LGM & CAM

FAMILY COURT OF AUSTRALIA

LGM & CAM

[2011] FamCAFC 195

FAMILY LAW - APPEAL – Procedure – Where the wife asserts that the trial judge erred in not dismissing the contravention application brought by the husband by reason of a defect in service on the husband’s part – Where the wife had not raised a complaint about service and had agreed that she accepted service of the relevant documents – Where counsel for the husband indicated that he was in a position to prove service of the relevant documents – No appealable error established

FAMILY LAW - APPEAL – Procedure – Where the wife asserts that the trial judge erred in permitting the husband to rely on certain material that was handed up in court but not previously filed – Where the husband had served the relevant material on the wife prior to the hearing – No appealable error established

FAMILY LAW – APPEAL – Findings of fact – Where the wife asserts that the trial judge erred in finding that she was aware at the relevant time of an injunctive order which she was alleged to have been in contempt of and contravened – Where there was abundant material before the trial judge to make such a finding – Where the wife was present in court when counsel for the husband foreshadowed the making of the application for such an injunctive order – Where the wife was present in court when the injunctive order was made although not when the sealed copy was handed to the parties – Where the wife was given an opportunity to read a sealed copy in subsequent cross-examination by counsel for the husband – No appealable error established

FAMILY LAW – APPEAL – Findings of fact – The standard of proof to be applied in relation to contempt and contravention applications – Where the wife asserts that the trial judge erred in finding that she dated three cheques in contravention of an injunctive order – Where the wife claimed that she had written the cheques prior to the injunctive order but that a third party had subsequently dated and banked the cheques in contravention of the injunctive order without her knowledge – appealable error established – inadequate reasons – inconsistent reasoning

FAMILY LAW – APPEAL – Evidence – ss 128 and 138 of the Evidence Act 1995 (Cth) – Where the contempt and contravention applications were filed before the completion of property settlement proceedings – Where the wife was cross-examined by counsel for the husband during the property settlement proceedings – Where the wife was told by the trial judge in the property settlement proceedings that she had been given a certificate pursuant to s 128 of the Evidence Act in relation to future evidence with respect to the alleged contraventions leaving past evidence unprotected – appealable error established – the trial judge in the property settlement proceedings erred in failing to inform the wife of her privilege against self-incrimination and the trial judge in the contempt and contravention proceedings erred in not excluding her self-incriminating evidence which had been improperly obtained under s 138 of the Evidence Act

FAMILY LAW – COSTS CERTIFICATE – s 9 of the Federal Proceedings (Costs) Act

Evidence Act 1995 (Cth), ss 128 and 138
Family Law Act 1975 (Cth)

Bodnar v Townsend [2003] TASSC 148
Briginshaw and Briginshaw (1938) 60 CLR 336
Director-General, Department of Community Services; Re Sophie [2008] NSWCA 250
Director of Public Prosecutions (NSW) v AM (2006) 161 A Crim R 219
Ollis v Melissari [2005] NSWSC 1016
Parker v Comptroller-General of Customs (2009) 83 ALJR 494
R v Cornwell (2003) 57 NSWLR 82
R v Sorby (1983) 152 CLR 281
Reid v Howard (1995) 184 CLR 1
Ross v Internet Wines Pty Ltd [2004] NSWCA 195
Song v Ying [2010] NSWCA 237
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Zoneff v R (2000) 200 CLR 234

APPELLANT:

LGM

RESPONDENT:

CAM

FILE NUMBER:

SYF

3359

1997

APPEAL NUMBER:

2010

DATE DELIVERED:

Sydney

PLACE DELIVERED:

28 September 2011

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace & Crisford JJ

HEARING DATE:

15 June 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 July 2009 and 25 February 2010

LOWER COURT MNC:

[2009] FamCA 575 and [2010] FamCA 289

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

LGM in person

Orders

That the appeal against the orders made by the Honourable Justice Barry on 2 July 2009 and the sentence imposed by the orders made by the Honourable Justice Barry on 25 February 2010 be allowed.
That the orders made by the Honourable Justice Barry on 2 July 2009 and the sentence imposed by the orders made by the Honourable Justice Barry on 25 February 2010 be set aside.
That the appellant wife be granted a Certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that states that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym LGM & CAM is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 25 of 2010
File Number: SYF 3359 of 1997

LGM

Appellant

And

CAM

Respondent

REASONS FOR JUDGMENT

LGM (the “wife”) appeals against a finding by Barry J that she contravened an order of this court and against the consequential sentence of imprisonment imposed by his Honour.
The husband, CAM did not appear on the hearing of the appeal. His solicitors wrote to the court and said:
We have had an opportunity to review the appellant’s summary of arguments and list of authorities, which was forwarded to our office on 24 May 2011.
Although our client opposes the appeal, in light of the summary of arguments, we are instructed that our client will not be actively involved in the appeal and proposed to appear by way of a submitting appearance save as to costs.

Background

It is necessary to traverse some of the background to the litigation between the parties to give context to the appeal.
Between November 2007 and 5 September 2008 the parties’ property proceedings were heard by O’Ryan J. The evidence in the matter was given over some 65 days. At the conclusion of those proceedings the husband brought contempt and contravention applications against the wife based on alleged breaches of orders made by O’Ryan J and said to have been admitted by her in her evidence given in the property proceedings. The parties to the property proceedings were the husband, the wife, her parents, her sister, Kiew Cultural Association and Horlim Pty Limited (in liquidation) referred to as “Horlim”. The wife’s name before she was married was Yu.
During the hearing of the property dispute, O’Ryan J on 28 November 2007 made the following order:
1.Until further order each of the First, Second, Third and Fourth Respondents by themselves their servants and agents:
1.1be restrained from withdrawing or disbursing any moneys from any bank account in the name of either:
a.       [Horlim] Services Pty Ltd (“[Horlim]”)
b.      [Lypim] Pty Ltd (“[Lypim]”)
c.      The First, Second, Third and/or Fourth Respondents (“the [Yu] Respondents”) either solely or jointly with any other person or from any other bank account in which any of the [Yu] Respondents have a beneficial interest
except for expenses in the ordinary course of business or for ordinary living expenses, such living expenses being limited to $600 per week for each of the [Yu] Respondents.
1.2be restrained from:
a.       withdrawing cash in relation to the bank accounts identified in Order 1.1 above (other than an amount of cash from bank accounts for an amount of $600 per week for ordinary living expenses as identified in Order 1.1 above) and/or
b.      requesting bank cheques drawn from bank accounts identified in Order 1.1 above…
The order also provided for notice to be provided to the husband through his solicitor of any intended withdrawal by bank cheque.
Order 2 required all respondents to produce to the court all bank statements, invoices and deposit slips in their possession in the name of Horlim, Lypim and any of the Yu Respondents for the period 20 August 2007 to 4 December 2007. It further required all respondents to produce any financial documents of the type referred to in the order received after 4 December 2009 and to provide all cheque butts and cashbooks.
Order 4 directed all respondents to provide a list of all bank accounts “held in their name and the name of [Horlim] and [Lypim] including name of bank, bank account number and account name”.

