J and D and Ors
[2006] FamCA 729
•27 July 2006
[2006] FamCA 729 FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT MELBOURNE
BETWEEN:
J
(Applicant)
and
D
(Respondent)
and
LB PTY LTD
(Second Respondent)
and
CL PTY LTD
(Third Respondent)
and
PB
(Fourth Respondent)
and
SN PTY LTD
(Fifth Respondent)
and
JC
(Sixth Respondent)
JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE YOUNG
Date of Hearing: 17 and 18 July 2006
Date of Judgment: 27 July 2006
Appearances: Mr. Dickson of Counsel for the husband
Mr. O’Shannessy of Counsel for the wife
Mr. Ackman QC with him Mr. Ham of Counsel for the 2nd, 3rd and 4th respondents
Mr. Isaiah of Counsel for the 5th respondent
No appearance for the 6th respondent
Family law – self-incrimination in other proceedings – privilege certificate – self-incriminating evidence - burden of proof – s.79, s.106B Family Law Act 1975 – s.128 Evidence Act 1995 – r.15.09 Family Law Rules
INDEX
ISSUE
APPLICATION
AFFIDAVIT
PROCEDURAL ORDERS
SUBMISSIONS
BACKGROUND
ORDERS OF 17 JULY 2006
WIFE’S FURTHER AFFIDAVIT
18 JULY 2006 ORDERS
SECTION 128
HUSBAND’S SUBMISSIONS
SUBMISSIONS ON BEHALF OF SECOND, THIRD AND FOURTH RESPONDENTS
OTHER SUBMISSIONS
BURDEN OF PROOF
S.128 CERTIFICATE
EVALUATION OF EVIDENCE
S.128(1)(a)
REASONABLE GROUNDS FOR OBJECTION – S.128(2)
THE INTERESTS OF JUSTICE – S.128(5)(c)
IDENTIFICATION OF PARTICULAR OFFENCE
OTHER ISSUES
RESTRICTED S.128 CERTIFICATE
ORDER
ISSUE
The husband has applied to the Court for a Certificate pursuant to s.128 of the Commonwealth Evidence Act 1995 (“Evidence Act”) as to evidence he would propose to give by affidavit in the further hearing of the applications before the Court pursuant to s.79 and s.106B of the Family Law Act 1975 (“the Act”). The granting of such a Certificate is supported by the wife but strongly opposed by the second, third and fourth respondents. The fifth respondent has not involved itself in this issue and the sixth respondent has absented himself.
APPLICATION
The husband filed on 11 July 2006 a Form 2 application for the following orders:
(i)that upon the husband being required to swear an affidavit or give evidence in the proceedings a Certificate issue pursuant to s.128 of the Evidence Act (Cth) in relation to the contents of such evidence;
(ii)such further or consequential orders as the Court deems fit.
AFFIDAVIT
That application was supported by an affidavit sworn and filed by the husband on 11 July 2006, the primary paragraphs of which read as follows:
“3.The Orders of 28 January 2004 (“the orders”), finalised matters between the wife and me in relation to the then Section 79 proceedings. Pursuant to the orders, the wife retained any entitlements which our trust had in the development, and continued the application pursuant to Section 106B seeking to set aside the service agreement and realise our trust’s entitlement in the development.
4.I maintained at that time, in my affidavit material, that the service agreement was commercial and appropriate. There were a number of significant and very relevant matters to which I did not refer at the time, and which are highly relevant to the determination of the Section 106B applications, both in relation to:
(a)the setting aside of the service agreement; and
(b)matters pertaining to the intention behind the particulars of the structure of our trust.
5.I have spoken with the wife, and with her solicitor … about those matters. [The wife’s solicitor] has indicated that, if I do not swear an affidavit in relation to those matters, it is likely I will be subpoenaed as a witness. I am very concerned that the evidence I would give about those matters, whether by way of affidavit or oral evidence pursuant to a subpoena would tend to indicate that I had committed a criminal offence in relation to the evidence given in the previous property proceedings. I would object to giving such evidence in the absence of the granting of a certificate under the Evidence Act.”
PROCEDURAL ORDERS
The matter was last before me, as Judge Manager, on 6 July 2006 when I made certain procedural orders for this further hearing which included:
1.THAT the Husband file any Form 1A Response as to orders sought pursuant to s.106B and/or s.79A with particulars of the grounds under the Family Law Act 1975 relied upon no later than 4:00 p.m. on 11 July 2006 and any such application be listed for directions at 10:00 a.m. on 17 July 2006.
2.THAT the Husband file and serve by no later than 4:00 p.m. on 11 July 2006:
a.any Form 2 application and affidavit seeking a certificate under s.128 of the Evidence Act such application to be returnable before the Honourable Justice Young at 10:00 a.m. on 17 July 2006;
b.written submissions in support of such application;
c.a list of authorities relied upon.
