LGM v CAM
[2006] FamCA 435
•6 June 2006
[2006] FamCA 435
JFLGMCAM
FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
Appeal No. EA 63 of 2005
File No. SYF 3359 of 1997IN THE MATTER OF:
LGM
Appellant/Wife
- and -
CAM
Respondent/Husband
REASONS FOR JUDGMENT
BEFORE: Holden, Coleman & May JJ
DATEOF HEARING: 6th day of September 2005
DATE OF JUDGMENT: 6th day of June 2006APPEARANCES: Mr Richardson of Senior Counsel with Mr Cook of Counsel, (instructed by D. Riggio & Associates, Suite 27, Level 3, 301 Castlereagh Street, Sydney NSW 2000) appeared on behalf of the appellant wife.
Mr Fagan of Senior Counsel with Mr Bedrossian of Counsel, (instructed by Etheringtons Solicitors, Ground Floor, 153 Walker Street, North Sydney NSW 2059) appeared on behalf of the respondent husband.
Name of Appeal LGM & CAM
Appeal Number EA 63/2005
Date of Appeal hearing 6th day of September 2005
Date of Judgment 6th day of June 2006
Coram Holden, Coleman, May JJCatchwords: Appeal against imposition upon appellant of prison sentences with respect to breach of orders restraining her from dealing with specified property pursuant to s 112AP of the Family Law Act 1975.
Holden & Coleman JJ - Appellant contended that trial Judge erred in finding that she was aware of the orders breached in reliance upon inferences impermissibly drawn – contempt created by s 112AP can only be found proved beyond reasonable doubt (as the standard is defined in Briginshaw v Briginshaw (1938) 60 CLR 336) if each element of the contempt created by the section is thus established – knowledge of order breached is an essential element, which comprises knowledge of both the terms of the order and their meaning – appellant not present in Court when orders made – appellant’s knowledge of the contents and meaning of the orders not able to be proved beyond reasonable doubt on the evidence before the Court – the only evidence capable of establishing the requisite knowledge was inadmissible pursuant to ss 118 or 119 of the Evidence Act 1995 - Esso Australian Resources v FCT (1999) 201 CLR 49 and Angelis v Angelis (1978) FLC 90-503 followed. The appellant’s failure to offer an explanation in relation to her knowledge of the orders did not cause the "hypotheses consistent with innocence [to] cease to be rational or reasonable” – the appellant’s exercise of her right to remain silent did not affect the foundation for such hypotheses – not a “rare and exceptional case” in which the trial Judge was entitled to rely upon the “failure of an accused to offer an explanation” - Azzopardi v The Queen (2001) 205 CLR 50, RPS v The Queen (2000) 199 CLR 620 and Weissensteiner v R (1993) 178 CLR 217 relied upon.
May J – Trial Judge entitled to infer appellant’s knowledge of the contents and meaning of the order from the facts and circumstances of the case.
Orders providing for submissions as to future course of the matter once appeal is allowed and with respect to costs.
1. Holden & Coleman J: By Notice of Appeal filed 3 June 2005 the wife appealed against orders made by Cohen J on 30 May 2005 in proceedings brought against her by the husband pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”). On that day his Honour imposed upon the wife prison sentences of four months with respect to each of two breaches of orders which he found proved, two months of each of which sentence of imprisonment was to be served concurrently. The wife was thus liable to be imprisoned for a period of four months. His Honour further ordered that the wife pay the husband’s costs of the proceedings “as taxed on an indemnity basis or agreed between the parties within one month”. The husband resisted the appeal and sought to maintain the trial Judge’s orders.
BACKGROUND
2. The background to the proceedings was not without complexity, not all the details of which assume significance in this appeal.
3. The orders which gave rise to the husband’s application pursuant to s 112AP were made by Rose J on 7 September 1999, after a contested hearing before him, at which time it was ordered that “upon the wife giving the usual undertaking in relation to damages, I continue the orders made 30 August 1999 until further order”. His Honour further ordered that “the wife’s costs of and incidental to today’s hearing assessed in the sum of $2,000 is reserved for determination by the Trial Judge at the substantive hearing between the parties”. The orders which Rose J thus continued on 7 September 1999 had been made by a Judicial Registrar in the absence of the husband on 30 August 1999, and provided:
1. That pending further order of the Court, the Husband and the Wife be and are hereby restrained from selling, transferring, encumbering, alienating or otherwise dealing with any real property in which they currently have an interest.
2. That, pending further order of the Court the Husband do all acts and things to prevent the Department Natural Resources, Queensland Government from processing documentation lodge[d] by the Husband seeking to sever the joint tenancy with respect to the following properties: -
(a)Title Reference: X, Description: X.
(b)Title Reference: XX, Description: XX.
(c)Title Reference: XXX, Description: XXX.
(d)Title Reference: XXXX, Description: XXXX.
(e)Title Reference: XXXXX , Description: XXXXX .
4. The orders on 30 August 1999 and 7 September 1999 were made on the application of the wife’s legal representative, the application of 24 August 1999 having been prepared and filed by that legal representative. There was no evidence that the wife was present in Court when the orders were made on either 30 August 1999 or 7 September 1999. It is common ground that a sealed copy of the orders made on each of those two days was never served upon the wife.
5. On 2 November 2001, after a contested hearing, Cohen J varied the orders of 30 August 1999, as continued on 7 September 1999, to enable the husband to obtain a sum of $375,000.00 for the purpose, inter alia, of conducting proceedings in the Supreme Court of New South Wales, in part to meet the husband’s indebtedness for costs of those proceedings up to the date of his Honour’s orders, the balance of the proceeds being liable to be divided equally between the husband and wife upon the happening of the contingencies expressed in his Honour’s order.
6. On 20 December 2001 the wife signed a mortgage of her interest in the property described as the QLD property which was property referred to in the injunctive orders referred to above.
7. On or about 14 February 2003 the wife transferred her interest in the NSW property, a property referred to in the orders referred to above. The consideration for the transfer of the NSW property was expressed to be the sum of $144,500.00. The mortgage with respect to the QLD property was for a consideration of $300,000.00.
8. There is no issue that, at the time of each of the above transactions, the orders of 7 September 1999 remained in force and effect. Nor was there any suggestion, prior to the trial Judge finding in December 2004 that the wife had breached each of the orders as alleged by the husband, and was thereby in contempt of the Court, that the wife’s equitable interests in those properties was other than in accordance with the legal titles of the properties.
9. Having thus found the wife to be in contempt of the Court’s orders in the two respects referred to, the trial Judge adjourned the proceedings to enable the wife to adduce evidence and make submissions in relation to the question of sanctions with respect to such breaches. After hearing evidence and further submissions on 28 February, 1, 2 and 31 March, 6 April and 26 May 2005, the trial Judge imposed the sanctions referred to earlier.
10. Prior to the trial Judge finding her to have breached the orders in the two respects to which we have referred, the wife did not adduce any evidence before the trial Judge, her case being that the husband had failed to prove all the elements of his s 112AP applications beyond reasonable doubt as the section required. For reasons which will become apparent, we do not propose or need to refer in detail to events subsequent to the trial Judge’s finding that the wife was in contempt of the Court’s orders of 7 September 1999.