Contempt and Contravention Charges

The husband asserted that the wife was in contempt of order 1 of 28 November 2007 or had contravened the order (within the meaning of s 112AD of the Family Law Act 1975 (Cth) (“the Act”)) because on three occasions she had caused money to be withdrawn from her superannuation fund, the L Yu Superannuation Fund, held at the St George Bank and had caused the money to be deposited into a bank account in the name of Horlim at the National Australia Bank. It was alleged that the breaches occurred on 19 December 2007 when $15,400.00 was transferred; 8 January 2008 when $13,100.00 was transferred and between 8 January and 23 January 2008 when a further sum of $28,600.00 was transferred.
The husband further alleged that the wife failed to disclose the existence of a Horlim bank account at the National Australia Bank, account number …603 and failed to produce bank statements and other documents relevant to the account in breach of orders 2 and 4 of 28 November 2007.
This appeal concerned only the findings against the wife.
Each of these asserted contempts and/or contraventions alleged that the wife’s sister aided and abetted the wife’s contempt or contravention of the order. The wife’s sister, Gina Yu, did not appear and no issue in the appeal related to the proceedings against Gina Yu.
These asserted breaches founded five contempt charges and five contravention charges.
The allegations in relation to the contravention charges are the same as for the contempt charges and we will set the contempt charges out in full:
(1)On or about 19 December 2007 and in contravention of order 1 of the orders made by O’Ryan J on 28 November 2007, the First Respondent without reasonable excuse wrote a cheque upon and thereby authorised and directed the withdrawal from the St George Bank account in the name of the [L Yu] Superannuation Fund (with BSB and account number [...361]) being an account and monies in respect of which the First Respondent had a beneficial interest, an amount of $15,400.00 which amount was then caused to be paid by or at the direction of the First Respondent into the bank account held in the name of [Horlim] with the National Australia Bank (with BSB and account number […113]).
(2)On or about 8 January 2008 and in contravention of order 1 of the orders made by O’Ryan J on 28 November 2007, the First Respondent without reasonable excuse wrote a cheque upon and thereby authorised and directed the withdrawal from the St George Bank account in the name of the [L Yu] Superannuation Fund (with BSB and account number […361]) being an account and monies in respect of which the First Respondent had a beneficial interest, an amount of $13,100.00 which amount was then caused to be paid by or at the direction of the First Respondent into the bank account held in the name of [Horlim] with the National Australia Bank (with BSB and account number […113]).
(3)On a date between about 8 January 2008 and 23 January 2008 and in contravention of order 1 of the orders made by O’Ryan J on 28 November 2007, the First Respondent without reasonable excuse wrote a cheque upon and thereby authorised and directed the withdrawal from, the St George Bank account in the name of the [L Yu] Superannuation Fund (with BSB and account number […361]) being an account and monies in respect of which the First Respondent had a beneficial interest, an amount of $28,600.00 which amount was then caused to be paid by or at the direction of the First Respondent into the bank account held in the name of [Horlim] with the National Australia Bank (with BSB and account number […113]).
(4)On or about 4 December 2007 and in contravention of order 4(b)(i) of the orders made by O’Ryan J on 28 November 2007, the First Respondent without reasonable excuse deposed to the contents of an affidavit (being an affidavit sworn or affirmed jointly with the Second Respondent) in response to the orders of 28 November 2007 but without disclosing the existence of the bank account held in the name of [Horlim] (with BSB and account number […113]).
(5)On or about 4 December 2007 and in contravention of orders 2(a) and 2(c) of the orders made by O’Ryan J on 28 November 2007, the First Respondent without reasonable excuse failed to produce to the court any original or copy bank statements, deposit slips or cheque butts for the bank account held with the National Australia Bank in the name of [Horlim] (with BSB and account number […113]).
The contempt and contravention applications were heard by Barry J. His Honour dismissed all contempt charges brought against the wife and the two charges alleging contravention of orders 2 and 4 of 28 November 2007 made by O’Ryan J. The wife was convicted of three contraventions of order 1 and on each sentenced to three months imprisonment to be served concurrently.
On 9 September 2008 Barry J considered whether a prima facie case had been established on the applications and, having found it established, his Honour then proceeded to hear the contempt and contravention applications and delivered reasons for his decision on 2 July 2009. The sentence hearing took place in July 2009 and on 25 February 2010 his Honour imposed a sentence of 3 months imprisonment in relation to each conviction and ordered that the sentences be served concurrently. His Honour stayed the operation of the sentences pending the outcome of the appeal to this court.

Appeal

The wife appeared for herself, as she had in the hearings before Barry and O’Ryan JJ. Her first language is not English. We will set out the grounds of appeal in full.
Eleven grounds of appeal were asserted in an Amended Notice of Appeal filed 10 June 2010:
1. That the trial Judge erred in law with an irregularity in the conduct of the criminal proceeding in permitting counsel acted on behalf of the husband to change their allegation of a NAB bank account number to a different NAB bank account number in Court in support of husband’s contempt application and contravention application in the morning of the hearing day being the 8 September 2008.
2. That the trial Judge was aware of service issue notwithstanding the wife had not taken the Court time to address or explore three (3) other service issues being the litigant in person had adopted the propositions that the trial Judge would dismiss husband’s contempt and contravention applications directed by Mr Vladimir Dombrovski of Baldwins Solicitors for the reason of the above Ground Number One.
3.          That the trial Judge erred in assessing the significant risk of the nature of the injuries for leave was sought by husband’s counsel to rely on three (3) folders VMD1, VMD2 hand up in Court in the morning of the hearing day being the 8 September 2008 without filing such material in the lower Court.
4.          That the trial Judge erred in failing to take into account the wife had any knowledge or understood the terms and meaning of the order of the Honourable Judge O’Ryan of 28 November 2007 knowingly English was not the wife’s first language.
5.          The trial Judge erred in his orders and reasons for judgments of 2 July 2009, 25 February 2010 and 2 March 2010 that there were not available on the evidence nor supported by any evidence that the wife dated any of three (3) cheques and could not draw or date cheques at time was imprisoned.
6.          That the trial Judge erred in failing to consider the wife had a comprehension that an overall privilege order or certificate had been granted by the Honourable Judge O’Ryan that any evidence had given by cross examination during imprisonment could not further incriminate the wife.
7.          That the trial Judge erred in the exercise of his direction failing in dealing together with the applications of the wife against the husband’s contempt and contravention concurrently which were filed on 30 June 2008 care of the [prison] and failing to give any adequate reasons in the exercise of his discretion.
8.          That the trial Judge erred with apprehension of bias in taking his views by inference from the Honourable Judge O’Ryan by delivering his Order of the 2 July 2009 care of the Honourable Judge O’Ryan on the 2 July 2009 and erred in affording too much weight of the substantial order from the Honourable Judge O’Ryan of the 3 April 2009 that His Honour O’Ryan J stated on 29 May 2009 it was deliberately made.
9.          That the trial Judge erred and biased as to the process of finding facts by inference from the order of the Honourable Judge Cohen in 2004/2005 and failed to take into account certain matters in determining credit.
10.         That the trial Judge erred in law failing an assessment to its own facts of evidence related to the wife’s post divorce contribution had not only raised significant funds alone in the benefit of the husband and associated companies but also should have been considered the wife had purged or paid the fine more than one hundred (100) times without admitting any intention of contravention.
11.         That the trial Judge failed to have regard to the potential impact on the risk of the wife with two (2) children of the marriage where the effect from further order of the Honourable Judge O’Ryan of 19 November 2009 by transferring matrimonial home to the husband paying legal fee of the husband’s counsel and Baldwins solicitors were almost dismissive of the stable environment in which [the parties’ daughter] had been raised.
In the light of the decision we have reached about the appeal, it will not be necessary for us to consider all of the asserted grounds in detail, some of which do not raise proper issues for determination on appeal. In particular, grounds 7, 10 and 11 are not proper grounds of appeal and we do not propose to consider them further. Ground 8 challenges the circumstances in which the reasons of Barry J were delivered to the parties. It seems that Barry J was unable to deliver the orders and publish his reasons and O’Ryan J did so on his Honour Barry J’s behalf. We are of the view that nothing turns on this asserted ground. Finally, ground 9 appears to raise a challenge to the sentence imposed by Barry J asserting that his Honour took into account or gave undue weight to a previous sentence imposed on the wife in respect of an earlier breach. Given our conclusion in relation to this appeal, it is not necessary to consider this ground in detail.
The wife prepared written submissions in which she expanded on the appeal grounds.
In order to understand the challenge to Barry J’s findings and orders, it is necessary to consider what occurred in the hearing before his Honour and also in the hearing before O’Ryan J.

