1).
(1) Such evidence may be given by—
(a)a person who, at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document or thing; or
(b)except in the case of evidence of a fact that is to be proved in relation to a document or thing because of section 63, 64 or 65—an authorised person.
(2)Despite subsection (1)(b), evidence must not be given under this section by an authorised person who, at the relevant time or afterwards, did not have a position of responsibility in relation to making or keeping the document or thing unless it appears to the court that—
(a)it is not reasonably practicable for the evidence to be given by a person who had, at the relevant time or afterwards, a position of responsibility in relation to making or keeping the document or thing; or
(b)having regard to all the circumstances of the case, undue expense would be caused by calling such a person as a witness.
(3) In this section, “authorised person” means—
(a)a person before whom an affidavit may be sworn and taken in a country or place outside the State under section 124 of the Evidence Act 1958; or
(b) a member of the police force above the rank of sergeant; or
(c)a person authorised by the Attorney-General for the purposes of this section.
(d) Under the heading ‘Inferences as to relevance’, s 58 provides that:
(1)If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
(2)subsection (1) does not limit the matters from which inferences may be properly drawn.[7]
[7]Evidence Act 2008 (Vic), s 58.
(e) Section 183, headed ‘inferences’ further provides:
If a question arises about the application of a provision of this Act in relation to a document or thing, the court may—
(a) examine the document or thing; and
(b)draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.[8]
[8]Evidence Act 2008 (Vic), s 183.
(f) Finally, the court retains the power waive certain provisions of the Act in civil proceedings pursuant to s 190, which permits:
(1)The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of—
(a) Division 3, 4 or 5 of Part 2.1; or
(b) Part 2.2 or 2.3; or
(c) Parts 3.2–3.8—
in relation to particular evidence or generally.
…
(3)In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if—
(a)the matter to which the evidence relates is not genuinely in dispute; or
(b)the application of those provisions would cause or involve unnecessary expense or delay.
(4)Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account—
(a) the importance of the evidence in the proceeding; and
(b)the nature of the cause of action or defence and the nature of the subject-matter of the proceeding; and
(c) the probative value of the evidence; and
(d)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.”[9]
[9]Evidence Act 2008 (Vic), s 190.
The parties’ submissions
The respondents (Zhang and Shen)
Counsel for the respondents provided written and oral submissions. Their contentions were necessarily in anticipation of the Commissioner’s submissions as to why the evidence should be admitted. Two positions were advanced. Firstly, it was contended that if the Commissioner sought to rely on the exception contained in s 64(2)(b) of the Act, that exception ought be denied. Section 64(2) provides a general exception that applies to civil proceedings. Relevantly, it provides that if the maker of a previous representation is available to give evidence about an asserted fact, the hearsay rule does not apply to “a document so far as it contains the representation…” if it would cause undue expense and delay to call the person who made the representation.
Mr Clelland submitted that the impugned documents did not fit within this category of exemption. There is no evidence submitted that identifies who the various makers of the documents were, whether they are available or not, and whether it would be unduly expensive or delaying if the makers were required to be called. He further submitted that, were the Commissioner to rely on this provision, the documents ought not be allowed into evidence because the Commissioner did not provide the notice required by s 67 of the Act.
The respondents’ second contention was that, were the Commissioner to argue the documents should be admitted via the s 69 exception, this exception ought be refused because the Commissioner failed to prove the provenance and authenticity of the documents. Specifically, the Commissioner did not provide any evidence from the persons or organisations responsible for creating documents within the three categories, and hence had failed to show that the documents were created “by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact”[10] or “on the basis of information supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact”[11]. Mr Clelland further argued the correct reading of s 170 mandates that a party who seeks to rely on the business records exception must produce evidence to prove the s 69 elements, and that such evidence must be provided by persons as specified in s 171. They contended that this requirement was absolute, and that the court could not infer that s 69(2) was satisfied by mere reference to the documents.
[10]Evidence Act 2008 (Vic), s 69(2)(a).