THE TRIAL JUDGE’S REASONS FOR JUDGMENT OF 17 DECEMBER 2004
11. As indicated above, it is ultimately unnecessary to refer in detail to the totality of the trial Judge’s reasons for judgment, and essential only that reference be made to such reasons in relation to the two contempt findings which the trial Judge made against the wife.
12. Having referred to a number of issues which arose in the course of the hearing in relation to the alleged breaches, for reasons which he gave, the trial Judge did not consider that service of the husband’s s 112AP application, his amended s 112AP application or any affidavits in support of that application vitiated the proceedings, and was satisfied, as a matter of natural justice, that the wife had been validly served with the husband’s applications and supportive affidavits.
13. The trial Judge was also satisfied that:
33. … the statement of the alleged contempts are sufficiently unambiguous to permit the respondent to have a clear understanding of the precise allegations made against her; clear enough for her to have had a completely fair and ample opportunity to defend herself.
14. For reasons which he gave, the trial Judge rejected challenges to the husband’s applications as being “void for uncertainty and/or duplicity” (Judgment, paragraph 27). To the extent that it was argued, unsuccessfully, before the trial Judge that any aspect of the injunctive orders made on 30 August 1999 by the Judicial Registrar, by Rose J on 7 September 1999 or by Cohen J on 2 November 2001 vitiated the husband’s application pursuant to s 112AP, such challenges were not agitated in this appeal.
15. Having referred to the authorities, and to the Family Law Rules 2004, the trial Judge concluded that:
41. The unchallenged evidence establishes beyond reasonable doubt that the respondent did breach the orders of Justice Rose by both selling on 14 February 2003 the real property in NSW which she owned when the order was made and by mortgaging and thereby encumbering on 2 December 2003 the real estate known as the Queensland property, title reference 30538097, which she owned jointly with her sister when the order of Justice Rose was made. The sale price of the NSW property was $144,500.00. The mortgage secured a loan to the wife and her sister of $300,000.00.
16. His Honour was thus “satisfied to the necessary standard that at the times of sale and of mortgage the wife intended to sell and mortgage the respective properties” (paragraph 42).
17. Reference was then made (paragraph 43) to the requirement, stated in the authority to which he referred that “the court must be satisfied beyond reasonable doubt that the person knew of the contents of the order in so far as they relate to the alleged contempt and knew that the order had been made”.
18. The trial Judge referred to the fact that “the order allegedly breached was made on the application” of the wife, an “identical order” having been made ex parte by a Judicial Registrar on 30 August 1999, such order having been “made in the terms of the interlocutory application which had been filed on behalf of the wife”. His Honour referred to the orders of 7 September 1999 continuing the orders of 30 August 1999 having been made “after a defended application”. He concluded:
44. … It is inconceivable in the absence of any suggestion to that effect that the applications made to the Judicial Registrar and to Justice Rose were made without the wife’s informed instructions to make them or that she did not know the orders she had sought were made in the form she had sought and therefore that she did not know the contents and meaning of Justice Rose’s order.
19. His Honour further recorded that the wife “must have asked for costs for the application before Justice Rose”, such costs having been assessed by Rose J and “the issue of whether they would be awarded to her against the husband” having been reserved. His Honour thus considered it:
45. … inconceivable that in the light of the costs application and order that she did not know the order made by Justice Rose in the terms she had sought had been made.
20. The trial Judge thus concluded that it had been proven beyond reasonable doubt that the wife:
45. … had all the knowledge required to establish contempt before she committed the acts in breach of the orders. She knew the contents and meaning of the order of Justice Rose.
21. The wife’s actions were held to “undoubtedly amount to a flagrant challenged [sic] to the authority of the Court” given:
46. … the terms of the order, the fact that it was made at the wife’s behest, the substantial monies she received as a result of the breaches and because of the nature of a sale and a mortgage and the pre-conditions and preparations needed to execute these, the wife’s breaches were pre-meditated and are very serious…
THE GROUNDS OF APPEAL
22. Grounds 1 and 2 of the Notice of Appeal provided:
1. That his Honour erred in concluding as a fact that the respondent [amended to “appellant” at hearing] was aware of the terms of the orders made by Rose J on 7 September 1999 and that the order had been made.
2. That his Honour erred in law in reaching the conclusion referred to in paragraph 1 above in that his Honour, impermissibly, drew inferences adverse to the [appellant] as to the existence of primary facts in reaching his conclusion as a consequence of the [appellant’s] failure to give evidence on the topic and drew adverse inferences from the appellant’s failure to give evidence of privileged communications with her lawyers.
23. At the commencement of his oral submissions, Senior Counsel for the wife submitted that only by reliance upon privileged communications between the wife and her lawyers could the trial Judge have concluded that it was “inconceivable” that the wife did not, at the time the orders were breached, know the “contents and meaning” of the orders of the Court. It was submitted that the trial Judge was precluded from relying upon such communications for that purpose. There being no other evidence establishing the relevant knowledge, the application was thus submitted to be doomed to fail.
24. The factual background against which these grounds were agitated was summarised in a series of paragraphs in Senior Counsel’s Summary of Argument (pages 2 and 3), and included the absence of evidence “that the wife had ever been served with the orders of either 30 August 1999 or 7 September 1999”, the absence of “evidence to suggest that the wife was present in court on either 30 August 1999 or 7 September 1999”, the fact that the application of the wife which gave rise to the orders on those dates “bore an endorsement to state that it was prepared by her then attorney rather than the wife herself” and that:
None of the affidavit material tendered by the applicant [husband] contained any admission by the wife of her knowledge of the orders of 30 August 1999 or 7 September 1999 at or prior to the time of the breaches. (Wife’s Summary of Argument, page 3)
25. In oral submissions Senior Counsel for the wife agitated two additional points, namely that a lay person could not realistically be expected to know or anticipate that her lawyers would be seeking orders against her, and that there was a material distinction between knowing what was sought in an application and what a Court had in fact ordered. There was submitted to be no foundation for presuming that the outcome of an application would necessarily be in the terms of that application.
26. It was conceded on behalf of the wife that:
The primary judge has reached his conclusions by a fact finding process that is dependent upon inference. There is no principle that facts resolved by inference (sometimes commonly and appropriately similarly described as circumstantial evidence) cannot result in a finding of fact beyond reasonable doubt. (Wife’s Summary of Argument, page 4)
27. It was submitted, by reference to an article by Glass JA[1] that, where circumstantial evidence is relied upon, “unless the circumstances are such as to be incompatible with any reasonable hypothesis other than the guilt” of the wife, or “unless guilt is the only rational inference” in the circumstances, the trial Judge could not find the wife had breached the orders according to the criminal standard of proof.
[1] H. H. Glass, “The Insufficiency of Evidence to Raise a Case to Answer” (1981) 55 ALJ 842 at 852-3
28. Senior Counsel for the wife made a series of submissions as to “possible (and equally probable) facts” which were susceptible of a “reasonably possible explanation consistent with innocence” (Wife’s Summary of Argument, page 5). We do not need to refer further to those passages.
