Gin and Hing (No 3)
[2020] FamCA 735
•1 September 2020
FAMILY COURT OF AUSTRALIA
| GIN & HING (NO 3) | [2020] FamCA 735 |
| FAMILY LAW – EVIDENCE – s 128 of the Evidence Act – unauthorised recordings of private conversations – alleged contravention of Surveillance Devices Act – whether respondent has reasonable grounds to object to questioning on the basis that his answers may expose him to self-incrimination – no reasonable grounds demonstrated – objection over ruled – leave to apply under s 128(6) granted after evidence given. |
| Evidence Act 1995 (Cth), s 128 Surveillance Devices Act 1999 (Vic) |
| Giannarelli v Wraith (1988) 165 CLR 543 Gin & Hing [2019] FamCA 779 |
| APPLICANT: | Mr Gin |
| RESPONDENT: | Ms Hing |
| INDEPENDENT CHILDREN’S LAWYER: | Macgregor Barristers & Solicitors |
| FILE NUMBER: | MLC | 4528 | of | 2010 |
| DATE DELIVERED: | 1 September 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 1 September 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE RESPONDENT: | Mr F. Dixon SC with Mr A Robinson |
| SOLICITOR FOR THE RESPONDENT: | Clancy and Triado |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr D. Whitchurch |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Macgregor Barristers & Solicitors |
Orders
Mr Gin’s application for a s 128 certificate under the Evidence Act is refused.
Mr Gin has leave under s 128(e) of the Evidence Act to apply for a certificate under s 128 of the Evidence Act at the conclusion of his evidence.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gin & Hing has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4528 of 2010
| Mr Gin |
Applicant
And
| Ms Hing |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Introduction
On the seventh day of the trial of this proceeding, during the cross-examination of the father, Mr Gin applied for the grant of a certificate under s 128 of the Evidence Act in relation to a discrete part of his cross-examination.
The issue in context
In seeking to invoke s 128 of the Evidence Act Mr Gin objected to providing answers to Mr Dixon SC for the mother about the circumstances surrounding the father’s creation of 13 separate sound recordings taken of the mother and the child. Mr Gin argued that he feared that any answers he might give to Mr Dixon’s questions may incriminate himself under the Surveillance Devices Act 1999 (Vic).
When Mr Gin first raised his objection, he did so under s 128(1) of the Evidence Act. At the time he raised the point Mr Gin was a “witness” for the purposes of that sub-section even though at the same time he was acting in a self-represented capacity, Mr Gin being a solicitor and an officer of the court.
Over the full day over which Mr Gin had been under cross-examination, he answered questions but he also objected to questions. Strictly speaking, the role of a witness does not encompass objecting to the question being asked. However in the particular circumstances of this case, Mr Gin is a solicitor, practising in this court and in the Federal Circuit Court of Australia and he is deeply invested in the facts of this case as well as in its conduct. It seemed to me that his evidence was most efficiently and fairly given by allowing Mr Gin to object as he has done many times thus far, but he has been sparing in his objections to points of substance, for the most part.
His objection under s 128 concerned the circumstances in which one or more recordings of interactions between the father, the mother and the child took place. The transcriptions of the recordings of those interactions has assumed an enormous amount of attention in this case. The accuracy of the translations of the transcripts of those recordings has consumed a great deal of attention, time and cost. For several days over the first tranche of sittings of the trial of this proceeding, Senior Counsel then appearing for Mr Gin took the mother in exquisite detail to a line-by-line cross-examination of the entries on the transcriptions of those recordings. As a result of an insoluble entrenched position of the parties, I made orders requiring the creation of what became known as the “authorised version” of the transcription of those recordings. The process for the procuration of the authorised transcript was expensive and time consuming. I wrote about aspects of it in Gin & Hing.[1]
[1] [2019] FamCA 779.
Mr Gin in particular wishes to rely on details in the authorised transcript. However, he objects to being questioned about the circumstances in which the sound recordings that later became the authorised transcript came into existence. Mr Gin objects to answering questions about the circumstances of the recordings because, so he says, he may (repeat, may) have contravened one or more provisions of the Victorian Surveillance Devices Act, that enactment raising offences against or arising under an Australian law for the purposes of s 128(1)(a) of the Evidence Act.
Having raised the objection under s 128(1), I was required by s 128(2) to determine whether or not reasonable grounds existed for the objection. Debate on the issue of the existence of reasonable grounds for the objection represented the mainstay of challenge on this application for the grant of the certificate.
Mr Gin raised his objection at 11:15am today. He said he would be assisted by having time to formulate his submissions. I gave him until noon. Between midday and 1pm I heard submissions from Mr Gin in support of his objection and from Mr Dixon SC and Mr Whitchurch in opposition to the objection. It was necessary to examine what each said in order to determine whether or not there were reasonable grounds for the objection.