[11]Evidence Act 2008 (Vic), s 69(2)(b).
In the respondent’s view, the only means by which the imputed documents could be admitted into proceedings was via my waiver of a requirement of the Act.[12] They argued that, in the current circumstances, the factors outlined in s 190(4) weighed against exercise of the s 190 discretion. In particular, Mr Clelland emphasised that the evidence in question was of great importance to the proceeding (indeed, this evidence constituted close to the entirety of the Commissioner’s case) and that the nature of the proceedings was such that an unfavourable finding for the respondents would result in a direct interference with private property rights and with direct or indirect connotations that the respondents had engaged in fraudulent activity. These factors, he submitted, called for the evidence to be held to the highest standard.
The Commissioner
[12]That is, waiver of a rule contained in one of s 59, s 69 or s 170 pursuant to s 190, or waiver the s 67 notice requirement pursuant to s 67(4).
In response to the respondents’ s 64 submissions, the Commissioner argued that the documents do fall into the class of documents envisaged by that section of the Act. Ms Burton pressed that, if relevant, unmet notice requirements ought be waived pursuant to s 67(4) – particularly since the DSC Glover’s affidavit had been filed with the court since 2013 and no objection to the exhibited documents was indicated until a few days prior to these proceedings. Notably, Ms Burton argued s 64(2) in the alternative to her primary arguments (see below). It was not her chief submission and I do not find it necessary to address s 64 in my analysis.
The Commissioner’s foundational position was that a number of the documents within the ATO report and the CBA documents contain no previous representations made by a person, and thus contain no hearsay as defined by s 59. Save for pages 1 2, 3, 19 and 21, the entirety of the ATO report consists blank print outs of pro forma tables. Ms Burton argues that no asserted fact is contained in the tables, which she postulated would have been automatically generated by an ATO mechanism following a request for a report. While contemplation of the tables leads to the likely inference that the ATO had no record of income or tax deductions for Mr Zhang between 2005 and 2012, the tables themselves make no such representation: they are simply blank. Ms Burton mounted a similar argument in relation to the CBA transaction records (included variously in the bundle of ‘CBA documents’). While these documents were not blank she pressed that they were automatically and mechanically generated and therefore lacked the ‘human touch’ required by the hearsay rule. Mr Clelland, in response, submitted that in order for such a characterisation to stand the Commissioner needed to produce evidence that the documents had in fact been generated mechanically, and Ms Burton’s submissions from the bar table as to their likely provenance were insufficient for this purpose.
The Commissioner’s secondary position was that the remaining documents in each of the three categories (and those discussed above, were I not to accept her s 59 submission) are business documents as defined by s 69 of the Act, and thus the hearsay rule does not apply. Ms Burton submitted that documents in each of the three exhibits are clearly business records, and as much can be inferred from their face. Ms Burton contended that s 170 does not require a party relying on the business records exception to produce evidence to prove the s 69(2) factors, but urged, in the case that I should agree with Mr Clelland on this point, that any such requirement ought be waived pursuant to the s 190 discretion.
Ms Burton argued broadly that calling the maker of these documents, if it were even possible to trace the maker in many of the circumstances, would add nothing to the content or reliability of the documents. She emphasised this position by reference to numerous specific documents. For example, she hypothesised that while it may be possible to call a bank clerk who had been responsible for the initial data entry at the time of the deposit by Ms Tat, that clerk could attest no further than that someone purporting to be Ms Tat had deposited a check for $300,000.00 at that particular branch on that particular day. The clerk’s evidence could neither add to nor diminish the representation contained on the face of the document. Calling a bank representative to provide evidence that the bank kept records of transactions as part of the course of business, or calling the person responsible for entering a request for the ATO report would be similarly unhelpful. In light of what Ms Burton submits would be a lack of utility she pointed to the wording of s 190(3), which permits waiver of a rule of evidence where ‘the application of those provisions would cause or involve unnecessary expense or delay’.