3.THAT any other party seeking to respond to such Form 2 application file and serve answering material by 4.00 p.m. on 13 July 2006 subject to any application for extension of that date.
There were other procedural orders that day pronounced as to a Form 18 contravention application and other outstanding interim applications but they do not touch upon the issue of the Certificate now before the Court for determination.
SUBMISSIONS
In assisting with the determination of the interim issue now before the Court Counsel for the husband filed written submissions on 11 July 2006 and Counsel for each of the second, third and fourth respondents likewise filed written submissions both of which I have read and evaluated.
BACKGROUND
Orders by consent were pronounced pursuant to s.79 of the Act by Brown J on 28 January 2004 at which date the represented and consenting parties were the husband, wife and each of the second, third and fourth respondents.
Subsequently, by Form 2 applications filed 21 December 2004 and 13 January 2005 and a Form 1 application filed 21 March 2005 and subsequently further amended on 8 August 2005 the wife recommenced and continued proceedings in this Court. She sought various orders, substantive and procedural, as against the second, third and fourth respondents. Additionally she sought to join the fifth respondent, SN Pty Ltd (in its capacity as Trustee of the Family Trust) (“SN”) and JC (personally) as sixth respondent.
In her various applications the wife did not seek to set aside the s.79 property orders pursuant to s.79A of the Act. Specifically she sought orders and directions pursuant to s.78, s.80 and s.106B of the Act the effect of which would have been to set aside a service agreement between the second and third respondents, to remove the appointor of the family trust, to remove or vary the trustee of the family trust and otherwise make various declarations to effect the distribution of the proceeds of sale or assets owned or controlled by various of the respondents. Additionally the wife had sought orders on the basis of the accrued jurisdiction of this Court.
In the Form 2A response of the second, third and fourth respondents filed 9 August 2005 they sought the dismissal of all then extant applications of the wife and for proceedings to be otherwise transferred to the Supreme Court of Victoria or otherwise adjourned pending the outcome of ongoing litigation.
The fifth respondent filed a Form 1A response to the wife’s application on 9 May 2006 seeking the dismissal or removal of itself as a party to the proceedings, and with costs. That application was supported by an affidavit filed 9 May 2005 by its solicitors and that affidavit was sworn by a partner of that firm of solicitors, on his behalf and on behalf of another partner, both of whom were then partners in that law firm and directors of the fifth respondent.
The sixth respondent was previously a partner in that law firm but retired from practice on 1 April 2002 and then remained as a consultant and performed work on an employment basis from time to time with that firm. I accept that the sixth respondent has now wholly retired from legal practice and resides permanently in the Philippines. He has played no part in and filed no documents in these proceedings and orders have been made generally dispensing with further service on this individual.
All of the various jurisdictional applications or issues of summary dismissal of applications came before me, as Judge Manager, initially on 16 November 2005 and then for hearing on 3, 4 and 5 April 2006. The matter was part-heard on that occasion and was adjourned for further hearing on 17 July 2006.
Now that the previous s.79 orders have, by consent on 17 July 2006, been set aside there remains the substantive s.79 proceedings before the Court, together with other applications. Subject to further submissions those earlier part-heard jurisdictional matters are likely to be discontinued or permanently stayed, but subject to any other applications arising therefrom and costs issues.
The husband, in those earlier part-heard proceedings, was not a party, was not represented and not involved with the various proceedings.
The husband had earlier filed, on 25 June 2001 an affidavit and on 22 June 2001 a Form 17 statement of financial circumstances in the s.79 proceedings and it is that sworn evidence then given which provides the basis and reason for his application now filed for a s.128 Certificate prior to giving any further evidence in these continuing proceedings.
The husband first displayed a renewed interest in these proceedings when, represented by Counsel, he appeared at the procedural mention on 6 July 2006 and indicated his intention to file an application and affidavit, as was then ordered and hereafter to be involved in the ongoing proceedings in this Court.
ORDERS OF 17 JULY 2006
On this date orders were made by consent pursuant to s.79A of the Act setting aside the orders made, by consent, by Brown J on 28 January 2004. Those orders and notations read as follows:
1THAT pursuant to s.79A(1A) the orders made by Brown J on 28 January 2004 pursuant to s.79 of the Family Law Act 1975 (“the orders”) be and are hereby set aside inclusive of the interim order made as against the 2nd, 3rd and 4th respondents.
2THAT the extempore reasons for judgment and the ruling delivered by the Court this day be transcribed, be placed upon the Court file and be made available to all parties.