29. In support of the challenge to the trial Judge’s conclusion that the wife knew the nature and terms of the injunctive orders which she had breached, reliance was placed upon the statement by Murray J in Angelis v Angelis (1978) FLC 90-503 at 77,635-6 that:
… the fact that the husband’s counsel was in court at the time of the making of the order is not proof that the husband received adequate notice of the order. It cannot be assumed that the relevant information has reached the husband. Furthermore, as all communications between counsel, instructing solicitors and the husband are privileged they are not capable of being adduced in evidence without the husband’s consent. Nor is the husband a compellable witness in the matter…. (Counsel’s emphasis at Wife’s Summary of Argument, page 6)
30. It was submitted that Murray J’s observations in Angelis:
… apply with considerable force to the lack of any available inference that a party would be assumed to have particular knowledge of what occurred in court when their case was conducted in their absence by counsel. Similar conclusions must be available to even the completion of documents in the conduct of a case by their solicitor. (Wife’s Summary of Argument, page 6)
31. The Court was referred to the judgment of Brennan and McHugh JJ in G v H (1994) 181 CLR 387 at 390:
It is one thing to say that the Court may draw an inference; it is another to say what inference should be drawn. An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference. (Counsel’s emphasis at Wife’s Summary of Argument, page 6)
32. It was submitted that, having regard to paragraph 44 of the trial Judge’s reasons for judgment:
… the basic facts from which his Honour’s inference is drawn are consistent also with an innocent explanation and thus the inference is not capable of supporting a finding beyond reasonable doubt. This conclusion stands to be reached before considering the necessary aspects of the inferences which impermissibly rely upon the appellant’s [wife’s] failure to abandon privilege. (Wife’s Summary of Argument, page 7)
The submission of Senior Counsel for the wife was thus that “[h]is Honour’s fact finding process at this stage is already flawed”.
33. In the appellant wife's Summary of Argument it was submitted that the passage highlighted in italics below identified a clear suggestion of an adverse inference (and reliance in the fact finding process), as a consequence of the failure of the respondent (the appellant wife) to call evidence or otherwise present a positive explanation of the factors identified by the primary judge, who concluded:
44. … It is inconceivable in the absence of any suggestion to that effect that the applications made to the Judicial Registrar and to Justice Rose were made without the wife’s informed instructions to make them or that she did not know the orders she had sought were made in the form she had sought and therefore that she did not know the contents and meaning of Justice Rose’s order.
34. The submission on behalf of the wife was that:
Whilst the passage identified does not contain any suggestion that the primary judge had come to the view that the legal burden to prove each element of the offence had shifted from the applicant, the portion that is highlighted in italics is susceptible to an open conclusion that his Honour is either (as part of the primary fact finding process) suggesting that an evidentiary burden has moved to meet the inference from the evidence he has identified, absent of which the inferred fact can be confidently found (the contrary being identified as “inconceivable”) or alternatively, to put it another way, that the absence of evidence of the nature identified drew an inference akin to that available in the rule in Jones v Dunkel. (Wife’s Summary of Argument, page 7)
35. Senior Counsel for the wife then submitted that:
… where a respondent has an entitlement to silence, leaving an applicant entirely to fulfil its onus, that entitlement is absolute and it is not permissible for the court to draw adverse inferences against a respondent from the exercise of that right. The foregoing, for present purposes, is subject to the caveat that where the court has reached a conclusion as to the facts against a respondent from other evidence on a proper basis without recourse to their silence, then silence may provide a proper basis to infer a greater degree of satisfaction with that prima facie conclusion in considering whether it constitutes evidence beyond reasonable doubt. Silence may be taken into account in evaluating the evidence already given. (Wife’s Summary of Argument, page 8)
36. In reliance upon the judgment of the majority in Petty v R (1991) 173 CLR 95 where Mason CJ, Deane, Toohey and McHugh JJ at 99 said:
An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information.
it was submitted to be:
… at least unsafely apparent that the primary judge has relied upon an inference from silence in reaching his conclusion as to the primary facts. His reasons are not expressed in a way that would suggest that the only part the wife’s silence played was in the degree of comfort he had with, or the evaluation of, the facts otherwise established. Indeed it is apparent that her silence had an essential role to play in his Honour’s reasoning process. (Wife’s Summary of Argument, page 9)
37. It was also contended that:
The failure of an accused person to give evidence cannot convert an insufficient case into a sufficient case. Before the silence of the accused can be said to be a relevant factor there must, independent of the accused’s silence, exist a prima facie case against the accused. In other words facts capable of constituting the offence must be otherwise established. (Wife’s Summary of Argument, page 9, footnote omitted)
38. Reference was made to the decision of the High Court in Weissensteiner v R (1993) 178 CLR 217 and to the joint judgment of Mason CJ, Deane and Dawson JJ in which it was said at 229:
… silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case … It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. (Counsel’s emphasis at Wife’s Summary of Argument, page 10)
39. The approach of the majority was submitted to rest on the distinction at 229:
... between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge.
40. It was thus submitted that “the topic of the inference that his Honour drew in para. 44 J1 adds strongly to the case for establishing error”. Such passage was said to suggest that the trial Judge “drew upon the appellant’s [wife’s] silence to draw an inference as to her ‘informed instructions’ ”. This conclusion about the wife’s instructions was asserted to be the “essential plank in his Honour’s reasoning to conclude that she had requisite knowledge” (Wife’s Summary of Argument, page 11).
41. The crux of the challenge appears in the following submission of Senior Counsel for the wife:
Thus independently of any general principle about available inferences from silence, it is submitted that in this instance his Honour has drawn inference from the appellant’s failure to volunteer to adduce evidence of her “informed instructions” or, perhaps, of the communications between herself and her lawyers by which her instructions became so informed. In each instance these are matters that are subject of legal professional privilege and the prohibition, as observed earlier, upon drawing any adverse inference as a consequence of reliance upon the privilege is absolute. Indeed, if the law were to the contrary and permitted the drawing of adverse inferences from the exercise of the privilege this would constitute a substantial erosion of the privilege and in some circumstances render it valueless. (Wife’s Summary of Argument, page 11, footnotes omitted)
42. The foundation for the trial Judge’s findings with respect to the wife’s knowledge of the orders which she had breached was thus asserted to have been “completely undermined” and as a consequence, the contempt findings could not stand, an essential element of the breaches constituting the contempts not having been proved to the requisite standard.
43. On behalf of the husband, reliance was also placed upon the judgment of Mason CJ, Deane and Dawson JJ in Weissensteiner at 227-8, where it was said:
We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. (Counsel’s emphasis at Husband’s Summary of Argument, paragraph 4)
44. Further reliance was placed upon the judgment of Gaudron and McHugh JJ in Weissensteiner v R at 245 in which it was said:
In the context of the right to silence, it is important to bear in mind that it is the failure to provide an “explanation or answer … as might be expected if the truth were consistent with innocence” which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of evidence: it may, for example be advanced when the person concerned is first confronted with the facts or it may be advanced in the course of the trial without evidence from the accused. (Counsel’s emphasis at Husband’s Summary of Argument, paragraph 5, footnote omitted)
45. Reference was made to the decision of Isaacs J in Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 178 as exemplifying that approach. The Court was referred by Senior Counsel for the husband to the judgment of Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ in May v O’Sullivan (1955) 92 CLR 654 at 656-7:
The question which is actually raised is whether, when the prosecution has made out what is called a “prima facie case” or a “case to answer”, the burden of proof shifts to the shoulders of the accused person or defendant, with the consequence that, if he fails to displace that prima facie case by denial or explanation, he ought to be convicted. It is, of course, clear that there is no such shifting of the burden in such a case. The burden of proving guilt beyond reasonable doubt rests on the prosecution from first to last, and, even though the defendant remains silent after a prima facie case has been launched against him, it may very well be that he ought to be acquitted.
