NSW Commissioner of Police & Bowers
[2022] FedCFamC1F 526
•8 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
NSW Commissioner of Police & Bowers [2022] FedCFamC1F 526
File number(s): SYC 3180 of 2022 Judgment of: ALDRIDGE J Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Harman obligation – Where the first respondent is defending criminal charges before the District Court – Where the applicant seeks orders which would permit her to have access to two affidavits made by the first respondent in proceedings in this Court – Where the second respondent does not oppose the application – Where the first respondent seeks to have access to three affidavits of the second respondent – Orders allowing the applicant and first respondent to use, for the purpose of criminal proceedings, the relevant affidavits. Legislation: Family Law Act 1975 (Cth) s 121
Federal Circuit and the Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.13
Cases cited: Commissioner of Taxation & Darling (2014) FLC 93-583
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 8 June 2022 Place: Sydney Counsel for the Applicant: Mr Brown Solicitor for the Applicant: NSW Crown Solicitor’s Office Counsel for the First Respondent: Mr Hodgson (direct brief) Solicitor for the Second Respondent: Barkus Doolan Family Lawyers ORDERS
SYC 3180 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: NSW COMMISSIONER OF POLICE
Applicant
AND: MS BOWERS
First Respondent
MR BOWERS
Second Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERED ON 8 JULY 2022 THAT:
1.The NSW Crown Solicitor, on behalf of the NSW Commissioner of Police (“the Commissioner”), be permitted to have access to and copy the following documents from the Family Court file number …:
(a)Affidavits of the first respondent dated 9 November 2015 and 5 February 2016; and
(b)Affidavits of the second respondent of 9 October 2015, 12 November 2015 and 15 February 2016.
2.The Commissioner be permitted to serve the redacted affidavits in the form filed with the Court as Exhibit 2 on 8 July 2022 on the Office of the Director of Public Prosecutions (“ODPP”) for use in the criminal proceedings as against the first respondent.
3.The affidavits of the second respondent be redacted conformably with the affidavits of the first respondent before provision to the ODPP.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym NSW Commissioner of Police & Bowers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
The New South Wales Commissioner of Police (“the Commissioner”) seeks orders which would permit her to have access to two affidavits made by the first respondent in proceedings in this Court and that she be permitted to serve those affidavits on the Office of the Director of Public Prosecution (“ODPP”) for use in criminal proceedings against the first respondent. The application is opposed by the first respondent but not by the second respondent.
The first respondent has been charged with criminal offences. Her trial has been fixed to commence on 25 July 2022 and is expected to last for four months. The charges assert that the first respondent committed a number of offences involving fraud between 1 July 2013 and 25 February 2018 through a business known as B Pty Ltd (“B Pty Ltd”). It is alleged that the amount defrauded was some $18,263,140. The charges include allegations that B Pty Ltd issued fraudulent invoices to a bank which the bank paid. At the relevant time, the first and second respondents were directors of that company. The first respondent has pleaded not guilty to all charges.
On 10 April 2018, a search warrant was executed at the premises of B Pty Ltd during which the police gained access to B Pty Ltd's Dropbox account. The next relevant event occurred on 6 May 2021, when investigating officers were informed that affidavits prepared by the first respondent in proceedings in this Court may be relevant to the prosecution.
An application was made to inspect the court file but was rejected on 14 May 2021.
The contents of the B Pty Ltd's Dropbox account were then reviewed, and on 2 June 2021, two affidavits of the first respondent made on 9 February 2015 and 5 February 2016 were located. The first was marked filed and the second was not.
The Commissioner asserts that the affidavits are relevant to the prosecution for the following reasons:
19. …
a.The affidavits contain assertions by the first respondent that the second respondent was not involved in the running of the company at the time of the alleged frauds. This fact goes to establishing that it was the first respondent who had sole control of the [B Pty Ltd] and was therefore the person perpetrating the frauds, removing the possibility of the first respondent being able to place responsibility for some of the criminal conduct on the second respondent;
b.The affidavits corroborate the second respondent’s account that he was not involve in the running of the company at the time that the first respondent was using it to perpetrate the frauds;
c.The affidavit of the first respondent dated 9 November 2015 corroborates evidence given by the co-offender [Ms C] that a conversation occurred between the first respondent and [Ms C] about the second respondent not being involved in the [B Pty Ltd’s] dealing with [the bank];
d.The affidavit of the first respondent dated 9 November 2015 corroborates other evidence in the Brief of Evidence that a conversation occurred between the first and second respondent in July 2012 in which the second respondent surrendered control of the [B Pty Ltd] to the first respondent, which is further support of the second respondent’s account that he was not involved in the frauds perpetrated by the first respondent against the [bank];
e.In her affidavit dated 9 November 2015, the first respondent deposes to moneys spent by her on personal items such as garden renovations (see paragraph 245) and Motor Vehicle 1 (see paragraph 10(y)(ii)). Items in the Brief of Evidence established that these expenses were subsequently attributed to and charged to [the bank] by way of the fraudulent invoices.