3THAT until 4.00 p.m. on 3 August 2006 or otherwise further order of the Court or written agreement of all paries:
(a)the 2nd, 3rd and 4th respondents be and are hereby restrained from selling, disposing of or further encumbering any real property, save with the consent of the husband and wife, and in the event that any contract entered into for sale of real property requires settlement on or prior to 3 August 2006 then the proceeds of any such contract be paid into either of an interest bearing account in the names of the husband, wife and the 2nd, 3rd and 4th respondents or to any bank holding security over such real property;
(b)that in the event of the 2nd, 3rd and 4th respondents can cause the numbered Lots (as referred to in paragraph 1 of the Order made 7 October 2003) to be unencumbered, save for the encumbrances referred to in that said Order, then from that time Order (a) hereof shall no longer apply and Order 1 of 7 October 2003 shall then remain and be continued in full force and effect until further Order.
IT IS NOTED:
A.THAT the consent of the 2nd, 3rd and 4th respondents to paragraph 1 of these Orders is in no way an admission by or on their behalf that the Orders were obtained by fraud, suppression of evidence or any other circumstance within the requirement to s.79A of the Act.
B.THAT such consent of the 2nd, 3rd and 4th respondents was forthcoming consequent upon a ruling that such consent was properly required for the consent orders to be pronounced, a copy of that ruling have been ordered herein.
C.THAT Senior Counsel for the 4th respondent has advised the Court, in the presence of his client, that his client has authority to speak on behalf of and to bind the 2nd and 3rd respondents to these Orders.
D.THAT Counsel for the 5th respondent has likewise advised the Court that, on the same basis, as was identified in B hereof, his client would have instructed him to consent to the setting aside of the s.79 Orders.
E.THAT in the event that the 2nd, 3rd or 4th respondents can reinstate the security referred to in the Order dated 7 October 2003 then the wife has agreed to then withdraw each of her Form 2 and Form 18 applications returnable on 3 August 2006 in the Judicial Duty List
WIFE’S FURTHER AFFIDAVIT
On 12 July 2006 a further affidavit was sworn and filed by the wife and annexed thereto was a letter in the handwriting of the husband. That affidavit and its annexure were before the Court at this hearing without objection. I have read and considered the contents thereof and I find that they are crucial documents in my evaluation of the evidence and in the determination of what are proper and just orders. In part the wife deposed as follows:
3.“On Sunday the 21st May 2006 the Husband [D] telephoned me and requested that I ring him. I later called [the husband] on the evening of that same Sunday and had a telephone conversation with him.
4.[The husband] told me that he knew all about the deals and that the whole thing was wrong. He was referring to the [CL] real estate development. [The husband] told me that the Service Agreement was a sham and that it was set up by [PB] and [JC]. [The husband] told me that he had continued to sign documents after the [CL] Service Agreement was suppose to operate from and that [PB] had promised him that there would be one million dollars ($1,000,000.00) there for him.
5.[The husband] told me that [PB] had repeatedly and on many occasions promised him and reassured him that there would be one million dollars ($1,000,000.00) for [the husband] at the end of the arrangement.
6.[The husband] told me that he and [PB] had an arrangement whereby [the husband] would manage and operate and build up a business called [AP] which business was recorded or registered in the name of [PB]. [The husband] told me that the arrangement was that it was really his that is [the husband's] business but in [PB’s] name. [The husband] told me that he had become concerned whether or not [PB] would honor his promise and that he had shortly before the last Hearing in April delivered to [PB] or attempted to deliver to [PB] a letter setting out his concerns. [The husband] told me that [PB] refused to take the letter and that they subsequently met and had a further conversation. [The husband] said that [PB] told him to destroy the letter.
7.Subsequent to this telephone conversation [the husband] provided to my solicitor a copy of the letter [the husband] spoke about. Now produced and shown to me and marked “Letter“ is a true copy of the letter referred to by [the husband].
8.[The husband] told me that he had attended Court in April. I asked him why he had approached my Solicitor … and shook his hand. [The husband] told me that he wanted [PB] to know that he was not scared of him and that by turning up at Court this would prove it.
9.As a result of this conversation I now know that there was an arrangement between the Husband and [PB] at all material times including at the time of the Orders of the 24th January 2004. This arrangement had been on foot since sometime before the execution of the Service Agreement until the falling out between [the husband] and [PB] following the Court Hearing in April 2006.
10.On the 27th May 2006 my Solicitor … met with [the husband] and I understand that [the husband] confirmed to [my Solicitor] that the arrangement had arisen to ensure that I did not get any share of [CL]. [The husband] told [my Solicitor] that the arrangement was that [the husband] would trust [PB] who would pay one million dollars ($1,000,000.00) to [the husband] at the end of the matter. At this meeting [the husband] provided a copy of the letter referred to.