Proceedings before Barry J

On 9 September 2008 his Honour Barry J considered the question of whether the husband had established a prima facie case on the charges.
His Honour found that the applications had been served on the wife and she knew of the orders at the relevant time.
There was no dispute that three cheques were written against the wife’s superannuation account; that the proceeds were deposited to a NAB account in the name of Horlim and that the wife wrote out the cheques. The dispute was whether the wife dated the cheques and whether the dates on the cheques were written approximately at the time of their presentation.

At this hearing his Honour observed that in the charges relating to the failure to disclose the NAB bank account, the bank account number of the relevant account was incorrectly described on the charge. The number of the account which it was said that the wife had failed to disclose was referred to as ending in …113, but the charges asserted she had failed to disclose the existence of account number …603. His Honour permitted the husband to amend the applications to reflect the correct bank account number.
It is also apparent that the evidence on which the applications were based was in several large folders which had not been individually filed but which were exhibited to the affidavit of the husband’s solicitor. His Honour permitted the husband’s solicitor to give evidence in which he swore to the contents of the folders. His Honour also noted that the folders of evidence had been served on the wife before the hearing commenced.
As we have indicated, his Honour was satisfied that a prima facie case was established and heard the contempt and contravention applications.

Grounds 1, 2 and 3

These grounds complain about procedural “irregularities” in the presentation of the applications by the husband before Barry J on 9 September 2008. Ground 1 asserts that his Honour erred in permitting the husband to amend the applications to correct the bank account number in relation to charges 4 and 5. Ground 2 relates to service of the applications and supporting documents. Ground 3 concerns the affidavit to which the supporting documents were attached.
Ground 1 relates to charges that were dismissed both as to contempt and as to contravention and does not therefore raise any issue to be considered on this appeal.

Ground 2

This ground concerns a “service issue”. The thrust of the ground is that his Honour was aware of a defect in service of the documents and, although the wife did not raise a complaint about service with him, fell into error in not dismissing the husband’s applications.
At the outset of the hearing on 9 September 2008, the matter of service of the applications was raised. The wife said that she had no problem about “proper service of [the] documentation” being the counts and the “supporting affidavit material”. The wife indicated that she had received the three volumes of material on which the husband relied to prove the charges.
Barry J again asked the wife whether she accepted service of the documents and she agreed. There is no doubt that the wife objected to the application to amend the charges to show different bank account numbers and his Honour overruled that objection. She also said that she did not receive the letter notifying her of the proposed amendment which was sent the day before the hearing commenced.
It seems to us that the wife raised no objections about service per se (save as to the letter). In discussion with the trial judge, counsel for the husband indicated that he was in a position to prove service and indicated to his Honour that service of the documents was effected on 23 July 2008. He clarified that the applications were served by hand and the affidavit and volumes of documents served by post.
We are of the view that this ground of appeal fails.

Ground 3

The wife further asserts that the trial judge erred in permitting the husband to rely on the three volumes of material to support the applications that were “hand up [sic] in Court in the morning of the hearing day… without filing such material in the lower Court”.
When the matter commenced, counsel for the husband sought to tender the three volumes of material which had been exhibited to the affidavit of the husband’s solicitor. It is also clear that the wife had at least read some of the documents because she raised a missing document with Barry J.
Yet, she later denied ever having seen the three folders of documents before. It is not clear from the transcript whether she was referring to the actual folders or the contents in which case it would be inconsistent with her earlier comments.
However, the thrust of this ground is not that she did not receive the documents, but that they had not been filed in advance of the hearing.
His Honour observed that since the wife was unrepresented she was not in a position to take any objections to material in those volumes that might be inadmissible and put the husband to proof as to the admissibility of the transcripts of the hearing before O’Ryan J and as to the admissibility of anything recorded on the transcripts by way of remarks by counsel from the bar table.
We see no error in the procedure adopted by his Honour nor in the manner of tendering the voluminous supporting material at the hearing when the documents had been served on the wife in advance of the hearing.
This ground of appeal fails.

Ground 4

This ground challenges Barry J’s finding that at the relevant time the wife was aware of the orders of 28 November 2007 made by O’Ryan J.
His Honour made this finding in the judgment as to the establishment of a prima facie case at [4]. His Honour took into account that on 4 December 2007 the wife swore an affidavit in the proceedings before O’Ryan J that indicated to him that she was aware of the orders.
In submissions on this issue counsel for the husband indicated that the wife:
…was in court at the time that the orders were made, that is on 28 November 2007. Although she was not physically in court at the time that the sealed copy of the orders was circulated to the parties by his Honour O’Ryan J’s court officer, she very shortly thereafter was provided with a copy…
It seems undisputed that, while the wife was present in court when the injunctions were made, she was not in court when the sealed copy was handed to the parties.
The orders of 28 November 2007 were made after the proceedings before O’Ryan J had commenced. Counsel for the husband foreshadowed an application for injunctions on 20 November 2007 at a time when the wife was present in court. The issue was further agitated on 22 November 2007 and there was discussion about the terms of the proposed injunctions, counsel for the husband having prepared a minute of the orders sought.
O’Ryan J made the injunctions (in terms of the minute of proposed orders) on 28 November 2007. It is clear that the wife was in court at the time.
On 30 November 2007 the wife was cross examined by counsel for the husband. He immediately showed the wife the sealed document containing the injunctions made and she was given an opportunity to read it.
There was abundant evidence before Barry J on which he could properly come to the finding that the wife was, at the material time, aware of the injunctions ordered by O’Ryan J.
This ground of appeal fails.

Ground 5

The trial Judge erred in his orders and reasons for judgments of 2 July 2009, 25 February 2010 and 2 March 2010 that there were not available on the evidence nor supported by any evidence that the wife dated any of three (3) cheques and could not draw or date cheques at time was imprisoned.

Some elucidation of this ground was gleaned from the wife’s written argument in which she said:
…
Mr Bedrossian did not prove the wife “dated” three (3) cheques on the “date” of 19 December 2007, 8 January 2008 and 23 January 2008, the trial Judge could not safely infer to determine wife’s contravention as it is not open to the trial Judge predetermined with bias that the law requires matters to be strictly proven, where his Honour Barry J said he have some difficulty reconciling the dates the trial Judge therefore did not demonstrate nor properly addressed on this topic, his view contradicted to his judgment was plainly erred on 25 February 2010.
…
In his judgment of 9 September 2008 on whether the husband had established a prima facie case, Barry J said:
…
13. It is said, that on three dates asserted in the contempt document, being 19 December 2007, 8 January 2008 and between 8 January 2008 and 23 January 2008 three cheques were drawn, signed by [the wife]. My attention was drawn to passages of the transcript which would indicate that [the wife] concedes the handwriting on the cheques in question is her handwriting.
…
17. In volume 1 at tab 34, transcript page 2,918, it was put to her:
The truth is you didn’t decide to write these cheques until shortly prior to the dates that the cheques actually bear, that is right? --- That is right.
18. [The wife] now says, from the Bar table, that she did not write the dates on the cheques. What difference, if any, that makes I am not able to say at this point in time.
…
His Honour found at a prima facie level that the charges of contempt and contravention were made out.
His Honour delivered further reasons on 2 July 2009 after hearing from the wife. His Honour considered the contempt charges first, then having dismissed each of them, turned to consider whether the husband had established the contraventions alleged.

