Murray and Murray (No. 5)
[2020] FamCA 222
•31 January 2020
FAMILY COURT OF AUSTRALIA
| MURRAY & MURRAY (NO. 5) | [2020] FamCA 222 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Suppression and non-publication orders – orders pursuant to s 102PE(1)(b)(i) and s 102PF(1)(a) Family Law Act 1975 Cth) |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPLICANT: | Commissioner of Police, NSW Police Force |
| RESPONDENT: | Mr Murray |
| RESPONDENT: | Ms Murray |
| FILE NUMBER: | SYC | 5665 | of | 2014 |
| DATE DELIVERED: | 31 January 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 31 January 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Makinson d'Apice Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Husband in person |
| SOLICITOR FOR THE RESPONDENT: | Pearson Emerson Meyer Family Lawyers |
Orders
Pursuant to Rule 11.10(1)(b)(ii) of the Family Law Rules 2004, permission be granted to the Commissioner of Police, NSW Police Force to amend the Application in a Case filed 28 November 2019.
Pursuant to s 102PE(1)(b)(i) and s 102PF(1)(a) publication of the following Orders and/or Reasons for judgment of Justice Watts in these proceedings is prohibited until the conclusion of the matter R v Mr A – NSW District Court (Criminal) proceedings no. 2019/… and any appeal thereof is finalised, or until further order of the Court:
(a)Order and Reasons for Judgment delivered 11 October 2019, cited as Murray & Murray [2019] FamCA 737;
(b)Order and Reasons for Judgment dated 18 November 2019, cited as Murray & Murray (No. 2) [2019] FamCA 846;
(c)Reasons for Judgment dated 18 November 2019, cited as Murray & Murray (No. 3) [2019] FamCA 847, with the exception of paragraph 420 of the Reasons for Judgment;
(d)Ex Tempore Reasons for Judgment dated 17 December 2019;
(e)Ex Tempore Reasons for Judgment dated 31 January 2020.
The parties are not to provide a copy of transcripts of these proceedings to any other person except as provided in these Orders.
Order 2 hereof does not prohibit either the Husband or the Wife in these proceedings from:
(a)Obtaining a transcript of the oral evidence given during these proceedings and providing a copy of that transcript and any other evidence given during these proceedings to a party to these proceedings and/or any person from whom they are obtaining professional legal advice and otherwise using that material during the conduct of any appeal from the final property settlement order;
(b)Providing a copy of the Orders and Judgments referred to in Order 2 hereof to any person from whom they are obtaining professional legal advice and otherwise using that material during the conduct of any appeal from the final property settlement order.
The Commissioner of Police inform the Registrar of the Court and my associate in writing forthwith of the conclusion of the criminal trial against Mr A including any conclusion of the appeal time or the conclusion of any appeal.
Until further order the Application filed by the Commissioner of Police on 28 November 2019; the Amended Application filed by the Commissioner of Police on 28 January 2020; the Affidavit of Theresa Hartcher filed 28 November 2019 and the Affidavit of Theresa Hartcher filed 28 January 2020; copy of the Ex Tempore Reasons for Judgments dated 17 December 2019 and 31 January 2020 be sealed and not open for inspection by any person without further order.
In relation to the documents referred to in order 6, the parties are not to provide copies to anybody other than a person from whom they are seeking legal advice.
IT IS NOTED THAT:
Nothing in these Orders prevents the publication nor disclosure of the property settlement orders dated 18 November 2019 and paragraph 420 of the Judgment: Murray & Murray (No. 3) FamCA 847.
Order 2 hereof does not apply to the final property orders made by His Honour Justice Watts in these proceedings on 18 November 2019 and nothing in these orders prohibits either party from providing a copy of those orders to any person from whom they are obtaining professional advice and/or otherwise using that material for the purposes of implementation and/or enforcement of those orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Commissioner of Police & Murray has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5665 of 2014
| Commissioner of Police, NSW Police Force |
Applicant
And
| Mr Murray |
Respondent
And
| Ms Murray |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Originally in an Application in a Case filed 28 November 2019, the Commissioner of NSW Police (“the Commissioner”) sought suppression orders in relation to Judgments and a range of materials in this matter. As a result of that application, an interim suppression order was made in chambers on 2 December 2019 and extended on 17 December 2019 for reasons which were given ex tempore on that day.