11.On 7th October 2003 Orders were made to provide security for the Section 106B Application that was then and remains on foot. In proceedings in February and March 2003 the Court had made Orders restraining the 2nd, 3rd and 4th Respondents from dealing with or disposing of any interests in the [CL] real estate developments. Subsequently [PB] complained that this had a significant commercial impact upon him and he needed to be relieved of the injunction restraints. In those circumstances the Orders of the 7th October 2003 were made which discharged the existing injunctions and replaced those with a Charge over two (2) blocks of land in the [CL] development. The Orders provided that the two (2) blocks in the [CL] development would be unencumbered by any other obligation save for the Charge and Guarantee relating to the security for the Section 106B Application.
12.The Orders of the 7th October 2003 remained on foot at all times.”
The annexed letter was agreed by all present in the proceedings to be in the handwriting of the husband and to have been delivered by the husband to PB, the fourth respondent. They then had met and discussed the contents of that letter. It is an important document and I have evaluated and relied upon its contents.
18 JULY 2006 ORDERS
At the conclusion of the two days of submissions and separate from the Orders made the previous day, Orders were made by consent (inter alia) which required:
§the wife to file and serve her amended Form 1 application for final orders by Thursday 20 July 2006;
§the husband to file and serve an amended response by 26 July 2006; and
§all other parties to file and serve any amended response by 2 August 2006.
Pursuant to those Orders the further amended application of the wife (in summary) now filed seeks orders for a just and equitable settlement of property pursuant to s.79 and consequential orders pursuant to s.106B and/or s.80 and declarations pursuant to s.78 of the Act.
The final orders sought in response on behalf of the husband and all of the respondents are shortly to be filed but they will not change the fact that the Court must hear, and evidence is to be given in at least, the s.79 and s.106B proceedings.
SECTION 128
Section 128 of the Commonwealth Evidence Act 1995 provides (as to the relevant sub-sections):
128Privilege in respect of self‑incrimination in other proceedings
(1)This section applies if a witness objects to giving particular evidence 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)Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:
(a)that he or she need not give the evidence; and
(b)that, if he or she gives the evidence, the court will give a certificate under this section; and
(c)of the effect of such a certificate.
(3)If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence.
(4)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.
(5)If the court is satisfied that:
(a)the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and
(b)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
(c)the interests of justice require that the witness give the evidence;
the court may require the witness to give the evidence.
(6)If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence.
(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.
(8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:
(a)did an act the doing of which is a fact in issue; or
(b)had a state of mind the existence of which is a fact in issue.
(9) A reference in this section to doing an act includes a reference to failing to act.
HUSBAND’S SUBMISSIONS
The husband has not filed and presently objects on the ground of self-incrimination to the filing of an affidavit or the giving of evidence in support of the various orders sought pursuant to, s.79, s.79A (previously before the Court) or s.106B or other applications as are now before the Court.
As to the reasonable grounds for such objection reliance is placed by him upon the contents of his most recent affidavit (to which I have earlier referred) and the most recent affidavit of the wife and its handwritten annexure.
The husband’s position is that, given his earlier sworn affidavit and evidence to the Court on 25 June 2001, if he were now to swear an affidavit and then be cross examined upon material confirming, explaining and elaborating upon his most recent affidavit, his conversations with the wife as deposed to by her or his handwritten letter to PB then that further evidence may tend to prove that he has committed an offence, or be liable to a civil penalty, under Australian law (s.128(5)(a)).
Counsel for the husband further submitted that it is in the interest of justice (s.128(5)(c)) to require that the husband give the evidence in the ongoing s.79 and other proceedings before the Court. His submission is that such evidence can and should only be given with the protection of a Certificate as should be now made available to the husband.
The substantive proceedings are not presently before the Court. I am hearing only a procedural matter which is discretionary. The husband was not called upon to give evidence. He foreshadowed his objection through Counsel. The husband had not prepared a detailed affidavit and presented that to the Court to be evaluated on the basis of whether or not such evidence would tend to prove that he has committed an offence or is liable to a civil penalty under the law of this country. His objection is based on the evidence now before the Court.
I have hereafter, and I am required so to do, evaluated carefully all of the evidence of the husband before the Court this day and determined whether the specific requirements of s.128 of the Evidence Act are fairly and properly satisfied.
SUBMISSIONS ON BEHALF OF SECOND, THIRD AND FOURTH RESPONDENTS
The primary written submission of Senior Counsel for each of these respondents was that a Certificate should not be granted to the husband who should be required to specifically detail the evidence which he would now or in proceedings hereafter take objection(s). It was submitted that:
“The husband should set out the evidence to which he takes objection and to which he may be the subject of criminal proceedings if forced to give in an affidavit …
It is submitted that if the order were to be made in the terms sought by the husband he is potentially seeking protection in relation to matters where a certificate may not properly be granted. He is seeking a certificate relating to matters not known to the Court at this point of time and could well be beyond that referred to in the affidavit filed by him. Such a certificate should not be given in a vacuum and without the court properly exercising its responsibilities and discretion as required pursuant to s.128”.