Are the documents hearsay?
In relation to pages 4 to 18, page 20 and pages 22 to 35 of the ATO report, I accept Ms Burton’s submission that the documents contain no representation, but rather are constituted by an absence of representations. The conclusion that the ATO had no records for Mr Zhang during the relevant time is inferential. An aspect of this inference[13] is encapsulated by the table on page one of the ATO report, which I do find to be hearsay. Similarly, I find that pages 2, 3, 19 and 21 contain past representations, as do the entirety of the CBA documents.
[13](that Mr Zhang’s return status for 2003 - 2012 was ‘not lodged’).
As to Ms Burton’s postulation that the representations were made by a machine rather than persons – I have insufficient knowledge of ATO or CBA data entry procedures to make this determination, and in the absence of any evidence presented to this effect I am not satisfied to draw any inference on whether any of the documents were produced wholly or partially mechanically.
Does the ‘business records exception’ apply?
The ‘business records’ argument in this matter is essentially one of authenticity. As I understand it, the respondents do not genuinely dispute that the documents in each category are the type of document that are ordinarily kept by the ATO, the CBA, or AUSTRAC in the course of their day-to-day business. Mr Clelland’s submissions focused on the Commissioner’s failure to provide evidence proving that either the documents had been produced by someone with reasonable knowledge of asserted facts contained therein or that they had been produced on the basis of information supplied by someone who might reasonably have had knowledge of the asserted facts. By extension, I understand that the respondents’ argument is that the Commissioner’s failure to provide provenance evidence from a source stipulated by s 171 means that the Commissioner has failed to prove the authenticity of the documents in a manner required by the Act, and that the documents should thus be excluded from evidence.
Legal Principles
When contemplating whether parties were required to produce evidence of the maker of a business record in Guest v Commissioner of Taxation [2007] FCA 193, Heerey J said this:
The terms of s 69(2)(a) do not suggest that it is an essential precondition of admissibility that the “person” in question be identified. The ordinary meaning of the language is that it is sufficient that the person who made the representation, whoever he or she is, had or might reasonably be supposed to have had, personal knowledge of the asserted fact. The policy behind the provision is clear enough. Routine business records, made before any legal proceeding arises or is contemplated ... have an inherent likelihood of reliability which outweighs the common law’s aversion to hearsay evidence where the maker of a statement cannot be tested by cross-examination. The utility of s 69 would be greatly diminished if it were necessary to locate among large organisations, perhaps over a long period of time, persons who made representations, often in circumstances where the practical needs of the organisation did not require any identification at the time the representations were made.[14]
[14] Guest v Commissioner of Taxation [2007] FCA 193, Heeley J at [25].
The above extract was cited in Lin v Tasmania [2012] TASCCA 9.[15] In Lin, the appellant argued that the trial judge drew impermissible inferences when allowing documents to be led pursuant to the business records exception. Specifically, he submitted the absence of any explanation as to the circumstances of the preparation of the document, information as to who prepared it, when it was prepared, or why, meant that there was insufficient evidentiary basis for the trial judge to draw inferences satisfying s 69(1) and (2).[16]
[15]Lin v Tasmania [2012] TASCCA 9, by Tennant and Porter JJ at [88].
[16]See summary of Tennant and Porter J in Lin v Tasmania [2012] TASCCA 9, [83] – [84].
In relation to the s 69(2) argument, Tennant and Porter JJ said:
…the Court is able to draw inferences from the form of the document and the nature of the information contained in the representation: Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984 at [19]. In any event, s 183 of the Evidence Act enables a court, if a question arises about the application of a provision of the Act in relation to a document, to examine the document and draw any reasonable inferences from it.[17]
[17]Lin v Tasmania [2012] TASCCA 9, Tennant and Porter JJ at [87].