Findings on Contempt Charges

In relation to the contempt charges 1, 2 and 3 concerning the cheques, Barry J said:
…
11. These charges relate to three cheques. The First Respondent [LGM] admitted in evidence on a previous occasion that the writing on the three cheques is hers. The payee in each instance is [Horlim]…
12. [The wife] in her evidence before me says she did not insert the dates on those cheques. The originals of the cheques are not in evidence. The originals may reveal whether the dates were in a different pen which could be consistent with the claim that they had been inserted at a later date in time. It is not possible to make this distinction from the photocopied documents exhibited.
…
His Honour then set out the evidence given by the wife in cross-examination by counsel for the husband in the proceedings before O’Ryan J (extracted in these reasons at paragraph 95 and following) and noted at [14]: “…It is clear from the terms of the cross examination that Counsel paid no attention to the witness’ claims that the cheques were signed by her prior to the date of his Honour’s Order in November 2007”.
His Honour at [20] referred to the wife’s evidence in relation to the cheques that she had decided to sell some shares invested in Asgard and in September 2007 arranged to buy certain equipment on behalf of Horlim. Invoices corresponding to the withdrawals and dated before O’Ryan J’s orders were annexed to the wife’s affidavit. His Honour said: “I must say that this part of the witness’s evidence certainly seemed credible”.
His Honour said at [24]: “…Her position is she entered into these transactions prior to the date of the injunction of 28 November 2007 and the fact the cheques were later banked by someone else was beyond her control”.
His Honour said that he was not, on the evidence before him, prepared to find that the wife did not instruct Asgard to sell the shares in September 2007.
Turning to a consideration of her credit, at [39] his Honour did not accept the wife’s assertion that by mid 2007 she was no longer employed by Horlim and found that it contradicted evidence that she had given to O’Ryan J. His Honour also accepted that the wife had given inconsistent versions about why the cheques had been drawn on the superannuation account – that is in payment of invoices for goods ordered and by way of prearranged payments to interest on an account.
As to her evidence about drawing the cheques to pay the invoices, his Honour said at [44] and [45]: “…Her evidence is not specific on when the cheques were signed. It may be the cheques were signed after the invoices issued…There was on my recollection no cross examination directed to this issue”.
A perusal of the transcript extracts contained in appeal books of the evidence before Barry J confirms that no cross-examination was directed to this issue before O’Ryan J.
At [47] he said:
I am cynical as to the legitimacy of the invoices but I am unable to say to the degree of certainty necessary that the invoices are not genuine, nor am I prepared to say that the cheques written were not used to pay those invoices and such transactions were prior to the date of the Orders made by O’Ryan J, notwithstanding the dates were inserted at a later point in time. [The wife’s] evidence was she had not written the dates on the cheques and there are reasons for accepting that may be so. The First Respondent was in prison as from 10 January 2008. If it is claimed the cheques were written on the dates the cheques bear it is unlikely she dated the cheque for the 23 January 2008. The more probable explanation is that [the wife] post dated the cheques or someone else inserted the dates around the time they were to be banked. (our emphasis)
His Honour therefore dismissed the contempt charges referrable to the writing of the cheques.

Findings on Contravention

At [100] and following of the judgment his Honour considered the contravention charges alleged against the wife.
He said:
100. I find it more likely than not that in late December 2007 and early January 2008 the First Respondent instructed Asgard to sell certain investments. The investments were sold as detailed in paragraph 28 hereto. On the First Respondent’s instructions the proceeds from the investments were deposited to her superannuation account at St George Bank in Perth. On dates unknown but after the 28 November 2007 she wrote cheques for $15,400 and $13,100 respectively and arranged for such cheques to be deposited to an account in the name of [Horlim] at the National Australia Bank, … branch. The existence of this [Horlim] account had not been previously disclosed to the Applicant or to the Court.
101. I find the First Respondent was still employed as the operations manager at [Horlim] at the time these deposits were made to the [Horlim] account. A third cheque dated 23 January 2008 in the amount of $28,600 was also deposited on that date. It is a matter of record that on or about 10 January 2008 the First Respondent was incarcerated in … Prison to serve a sentence of imprisonment following the making of orders by the Full Court of this Court on that date.
102. It is unlikely the First Respondent wrote this third cheque after her incarceration. It is more likely she post-dated the cheque or arranged for someone else to date the cheque.
103. There is convincing evidence that the Second Respondent who completed the deposit slips was absent from Australia on overseas travel between 2 January 2008 and 18 January 2008. I am unable to conclude that the dates on the cheques were inserted by the First Respondent but it does not impact on the other findings that I have made. There is no evidence that the First Respondent attended to the depositing of any of the cheques to the [Horlim] account.
At [104] to [108] his Honour outlined the basis for finding that the version of events posited at [101] to [103] was “to be preferred over the First Respondent’s account”. His Honour noted:
104. …The First Respondent has given different explanations as to how/why the cheques were written. In the first account she says she wrote the cheques well before the Orders of 28 November 2007 and left them on her desk at the [Horlim] office in payment of company liabilities. It was never explained why an employee should be paying the company’s debts. She says thereafter someone dated the cheques and attended to depositing them to the [Horlim] account with the National Australia Bank which was a loan account secured by a mortgage over the business premises.
105. The First Respondent’s evidence is that there were only four employees of [Horlim] at that time. [Horlim] was a family company with her sister being a director. There is no satisfactory explanation why the First Respondent could not make enquiries from staff or from a perusal of banking records to ascertain who dated and banked the cheques. Such evidence would, if accepted provide an explanation why the cheques which she says were signed months earlier were not negotiated until December 2007 and January 2008.
106. The second explanation given by the First Respondent is as set out in her affidavit sworn on 4 September 2008 namely the cheques were written to pay for invoices issued by [Horlim] for the supply of [electronic equipment]. The invoices are dated 4 September 2007 ($15,400), 17 September 2007 ($13,100), and 5 October 2007 ($38,600). The Respondent says these invoices were sixty day invoices but she wrote the cheques at the time the invoices were received in payment of the goods supplied being computer parts and accessories.
107.Why these invoices were not produced when the contempt/contravention charges were filed in June 2008 is not explained. If they represent an accurate account of how the cheques came to be written it is difficult to understand why the First Respondent did not say so at a much earlier point in time instead of giving evidence of having written the cheques prior to his Honour’s Orders to meet longstanding mortgage commitments. Simply because the First Respondent has given two explanations as to why she wrote the cheques does not mean either version is correct but it must reflect adversely on her credibility particularly when the civil standard of proof is applicable.
His Honour noted that the wife gave other inconsistent evidence about whether she was employed by Horlim in December 2007 and concluded at [109]: “On balance I am prepared to find the First Respondent contravened the Orders of 28 November 2007 as particularised in counts 1, 2 and 3”.
When he came to sentence the wife, his Honour at [11] seems to have accepted that the cheques were written in payment of interest on the loan secured over the company’s business premises in R and noted that the effect of the depositing of the three cheques into the Horlim account reduced the mortgage liability on that property. His Honour said at [21] that the wife changed her account of why the cheques were written and said that they were to pay the invoices. His Honour noted that he was “not able to reject that explanation beyond a reasonable doubt” no doubt implying that he was able to reject it on the civil standard.
His Honour referred to the wife’s assertion that she had written the cheques in July before the orders were made and referred back to his reasons delivered in July 2009 for rejecting that assertion, apparently because he rejected her other evidence. He added at [29] that it was most likely that the invoices were “sham” documents.
Finally at [30] his Honour rejected the wife’s credibility absolutely, finding that he would not accept her unless corroborated by independent reliable source.

Discussion

It is clear from his Honour’s reasons of 2 July 2009 that, applying the criminal standard of proof, he was unable to find that the wife had inserted the dates on the cheques.
Equally, when considering the contempt charges, his Honour observed that while there were inconsistencies in her account about the purpose for writing the cheques he could not with “the degree of certainty necessary” say that the invoices were shams. He was not able to find that the cheques were not written by the wife before the orders and dated some time later.
However, when he came to consider the contravention charges, his Honour having rejected the wife’s account of why the cheques were written, proceeded to reject her evidence that she had not dated them and found that she had and, further, found that when she was in prison had arranged for someone else to date the cheque.
It is clear from the judgment that his Honour’s findings of fact were guided by the differing standards of proof operating in relation to the two applications. His Honour was obviously aware that in relation to the contempt charges the criminal standard applied. It seems that his Honour took this to require any finding of fact be reached only on satisfaction of that standard. While we do not agree that this is in conformity with the law which requires that (save in circumstances not relevant to this matter) only the essential elements of the offence be proved beyond reasonable doubt, his Honour’s approach operated in favour of the wife in relation to the contempt charges on which she was found not guilty.