Senior Counsel further submitted that if a Certificate were to be provided to the husband it should not be given on an open ended or unrestricted basis. The second preference of these respondents was for the husband to file an affidavit detailing his evidence and for that to be the subject of proper submission and argument and its contents be identified and confirmed by the Court within the requirements of s.128.
Specifically it was submitted that the husband should be required to file an affidavit, on the particular facts of this case, as follows:
“An affidavit setting out with particularity all details concerning the execution of and arrangements surrounding a service agreement which purported to have the effect of crystallising and minimising the entitlement of a trust (or otherwise) in a property development venture conducted through the [CL] Unit Trust and all matters relevant to:
(a) the setting aside of the service agreement; and
(b)matters pertaining to the intention behind the particulars of the structure of the trust; and
(c)all matters in previous affidavit material said to be false, incorrect or misleading.
Senior Counsel for the 2nd, 3rd and 4th Respondents emphasised that the background to the husband’s application is that he is an admitted perjurer and that the case involved, on the basis of the handwritten letter of the husband, an attempt at extortion. The possible criminal offences identified by Senior Counsel included perjury, attempting to pervert the course of justice, conspiracy to defraud, blackmail and extortion. It was then submitted to the Court there would likely be other offences.
Significantly and with much force Senior Counsel emphasised that the evidence of the husband now before the Court spoke only of omissions and not of deliberate untruths or inaccuracies. He argued that the husband had not satisfied the requirements to obtain a Certificate. This submission was largely based upon a reading and interpretation of paragraphs 4 and 5 of the husband’s affidavit which I have hereafter carefully evaluated.
I do not accept the submissions made on behalf of these respondents and I have provided my reasons in my examination of the evidence and of the requirements of s.128.
OTHER SUBMISSIONS
Counsel appearing for the wife indicated support for the husband’s application but otherwise did not address the Court on his application.
Counsel appearing for the fifth respondent advised the Court that he had no instructions upon this issue and did not otherwise seek to address the Court upon the propriety of issuing a Certificate as sought.
BURDEN OF PROOF
I find that the husband does and should carry the burden of proof. It is for him to establish, on the balance of probabilities, that he does hold reasonable grounds for his objection to give evidence without first having been granted a Certificate pursuant to s.128 of the Evidence Act. Likewise the Court must be so satisfied of the requirements of sub-section (5) thereof and the need of the evidence concerned to tend to prove an offence has been committed and that the interests of justice require the evidence to be given. I have carefully considered and balanced these issues.
I have read and considered the submissions of Counsel on this topic. I have had regard to the provisions of s.140 and s.142 of the Evidence Act. I have carefully balanced (s.140(2));
(a) the nature of the cause of action;
(b) the subject matter of the proceedings; and
(c) the gravities of the matters alleged.Section 142(2) required that I must take into account, and accordingly I have considered:
(a) the importance of the evidence in the proceedings; and
(b) the gravity of the matters alleged in relation to the question.Counsel have helpfully identified the principal cases dealing with the burden of proof issue and they include:
Briginshaw v Briginshaw (1938) 60 CLR 336;
Riefek v McElroy (1965) 112 CLR 517;Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
In Neat Holdings (supra) the High Court said at page 170-171:
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even were the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probability, a party to civil litigation has been guilty of such conduct”.
In urging the Court to adopt a standard on the balance of probabilities at the higher end of the scale Senior Counsel for the respondents in his written submissions said:
“It is submitted that the granting of a certificate should be treated as a matter of great significance particularly in the circumstances of this case. It deals with a very serious matter being protection from the material presented being used in any prosecution against him in relation to very serious criminal matters whilst making criminal allegations against another person. It is not clear the evidence sought to be given or what charges may be potentially involved save that the husband describes them as criminal proceedings. The husband is seeking an advantage in relation to financial matters and immunity from prosecution by his application. The husband is an admitted liar. The husband was capable, it is submitted to provide to the court more material upon which the court could make its determination and has elected not to do so. He has further not with any degree of specificity set out the evidence for which he seeks protection. He has not filed an affidavit by either [the wife’s solicitor] and/or his own solicitor (an expert) that could have verified his claims relating the need for a certificate, he could have done so and elected to not do so. It is submitted that Your Honour should draw an adverse inference from his failure.