In ASIC v Rich [2005] NSWSC 417,[18] Austin J reasoned that “the requirement to authenticate a document is not a requirement to produce a witness involved in the creation or keeping of the document. Other means of authentication may suffice.”[19] In that case, the defendant complained that the plaintiff’s provenance evidence was insufficient to prove the authenticity of purported business records as per s 69(2). Though the plaintiff did not adduce specific evidence from the maker of document or a company representative, it submitted that the inferences available to the court from the face of the documents, as well as file histories sourcing the documents to a specific computer drive, satisfied the authenticity aspect of s 69(2). His Honour made explicit reference to the statutory authority to draw inferences relevant to the question of authenticity contained in s 58 and s 183 of the Act.[20] On examination of the documents, he found that the information on the documents’ face, in combination with the extensive provenance evidence submitted by the plaintiff, variously supported the inferences that the representations in the documents were made by persons who might reasonably be supposed to have had personal knowledge of the asserted facts.[21]
[18] ASIC v Rich [2005] NSWSC 417.
[19] ASIC v Rich [2005] NSWSC 417, at [124].
[20]ASIC v Rich [2005] NSWSC 417, at [117].
[21]ASIC v Rich [2005] NSWSC 417, from [199] – [203].
J Forrest J of this Court expanded on Austin J’s position in Rich in Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 29. His Honour rejected the plaintiff’s submission that Rich affirmed the position held in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 – that authentication of a purported business record “cannot be achieved solely by drawing inferences from the face of the document”[22] – and stated conversely that he was not satisfied the decision in Rich required such rigorous proof.[23]
[22]ASIC v Rich [2005] NSWSC 417, at [117].
[23]Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 29, at [30].
His Honour found that the disputed business records in Matthews were exemplary of the case “in which a document – on its face – can be inferred to be authentic and relevant” as per s 58 of the Act. He proceeded to outline inferences which could appropriately be drawn from the face of documents in that matter, specifically:
(a) how the document came to be adduced into evidence;
(b) whether it was a document prepared by one of the companies;
(c) whether it was a document prepared by one of the companies for the purposes of its business;
(d) whether the contents of the document form part of the records of the business;
(e) whether the documents contain statements relevant to the proceeding made in the course of or for the purpose of the business;
(f) whether the representation contained in the document was made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact relied upon; and
(g) whether the representation was made on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.[24]
Clearly, (f) and (g) of the above canvas s 69(2)(a) and (b) respectively.
Analysis and Conclusions
[24]Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 59, at [32]. These factors have since been applied by Gibson DCJ in Murko Greenfields Narellan Holdings trading as Narellan Town Centre [2015] NSWDC (25 June 2015), at [28].
The ‘business records exception’ is remedial legislation of wide import and should be construed liberally.[25] The legislative basis for s 69, as outlined by Heerey J in Guest, is to assist courts to allow ‘hearsay’ evidence that is inherently likely to be reliable because of its form. It is a provision of pragmatic utility: its purpose, in part, is to avoid the undue expense and delay of locating and adducing evidence directly from a multitude of employees of large organisations who will ultimately fail to add, in either substance or reliability, to the information contained in the record.
[25]Atra v Farmers & Graziers Co-op Co Ltd (1986) 5 NSWLR 281, at 286 (and the cases cited therein), cited in Lin v Tasmania [2012] TASCCA 9, at [85]. In Atra, Wood J considered the legislative intention behind the relevant business records exception and found: “I am in no doubt that the provisions constitute remedial legislation designed to permit the reception into evidence of business records without undue expense or delay, notwithstanding the rules against hearsay and against secondary evidence of the contents of documents. As such they should be given liberal interpretation and application” (at 286). See also Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 revised - 10/12/2002, at [4].
Sections 58 and 183 vest the court with the power to draw inferences from documents as to the documents’ relevance and to the application of provisions of the Act respectively. The concepts of ‘relevance’ and ‘authenticity’ are closely entwined – s 58 reads to encapsulate authenticity as an aspect of relevance. With a view to the broad application of these sections, I am satisfied, as was J Forrest J in Matthews, that s 58 leaves open the possibility to infer the elements of s 69(2) from the face of documents alone.