It is to be borne squarely in mind that, while the contravention applications required proof of a different order to the contempt allegations, they are properly described as being “quasi criminal” and can attract a custodial sentence.
When his Honour turned to deal with the contravention allegations he was required to determine whether they or any of them had been made out on the civil standard, but he was nonetheless to be guided by the principles articulated in Briginshaw v Briginshaw (1938) 60 CLR 336.
This does not mean that some higher test than that applicable to other matters where proof is to be found on the balance of probabilities is to be applied, rather, as per Dixon J at [362], the court is required to have regard to the following:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
In Director-General, Department of Community Services; Re Sophie [2008] NSWCA 250, the court considered the balance of proof where the “Briginshaw test” applies and said at [68]:
As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly.
It seems to us two issues arise. Firstly, his Honour, having found the wife not to be a credible witness and thus rejected her evidence that she had not dated the cheques, from that, concluded that she had written and dated the cheques proximate to their presentation and, further that she had arranged for someone to date the cheque presented when she was in prison. Secondly, his Honour in reaching the conclusions that he did about the circumstances in which the cheques were dated and, by inference written, did not sufficiently expose his reasons for these findings.
As the High Court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said in Zoneff v R (2000) 200 CLR 234 at [23], when considering the appropriate direction to a jury about lies told by an accused person, said that a jury must be told that they: “… do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt”.
At [57] Kirby J said, again apropos the trial judge’s responsibility in charging the jury on the issue of lies:
Thirdly, when it comes to lies, or alleged or suspected lies, there is a general consideration which will ordinarily need to be taken into account by a judge in deciding whether directions of some kind are necessary to discharge the judge's primary function. I refer to the concern expressed in the well known decision of the Privy Council in Broadhurst v The Queen delivered by Lord Devlin:
It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado…
If his Honour’s finding that the wife signed and dated the cheques in contravention of O’Ryan J’s order flowed solely from his rejection of her as a credible witness, then, in our view he was in error.
Further his Honour, after rejecting the wife’s evidence (as he was entitled to do) drew the conclusions about how the cheques came to be written and dated on facts and circumstances established by the evidence, he did not expose his reasoning and, in that case erred.
We observe that the emphasised portion of his Honour’s reasons at [47] as to the probability of a series of events seems to us to be materially inconsistent with his subsequent findings made on the contravention proceedings, for, if he were not satisfied beyond reasonable doubt of necessary facts to prove the contempt but was satisfied that a version of events was “more probable” that seems to us to be a finding on the civil standard about the same evidence. It is then difficult to reconcile that expressed view with his findings that the wife did date and sign the cheques in breach of O’Ryan’s orders.
It is unnecessary for us to traverse the well known authorities about a judge’s obligation to give reasons, save to refer to the decision of the Court of Appeal in the Supreme Court of New South Wales in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, and in particular the judgment of McHugh J, then a Judge of Appeal, at [279]:
…without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In our view, his Honour’s reasons do not, to the necessary extent, allow the reader to understand and ascertain the reasoning process engaged in coming to that conclusion.
In either event, his Honour’s decision cannot stand and we propose to uphold the appeal on this ground.