Mr Gin submitted that his objection enlivened a consideration of three issues. They were –
a)whether the device used to record the sound files was a “listening device” for the purposes of the Surveillance Devices Act;
b)whether the persons recorded had expressly or impliedly provided their consent to being recorded; and
c)whether the information recorded was a “private conversation” for the purposes of the Surveillance Devices Act.
Mr Gin contended that a risk existed that he may have recorded one or more private conversations without the consent of the persons being recorded and so, as he argued, a possibility existed that he may be exposed to self-incrimination if he answered Mr Dixon’s questions in the absence of a certificate under s 128 of the Evidence Act. He said it was reasonable for him to seek the certificate.
Of those contentions, several matters arise. First, whether or not it was reasonable for Mr Gin to seek a s 128 certificate is beside the point as nowhere in s 128 is there any stipulation about the reasonableness of objecting or of seeking the certificate. Second, s 128(2) requires an investigation of the existence or otherwise of reasonable grounds for the objection. The “risk” or the “possibility” of self-incrimination being established for which Mr Gin contended is not part of the statutory construct of the matters to be established. Third, s 128(2) calls for the demonstration of “reasonable grounds” for the objection. To my way of thinking that involved two principle matters, namely –
a)the existence of grounds for the objection; and
b)that those grounds were reasonable, when objectively assessed.
In this case Mr Gin raised no factual material at all that could be characterised as “grounds of objection”. He raised what seemed to me to be submissions about whether the device used was in fact and in law a “listening device” properly so called, whether implied consent of those recorded had been obtained and whether the recordings were of one or more “private conversations”.
Mr Gin responded to my question about why he was so insistent to lead evidence about the evidence in the authorised transcript yet at the same time he took the privilege against self-incrimination. Those seemed to me to be inconsistent positions. He said the evidence in the authorised transcript went to his central thesis in this case. It was that when the mother’s and Ms N’s position was that the child’s wishes in this case should be given weight, those wishes should be discounted because the child has been manipulated by the mother and encouraged into alienating the father.
Mr Gin was invited to tell me of the substratum of fact on which his objection was based so that I could ascertain whether that amounted to “reasonable grounds” for the purposes of s 128(2). He responded by stating that he would “not purport to provide submissions at this time” (those were his words). He said the recordings went to the weight to be given to the child’s wishes and whether the mother was undermining the children’s relationship with the father.
On behalf of the mother Mr Dixon SC submitted that the basis of “reasonable grounds” for the objection had not been given. Mr Dixon said Mr Gin seemed to be arguing that a child under 10 gave her implied consent to the recording and that the recordings will reveal psychological harm occasioned to the child. Yet no evidence on either point had been adduced, according to Mr Dixon.
Mr Dixon submitted that Mr Gin is an officer of the court whose Senior Counsel cross-examined the mother at length on the recordings yet Mr Gin wanted a certificate before answering questions on point. So far as the obligations of an officer of the court was concerned, Mr Dixon relied on the observations of the High Court in Giannarelli v Wraith.[2]
[2] (1988) 165 CLR 543.
On behalf of the independent children’s lawyer, Mr Whitchurch made several submissions. They included –
a)Mr Gin had not shown what reasonable grounds he invoked to object under s 128(1) of the Evidence Act;
b)the recordings are vitally important in this case to an assessment of the best interests of the child;
c)the recordings are crucial to Mr Gin’s contentions that the mother has engaged in alienating the child;
d)under s 128(4) of the Evidence Act the court may require Mr Gin to give the evidence about which he objects where the evidence does not tend to prove that the witness has committed an offence and the interest of justice require the witness to give the evidence;
e)for the purposes of s 128(4) of the Evidence Act, the best interests of the child equate to the interests of justice;
f)in order to assess “reasonable grounds” under s 128(2), a factual examination must be undertaken; and
g)s 128(6) allows the overruling of the objection and, after the evidence is given a certificate be provided, if a finding is made that there were in fact reasonable grounds for the objection.
Mr Gin replied. He said he wants to provide the evidence but he fears that the authorised transcript will find its way to prosecuting authorities. He said that when he made the recordings he did not appreciate the risk of a contravention of the Surveillance Devices Act.
In my view Mr Gin failed to demonstrate the existence of reasonable grounds under s 128(2). He outlined submissions about how he considered the relevant provisions of the Surveillance Devices Act operated. That did not equate to “reasonable grounds”. Mr Gin has not put forward any factual basis of the circumstances surrounding the making of one or more of the recordings that when transcribed became the authorised transcript. On that basis he failed to show that reasonable grounds existed for the objection.
It may be that once the whole of the circumstances surrounding the making of the recordings is examined, under s 128(6), a certificate should be given. In that situation I will allow Mr Gin to renew his application for a certificate under s 128 at a later date.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 1 September 2020.
Associate:
Date: 4 September 2020
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