I am not intending to diminish the gravitas in making a finding on the authenticity or reliability of documents. Inferences ought not too readily to be drawn - an ‘inherent likelihood’ of reliability is not tantamount to a ‘prima facie presumption of reliability’ for any record apparently created in the day-to-day activities of a business. Section 69 captures an extraordinarily broad range of documents. I envisage that in certain cases it will be inappropriate, as a matter of fact, to draw any inference as to authenticity from a document’s face.[26] A court must apply rigorous scrutiny in any examination of documents from which an inference is said to be available, particularly if that inference is one of authenticity in the absence of further supporting evidence.
[26]I note that Madgwick J, in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305 postulated an interpretation of Rusu consistent with this position (at [25]).
The standard to which I must be satisfied of such an inference is the balance of probabilities.[27] On my examination, I am satisfied to at least this standard that documents pressed by the Commissioner within each of the three categories were either created by a person who might reasonably be supposed to have knowledge of the asserted facts, or on the basis of information directly or indirectly provided such a person. I will provide a brief summary of my findings for the documents in each category.
The ATO profile report
[27]Evidence Act 2008 (Vic), s 142.
As I found that pages 4 - 18, 20 and 22 – 35 of the ATO report contained no hearsay representation, there was no need to consider the authenticity of these pages as business records. The remaining pages are marked with the header ‘this information is provided by the Australian Taxation Office pursuant to the Taxation Administration Act’. They are cross-marked with the text ‘Copy provided pursuant to section 355-70(1) (table 1, item 4) – CACT – of the Taxation Administration Act 1953’. In her affidavit, DSC Glover has sworn they were attained from a member of the ATO disclosure team.I have no doubt that the ATO creates reports of this nature, and this appears to be an example of such a report. I am satisfied to infer that information compiled by the ATO is routinely entered into the ATO records system by persons I would reasonably expect to have knowledge of the asserted facts so entered, or on the basis of information provided by a person with knowledge of the asserted facts. I infer that pages 2, 3, 19 and 21 are examples of this, and the table on page 1 contains assertions made on this basis.
The AUSTRAC report
Like the ATO report, the AUSTRAC report appears to be the kind of routine record one would expect to be kept by that organisation. The Australian Transactions Reports Analysis Centre (AUSTRAC) is Australia’s anti-money laundering and counter-terrorism financing regulator and specialist financial intelligence unit. The record contained AG6 is precisely the kind of record one would expect to be kept by AUSTRAC. The report itself is headed with the Australian coat of arms and marked ‘Australian Government: AUSTRAC’. The top left hand corner of the document shows ‘User Id: AFP Glover’ which I infer indicates it was accessed personally by DSC Glover. With regard to the asserted fact that is the subject of the record – that is, that $300,000.00 cash was deposited by someone presenting as Ms Phoi Hang Tat on 9 July 2012 – I infer that this representation was probably made contemporaneously by a bank representative whom I would reasonably expect to have knowledge of that deposit.
The CBA records
The bundle of CBA records required closer analysis. Unlike AG3 and AG6, AG5 is not a single and continuous report. Of the pressed portions of the bundle[28], pages CB 100–105 appear to be transaction records and summaries for the Hengjie Investments account. Recording the transaction histories of clients’ accounts is fundamental to the operations of any bank. Though I have indicated I am not prepared to accept absolutely Ms Burton’s submission that data entry underscoring these records would have been completed by a machine, I do infer that if such data entry were not mechanical in the literal sense it was at least completed by a person performing a mechanical function whom I would reasonably expect to have knowledge of the transaction details. Pages CB 129 and 130 are apparent NetBank transaction records. I make the same findings in respect to these as to pages CB 100 – 105. Similarly, pages CB 111, 120, 124, 124 and 126 appear variously to be records of specific cash deposits to, or withdrawals from, the Hengjie Investments account, and I reiterate that these are precisely the kind of records that one would expect to be kept by a bank and to have been produced in an inherently reliable manner. I draw the same inference regarding pages CB 117, 118, 119, 121, 122, 123, 127 and 128, which show CBA data records relating to credit vouchers and cheques either made to, or drawn from, the Hengjie Investments account. Finally, I am also satisfied that page CB 116, an apparent record of remission of $305,903.35 to the Hengjie Investments account, is the kind or record that would have been produced by the CBA in the course of its business on the basis of information emanating from a person whom I would expect to have had knowledge the remission details.