46. It was submitted that:
The High Court has, therefore, on numerous occasions, clarified the difference between a shifting of the onus of proof once a “prima facie case” is made out by the prosecution (which is not what occurs) with the situation where, once the prosecution makes out a prima facie case, the court is enabled to draw inferences and conclusions from the available evidence (whether circumstantial or not) more comfortably and safely in the absence of explanatory or contradictory evidence from or on behalf of the accused, where such exculpatory or explanatory knowledge or evidence would, if it existed at all, be within the knowledge of the accused. (Husband’s Summary of Argument, paragraph 9)
47. Counsel for the wife was said to have “incorrectly categorised the nature of the conclusion drawn by the Trial Judge at paragraph 44” of his judgment which passage has been set out earlier in these reasons. The approach of the trial Judge was thus said to have:
… done nothing more than apply the proper approach to the determination of such matters where the Appellant chose not to provide any evidence [footnote: In this regard, it can be noted that there is a difference between, in the first instance, an accused choosing to remain silent at trial and thus protecting himself or herself against the consequences of exposure to cross-examination, and, in the second instance, an accused choosing not to lead any evidence at all (whether documentary or oral, including any evidence from other persons).], particularly given that relevant evidence, if it existed, would clearly have been within the Appellant’s knowledge. That is, the Trial Judge has determined firstly that a prima facie case had been made out against the Appellant. Secondly, the Trial Judge has considered that, absent any explanatory evidence from the Appellant or from any other source on behalf of the Appellant, there was no “reasonable hypothesis”, “rational inference”, or “reasonably possible explanation” consistent with the Appellant’s innocence. In such a manner, the Appellant was found guilty of contempt beyond a reasonable doubt. (Husband’s Summary of Argument, paragraph 11)
48. It was submitted that the trial Judge had been entitled to make the factual findings:
… each of which ultimately formed the basis for the sole rational and reasonable conclusion available, namely that, prior to committing the alleged contempts, the Appellant knew of the existence and nature of the orders made by Rose J on 7 September 1999. (Husband’s Summary of Argument, paragraph 13)
49. Reference was then made to the three matters referred to in paragraphs 44 and 45 of the trial Judge’s judgment. Those paragraphs provided:
44. In the matter before me the order allegedly breached was made on the application of the respondent. An identical order had been made ex parte by Judicial Registrar Johnston on 30 August 1999. It was made in the terms of the interlocutory application which had been filed on behalf of the wife. On the return day, 7 September 1999, Justice Rose, after a defended application continued the orders made by the Judicial Registrar. It is inconceivable in the absence of any suggestion to that effect that the applications made to the Judicial Registrar and to Justice Rose were made without the wife’s informed instructions to make them or that she did not know the orders she had sought were made in the form she had sought and therefore that she did not know the contents and meaning of Justice Rose’s order.
45. The respondent must have asked for costs for the application before Justice Rose. Her costs were assessed by Justice Rose at $2,000.00, but the issue of whether they would be awarded to her against the husband was reserved. Again, it is inconceivable that in the light of the costs application and order that she did not know the order made by Justice Rose in the terms she had sought had been made. That she did is, in my assessment, proven beyond reasonable doubt. It is proven to the same standard that she had all the knowledge required to establish contempt before she committed the acts in breach of the orders. She knew the contents and meaning of the order of Justice Rose.
50. There is no issue that, for the purpose of finding that the wife knew of the orders which she had breached, his Honour relied upon the three factors to which both Senior Counsel have referred. There is no suggestion that other factors were relied upon for that purpose. It was however submitted on behalf of the husband that, although not expressly referred to by him, there was other evidence which could have been relied upon for that purpose. Those matters were asserted to be “strongly supportive” of his Honour’s finding with respect to the wife’s knowledge of the “contents and meaning” of the injunctive orders which she had breached (Husband’s Summary of Argument, paragraph 14).
51. Reliance was placed upon the fact that in February 2001 the husband had an application to vary the terms of the 1999 injunctive orders “in order to allow for an interim property order in his favour” and that, on 12 July 2001 the wife had filed a response to that application by which the wife opposed the granting of the relief sought by the husband. The effect of this, and the further evidence to which we will shortly refer, in conjunction with the other evidence before the trial Judge was submitted to be that:
There was only one conclusion available from the evidence tendered in the substantive hearing before the Trial Judge, namely that that the Appellant knew of the existence of the orders of Rose J and knew of their nature or effect prior to her commission of or involvement in the two transactions in question. Had the Appellant wished to provide any alternative reasonable and rational explanation regarding the state of her knowledge or understanding of the orders of Rose J at the relevant time, it was entirely within her power either to give such evidence herself or to cause or compel evidence of such to be given by any relevant person, such as, for example, her former solicitor, My [sic] B. (Husband’s Summary of Argument, paragraph 16)
52. Reliance was placed upon the fact that, on 11 July 2001, “for the purpose of opposing the Respondent’s [husband’s] application for an interim property order” the wife swore and filed an affidavit which affidavit “made specific reference to the application for interim property orders filed by the Respondent and noted the fact of the Appellant’s opposition to that application”. The affidavit of the husband in support of his application was said to specifically refer to the orders of Rose J of 7 September 1999 (at paragraph 1.5) and Johnson JR of 30 August 1999, as well as referring to an annexed copy of the orders of Johnson JR. Paragraph 1.5 of the husband’s affidavit sworn on 12 February 2001 read:
In certain properties jointly with my wife, I am presently restricted from using any interest in these assets to pay for my legal expenses as a result of an order of Justice Rose on 7 September 1999 in the Family Court, which continued the effect of the order of Johnston JR on 30 August 1999. Annexed hereto and marked “A9” is a copy of the order of Johnston JRof 30 August 1999.
The only copy order attached to the affidavit was that of the Judicial Registrar of 30 August 1999 which, as Senior Counsel for the wife pointed out, was expressed to operate until 6pm on 7 September 1999, well prior to the acts of the wife which constituted breaches of the injunctive orders.
53. Reliance was also placed on the contents of paragraph 3.3 of the affidavit in which the husband referred to “documents, which will either appear in the Applicant’s Bundle or can be included if so requested by the Respondent to this Application”.
54. As was pointed out by Senior Counsel for the wife there was no evidence that the intention evidenced in paragraph 3.3 of the husband’s affidavit had been implemented prior to the dates upon which the wife entered into the transactions which constituted the breaches of the orders continued by Rose J on 7 September 1999. A copy of Rose J’s orders of 7 September 1999 was not attached to the affidavit nor did the affidavit suggest that it had been.
