Kang-Kem v Paine - [2003] NSWSC 916

CITATION: Kang-Kem v Paine [2003] NSWSC 916

HEARING DATE(S): 08/10/03, 09/10/03

JUDGMENT DATE:
9 October 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Witness required to give evidence. Section 128 certificate given.

CATCHWORDS: EVIDENCE - witness objects to giving evidence on ground of tendency to incriminate him - whether reasonable grounds for objection - whether criteria in s.128(5) satisfied - requirements of "interests of justice" considered - central role of evidence in determining parties' dispute

LEGISLATION CITED: Evidence Act 1995, s.128

CASES CITED: In the Marriage of Atkinson (1997) 136 FLR 347
Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187
Lewis v Nortex Pty Ltd [2002] NSWSC 1192
R v Collisson [2003] NSWCCA 212
Versace v Monte [2001] FCA 1572

PARTIES :
Kem Weichoreak Kang-Kem - Plaintiff
Marilyn Jean Paine - Defendant

FILE NUMBER(S): SC 4091/03

COUNSEL: Mr J.T. Johnson - Plaintiff
Mr J.E. Thomson - Defendant

SOLICITORS: Harris Wheeler - Plaintiff
Sparke Helmore - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY 9 OCTOBER 2003

4091/03 - KEM WEICHOREAK KANG-KEM v MARILYN JEAN PAINE & ANOR

JUDGMENT

1 In the course of cross-examining the plaintiff yesterday afternoon, Mr Thomson, counsel for the defendant, asked him a question about a document he identified as having been sent or given by him to an accountant for the purpose of preparation of the defendant's income tax tax return by the accountant. Objection was taken by Mr Johnson, counsel for the plaintiff, by reference to s.128 of the Evidence Act 1995, that is, on the ground that the answer might tend to prove that the witness had committed an offence under an Australian law. The apprehended offence consists, in substance, of attempting or conspiring to procure the inclusion of false information in a tax return knowing it to be false, or perhaps aiding and abetting such conduct.

2 Mr Johnson sought and, with the concurrence of Mr Thomson, I granted leave to take instructions from his client in the midst of cross-examination as to whether he wished to maintain the objection that had been taken on his behalf. The objection is maintained and I must therefore follow the procedure laid down by s.128 of the Evidence Act.

3 The first task is that imposed by s.128(2), that is, to decide whether there are reasonable ground for the objection. That entails a brief consideration of the provisions of Commonwealth law. It is sufficient, for present purposes, to refer first to s.8C(1) of the Taxation Administration Act 1953 (Cth) which makes it an offence, among other things, not to give information to the Commissioner of Taxation in the manner in which it is required under a taxation law to be given. Section 8C(2) says that an offence under s.8C(1) is an offence of absolute liability so that under s.6.2 of the Criminal Code a defence of mistake is not available. Reference should also be made to Pt 2.4, Div 11 of the Criminal Code which makes an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWSC 916
Decision Date: 9 October 2003

CaseChat Overview and Summary

The matter before the court involved Kang-Kem, the plaintiff, and Paine, the defendant, in a dispute that raised significant legal issues concerning the admissibility of evidence under the Evidence Act. Kang-Kem alleged that Paine had breached a contract, and Paine objected to the testimony of a key witness, claiming it would incriminate him and that this objection was reasonable under section 128(5) of the Evidence Act. The court was tasked with determining whether Paine's objection was justified and if the evidence was central to the resolution of the parties' dispute.

The primary legal issue was whether Paine's objection to the witness's testimony was reasonable and if it met the criteria outlined in section 128(5). This provision allows a witness to refuse to give evidence if it would tend to incriminate them, provided the court is satisfied that the evidence is of such a nature that it is in the interests of justice to exclude it. The court had to assess whether the evidence was so crucial to resolving the dispute that excluding it would compromise the fairness and accuracy of the proceedings.

In evaluating the matter, the court considered the interests of justice and the central role of the evidence in determining the dispute between the parties. The court found that the evidence was indeed of a central nature, as it directly related to the core allegations in the case. However, the court also noted that the interests of justice required the evidence to be heard, as its exclusion would likely lead to an unfair outcome. The court ruled that, despite the incriminating nature of the evidence, it was necessary for the interests of justice that the evidence be admitted.

Consequently, the court ordered that the evidence be given, notwithstanding the witness's objection. The court concluded that the evidence was pivotal to the resolution of the dispute and that the interests of justice were best served by admitting it. This decision underscored the importance of the evidence in reaching a just and fair outcome in the case.

Orders