I noted at [14] to [17] of those Reasons that the Commissioner had not addressed the requirements of rule 5.19(b) and (c) of the Family Law Rules, namely:
(b)why further anonymisation of the judgment would not be sufficient;
(c)whether publication of the entire judgment should be suppressed or only part of the judgment
On 17 December 2019, for the reasons given, I made a request and an order as follows:
3. A request is made to the court’s Publication Officer to anonymise the Orders and Reasons for Judgment as soon as practicable and that the Registrar provide those Orders and Reasons for Judgments to the Commissioner for Police as soon as practicable.
4. The Commissioner for Police is within a period of 7 days after receipt from the Registrar of the anonymised version of the Reasons, to file and serve any further evidence upon which the Commissioner seeks to rely including addressing the issue as to why anonymisation of the judgments is not sufficient and whether or not publication of the entire judgments should be suppressed.
The Reasons of 11 October 2019 and the two sets of Reasons of 18 November 2019 were anonymised by the publications officer and forwarded to the Commissioner.
On 28 January 2020 the Commissioner filed an Amended Application in a Case which sought orders pursuant to s 102PE(1)(b)(i) and s 102PF(1)(a) Family Law Act 1975 Cth) (“the Act”) that the publication of Orders and Reasons for Judgment specified in the Application be prohibited and that that order to apply throughout the Commonwealth of Australia. That Application, as I understood it, was meant to replace the original Application that was made in November 2019 for suppression orders.
Today the orders sought have been further refined and are now contained in a proposed short minute of orders and notations which has been marked Exhibit 62.
The Commissioner has filed an affidavit by Ms Hartcher on 28 January 2020 addressing issues referred to in order 4 made 17 December 2019. That affidavit by Ms Hartcher has been prepared after consultation with the Detective in charge of the criminal case against Mr A and the Office of the Director of Public Prosecutions, which Office supports this Application. The affidavit also attaches the Police facts in respect of the criminal prosecution of Mr A and two statements made by the husband to police on 11 August 2017 and 25 August 2017.
In her affidavit, Ms Hartcher says the following:
7.Mr Murray and Mr R are Crown witnesses who have given statements for the purposes of the criminal proceedings. copies of the statements made by Mr Murray accompany this affidavit.
8.The primary contentious issues in the criminal proceedings, insofar as sequence 5 is concerned, are expected to be the source and tracing of the cash deposits made by both Mr Murray and Mr R during the periods, as referenced in the Facts Sheet.
9.The purpose of Application is to ensure that, in relation to the cash deposits made by Mr Murray and/or Mr R, any evidence of that information given in or prepared for the purpose of these proceedings, being information related to or expected to be considered in the criminal proceedings against Mr A is not disclosed to any juror or other witness, except legitimately through the criminal proceedings themselves. The Commissioner is of the view that a non-publication order is required to ensure that control over information available to jurors and other witnesses remains with the trial judge as far as possible.
10.The following evidence which has been led in these proceedings is likely to overlap with that led in criminal proceedings:
(a) the details and source of particular cash deposits made by Mr Murray and Mr R, including amounts, locations, dates and corresponding company accounts;
(b) Mr R’s statement and evidence that he believed he was assisting Mr Murray to hide money from his wife.
11.Apart from this Court considered same issues that the criminal proceedings is expected to consider, generally speaking, the following information contained in the judgments may be prejudicial to the criminal proceedings notwithstanding the use of anonymisation:
(a) Consideration and acceptance of evidence given by Mr R that Mr Murray advised him not to make deposits of greater than $10,000 and evidence given by Mr Murray disputing this, including that Mr Murray gave evidence that some money had been loaned to him in $10,000 instalments
(b) The details and discussion of transactions in bank accounts controlled by Mr Murray beyond the cash deposits set out in the facts sheet.