Ground 6 – Privilege against Self Incrimination and s 128 of the Evidence Act

As we have indicated, the applications for contempt and contravention were filed before the completion of the hearing before O’Ryan J. The material on which the applications were made arose from the evidence of the wife given in cross-examination during the property proceedings.
The appeal books comprise the material on which the husband relied in support of the contempt and contravention applications. Included are extracted portions of the transcript of the proceedings before O’Ryan J. It seems that the wife’s cross-examination by husband’s counsel was attenuated and spanned a number of days over periods of months.
On 20 March 2008, after inspecting documents produced to the court, counsel for the husband informed O’Ryan J that about $59,000.00 had been withdrawn from Asgard (a capital management fund). Counsel indicated that he wished to cross examine the wife further in the light of the produced documents.
His Honour said of the documents: “…Mr Bedrossian contends that that reveals that certain withdrawals had been made subsequent to orders he says I made in November last year…”
Counsel then discussed with his Honour the order said to have been breached.
The transcript makes it apparent that the wife had not inspected the documents produced (because she was in custody) and there was some discussion about transmitting a couple of pages of the documents to her.
Counsel for the husband began to cross examine the wife about cheques drawn on her superannuation fund and deposited to the account of Horlim. The wife was asked:
…
…on about 20 December 2000, did you authorise some dealing in the amount of approximately $15,000.00 with funds in the Asgard Capital Management account? --- Yes.
…
…This is prearrangement payment from the account just prior to probably September because I wasn’t an employee of [Horlim] since 2007. But there’s a joint obligation expenses have to be paid.
So when you say a prearranged, is your evidence that you knew in about September that an amount of $15,000 approximately was going to be withdrawn at some point from this superannuation account? --- Yes.
…
Do you know where those moneys went? --- In the same bank as I borrowed the money to pay the interest on this mortgage from the [Lypim No. 7, R Street] every since 1994 when the interest is joint obligation…
[LGM], just so I understand so that I’m not confused about anything, you agree, do you, that the amount of $15,000.00 in late December was paid to [Horlim], was it? --- Is agreed.
To whom do you say it was paid? --- National Bank for the interest [Lypim] incurred as a guarantor for [Horlim].
…
So is your evidence that all three payments in late December 2007, early January 2008 and late January 2008, which cumulatively add up to approximately 57 to 59 thousand dollars, that those amounts all went to the National Australia Bank to pay interest on the loan secured against [No. 7 R Street]? --- I don’t remember the day of the month, but that’s a prearrangement. I need to pay all the money from [Horlim] but in a way I’m paying your client’s obligation since 1997.
But you agree that those moneys in those approximate amounts on those approximate dates was paid by you to National Australia Bank? --- Care of [Horlim], yes.
…
…Who do you say authorised the withdrawal of these amounts from this Asgard account? --- Me.
…
When you withdrew these amounts from the Asgard account – and I'm talking about the three amounts, one in December ’07, one in early January ’08 and another in later January ’08 – you were on each occasion provided with a cheque, weren’t you? --- No.
How do you say the funds were physically or electronically withdrawn? --- Well, I signed the cheque that’s prearrangement since July 2007 and I wasn’t an employee of [Horlim]…
…
[LGM], who was the person who physically dealt with the cheques received from Asgard? --- Me.
Was there anyone else? --- No.
…
[LGM], is your evidence that you physically caused all three cheques to be paid to [Horlim]? Is that correct? --- Yes.
…
Who banked them to the account of [Horlim]? --- I don’t know. I just give the company my (indistinct) at the time when I work that out, 2006 January to June 2007 how much I owe. Then I just give them my wages to pay back.
[LGM], did you physically have in your hand at any time any of those three cheques, the late December, early January or later in January cheques? --- No, it’s done in July before September 2007.
…
The wife conceded that for each transaction mentioned there were three separate cheques; she “physically dealt with” each of them and she “physically caused all three cheques to be paid to [Horlim]”. She agreed that she wrote out and signed each cheque. The wife further agreed that all cheques were made out to Horlim. She said that she left the cheques on her desk when she was no longer employed by Horlim.
It is clear from the wife’s evidence that she claimed the payments were “prearranged” in the sense that the intention to make them was formed in July or September 2007 and that she signed them in September 2007 but had not dated the cheques.
The cross-examination of the wife concluded at that point although counsel for the husband indicated that he may require her to be re-called for further examination.
On 29 April 2008 the cross-examination of the wife continued. We observe that on both this occasion and the one to which we have just referred, she was in prison. She was asked:
…
…please, take it from me… that the first withdrawal from the superannuation fund occurred by reason of a cheque drawn by St George Bank Ltd from the [L Yu] Superannuation Fund, and that was a cheque dated 19 December 2007 for $15,400.00. Now, do you remember writing that cheque? --- Yes.
…
…I’m asking you to confirm that you remember writing it out to the name of [Horlim]? --- Yes.
You physically signed that cheque, didn’t you? --- Yes.
Now, the next withdrawal on 8 January 2008… do you recall that that was undertaken by a cheque on the same account – that is the [L Yu] Superannuation Fund account, dated 8 January 2008 in the amount of $13,100.00, do you remember that? --- Yes.
That was also a cheque that you wrote out, didn’t you? --- Yes.
That was also a cheque that you signed, correct? --- Yes.
…
The wife said that she left the cheques on her desk at No. 7, R Street. The cross-examination continued:
…
…Is your evidence that you signed this cheque in September of 2007, but dated it 8 January 2008, is that your evidence? --- I don’t know when they cashed it, but that is the case. I signed September because (indistinct) incurred an annual debt, $1million from 1996 had gone away…
…Are you saying that you left the date on the cheque blank? Did you do that? --- Yes.
…
The wife said that in relation to all three cheques, she had left the date blank and, in relation to all three cheques, left them on her desk giving instructions to her father for banking them.
It was suggested to her that her evidence that the cheques were written in September was false.
It was put to her:
…
…do you have any explanation for why there is not in any of the subpoenaed documents returned by [Horlim] in answer to that subpoena, 20 March 2008, any documents whatsoever that show deposits of the cheques being 19 December 2007 cheque $15,400.00 – I withdraw that – the 8 January 2008 cheque for $13,100.00 or the 23 January 2008 cheque for $28,600.00… --- Well, like I say, you know, they can use the cheque and (indistinct) to pay my credit card, but I believe my father banked the money and said pay me the following month or whatever. You know, the following month they might bank the cash or they might other (indistinct) that’s all my explanation.
…
The cross examiner put to the wife that documents produced by the banks demonstrated that the cheque dated 19 December was banked to a NAB account on 20 December, the 8 January cheque was deposited on the day it was dated as was the cheque dated 23 January.
Counsel for the husband put a series of propositions to the wife to the effect that she knew that the orders of 28 November 2007 restricted her dealings with bank accounts and put:
…
On 28 November 2007 or if not on that date certainly on 30 November 2007 when I asked you questions about it, you understood that those orders of 28 November prevented you from dealing with monies in any bank account in respect of which you had a beneficial interest. You knew that, didn’t you? --- Yes.
…
Finally after it was put to her that she made the three withdrawals to which the questions had been directed in the full knowledge that the transactions were in breach of the injunctions made on 28 November 2007, Mr Kintominas, counsel for another party raised with the trial judge whether the wife needed “a warning”. His Honour then arranged for the audio visual link between the wife in prison and the courtroom to be terminated to enable a conversation to take place between counsel and the bench.
His Honour said to counsel:
Because the orders of 28 November are quite specific and interpolating is true that [the wife] was restrained from withdrawing or dispersing any monies from any bank account. Now, I'm not sure how that Asgard situation works. What I know is she has a superannuation interest in a self-managed fund called whatever it is, the [LM] Fund. I should also add for the purposes of this discussion, it is simply seeking, I should indicate your views about it, it does talk about – as you put to her in which she has a beneficial interest. Clearly she has a beneficial interest in the superannuation fund and is the object of the fund, but I'm not sure if technically, as a matter of law, she necessarily would have a beneficial interest in the underlying assets of that fund. I would have thought that was the Trustee, but that’s what I’d like to hear you about. I'm happy for suggestions from anybody about it.
Counsel for the husband replied:
Can I partially answer your Honour’s question in this way. I hear what your Honour says. Whether or not that ultimately is correct – I say this with the utmost respect – this is not a matter that I need to agitate or ventilate now. I was simply wishing to ask the questions that I thought I needed to ask and I accept that there are a few questions I was about to come to that I’ve dealt with in perhaps infelicitous or inconvenient order, but I’ll come back to those. I was just asking the questions so as to elicit whatever evidence she could give now. I wasn’t about to make any application.
His Honour replied: “Okay, in any event perhaps I should give her a warning…”
The audio visual link was restored and his Honour said to the wife:
…
…We just had had a brief discussion. The discussion was about this, whether or not I ought to give you a warning that you needn’t answer the questions that are asked of you about whether or not you breached the orders that I made on 28 November. Now, pausing there the discussion, I don’t mind you knowing, involved me expressing a view as to whether or not there may be an argument about what happened in any event was caught by that order, but it doesn’t matter, it’s not necessary for me to resolve it. I'm simply – I’ve decided simply to give you the warning, that you’re not bound to answer any questions that may incriminate you, that is to say that may, for example, lead to proceedings against you for breach of those orders. Do you understand that warning? --- Can I say something first?
No, I’ll just? --- Do I have to give an order?
No, no, please don’t say anything. I’ll just get Mr Bedrossian now to ask the question. Yes, go on, Mr Bedrossian.
…
Counsel continued to cross examine the wife and put to her:
…
…Do you say that those three withdrawals from the [L Yu] Superannuation Fund account were for your living expenses? --- That’s what I mentioned, business, living expenses or my legal expenses or maybe existing liability, on your customer’s [sic] behalf.
…
The wife’s cross-examination concluded shortly afterwards.
On 28 May 2008 counsel for the husband continued to cross-examine the wife on her statement of financial circumstances of November 2007 and why she did not disclose in her affidavit when referring to her superannuation balance, the reduction that would occur when the three cheques were withdrawn from that fund.
He said:
…
The truth is you didn’t decide to write those cheques until shortly prior to the dates that the cheques actually bear, that is right? --- That is right.
…
We interpolate that Barry J did not apparently regard this answer as conclusive of the issue before him of when the cheques were dated and, given the wife’s command of English, appropriately so.
Counsel then proceeded to cross examine the wife about her knowledge of the bank accounts held by Horlim at the National Australia Bank and her failure to disclose the existence of one of those accounts.
Again, Mr Kintominas suggested to the trial judge that the wife be warned and said: “…before my friend goes further at this stage it isn’t clear what the proposed proceedings against [the wife] may be and certainly no particulars of charge have yet been circulated. It is difficult for me to anticipate whether this does go to a matter that --- ”
Counsel for the husband indicated that in his view the wife should be warned and he would not object to a certificate being granted.
Mr Kintominas then said:
…I am taking on a role of assisting the Court, she is not my client, but if the position, it is one thing and I would have no problem with a certificate being granted to a matter external to the proceedings but if these are going matters that would otherwise establish intent then there may be a problem in terms of the derivative use of any evidence which may then be used to make a contempt charge out.
His Honour said:
That may be so but the obligation in financial proceedings shown to section 79 is to make a full and frank disclosure of financial circumstances. That is what this goes to. I have little doubt that one couldn’t rely upon the possibility of pending contravention or contempt proceedings as a justification for not fulfilling that obligation. It seems to me that even if it does it is appropriate to grant a certificate but to require the answer be given. Otherwise it means that those proceedings will have to be dealt with first and I am not prepared to do that.
His Honour then addressed the wife and said:
…
…you may remember this morning that I gave [Gina] a certificate under section – pursuant to section 128 of the Evidence Act. There is before me currently, subject to directions, a foreshadowed application for contravention. My understanding in a very generalised way is that it relates to contentions, allegations of non-disclosure and breach of orders. I am going to allow Mr Bedrossian to ask questions of you about that but I am going to grant you a certificate pursuant to section 128 of the Evidence Act in respect of the evidence you give in answer to those questions…
I am giving you a certificate the effect of which is that the evidence that you give in answer to the questions Mr Bedrossian asks of you can’t be used in any later proceedings against you in the event an attempt was made to suggest that you were liable to some contravention of a law or civil penalty. Do you understand that? --- Yes. Thank you.
…