I am satisfied that the gravity and importance of the matters before the Court do require a very careful evaluation and determination of the objection, the grounds for the objection and for the Court to be satisfied to a very comfortable and elevated standard that the husband had and did meet his required onus of proof. I have therefore assessed the evidence on the basis that the husband must prove to the higher scale of the balance of probabilities. I have ultimately concluded that he has satisfied this onus.
SECTION 128 CERTIFICATE
I have been referred by Counsel to a number of authorities including Atkinson and Atkinson (1997) FLC 92-728; Ferrall and McTaggart & Ors v Blyton (2000) FLC 93-054; Pathways Employment Services v West (2004) NSW SC 903 – 1 October 2004 Reid v Howard (1995) 184 CLR 1 at p.11; Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538; Ross v Internet Wines Pty Ltd (2004) NSWCA 195 and the further cases identified in the written and oral submissions of argument filed prior to this hearing.
The section is designed to provide protection both against direct use and derivative use of information which would ordinarily be subject to a privilege against self incrimination but where the disclosure is compelled or volunteered under the section. That protection may be less than absolute and may not give the disclosing party complete protection as, for example, a disclosure to third parties and not necessarily a court or the prosecuting authority may lead to the use of the testimony being investigated to search out other evidence against that individual (Sorby v The Commonwealth (1983) 152 CLR 281 at 293).
For myself, I am comfortable with the approach and finding of the Full Court in Ferrall and McTaggart (supra), at paragraphs 89-91 (inclusive) where they concluded that:
“89. We think the trial Judge was clearly correct in holding that it was within his discretion to grant such a certificate. Firstly, we think it would be unrealistic to limit the availability of a certificate to a situation where a witness is asked a particular question in cross-examination. We think the availability of a certificate clearly applies to evidence given in chief, otherwise an inappropriate forensic advantage would rest with the other party who would be in a position to prevent the question of an objection arising by simply not seeking to cross-examine.
90. In the particular circumstances of the Family Court of Australia, evidence in chief is normally given by affidavit. We think that in the circumstances of the present case, the witness was objecting, in the sense required by s.128, by indicating that he would not file the affidavit unless a certificate was given. We see the situation as no different from that which would have been the case if he had been sworn in and asked to answer questions concerning the matter in evidence in chief, and had objected to doing so without the issue of such a certificate.
91. So far as the issue of Notice to the Attorney-General is concerned, we agree with the learned trial Judge that this must be a matter of discretion and in the circumstances of this case we were not shown any reason why O’Ryan J’s discretion had miscarried.”
EVALUATION OF EVIDENCE
I have carefully considered the contents of the husband’s recent affidavit, particularly paragraphs 4 and 5 thereof.
I have evaluated that evidence in the context of his earlier handwritten letter to PB and the wife’s affidavit filed 12 July 2006. Taken together they do, I find, tend to prove that the husband has committed an offence under the laws of our country. I do not need to find an offence but only that it “tends to prove” an offence. I have applied a higher level of probability in so concluding.
In particular I accept and rely upon the husband’s intended evidence that:
§there were significant and very relevant matters that he did not refer to in his initial affidavit filed with this Court;
§he is aware that there are matters upon which, if he gave evidence, it would tend to prove he committed a criminal offence or may be liable for a civil penalty;
§the service agreement was a sham and that he had continued to sign documents as required and at the direction of PB;
§he had been promised a payment of $1m. (and which was not disclosed to the Court in January 2004);
§he was developing and operating a business, AP, under a different identity and which had not been disclosed as his business;
§there was a commercial and financial arrangement that he had with PB that was not disclosed to the wife or to the Court in June 2001 or in January 2004;
§the wife would share in no part of the value or sale proceeds received by CL (such as was matrimonial property);
§PB was given a $2 million company to do with as he would, on a handshake (and to the likely financial detriment of the wife);
§PB and the husband set out to stop the wife from receiving any of the benefits from CL;
§the service agreement was set up to deny the wife any such financial benefits;
§the husband acted to his financial disadvantage in declining to draw a wage and distancing himself from the day to day running of the business to reinforce the ongoing contrived arrangement of the service agreement;
§AP may now have been secured for the husband but at a cost and on a financial basis that is not yet disclosed;
§he left (then) money in the project (CL) which his family should have had the same benefit or opportunity from;
§the husband is now likely to enforce the alleged original agreement that he had with PB since day one.
Considering all of that evidence or intended evidence and balancing the fact that PB, or any of the various respondents have yet to respond and file affidavits I am nevertheless satisfied that there are matters and facts which may likely or would tend to prove that the husband has intentionally and deliberately committed an offence under the laws of Australia. He has, at the least, knowingly withheld or distorted evidence. He may well have intentionally lied on oath but I do not have to and will not now make such a finding.
I am confident that each of the affidavits and the handwritten exhibit that I have examined support, to the higher level of the scale of probabilities, this outcome and I so find.
