Heasman v Makis

Case [2021] FedCFamC2G 287

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Heasman v Makis [2021] FedCFamC2G 287

File number(s): SYG 184 of 2021
Judgment of: JUDGE CAMERON
Date of judgment: 18 October 2021
Catchwords: EVIDENCE – Illegally obtained evidence – whether to admit.
Legislation:

Surveillance Devices Act 2007 (NSW) s 7

Evidence Act 1995 (Cth), s 138

Cases cited:

DW v R [2014] NSWCCA 28

Corby & Corby [2015] FCCA 1099

Kanjian Holdings No 1 Pty Ltd v Kanjian [2021] NSWSC 839

Rathswohl v Court [2020] NSWSC 1490

Kadir v The Queen (2020) 267 CLR 109

Division: General
Number of paragraphs: 14
Date of hearing: 18 October 2021
Counsel for the Applicant: Mr J. Baird
Solicitor for the Applicant: Craig Milne & Company
Counsel for the Respondent: Mr B. May
Solicitor for the Respondent: Allsop Glover Lawyers

ORDERS

SYG 184 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

KEN HEASMAN

Applicant
AND:

ANDREA MAKIS

Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

18 OCTOBER 2021

THE COURT ORDERS THAT:

1.The affidavit of Johannes Hunt affirmed 22 August 2021 and the affidavit of Danielle Hoare sworn 22 August 2021 be rejected.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CAMERON

INTRODUCTION

  1. This is a proceeding which was commenced by the presentation of a creditor’s petition seeking a sequestration order against the respondent’s estate.  The respondent opposes sequestration on a number of grounds, including that the bankruptcy notice, the non-compliance with which is said to amount to an act of bankruptcy, was not effectively served on her.

  2. The applicant alleges that the bankruptcy notice was served on the respondent by his contracted process server, Frank Hoare, leaving it at what the applicant says was the respondent’s last known address, being premises in Maroubra, on 18 June 2020.

  3. Amongst the evidence on which the applicant seeks to rely in connection with that address being the applicant’s address, are two affidavits of a further process server, Johannes Hunt, affirmed 2 August 2021 and 22 August 2021 respectively.  Mr Hunt deposes to a conversation he had with the respondent’s daughter at the Maroubra address on 19 February 2021 which he says he sound recorded, and of which recording he provided a copy to his employer. The respondent’s daughter is said to have confirmed to Mr Hoare that the Maroubra address was the respondent’s place of residence, at least as at 19 February 2021.  The applicant also seeks to rely on a further affidavit, this one sworn by Danielle Hoare, who deposes to having transcribed the sound recording of the conversation.  She attaches a copy of that transcription to her affidavit.

  4. The respondent objects…

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Heasman v Makis [2021] FedCFamC2G 287
Case
[2021] FedCFamC2G 287
Decision Date

CaseChat Overview and Summary

In Heasman v Makis, the dispute centred on the admissibility of evidence obtained in violation of Australian law. The Federal Court was tasked with determining whether such illegally obtained evidence should be admitted under s.138 of the Evidence Act 1995 (Cth). The primary legal issue was whether the desirability of admitting the evidence outweighed the undesirability of condoning illegal acquisition, considering factors such as the probative value, importance, and gravity of the impropriety.

The court considered the High Court's decision in Kadir v The Queen (2020) 267 CLR 109, which emphasised the need to weigh public interests in admitting relevant evidence against those in not endorsing illegal acquisition. The court examined the factors outlined in s.138(3) of the Evidence Act, including the difficulty of obtaining the evidence lawfully. In this instance, the court concluded that the probative value of the evidence was insufficient to justify its admission, particularly as it merely corroborated lawfully obtained evidence. The court also noted the deliberate nature of the illegal acquisition, which further weighed against admitting the evidence. Consequently, the court ruled that the evidence should be excluded to avoid giving approval to improper methods of evidence gathering.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Nonetheless, the evidence may possibly be admitted under s.138 of the Evidence Act 1995 (Cth) which relevantly provides:138 Discretion to exclude improperly or illegally obtained evidence (1)Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law;is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.… (3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:(a) the probative value of the evidence; and(b) the importance of the evidence in the proceeding; and(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and(d) the gravity of the impropriety or contravention; and(e) whether the impropriety or contravention was deliberate or reckless; and(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Last year in Kadir v The Queen (2020) 267 CLR 109, a case involving the unlawful video-recording, on behalf of a company that investigated cruelty to animals, of the live baiting of greyhounds, the High Court said:As s 138 is not confined to criminal proceedings or to evidence obtained by, or in consequence of, the misconduct of those engaged in law enforcement, the public interests that the court is required to weigh are broader than those weighed in the exercise of the Bunning v Cross discretion. The desirability of admitting evidence recognises the public interest in all relevant evidence being before the fact-finding tribunal. The undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally … (at 125[13]). Their Honours concluded that the trial judge had been right to find that each video recording was the product of a serious contravention of Australian law. In each case the seriousness of the breach was greater because the recording had been made in deliberate contravention of the law with a view to assembling evidence which, it was believed, the proper authorities would be unable to obtain lawfully. To the extent that it was more difficult to lawfully obtain evidence of live baiting before the first video recording was made, this was a factor which weighed against admitting it. In considering whether evidence ought to be admitted, the matters set out in s.138(3) of the Evidence Act should be taken into account. Having had regard to those matters in this case, I conclude that the evidence should be excluded, not only because the Court should not give approval or encouragement to the improper acquisition of evidence, but also because the probative value of the evidence in question is not sufficiently great to tip the balance in favour of admitting it. True it is, it would seem, that the respondent’s daughter said in February 2021 that the respondent resided at the Maroubra address, but that was some months after the bankruptcy notice was purportedly served, and although I accept that it might be inferred that the respondent’s residence there was a state which had continued over some time, the evidence is not sufficiently strong that an inference of that sort deserves much weight in the balancing exercise that I have to undertake for the purposes of s.138.

Decision

Reasons for decision

I should also note that one of the issues to be taken into account under s.138(3) is the difficulty, if any, of obtaining the evidence in question without impropriety or contravention of an Australian law. Of course, in this case, the sound recording is merely corroboration of the evidence which Mr Hunt gives in his affidavit of 2 August 2021, in the sense that he says at [3]:The daughter never told me that the respondent did not live at [the Maroubra address] and in fact said she did live at [the Maroubra address].That is the relevant evidence, ostensibly lawfully obtained. The real issue is whether Mr Hunt is going to be believed in what he says.CONCLUSION For those reasons, I conclude that it is appropriate to reject the affidavit of Mr Hunt affirmed 22 August 2021 and the affidavit of Ms Hoare sworn 22 August 2021.

Ratio Decidendi

Legal Principle Established

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