55. Reliance was also placed on the husband’s “further specific reference to the injunctive orders made by Rose J on 7 September 1999” in paragraph 7.27 of the husband’s affidavit in which it was said:
I understand that my wife has made the aforementioned application in order to protect her interest in the Family Court proceedings, even though, as I have been informed by my solicitors, she has previously allowed judgment to be entered against her in the Supreme Court, Local Court and District Court proceedings, which judgments have a potential total value in excess of $4 million. The judgment creditors in each of these matter is either the wife’s family company or members of the wife’s immediate family. I verily believe that my wife has allowed such judgments to be entered against her in order to divest herself of any personal assets for the purpose of these Family Court proceedings.
56. It is not without significance that in none of the paragraphs to which we were referred did the husband refer to the fact that the injunctive orders also bound the wife. We thus do not see these passages as advancing the husband’s case, assuming it to be properly open to the husband to rely upon them for that purpose in this appeal.
57. Nothing stated by the husband in the passages of the affidavit thus relied upon raised any matter which would have put the wife on notice that the orders in force and effect at the time of the transactions which constituted breaches of those orders operated other than in relation to the husband.
58. Reliance was sought to be placed on an affidavit sworn by the wife on 21 February 2003, 14 days after she sold the NSW property. In that affidavit the wife deposed to having, on 30 November 2001, filed a Notice of Appeal in relation to Cohen J’s orders of 2 November 2001. In the affidavit the wife deposed to having “inspected the Family Court file in relation to the proceedings” on 27 November 2002. It was submitted to be significant that the wife deposed to having obtained on 6 December 2002 a photocopy of the “entire” Family Court file. Her affidavit reads “[o]n 6 December 2002, I was informed that copies of my documents on the Court file were ready to be collected at the Family Court” and “[f]rom my inspection of my Court file, I have discovered the following ….”. It is clear that no reliance could be placed upon knowledge or information acquired or received by the wife on 6 December 2002 in relation to the 2001 mortgage which gave rise to one of the contempts found against the wife. Whether reliance could be placed on that evidence for the purpose of the later breach remains to be considered.
59. Having regard to the matters thus referred to, it was ultimately submitted on behalf of the husband that:
The inference or conclusion ultimately drawn by the Trial Judge was clearly open to him upon the evidence. There was no other reasonable or rational inference available upon the evidence. There is, therefore, no basis for interfering with the Substantive Judgment. (Husband’s Summary of Argument, paragraph 18)
DISCUSSION
60. Section 112AP of the Act relevantly provides:
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
…
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.…
(4) Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
…
(6) The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7) Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.
61. In Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J said at 361-2:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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 such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour further said at 363:
This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson, at p. 592; Boyce v. Chapman; Vaughton v. London and North Western Railway Co.; Hurst v. Evans; Brown v. McGrath; Motchall v. Massoud; Nelson v. Mutton; Gerder v. Evans, at p. 311; sed quare as to the statement of Swift J. in Herbert v. Poland, at p. 142; see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (Footnotes omitted)
62. We conclude that, in proceedings under s 112AP of the Act, the contempt can only be found to have been proved beyond reasonable doubt in the Briginshaw sense if each element of the contempt created by the section is thus established. Those elements include knowledge of the order which the wife in this case is alleged to have breached in circumstances constituting a “flagrant challenge to the authority of the court”.
63. Given the nature of the section, we are satisfied that it must be established that the wife knew not only the contents or terms of the order but also their meaning, the orders themselves having been drafted by lawyers and made by judicial officers in terms which a lay person of reasonable intelligence could not be presumed beyond reasonable doubt in the Briginshaw sense to know and understand.
64. There is no issue between the parties that the husband bore “the onus of establishing the guilt of the respondent [wife] to the requisite standard, namely beyond reasonable doubt” (Husband’s Summary of Argument, paragraph 1). Nor, as we have earlier observed, is there any doubt as to the particular matters upon which the trial Judge relied in drawing the inference of guilt. Those factors were that the “order allegedly breached was made on the application” of the wife, that “[a]n identical order had been made ex parte by Judicial Registrar Johnston on 30 August 1999 … in the terms of the interlocutory application which had been filed on behalf of the wife”; that on “7 September 1999, Justice Rose, after a defended application continued the orders made by the Judicial Registrar”; and that the wife “must have asked for costs for the application before Justice Rose” (Judgment, paragraphs 44 and 45).
65. Those matters led the trial Judge to conclude that it was:
44. … inconceivable in the absence of any suggestion to that effect that the applications made to the Judicial Registrar and to Justice Rose were made without the wife’s informed instructions to make them or that she did not know the orders she had sought were made in the form she had sought and therefore that she did not know the contents and meaning of Justice Rose’s order.
and, by virtue of her seeking costs, inconceivable that she “did not know the order made by Justice Rose in the terms she had sought had been made”.
66. So far as the last factor relied upon by the trial Judge is concerned, it is apparent that injunctive orders were sought from the time the wife filed her original application on 24 August 1999. As was submitted by Senior Counsel for the wife, there is a material distinction between the seeking of orders and the making of orders in the terms thus sought, there being no foundation for inferring that because (if it be the fact) a litigant knows the nature of the relief sought by her or him that she or he must therefore be presumed to know that orders in those terms would be or have been made. Many cases result in orders materially different from those sought by the parties seeking them.
67. There is also a distinction between knowing the “content and meaning” of orders where, as was the case here, the Court is dealing with a lay person. In our view, to establish that a person such as the wife in this case knows the contents of an order is not necessarily to establish that she knew their meaning.
68. Given that the wife was not in Court on either of the occasions when the 1999 orders were made and that those orders were never served upon her, it is difficult to resist concluding that the wife must have acquired such knowledge of the contents and meaning of the orders as she had as a result of some communications between herself and her solicitors. The wife may have come to know the contents of the orders without there having been “communications” between herself and her lawyers within the sense in which that term is used in the Evidence Act 1995 (Cth), but it is difficult to see how that could have occurred. Even if it had, it is difficult to see how she could have come to know the “meaning” of the orders without such communication. As the trial Judge clearly recognised, which was not disputed on behalf of the husband in this appeal, knowing the “contents” of the orders without knowing their “meaning” was insufficient to support the contempt findings in proceedings under s 112AP of the Act. In the absence of evidence to establish that she did, and we have not been referred to such evidence, it is reasonable to infer that such “knowledge of the meaning” of the injunctive orders, if not also their content, as the wife had at the relevant times was acquired as a result of communications with her lawyers. The status of such communications requires consideration.
69. Section 118 of the Evidence Act relevantly provides:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer; or
…(c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
70. Section 119 of the Act relevantly provides:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
…
(b) the contents of a confidential document (whether delivered or not) that was prepared;for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
71. The term “confidential communication” is defined in s 117 to provide:
"confidential communication" means a communication made in such circumstances that, when it was made:
(a) the person who made it; or
(b) the person to whom it was made;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
72. The term “confidential document” is defined in s 117 to provide:
"confidential document" means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it; or
(b) the person for whom it was prepared;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
73. It can reasonably be inferred that the “dominant purpose” of any communication between the wife’s solicitors and the wife in relation to the orders made on 30 August 1999 or 7 September 1999 would have been the “provision of legal advice to the wife”, inter alia, as to the meaning and effect of those orders. Any other “purpose” is difficult to imagine. Any such communication would have been “confidential” within the terms of s 117.
