Larkin v THOMAS
[2004] FMCA 781
•26 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LARKIN v THOMAS | [2004] FMCA 781 |
| BANKRUPTCY – Evidence – hearing – admission of document allegedly brought into existence as a result of an unlawful entry – consideration of factors required by s.138 Evidence Act. |
Bankruptcy Act 1966 (Cth)
Evidence Act 1995 (Cth) s.138
Re Shields; Ex Parte Official Receiver in Bankruptcy (unreported) Beazley J FCA 7 December 1995
| Applicant: | STIRLING LARKIN |
| Respondent: | GAVIN THOMAS |
| File No: | SYG 2693 of 2004 |
| Delivered on: | 26 October 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 October 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M Sneddon |
| Solicitors for the Applicant: | Nash O’Neil Tomko Lawyers |
| Solicitors for the Respondent: | The Argyle Partnership |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2693 of 2004
| STIRLING LARKIN |
Applicant
And
| GAVIN THOMAS |
Respondent
REASONS FOR JUDGMENT
At the commencement of these proceedings, Mr Sneddon who appears on behalf of the bankrupt and also on behalf of his son, a claimant to some of the goods which are the subject matter of these proceedings, asked me to consider whether or not the seizure of those goods by the trustee had occurred in contravention of the Bankruptcy Act 1966 (Cth) (the “Act”).
The purpose of the submission at that time seemed to me to be to prevent the Trustee from claiming title to these goods and I dealt with the matter by making it clear to Mr Sneddon that whilst if the Trustee had wrongfully entered the two garages, one of which was licensed to the bankrupt and one possibly to his son, this may result in a claim in detinue, if an application had been made to me by the Trustee to retain possession of those goods thus seized, I would be minded to grant such an application on the grounds that the bankrupt had a duty to provide the Trustee with particulars of all of his assets and to give the Trustee every assistance in working out the status of his finances and for that purpose, giving the Trustee access to all necessary documents and goods.
The matter has now raised itself again because yesterday Mr Stephen Larkin the bankrupt, was cross-examined by Mr Golled ge utilising a document that Mr Golledge's client had obtained in the seizure to which I previously referred. The document was a business record being an application for finance. It is plainly a document that would belong to the Trustee and a document which the bankrupt would have had a duty to provide to the Trustee under the Act. Mr Sneddon says that it is a document that was seized in contravention of an Australian law and therefore I should exclude the tender of that document and any evidence about it pursuant to the provisions of s.138 of the Evidence Act 1995 (Cth). Section 138 of the Evidence Act is in the following form.
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.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(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.
The Act is intended to balance the value of the use of evidence improperly obtained against the vice of the improper attainment. It is a delicate balancing act, particularly in criminal proceedings, at which it is mostly aimed.
Mr Sneddon concedes that I do have a discretion whether or not to admit the evidence provided that in exercising that discretion in favour of admission I take into account the matters referred to in subparagraph 3 of the subsection. In relation to those matters I would say this:
a)The probative value of the evidence adduced is to my mind considerable. It is a document in which representations are made that appear to be contrary to the line being taken by the bankrupt in his evidence.
b)Although it is difficult at this stage to be firm about the importance of this evidence, it would appear to me from what I have heard to date that the evidence is of some significance and might tend to influence me in respect of the credibility of the bankrupt.
c)I have assumed for the purposes of this exercise that the entry by the Trustee into these garages did constitute an unlawful action. This is not admitted by the Trustee who claims that the authorities cited by the bankrupt, and in particular that of Re Shields; Ex Parte Official Receiver in Bankruptcy (unreported) Beazley J FCA 7 December 1995 are limited to cases where the bankrupt remains the registered proprietor of the premises which are wrongfully entered. I do not wish to make any determination on the decision in Re Shields but I do note that on page 8 of the version of the judgment which I have, her Honour says:
“A Trustee has no right to enter upon property of which the bankrupt is registered proprietor, unless that entry is with the consent or by leave or licence of the bankrupt (emphasis added).”
The property with which we are dealing here was not real property in respect of which the bankrupt is a registered proprietor. It seems to me that at most the bankrupt would have some right in equity which may well be no greater than his trustee’s right.
d)In considering the gravity of the impropriety or contravention, one must take into account the bankrupt's obligations and the fact that up until the time the property was seized no effort had been made by the bankrupt to hand over that property to the Trustee in contravention of his responsibilities and obligations under the Act.
e)If there was any impropriety on the part of the Trustee I am unable to say at this time that it was deliberate, insofar as that involves the Trustee knowing that what he was doing was wrong. He may well have been advised that he had no need to seek a warrant under the Act. To the extent that he received such advice, whether it was right or wrong, it would be difficult to find that the Trustee was reckless.
Having considered all the matters required by subs.138(3) I am of the view that it is in the interests of justice that this evidence be admitted and I so admit it.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
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