Counsel for the husband then submitted: “…I would ask that that certificate further be limited to the questions I ask of [the wife] in that regard today, that is it doesn’t apply retrospectively to what was asked of her prior to today”.
His Honour said: “I accept that, yes”.
His Honour indicated that he would settle the certificate at a later time. Counsel for the husband continued his cross-examination of the wife concerning whether she had disclosed the existence of NAB account number ending in …603.
There was no certificate relevant to this evidence in the appeal books. The wife included a s 128 certificate given on 12 March 2008 but it related to evidence given in the proceedings before O’Ryan J: “with respect to representations she has made to credit card organisations with a view to obtaining facilities from those organisations”.
Although the husband filed applications for contempt and contravention on 24 June 2008, it is clear from the exchange between O’Ryan J and counsel on 28 May 2008 that those proceedings were contemplated.
When the matters came before Barry J on 8 September 2008, the same counsel as appeared for the husband before O’Ryan J appeared for the husband. In the course of the hearing, his Honour asked counsel for the husband: “But the injunctive order is made 28 November ’07. Here there’s cross-examination occurring on 20 March ’08. Is there any warning ever given when there’s cross-examination about these matters?”
Counsel for the husband said: “There was not in relation to this issue… the best of my recollection is the first warning regarding dealings with superannuation moneys was mid to late May, as I’ve already indicated, 2008”.
Counsel continued:
…These are admissions – some of these... for example, [the wife] regarding factual matters underlying the application that is now brought. They are not admissions of guilt in the sense that a proposition was put to her, “Did you” – “You agree that you committed a contempt?” “Yes, I did”…
His Honour said: “Are you seriously suggesting you only have to warn when the direct question is put as to guilt or innocence of a particular offence?”
Counsel said that this was not his proposition and said:
But I'm trying to convey to your Honour the difficulty in these proceedings. 66 days of evidence only.
...
Not all issues become apparent immediately. With hindsight one can readily say that. But there is a gap between this cross-examination – just between this cross-examination in May of some one and a half to two months before even his Honour O’Ryan J, on my recollection, sees the warning.
During the hearing on that day there was an exchange between his Honour Barry J and the wife who said:
Because I was in the gaol, you know, the video link, the telephone link, I wasn’t sure what they want. And the Judge doesn’t give me the warning enough, you know, and I don’t know when to stop or what to say. I'm just keep going because the – you know, as far as I say I want the things finished. And also the – they mention about the beneficial interest, to my mind is still, you know, if it’s company it’s a legal entity, it’s a third party…
His Honour said:
…
All right. Your first point seemed to be that they haven’t established that the cheques had dates on them, is that what you’re saying? --- Yes, it’s not my handwriting.
And the second point is taking up from a matter that I raised is that although the orders had been made back on 28 November ’07… when you were being questioned about this you were never given a warning… that you may incriminate yourself, is that so? --- Yes…
…
As he prepared to adjourn to consider whether a prima facie case had been established on the applications, his Honour said:
…Now I have to say absent the full transcript I am troubled that the witnesses were not given a caution. If it’s good enough for the criminal courts it should be good enough here that you say to somebody – the Judge has got the clear power to issue a certificate. But once that certificate is given then those passages of the evidence can’t be used against them. So what do you say about that aspect?
Counsel said: “Two things, without being unduly repetitive, I stand to be corrected but my recollection is that the granting of a section 128 certificate occurred as I said mid or late May”.
His Honour observed: “But all the evidence that you’ve referred to in your three volumes… predates that granting of the certificate”.
There was no further consideration given to this issue either in exchange between counsel and his Honour or in the judgment.

Section 128 of the Evidence Act

Section 128 of the Evidence Act 1995 (Cth) (the “Evidence Act”) is in the following form:
(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.
…
As can be seen from the terms of the section, it is only enlivened when a witness objects to giving particular evidence. It is not necessary for a witness to “object” in terms (see Ollis v Melissari [2005] NSWSC 1016 per Campbell J).
Section 132 of the Evidence Act imposes an active obligation on a trial judge to be alert to circumstances in which an objection to giving the evidence might arise.
Section 132 provides:
If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself… that the witness or party is aware of the effect of that provision.
We interpolate here, that in addition to the obligation on a trial judge imposed by s 132 of the Evidence Act, the guidelines concerning litigants appearing in person superimpose duties on trial judges which comfortably encompass obligations of the kind imposed by s 132.
It is helpful to consider the nature and something of the history of the privilege against self incrimination. In Reid v Howard (1995) 184 CLR 1 at [5] Deane J said citing R v Sorby (1983) 152 CLR 281 (citations omitted):
“The privilege against self-incrimination is deeply ingrained in the common law”. It reflects “a cardinal principle” which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts.
In Song v Ying [2010] NSWCA 237, Hodgson JA (with whom Giles and Basten JJA agreed) said:
19. Under s 12 of the Evidence Act, except as otherwise provided in the Act, a person who is competent to give evidence is also compellable to give it. That compulsion can be exercised by use of subpoenas to get witnesses to court and into the witness box; and refusal to answer questions which a witness is compellable to answer (whether in chief or in cross-examination) can result in imprisonment.
Further his Honour said:
26.In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence…
In Ross v Internet Wines Pty Ltd [2004] NSWCA 195 Spigelman CJ Giles and McColl JJA said:
90. …Depending on the circumstances, tendency to expose to self-incrimination may be obvious or sufficiently discernible. As was said by Clarke JA in Accident Insurance Mutual Holding Ltd v McFadden (1993) 31 NSWLR 412 at 430 –
"Whether the answer may tend to incriminate the witness is a point which the court will determine, under all the circumstances of the case, as soon as the protection is claimed. It will do so without requiring the witness fully to explain how the effect would be produced, for if this were necessary, the protection which the rule is designed to afford to the witness would at once be annihilated: Taylor, (at 1247)…
... In all cases of this kind the court must see, from the surrounding circumstances, and the nature of the evidence which the witness is called to give, that reasonable grounds exist for apprehending danger to the witness from his being compelled to answer. When, however, the fact of such danger is once made to appear, considerable latitude should be allowed to the witness in judging for himself of the effect of any particular question; for it is obvious that a question, though at first sight apparently innocent, may, by affording a link in a chain of evidence, become the means of bringing home an offence to the party answering. On the whole, as Lord Hardwicke once observed, ‘these objections to answering should be held to very strict rules’. Vaillant v Dodemead, 2 Atk 524”
On two occasions in her cross-examination before that which occurred on 20 March 2008, counsel for the husband had reminded the wife of O’Ryan J’s orders and had given her a copy of the orders and invited to re-read them.
It was clearly contemplated before the cross-examination of 20 March 2008 that the wife might have breached the orders made on 28 November 2008 and counsel for the husband indicated that he wished to cross examine the wife on the documents produced that he said showed withdrawals in contravention of the order. The wife was re-called and her evidence interposed in the cross-examination of another witness for that purpose.
The expressed intention of counsel for the husband, the ensuing structure of the examination and the questions that followed were clearly of a nature that ought to have alerted his Honour that the wife “may have grounds for making an application or objection” as required by s 132 and given rise to the exercise of her rights under s 128.
As we have indicated the section contemplates the protection being enlivened by the objection of a witness. The wife did not object to answering any questions. That is hardly surprising. The law concerning the privilege against self incrimination is arcane and has occupied the attention of lawyers for generations. True it is that the wife was no stranger to litigation and, as a reading of Barry J’s remarks on sentence would indicate, she and the husband had been litigating various issues in several courts for many years but that does not nor should it relieve a judge of his obligation under s 132 at least.
The cross-examination of the wife continued in April 2008 and, eventually the requirement of a warning was raised with the trial judge. While the discussion between the trial judge and counsel seemed to focus solely on the nature of the superannuation fund and whether the wife could be regarded as having a beneficial interest in it, O’Ryan J determined that she should be warned.
As can be seen from the quoted section of the transcript his Honour told the wife of her right to refuse to answer questions. We regard the warning as inadequate to the task. Having recited the warning his Honour said to the wife:
Do you understand that warning? --- Can I say something first?
No, I’ll just? --- Do I have to give an order?
No, no, please don’t say anything…
and his Honour invited counsel for the husband to continue questioning her.
It is implicit in the nature of the warning that it be understood by the party likely to be affected. The wife’s answer about whether she had to “give an order” makes it plain to us that she did not fully understand what was said. Furthermore his Honour did not afford her the opportunity to obtain some advice about the consequences for her.
In May 2008 the cross-examination continued about her writing of the cheques from the superannuation fund and about the order that she and the other respondents disclose bank accounts.
It is obvious from the transcript that at this time O’Ryan J knew that the contempt and/or contravention applications were in the wings because he referred to those proceedings.
His Honour granted the wife a certificate but, on the application of the husband’s counsel restricted its operation to prospective evidence, leaving the evidence that the wife had given on the previous occasions unprotected. His Honour did not explain to the wife the effect of the certificate given nor that had he limited its scope.
We are of the view that his Honour failed to afford the wife the protection provided by s 128 by not giving her the opportunity of raising her privilege when the questions were first asked in March 2008.
It was open to his Honour at any time to grant a certificate notwithstanding that the evidence had already been given. Section 128(6) makes that clear:
(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.
Section 128 is protective in its operation. It seems to us that answers may at the time of being given appear innocuous but later, in the context of other evidence or answers, take on another complexion that require a warning to be given and a certificate considered. To interpret the section in a way so as to limit the power to grant a certificate only to the point in time at which the condemning evidence is given would be to rob the section of its intent.
The very answers in relation to which we believe a warning should have been given formed the basis of the applications for contempt and contravention heard by Barry J.
His Honour Barry J was clearly concerned as to whether the wife had been warned as the passages extracted from the transcript of proceedings before him indicate. He derived little assistance from counsel in alleviating his concern. It seems that both his Honour and counsel considered the fact that the certificate eventually given post dated the evidence precluded further consideration of the matter.
It was open to his Honour Barry J to exclude the evidence given by the wife under compulsion of cross-examination because she had not been informed or properly informed of her privilege against self incrimination.