74. The privilege created by the Evidence Act is that of the wife. In Esso Australian Resources v FCT (1999) 201 CLR 49 Gleeson CJ, Gaudron and Gummow JJ said at 64-5:
Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell, and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. (footnotes omitted)
75. Had evidence of the communications between the wife and her lawyers, by which she acquired knowledge of the “contents and meaning” of the relevant injunctive orders, been sought to be adduced against the wife at trial, “objection” could have been taken to so doing. No provision of the Evidence Act relating to the “loss of client legal privilege” either general or specific appears to have the potential to deny the wife’s entitlement to rely upon her “client legal privilege”.
76. We have not been referred to any thing in the transcript before the trial Judge to suggest that any attempt was made to adduce evidence of privileged “communications” between the wife and her solicitors in relation to the contents or meaning of the orders of 30 August 1999 or 7 September 1999. The absence of such references is in the circumstances unsurprising.
77. It was submitted by junior counsel for the husband before the trial Judge that:
… in her application for these restraining orders, the wife was mindful, not only to prevent any dealing with the property, but in fact even to prevent the severing of a joint tenancy with the real property, in respect of the real property. And that goes to knowledge and intention. (Transcript of 6 December 2004, page 17)
78. It was later submitted that:
… for all intents and purposes the orders obtained were in accordance with the orders sought. And your Honour will, of course, see that the wife herself makes application that the husband and the wife be restrained, not just the husband. (Transcript of 6 December 2004, page 20)
79. At trial, reliance was placed upon the husband’s application of February 2001 and it was submitted that:
… the husband had to make a specific application to vary the restraining orders in order to obtain moneys to pay his own legal expenses. The wife knew that such an application was being made and in fact opposed it. (Transcript of 6 December 2004, page 20)
80. Whilst the trial Judge may not have referred to it, junior counsel for the husband relied upon the fact that, as the wife deposed in her affidavit of 21 February 2003, in November 2002 the wife inspected the whole of the Family Court file. We have earlier noted that this could only potentially impact upon the wife’s knowledge at the time of the second breach of the injunctive orders.
81. During the trial the trial Judge enquired of counsel for the husband as “whether you have proven that the wife is aware of the orders?” The trial Judge again made that inquiry (Transcript of 6 December 2004, page 24) to which counsel for the husband replied:
Indeed, your Honour. In this case we have a slightly peculiar situation in the sense that the orders that the wife is alleged to have breached were in fact the orders she brought into existence by her own application, and furthermore that during the several years after those orders were initially made there were a number of occasions when the subject matter of those orders were the subject matter of proceedings.
82. The question of the wife’s knowledge of the orders arose again later in the course of counsel for the husband’s submissions, during which he made a number of submissions in reliance upon statements made by the husband in affidavits as to the affect of the 1999 orders upon him which appear to be identical to those portions of the evidence referred to in paragraph 14 of Senior Counsel for the husband’s Summary of Argument in this appeal.
83. Again the trial Judge said:
Yes, but you have got to prove that she knew about the orders, that’s the problem. Now, I’m going to say something here which leads me to – it is about some doubts I have one way or another. And it is this Court is the only Court I know that serves orders on people as a matter of general practice. And what I want to know is can I take judicial notice of that fact. (Transcript of 6 December 2004, page 31-2)
84. After some inconclusive discussion, the trial Judge said:
My understanding of the invariable practice of the Court is, that people are sent copies of the orders once they are made.
We note that there was no evidence of any such “invariable practice” before the trial Judge.
85. That observation prompted the following exchange:
MR COOK: I would not know, your Honour.
HIS HONOUR: Well, I think that’s an important matter, Mr Cook, or it may be. I don’t know what your submissions are going to be, but it is a matter I am going to consider whatever your submissions might be.
MR BEDROSSIAN: Your Honour, of course it would be a different situation if the orders were made, either on the application of the husband or for example ex parte, in which there would be a requirement for proof specifically of service.
HIS HONOUR: You don’t have to prove service, that’s not my understanding.
MR BEDROSSIAN: I’m not suggesting it is.
HIS HONOUR: My understanding is you have to prove that the person alleged to have committed the offence has knowledge of the orders.
MR BEDROSSIAN: Precisely, your Honour. Yes. And that conclusion can come from strong inferences from the facts of the case, including, I need not repeat it, the fact that she applied for the orders. Your Honour, the contents of that affidavit, the wife says she looked at, that she was served with a copy of that. There are multiple references in the husband’s affidavit, 12 February ‘0l, indicating that the husbandhimself was of the view that he could not deal with these properties, even to pay his own legal expenses.
HIS HONOUR: But that doesn’t help you. That doesn’t raise anything.
MR BEDROSSIAN: Your Honour, I appreciate your Honour’s view. I am making that submission and I don’t put that as the strongest point in respect of this matter, there are far stronger points that I have already raised this morning. As I have already indicated there is no evidence the wife ever disclosed that these transactions occurred, and in accordance with the authority I’ve previously cited an inference can be drawn from that. It is perhaps useful, your Honour, to refer specifically to the letters that were sent to the wife.
HIS HONOUR: Well, that’s no value, that’s after the event.
MR BEDROSSIAN: If your Honour pleases.
HIS HONOUR: I just don’t see it is relevant to anything that happened after the second (indistinct) which is the mortgage.
MR BEDROSSIAN: If your Honour pleases. An other matter is when one looks at the timing, the sequence of events, one sees that the disposal by mortgage of some part of the QLD property occurred on 20 December.
HIS HONOUR: I understand that point, but that doesn’t really affect the question of knowledge.
MR BEDROSSIAN: What does, is that in proceedings in 2002 the wife specifically made application to reinstate her appeal against your Honour’s orders. Now, that occurred in the course of 2002. The alienation of the NSW property occurred at the beginning of 2003, and in my respectful submission, it would be an absurd proposition to say that the wife who instigated a further application to vary your Honour’s orders would not, by reason thereof, have notice of and know full well the implications of the orders that were in force.
HIS HONOUR: Mr Bedrossian, that is – submissions like that are very attractive, but unfortunately they are not necessarily right. It is a very easy way out to say something like that. But in a serious matter where somebody might end up in prison, and I regard this matter as quite serious, (indistinct) and serious if it’s not so, in the sense that one has to approach it in the most serious possible way, because it involves an allegation of an action which I think is a substantially – it is a matter that should not be allowed to be treated lightly in any way.
MR BEDROSSIAN: And I don’t for a moment suggest that it should not. That is actually an important point, your Honour, that is the seriousness of the dealing with this property. Let us look at the reverse side of the transaction. The wife has on…
HIS HONOUR: Do it after lunch, I notice it is one o’clock. (Transcript of 6 December 2004, page 32-3)
86. In no other passage which we have located was any specific submission made to the trial Judge in relation to the issue of proof of the 1999 orders. So far as we can discern, the question of how the wife would have come to know the “contents and meaning” of the 1999 orders was not raised in the course of submissions on behalf of the husband. There was thus neither the opportunity for the wife to object in reliance upon her client legal privilege, or as a consequence, for her client legal privilege to have been deemed waived or otherwise “lost”.
