Hua Wang Bank Berhad v Commissioner of Taxation (No 9)

[2013] FCA 1022

FEDERAL COURT OF AUSTRALIA

Hua Wang Bank Berhad v Commissioner of Taxation (No 9) [2013] FCA 1022

Citation:

Hua Wang Bank Berhad v Commissioner of Taxation (No 9) [2013] FCA 1022

Parties:

HUA WANG BANK BERHAD v COMMISSIONER OF TAXATION

BYWATER INVESTMENTS LIMITED v COMMISSIONER OF TAXATION

CHEMICAL TRUSTEE LIMITED v COMMISSIONER OF TAXATION

SOUTHGATE INVESTMENT FUNDS LIMITED v COMMISSIONER OF TAXATION

DERRIN BROTHERS PROPERTIES LIMITED v COMMISSIONER OF TAXATION

DEPUTY COMMISSIONER OF TAXATION v HUA WANG BANK BERHAD

DEPUTY COMMISSIONER OF TAXATION v CHEMICAL TRUSTEE LIMITED, DERRIN BROTHERS PROPERTIES LIMITED, BYWATER INVESTMENTS LIMITED

File numbers:

NSD 653 of 2011
NSD 652 of 2011
NSD 654 of 2011
NSD 655 of 2011
NSD 656 of 2011
VID 672 of 2010
VID 887 of 2010

Judge:

PERRAM J

Date of judgment:

8 October 2013

Catchwords:

EVIDENCE – Certificate under s 128 of the Evidence Act 1995 (Cth)

Legislation:

Evidence Act 1995 (Cth) s 128

Date of hearing:

1 October 2013

Date of last submissions:

2 October 2013

Place:

Sydney

Division:

GENERAL

Category:

Catchwords

Number of paragraphs:

6

Counsel for the Taxpayers:

Ms R L Seiden SC, Mr J Hyde Page, Mr K Lord

Solicitor for the Taxpayers:

Henry Davis York

Counsel for the Commissioner of Taxation & Deputy Commissioner of Taxation:

Mr D J Fagan SC, Ms J E Jaques, Ms J Gatland

Solicitor for the Commissioner of Taxation & Deputy Commissioner of Taxation:

Australian Government Solicitor

Counsel for Dr Ross & Mr Leaver:

Mr C Peadon

Solicitor for Dr Ross & Mr Leaver:

Kreston Dormers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 653 of 2011

BETWEEN:	HUA WANG BANK BERHAD Applicant
AND:	COMMISSIONER OF TAXATION Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 652 of 2011

BETWEEN:	BYWATER INVESTMENTS LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 654 of 2011

BETWEEN:	CHEMICAL TRUSTEE LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 655 of 2011

BETWEEN:	SOUTHGATE INVESTMENT FUNDS LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 656 of 2011

BETWEEN:	DERRIN BROTHERS PROPERTIES LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	VID 672 of 2010

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Applicant
AND:	HUA WANG BANK BERHAD Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	VID 887 of 2010

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Applicant

AND:

CHEMICAL TRUSTEE LIMITED
First Respondent

DERRIN BROTHERS PROPERTIES LIMITED
Second Respondent

BYWATER INVESTMENTS LIMITED
Third Respondent

JUDGE:	PERRAM J
DATE:	8 OCTOBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. During the course of the testimony of Dr Ross and Mr Leaver both objected, through counsel, to answering questions on the basis that their evidence might tend to incriminate them or expose them to a civil penalty.  The subject matter of their evidence concerned the complex taxation affairs of the taxpayers who are presently before the Court. 

2. In the case of both Dr Ross and Mr Leaver I am more than satisfied that their testimony about the affairs of the taxpayers will expose them to a significant risk of prosecution for tax related offences.  I permitted objection to be taken to the whole of the testimony because the complexity of the subject matter did not readily permit individual question and answers to be identified as self-incriminating and their effect as such, in the manner of a mosaic, was likely to emerge from a consideration of them as a whole.

3. Section 128(1) - 128(7) of the Evidence Act 1995 (Cth) provides:

   128  Privilege in respect of self‑incrimination in other proceedings

   (1)This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

   (a)has committed an offence against or arising under an Australian law or a law of a foreign country; or

   (b)is liable to a civil penalty.

   (2)The court must determine whether or not there are reasonable grounds for the objection.

   (3)If the court determines that there are reasonable grounds for the objection, the court is to inform the witness:

   (a)that the witness need not give the evidence unless required by the court to do so under subsection (4); and

   (b)that the court will give a certificate under this section if:

   (i)the witness willingly gives the evidence without being required to do so under subsection (4); or

   (ii)the witness gives the evidence after being required to do so under subsection (4); and

   (c)of the effect of such a certificate.

   (4)The court may require the witness to give the evidence if the court is satisfied that:

   (a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

   (b)the interests of justice require that the witness give the evidence.

   (5)If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

   (6)The court is also to cause a witness to be given a certificate under this section if:

   (a)the objection has been overruled; and

   (b)after the evidence has been given, the court finds that there were reasonable grounds for the objection.

   (7)In any proceeding in an Australian court:

   (a)evidence given by a person in respect of which a certificate under this section has been given; and

   (b)evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;

   cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

4. In the case of both gentlemen I was satisfied, for the reasons given above, of the matter in s 128(2). I informed both witnesses the matters required by s 128(3) and both indicated a willingness to answer the questions. Both are, therefore, entitled to a certificate under s 128(5).

5. I granted Mr Leaver a certificate under s 128(5) ‘in relation to the evidence given about his tax affairs’ on 1 October 2013. On 2 October 2013 I made an order on the same terms with respect to Dr Ross. On that date Mr Peadon, who acts for both Dr Ross and Mr Leaver, made an application to extend the terms of Mr Leaver’s certificate in response to evidence given in his cross-examination on 1 October 2013. I acceded to that request.

6. Counsel are to bring in an appropriate form of direction.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: 

Dated:       8 October 2013