Section 138 of the Evidence Act

Section 138 of the Evidence Act affords a court the discretion to exclude evidence that has been “improperly or illegally obtained”. Subsection (1) provides:
(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.
Much of the jurisprudence relating to this section concerns itself with the conduct of criminal trials, however the section is equally applicable to civil trials (see Parker v Comptroller-General of Customs (2009) 83 ALJR 494 per French CJ).
The term “improperly” is wide and as Howie J observed in R v Cornwell (2003) 57 NSWLR 82 at [20]:
…the court should determine whether the section is engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding.
The conduct amounting to impropriety need not be attended by bad faith or an abuse of power (See Cornwell at [20]; Director of Public Prosecutions (NSW) v AM (2006) 161 A Crim R 219 at [37]).
In Bodnar v Townsend [2003] TASSC 148, Blow J considered a case in which a credit union officer had, at the request of the prosecutor brought to court the respondent’s credit union account details. No subpoena or other formal process for bringing the documents to court had been undertaken. His Honour found that the credit union had a contractual obligation to the respondent not to produce the documents (without consent or compulsion through subpoena). His Honour held that it was improper (in the meaning of s 138) for the prosecutor to attempt to tender the documents in circumstances where it amounted to having the officer do an act in breach of the credit union’s contract with the accused.
The High Court considered s 138 in Parkerv Comptroller-General of Customs in the context of an appeal from the NSW Court of Appeal in which there was consideration of the admissibility of evidence obtain in excess of the ambit of a warrant to produce documents issued by the respondent.
At [26] French CJ observed that there was no definition of “impropriety” or “contravention”. His Honour noted at [27] that the inclusion of the section was recommended by the Law Reform Commission and was explained by the Commission:
27. …“This clause provides a discretionary exclusion for evidence obtained improperly, unlawfully or in consequence of an impropriety or breach of the law. It applies in both civil and criminal trials. It reflects, with some modifications, the present exclusionary discretion known as the rule in Bunning v Cross. The main difference is the placing of the onus of proof on the party seeking to have the illegally or improperly obtained evidence admitted”.
French CJ said at [29] that:
29. The meanings to be accorded to the terms “improperly”, “impropriety” and “contravention” in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of “improper” include “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong”. “Contravention” refers to “[t]he action of contravening or going counter to; violation, infringement, transgression”.
30. Without essaying an exhaustive definition, the core meaning of “contravention” involves… doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as “impropriety” although that word does cover a wider range of conduct than the word “contravention”.
As can be seen, the scope of the word “impropriety” is wide and we are of the view that his Honour O’Ryan J’s failure to alert the wife to her right against self incrimination and the subsequent limiting of the ambit of the s 128 certificate falls within the definitions of “impropriety” to which the Chief Justice referred at [29] in Parker. We hasten to point out that nothing in those definitions nor in our findings connote any malice or wilful failure. In this case particularly, in the context of what was obviously a long, complex and attenuated trial, such an oversight can be readily understood.
We are of the view that the evidence on which the husband’s contempt and contravention applications were founded was improperly obtained within the terms of s 138.

Barry J was alert to the wife’s position and sought assistance from counsel for the husband. The issue was not properly ventilated and his Honour was largely unassisted.
Had his Honour been assisted to understand the issue would he have come to the view that the evidence was improperly obtained thus throwing the burden on the husband to undertake the two step process identified by French CJ in Parkerv Comptroller-General of Customs:
28.The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained. (citations and footnotes omitted)
We are of the view that the evidence of the wife amounted to evidence of conduct which, while she did not concede the relevant intention or dating the cheques, was potent in persuading Barry J to find her guilty of the contraventions.
That finding is not the conclusion of the matter. It is incumbent then to consider whether the desirability of admitting the evidence outweighs the undesirability of admitting it given the way in which it was obtained. Section 138(3) requires certain matters to be taken into account, including the probative value of the evidence and its importance to the proceedings. Obviously the evidence formed the whole basis of the contravention application and was highly probative. We are of the view that the law so zealously guards a person’s privilege against self-incrimination that the evidence obtained in this matter ought not to have been admitted.
We find that Barry J, had he been assisted to further investigate his expressed concerns as to the wife’s rights, should have come to the conclusion that the evidence could not be relied on by the husband in pursuit of the applications.
For this reason the conviction and sentence should be set aside.
We are of the view that had his Honour been better assisted and considered the nature of the evidence and the circumstances in which it was obtained would have exercised his discretion to exclude it from consideration.
It follows that the appeal will succeed and Barry J’s findings of guilt on the contravention charges will be set aside.
While not a matter strictly for our determination, we record that were it necessary to do so, we would uphold the wife’s challenge to the sentence imposed on her by the trial judge. In our view, having regard to the undisturbed findings of fact of Barry J about the impact of the wife’s conduct, the sentence imposed on her in relation to each conviction was manifestly excessive. His Honour found that, albeit fortuitously, the substantive orders made by O’Ryan J meant that the wife’s actions in transferring money from her superannuation fund to the Horlim account resulted in adverse financial consequences for her. The fact that the wife was, in effect, a victim of her own actions did not rob them of relevance in any sentencing process but it seems to us that Barry J, while aware that the wife had suffered those consequences and had been “punished” and significantly so, failed to take that matter into account in determining sentence.
The appeal will therefore succeed and we will order the findings of convictions and sentences to be set aside. It is appropriate in this case for the court to grant the wife a costs certificate.

I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace & Crisford JJ) delivered on 28 September 2011.

Associate:

Date: 28 September 2011

[2011] FamCAFC 195

28 September 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Admissibility of Evidence

Expert Evidence

Res Judicata

Unconscionable Conduct

Contempt of Court