87. We are unable to discern how, in the circumstances before him, the trial Judge could have been satisfied beyond reasonable doubt that the wife knew the contents and meaning of the 1999 orders unless that had arisen as a result of or in circumstances involving a communication, of the kind referred to in s 118 or s 119 of the Evidence Act. No other basis upon which the wife might have acquired such knowledge has been advanced, nor, given that there is no evidence that the wife was ever served with the order, or any document containing a copy of it, or in Court when the orders were made, would such a basis appear likely. Whilst the trial Judge clearly recognised that he had to be satisfied beyond reasonable doubt that the wife knew the “contents and meaning” of the order or orders which she was alleged to have breached, he could only have been satisfied in reliance upon admissible evidence. In our view, the only evidence which could have established the requisite “knowledge” on the part of the wife was evidence which, by virtue of s 118 or s 119, could not in the circumstances have been relied upon by him. The judgment of Murray J in Angelis, cited earlier, is apposite in this respect. Nothing advanced by learned Senior Counsel for the husband in relation to the provisions to client legal advice, or Part 3.10 of the Evidence Act generally militates against this conclusion.
88. Nothing to which we have been referred establishes that the wife expressly or impliedly waived her privilege with respect to the communications pursuant to which she may have come to know the content and meaning of the injunctive orders. Indeed, the conduct of her defence to the husband’s application is utterly inconsistent with any such waiver.
89. It remains to consider the extent to which the trial Judge was entitled to rely upon the wife’s silence in relation to the issue of her knowledge of the orders which she breached. We have earlier referred (paragraph 42) to the judgment of the High Court in Weissensteiner v R. Of particular relevance in the present context is that part of the judgment of Mason CJ, Deane and Dawson JJ in which their Honours said at 227-8:
… in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.
90. In Azzopardi v The Queen (2001) 205 CLR 50 Gleeson CJ said at 56:
The general principles were addressed by this Court in Weissensteiner v The Queen. In that case, five Justices quoted with approval the following passage from the judgment of Windeyer J in Bridge v The Queen:
"An accused person is never required to prove his innocence: his silence can never displace the onus that is on the prosecution to prove his guilt beyond reasonable doubt. A failure to offer an explanation does not of itself prove anything. Nor does it, in any strict sense, corroborate other evidence. But the failure of an accused person to contradict on oath evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true. That is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies. A direction by the judge on such matters ... might no doubt be helpful to the accused in some cases." (footnotes omitted)
His Honour further said at 57-8:
The right of silence is not, in this country, a constitutional or legal principle of immutable content. Rather, it is a convenient description of a collection of principles and rules: some substantive, and some procedural; some of long standing, and some of recent origin. Lord Mustill said that the expression "refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute". The particular aspect of the right of silence of present concern is the immunity of an accused person undergoing trial from being compelled to give evidence. This is only one of a number of immunities which enable a person suspected or accused of crime to remain silent. But, as was pointed out in Weissensteiner, to say that a person may choose to remain silent is not to say that the exercise of that choice is necessarily free from adverse consequences. This is why a reference to the immunity as a right sometimes carries an overtone which is unwarranted, both as a matter of history and as a matter of legal principle. (footnotes omitted)
91. His Honour thus concluded at 59:
To express the question as one concerning the probative significance of silence may be misleading. The question concerns the significance of an accused's silence, either generally or on a particular subject, when evaluating either the whole or part of the evidence. In the context of a jury trial, the question only arises if the prosecution has established a case fit to go to the jury; that is to say, if there is evidence which, if accepted by the jury, is capable of establishing the guilt of the accused beyond reasonable doubt. If that condition is satisfied, then it is the task of the jury to evaluate the evidence for the purpose of deciding whether it proves the guilt of the accused beyond reasonable doubt.
92. In Azzopardi the majority (Gaudron, Gummow, Kirby and Hayne JJ) said at 75:
It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case.
93. In RPS v The Queen (2000) 199 CLR 620 Gaudron ACJ and McHugh J said at 643-4:
The privilege exists to protect the citisen [sic] against official oppression. We should not use it to bar ordinary processes of reasoning where they are applicable. The judgment of Windeyer J in Bridge v The Queen is authority for the proposition that the jury can consider the failure of the accused "to contradict on oath evidence that to his knowledge must be true or untrue" because it "can logically be regarded as increasing the probability that it is true". Weissensteiner supports the same proposition. It is true that the issue in Weissensteiner was "whether it is permissible for the trial judge to instruct the jury that inferences available to be drawn from facts proved by the Crown case can be drawn more safely when the accused elects not to give evidence on relevant facts which the jury perceives to be within his or her knowledge". But I can see no difference in logic or legal principle between more readily drawing an inference from silence and more readily treating evidence as reliable because of silence. But that said, I think it better to deal with the problem as Gaudron J and I suggested in Weissensteiner where we said:
"In the context of the right to silence, it is important to bear in mind that it is the failure to provide an `explanation or answer ... as might be expected if the truth were consistent with innocence' ... which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of evidence ... Accordingly, directions should be given in terms of the unexplained facts, rather than in terms of the failure to give evidence or to meet the prosecution case generally or the failure to answer questions from investigating police ... And to avoid any possibility of the jury giving significance to the accused's silence with respect to other matters, a direction, if one is to be given, should be precisely framed in terms of the particular facts which call for explanation in the sense indicated." (footnotes omitted)
94. Against the background of those authorities, it is necessary to consider whether, in the circumstances of this case, the trial Judge was entitled to rely upon the failure of the wife to “offer an explanation” in relation to her knowledge of the content and meaning of the orders which she breached, given that such matters could only have been “within the knowledge” of the wife.
95. We have earlier quoted paragraph 44 of the trial Judge’s reasons for judgment (see paragraph 64). Although not so expressed, in substance, his Honour’s statement can be interpreted as suggesting that the wife’s silence caused the “hypotheses consistent with innocence” to “cease to be rational or reasonable in the absence of evidence to support them” given that such evidence “if it exists at all, must be within the knowledge of the accused”. If, as Senior Counsel for the husband would contend, it was open to the trial Judge to reach that conclusion on the evidence, his Honour would have been entitled to rely upon the wife’s failure to “offer an explanation” in the manner, and on the basis explained by the High Court in the authorities to which we have referred.
96. As we have earlier detailed, Senior Counsel for the wife referred us to a number of matters which, in his submission, provided support for a hypothesis “consistent with innocence”. The wife’s case was that, in those circumstances, the failure to abandon her right to remain silent could not have caused the “hypotheses consistent with innocence” to “cease to be rational or reasonable”.