SECTION 128(1)(a)
Section 128 applies only if a witness objects to giving particular evidence on the ground that such evidence may tend to prove that the witness has committed an offence against or arising under an Australian law (or law of a foreign country) or is otherwise liable to a civil penalty. Under sub-section (2) thereof and subject to sub-section (5) if I were to find that there are reasonable grounds for such objection then the husband would not be required to give evidence which might be self incriminating and would be entitled to claim and utilise the certification process. What I have examined is therefore if there is evidence which would tend to implicate the husband in a commission of an offence. I am mindful that, as under the common law, evidence may tend to prove that a witness has committed an offence if such evidence were to:
“Set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character.” (Rank Film Ltd v Video Information Centre (1982) AC 380 at 443, per Lord Wilberforce and as quoted with approval by Gibbs CJ in Sorby v Commonwealth (1983) 152 CLR 281 at 294.
On all of the evidence now before me I am very comfortable in concluding that the whole of the evidence now proposed to be given by the husband does provide reasonable grounds for objection and may tend to prove an offence as required or liability to a civil penalty.
REASONABLE GROUNDS FOR OBJECTION – SECTION 128(2)
A clear and recent explanation of this sub-section is provided by Giles JA, NSW Court of Criminal Appeal in R v Bikic [2001] NSWCCA 537 at paragraphs 13-15 where it is said that:
“The words in s 128(2) are ‘reasonable grounds for the objection’. The sub-section does not refer to reasonable grounds for the conclusion that the evidence may tend to prove that the witness has committed an offence. The words used are similar to those found in the common law cases by which it was necessary that the court see that there are reasonable grounds to apprehend danger to the witness from his being compelled to answer. I have taken that phrase from R v Boyes (1861) 1 B & S 311 at 330; 121 ER 730 at 738, cited by Gibbs CJ as a frequently approved statement of the law in Sorby v The Commonwealth (1983) 152 CLR 281 at 289. Because that was the common law approach, a witness could not refuse to answer a question which tended to show that he had committed a crime for which he could not be convicted and punished, for example because he had received a pardon or a protective certificate or because he had already been convicted or acquitted of the crime, see the statement to that effect and supporting cases cited by Gibbs CJ in Sorby v The Commonwealth at 290. In my view the same concept underlies the words in s 128(2). Those words must, of course, be construed for their proper meaning and effect without being confined by pre-conceptions from the common law. But it seems to me to be a matter of commonsense that reasonable grounds for an objection must pay regard to whether or not the witness can be placed in jeopardy by giving the particular evidence.”
I accept and apply both the legal and the commonsense approach of his Honour. I find that the husband does have reasonable grounds for objection and could be placed in jeopardy by giving sworn evidence of the type and nature that is indicated in the recently filed affidavit and the annexure before the Court. The essence of this case is that the husband deposed to certain matters and events and withheld, disguised or distorted the true facts and circumstances of his then conduct and commercial and personal agreements. This conduct was financially and legally to the disadvantage of the wife. It reduced or otherwise influenced the available pool of assets then before the Court for s.79 proceedings and his then conduct was, seemingly, with knowledge, intent and the co-operation of others and was undertaken to his financial benefit and to deprive the wife and the Court of the true facts.
THE INTERESTS OF JUSTICE – S.128(5)(c)
In Atkinson (supra), Baker J at page 839 incorporated within his judgment reference to a paper delivered by Mr Justice Smith and recorded in the Annotated Edition of the Evidence Act 1995 (Cth) where the following observation was made:
“As to what are the interests of justice some help may be gained from a consideration of the principles that guided the proposals. Other policy issues arise. An important matter to bear in mind is that a person compelled to give evidence may, for his or her own physical safety, or to minimise his or her own role, commit perjury or be less than frank. It cannot be assumed that forcing a person to give such evidence will aid the accurate fact-finding of the Court and thus the interests of justice. Any decision under s.128 will require careful consideration. In exercising the power it may be relevant to consider the following matters:
§the importance of the evidence in the proceedings;
§the likelihood that the evidence may be unreliable even if a certificate is given;
§the nature of the relevant offence, cause of action, or defence and the nature of the subject matter of the evidence;
§the nature of the offence or penalty in respect of which the witness may incriminate himself or herself;
§the likelihood of any other proceeding being taken in relation to the offence in respect of which the witness may incriminate himself or herself, including penalty proceedings.
Whilst I have summarised only some of the above relevant matters I have undertaken a careful evaluation of the evidence, the wider circumstances of the case, the likely offences as identified by Senior Counsel and a determination having regard to the interests of justice, community standards and the particular individuals and offences involved.