[28]The commissioner pressed the documents contained on court book pages 100 – 105, 111 and 116 – 130.
In addition to the above, I accept Ms Burton’s submission that calling the purported makers of the documents, or a representative from the organisation responsible for their production, would neither practically add to the documents’ reliability, nor expand on the substantive information (or lack thereof) on the face of each. I therefore see no detriment to the respondents in terms of a lost opportunity for cross-examination.
I propose to allow all of AG3 (the ATO report) and AG6 (the AUSTRAC report), and court book pages 100 - 105, 111 and 116 - 130 of AG5 (the CBA records) into evidence.
The opinion objections
The respondents’ further object to purported opinion evidence contained in the following extract of DSC Glover’s affidavit:
11. The accumulation of the purchase price for the acquisition of the Monomeath property has been performed in a convoluted manner by persons connected with ZHANG.
12. In my experience with the AFP dating from February 2003, the use of third persons to deposit monies to the credit of seemingly unrelated bank accounts of natural persons or of recently-created corporate entities is a known money laundering technique. It is also my experience that the use of convoluted and apparently unnecessary steps in the transfer of funds between persons is also a money laundering technique used in an attempt to distance persons from those funds.[29]
[29]Affidavit of DSC Glover sworn 13 May 2013, paragraphs 11 – 12.
It is plain that these paragraphs are expressions of DSC Glover’s opinion. The Commissioner did not dispute this characterisation. The respondents contend that the opinions contained therein are inadmissible because the requirements of ‘specialised knowledge’ set out in s 79 of the Act are not met. In response, the Commissioner submitted that the purpose of leading the relevant comments from DSC Glover would be to assist the court with an explanation of how a pattern of bank transfers indicative of money laundering might ordinarily look. Ms Burton argued that the Commissioner’s position was that DSC Glover’s evidence could be likened to expert explanations from analysts or financial investigators providing guidance to a judge or jury at insider trading litigation proceedings. She contended that DSC Glover’s twelve years of experience[30] with the AFP is a sufficient basis for her expertise to provide such an explanation.
[30]10 years at the time of swearing the relevant affidavit.
Ordinarily, “(e)vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”.[31] The purported facts opined in DSC Glover’s comments include: that certain behaviours are indicative of money laundering; and, that the purchase price for the Monomeath property accumulated in a ‘convoluted’ manner. Section 79 of the Act provides an exception to the general exclusion of opinion evidence where the person providing the opinion has “specialised knowledge based on the person's training, study or experience…(and the)…opinion of that person that is wholly or substantially based on that knowledge”.[32]
[31]Evidence Act 2008 (Vic), s 76.
[32]Evidence Act 2008 (Vic), s 79.
I have no evidence of any specialised knowledge based on any training, study or experience that DSC Glover may possess. It follows that I am not satisfied that the opinion she offers is based on any specialised knowledge in part or wholly, nor am I satisfied that the opinions offered are necessarily opinions related to a body of knowledge beyond that generally held in the community. I am, therefore, not prepared to admit the opinions in the extracts above.
Summary
In summary, I propose to allow the Commissioner to lead the entirety of Exhibits AG3 (ATO report) and AG6 (AUSTRAC report) to the affidavit of DSC Glover sworn 13 May 2013. Of Exhibit AG5 (CBA records), I will allow the Commissioner to lead the documents on pages 100-105, 111 and 116-130 of the court book. I will not permit paragraphs 11 and 12 of DSC Glover’s affidavit to be led.
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