(c) Consideration of evidence given by Mr R and Mr Murray in relation to whether Mr Murray was attempting to hide money from his wife and whether he said this to Mr R
(d) Findings in relation to Mr Murray’s lack of disclosure and candour and the credibility of his evidence relating to the cash deposits into bank accounts controlled by him and related transactions
(e) Evidence that Mr Murray was asked to leave his position as a partner in an accounting firm due to concerns that he was laundering money on behalf of clients
(f) Mr Murray’s evidence about the extent of his involvement in money laundering and findings by this court that it is unlikely that he did not obtain any personal benefit from this
(g) References to Mr R’s “habitual criminal offences involving dishonesty” and findings in relation to his credibility or lack thereof
(h) Evidence that Mr R was told by Detective Sergeant W that the money he was depositing did not belong to Mr Murray.
12.Further anonymization of the judgment is unlikely to be sufficient for the following reasons:
(a) The facts of these proceedings are unique, including but not limited to the following circumstances:
(i)The large number of cash deposits made across three states by two former school friends who live together, one of whom is an apprentice at a firm that may have links to money laundering is alleged to have assisted the other deposit money on behalf of the other’s clients
(ii)The complexity of the financial affairs of the husband and the fact that he has been a partner of several accounting firms
(iii)References to the cash deposits being the subject of a current criminal investigation
(b) These proceedings have been specifically referred to in one of the statements made by Mr Murray for the purposes of the criminal proceedings. Mr Murray’s divorce and the suggestion that Mr Murray was hiding money from his wife, is also referred to in both the statement made by Mr R. Another witness has also referred to Mr R’s belief that Mr Murray was hiding money from his wife in their statement
(c) References made by Mr R to assisting a friend to hide money from his wife in criminal proceedings have also been published in mainstream media. There do not appear to be any articles that name Mr Murray as the friend, however.
(d) Given that the evidence of Mr R in these proceedings and in another criminal trial has been that he believed the cash deposits he was making for [sic] Mr Murray, the veracity of this belief may be a key source of contention for the criminal proceedings
(e) It is highly likely that the jury, and anyone else present at trial, will become aware of these proceedings in the course of the criminal proceedings
(f) Due to the peculiarity of the facts, the judgments in these proceedings would not be difficult to locate for anyone seeking further insight into Mr Murray’s financial affairs, the agreement between Mr R and Mr Murray, and the source of the funds
(g) The criminal proceedings, in particular the involvement of Mr R, a fairly well known former Kings Cross identity involved in money laundering, has the potential to attract media attention
13.The judgments in these proceedings are largely concerned with the evidence in relation to Mr Murray’s complex financial arrangements and financial disclosure or non-disclosure, and whether Mr R was assisting Mr Murray hide money from his wife. This takes the form of setting out the facts as this court sees them, consideration of the evidence and conclusions draw [sic] from that evidence.
14.Not all paragraphs are concerned with this evidence, however it is difficult to see how the judgments, particularly the first two judgments, could be published without this evidence in any meaningful way, or that a summary of the judgments could be published without a discussion of the facts referred to in paragraph 10, which are peculiar to his matter.
15.At a minimum a non-publication order would be required over the whole of the anonymised judgments Murray & Murray [2019] FamCA 737; Murray & Murray (No. 2) [2019] FamCA 846 and the following portions of Murray & Murray (No. 3) [2019] FamCA 847: catchwords relating to money-laundering; credit; full and frank disclosure; paragraphs 2, 16-24, 121, 124, 126, 152, 155-162, 166-212, 222-223, 276-277, 336-342, 413 and 416-417.
16.The orders are sought only for period up until criminal proceedings against Mr A and any appeal thereof is concluded, and are thereby limited to the period in which prejudice may arise.
I take into account the opinions expressed in those parts of the affidavit to which I have referred. I am satisfied having regard to all of the matters referred to in rule 15.19 Family Law Rules, that the orders sought are necessary to prevent prejudice to the proper administration of justice and accordingly a non-publication order shall be made.
I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 31 January 2020.
Associate:
Date: 19.2.2020
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