I conclude that it is clearly within the interests of justice to require the husband to give to this Court evidence of the nature and effect to which he has deposed or referred to in his handwritten letter. If it is, for example, that the service agreement was a sham, that the husband was promised and expected to receive a sum of $1 million and if the wife was denied the financial opportunity and entitlement to a just and equitable alteration of property interests (that is of the matrimonial property component) then, and on these findings, a Certificate pursuant to s.128 of the Evidence Act should, subject to the further matters considered, issue.
IDENTIFICATION OF PARTICULAR OFFENCE
One concern that I initially held was that the husband had not identified “the particular law or at least the class of laws under which an offence arises”. (See: Lindenmayer J – paragraph 7.2 – Atkinson (supra) at p. 83817).
The husband’s evidence and exhibited letter does not, of itself, identify the particular breach of a law, for example, perjury, extortion or a conspiracy to defraud or pervert the course of justice. Those likely serious offences, and others, were identified and placed, as an interpretation of the husband’s evidence, before the Court by Senior Counsel for the respondents. Those submissions were unchallenged and were not the subject of reply.
Counsel for the husband would have been more prudent to have had his client specifically identify the laws of Australia allegedly breached by the evidence previously given in affidavit to this Court in June 2001. Nevertheless, and on balance, I do not regard that omission as fatal to this s.128 application. This case proceeded on the basis that future evidence of the type foreshadowed by the husband may tend to prove an offence had occurred. However, in my view, in the present case, the reasonableness of the husband’s apprehension and concern is very apparent from the facts and circumstances which would likely be established on the basis of the recent affidavits and his admissions in his handwritten letter.
OTHER ISSUES
It was accepted by all parties that the availability of a Certificate clearly does apply to evidence given in chief and not only under cross examination. Likewise it applies to evidence proposed to be given by affidavit as is required pursuant to the Family Law Rules. Likewise there became no issue that the person objecting was merely a witness but was in fact a party in these proceedings.
Senior Counsel for the respondents on behalf of his clients, did contend that, on the facts of this case, written notice should be given to each of the Attorney General’s for the State of Victoria and the Commonwealth of Australia. He primarily relied upon the unreported decision of the Supreme Court of New South Wales, Equity Division, No. 2720 of 1996, 17 July 1996 in HPM Industries Pty Ltd v Graham.
I do not agree. I find there is no need or issue to require that such notice be given. It is not a requirement of s.128. What this Court must do, in an orderly and proper manner, is to hear all of the evidence, determine the issues and then pronounce proper, just and equitable orders on all interlocutory and then final matters in issue. In any event the requirement of such notice to be given is discretionary and I would wholly decline to exercise such discretion in this case. I conclude that the interests of justice and the proper manner of hearing and determination of all issues in this case does not require such notice to be now given.
RESTRICTED S.128 CERTIFICATE
I had earlier set out the submission on behalf of the respondents that, if a Certificate were to be granted it should be on a limited and specified basis with orders made as to the content and requirements of the affidavit of evidence to be filed by the husband.
In discussions with Counsel during the case I had considered a limitation to the Certificate requiring the husband to confine his further evidence to relevant commercial, contractual, factual and financial matters of and relevant to any s.79 or s.106B application. It would be expected that he would cover the specific issues identified by Senior Counsel for the respondents in his written submissions. I will not make orders as to the contents of his further affidavit.
I have, on reflection and upon a consideration of previously decided authorities and the requirements of s.128 of the Evidence Act now decided not to so limit or confine evidence to be given on affidavit or otherwise in cross examination by the husband. In the exercise of my discretion I therefore propose to grant a Certificate without a restriction as to the contents of such evidence. I do so on the basis that the Family Law Rules as to the making and filing of affidavits are applicable and in particular Rule 15.09 which requires that an affidavit must be confined both to facts about the issues in dispute and to admissible evidence.
ORDER
Accordingly, and for the reasons given herein I order that pursuant to s.128 of the Commonwealth Evidence Act 1995 a Certificate be granted to the husband in respect of his evidence these proceedings in the Family Court of Australia. I have made other procedural orders and will hear counsel on the form thereof if applicable.
Accordingly the orders of the Court are:
1THAT pursuant to s.128 of the Commonwealth Evidence Act 1995 a Certificate be granted to the husband in respect of evidence to be hereafter given by him in these proceedings in the Family Court of Australia.
2THAT within fourteen (14) days the husband make, file and serve his affidavit and any other supporting affidavits in support of his Form 1A response.
3THAT otherwise the Form 2 application of the husband filed 11 July 2006 be dismissed save as to the issue of costs.
IT IS CERTIFIED
4THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel and Counsel for the 2nd, 3rd and 4th respondents and Counsel for each of the applicant wife, respondent husband and 5th respondent.
I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young
………………………………………………………..
Associate
Date: 26 July 2006
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