97. In our view, the facts and circumstances relied upon by Senior Counsel for the wife provided a foundation for “hypotheses consistent with innocence”. The failure of the wife to give evidence in support of them did not in our view cause such “hypotheses consistent with innocence” to “cease to be rational or reasonable”, as the foundation for those hypotheses remained, and was unaffected by, the wife’s exercise of her right to remain silent. No evidence adduced on behalf of the husband gave rise to circumstances in which the wife’s silence constituted a “failure to provide an explanation or answer”. In those circumstances, we are not persuaded that the case was one of those “rare and exceptional” cases in which the trial Judge was entitled to rely upon the “failure of an accused to offer an explanation”. Without the evidence of the wife, which we have concluded to have been inadmissible, there was no evidence which imposed upon the wife any obligation to provide “an explanation”. In the those circumstances, with all due respect to him, the trial Judge’s reliance upon the wife’s silence could only have been for the purpose which the High Court has made clear, in the authorities to which we have referred, was impermissible. The effect of so doing was to relieve the husband of the requirement to prove an essential element of his case, and impose upon the wife an unjustifiable evidentiary onus.
98. Whilst the Court may suspect that the wife well knew of the injunctive orders, the absence of admissible evidence to establish that state of affairs precluded the trial Judge from finding the wife in contempt of the Court’s orders pursuant to s 112AP. It is to be remembered that the Act provided another, less draconian avenue of redress for the husband in relation to the wife’s breaches of the orders, namely s 112AB. Had the husband proceeded in reliance upon s 112AB, the outcome of his application may have been different, for a variety of reasons relating to the burden of proof and the standard of proof. Having elected however to pursue an application under s 112AP, the husband was obliged, as learned Senior Counsel for both parties acknowledge, to prove each element of the contempt created by the section beyond reasonable doubt in the Briginshaw sense upon admissible evidence, in circumstances where it was made clear by counsel for the wife, and understood by the trial Judge, that the wife was making no admissions, adducing no evidence in reliance upon her right to silence, and requiring the husband to prove each element of his case to the requisite standard.
99. Without being critical, it ought to have been a relatively simple matter to have served the orders of 30 August and 7 September 1999 upon the wife at any time in the two years following the orders having been made or, to have annexed a copy of Rose J’s order of 7 September 1999 to the husband’s 2001 affidavit in support of his application to vary those orders which Cohen J determined on 2 November 2001.
100. As we have earlier recorded, the only matter which remains to be considered in relation to proof of the wife’s knowledge of the orders prior to, albeit subsequent to the mortgage over the QLD property in December 2001 and the sale of the NSW property in February 2003, was the wife’s obtaining on 6 December 2002 of a complete copy of the Family Court file.
101. It has not been suggested that the Family Court file was tendered before the trial Judge. That file may or may not have contained a sealed copy of the orders of 30 August 1999 and 7 September 1999. In the absence of proof that the file did contain such documents, it could not be assumed for the purpose of proceedings under s 112AP that it did. The position is thus that the wife having obtained a “full copy of the Court file” on or about 6 December 2002 could not constitute proof to the requisite standard of her knowledge of the orders of 30 August 1999 and/or 7 September 1999. That being so, and as none of the other evidence relied upon by the trial Judge to establish the wife’s knowledge of the orders prior to her breaches of them, the trial Judge’s conclusion as to the wife’s knowledge of the “contents and meaning” of the orders cannot stand.
102. Having allowed grounds 1 and 2, which necessarily result in the appeal being allowed, and the trial Judge’s finding of guilt being set aside, it is unnecessary to consider the remainder of the Grounds of Appeal, save to record that, the findings of contempt necessarily having to be set aside, so too must the trial Judge’s orders in relation to the imprisonment of the wife and the payment of costs.
CONCLUSION
103. In the circumstances we have outlined, the appeal must be allowed. The more potentially vexed question is what flows from allowing the appeal. It was, we think sensibly, agreed by learned Senior Counsel for the parties that it would be appropriate to invite further submissions in relation to the future course of the appeal once our decision in relation to the appeal and reasons for it were made known.
104. Two options arise, remitting the applications to a single judge for re-hearing or dismissing the applications on the basis that they cannot succeed in the light of our conclusion with respect to the appeal. Whilst the latter course appears difficult to resist given our conclusions in relation to the issue of the wife’s knowledge of the orders she breached, we are not disposed to dismiss the appeal without affording counsel for the husband the opportunity to be heard. Rather than allow the appeal now, and creating a lacuna in the proceedings, we will continue to reserve our judgment to allow the question of remission or dismissal of the husband’s applications to be agitated. The nature of the issue and cost of re-convening the bench to consider it suggest that written submissions would be appropriate.
105. May J: Factual matters, the background to the proceedings and the submissions made by counsel have been comprehensively dealt with in the judgment of Holden and Coleman JJ. The appeal is largely concerned with grounds 1 and 2 relating to the extent to which the trial Judge could infer that the wife knew of orders restraining her from dealing with property. If she did, the source of that knowledge must have been her solicitors. Neither the solicitors nor the wife gave any evidence about the matter.
106. In my opinion, the primary finding made by the trial Judge, that the wife was aware of the orders, was clearly open to him. It was a rational inference which he was entitled to make in view of the wife’s choice not to give evidence or her permitting her solicitor to do so.
107. The decision of Weissensteiner as referred to in the judgment of Holden and Coleman JJ contains the key to the argument on behalf of the husband and supports the findings of the trial Judge. I refer particularly to the judgment of Mason CJ, Deane J and Dawson J commencing at page 227 as follows:
We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.
108. Reference was also made to the relevant paragraphs of Azzopardi in the judgment of Holden and Coleman JJ so that it is unnecessary for me to repeat them other than to add that judicial comment was also made by Justices Gaudron, Gummow, Kirby and Hayne in relation to the accused silence at trial. See paragraph 68:
68. It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case.....
109. There were two people who could give the evidence about the wife's knowledge of the orders. The first was the wife and she did not give any evidence. The second was the solicitor, who did give some other evidence. This is the second point. Whilst of course it is correct that for reasons of privilege the solicitor could not have been forced to give the evidence, the wife could have waived that privilege. I agree with the trial Judge that it is very hard to believe that a solicitor would have obtained orders and given undertakings without instructions and then subsequently not informed the client of the outcome. That would have been contrary to her duty to her client. If she had not informed the wife then that evidence could have been given to the Court.
110. In the Court below, a number of matters were raised by counsel for the wife. The answer to the probabilities of what the wife knew is that she was the person that could have provided that information to the Court. In the absence of so doing the Judge was entitled to draw the inference that he did. As was correctly argued in the submissions on behalf of the husband:
… the satisfaction of that standard of proof does not, however, require the applicant to exclude (by an accumulation of evidence, whether circumstantial or otherwise) the existence of every nearly possible explanation of the evidence in the proceeding which might theoretically be consistent with the innocence of the respondent.
111. In short, the Judge was right to draw the most obvious of conclusions, which is that the wife knew about the court order.
112. The other point can be dealt with shortly. The language of the order was not unduly complicated or obscure. There is no reason to think that the wife might not have understood its meaning.
113. The appeal should be dismissed.
ORDERS
114. The Court accordingly orders:
1. That within 28 days each party file and serve written submissions with respect to the orders appropriate to be made upon the Court allowing the wife’s appeal, and the costs of the appeal.
2. That within 56 days each party file and serve written submissions with respect to any submissions filed pursuant to Order 1 hereof.
I certify that the preceding
114 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 05/06/2006
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