(Affidavit of Ms D filed on 12 May 2022, paragraph 19)
The affidavits contain statements which, when taken together, are capable of indicating that the first respondent took control of the B Pty Ltd from the second respondent prior to the commission of the first alleged offence. The affidavit also refers to expenditure undertaken for the benefit of the family of the first and second respondent, the payment for which is the subject of some of the charges. The application is brought under r 15.13(1)(d) of Federal Circuit and the Family Court of Australia (Family Law) Rules 2021 (Cth) which, relevantly, provides that:
(1)The following persons may search the court record relating to a proceeding, and inspect and copy a document forming part of the court record:
…
(d)with the permission of the court, a person with a proper interest:
(i) in the proceeding; or
(ii)in information obtainable from the court record in the proceeding; …
…
…
(3)The parts of the court record that may be searched, inspected and copied in accordance with subrule (1) or (2) are:
(a) court documents; and
(b) with the permission of the court, any other part of the court record.
(4) A permission:
(a)for the purposes of paragraphs (1)(d) and (e) and (3)(b), may include conditions, including a requirement for consent from a person, or a person in a class of persons, referred to in the court record; and
(b)for the purposes of paragraph (1)(e)—must specify the research to which it applies.
(5)In considering whether to give permission under this rule, the court must consider the following matters:
(a) the purpose for which access is sought;
(b) whether the access sought is reasonable for that purpose;
(c)the need for security of court personnel, parties, children and witnesses;
(d)any limits or conditions that should be imposed on access to, or use of, the court record.
The first question is whether r 15.13(1) even applies. The Commissioner has no need to inspect the file because she already has copies of the affidavits. Rather, the request is to use the documents in the imminent trial. Prudently, however, the Commissioner seeks leave to use the affidavits which have been filed in this Court. The first respondent contends that the order should not be made because:
(1)The implied harm and obligation applies to the affidavits which were created and filed as part of the compulsory processes of this Court;
(2)Accordingly, special circumstances must be shown before the affidavits can be released in other proceedings;
(3)The proposed use of the affidavits is not for a legitimate forensic purpose;
(4)The use of the affidavits would prejudice the first respondent;
(5)If leave is granted there will be a risk that the contents of the affidavits will be reported and “thereby having an adverse effect on public opinion and perhaps the selection of potential jurors” (First Respondent’s Case Outline filed on 5 July 2022, paragraph 11); and
(6)The Commissioner has been delayed in bringing the application.
The Harman obligation or “implied undertaking” named after Harman v Secretary of State for the Home Department [1983] 1 AC 280 was described by Hayne, Heydon and Crennan JJ in Hearne v Street (2008) 235 CLR 125 (“Hearne”) as follows:
96.Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. …
(Footnotes omitted)
The obligation extends to all persons who receive material knowing that it was generated in legal proceedings (at [103] and [109]). Release from the obligation may be granted where special circumstances exist (at [107]). The obligation extends to witness statements filed pursuant to judicial directions and to affidavits.
As was explained in Hearne, the general law obligation may be buttressed by rules of the court (at [98]). In this case, it is r 15.13. The release under that rule carries a release from the obligation not to use the documents for a purpose other than the proceedings for which they were generated (Commissioner of Taxation & Darling (2014) FLC 93-583 at [112]). Therefore, it seems to me that the special circumstances to be considered are those set out in r 15.13(5) of the Rules. I shall return to the question of special circumstances in due course.
Whilst the affidavit of 9 November 2015 has clearly been filed, the electronic court record makes no mention of the affidavit of 5 February 2016 although it is entirely possible that it was filed without the usual electronic notation being made. It is prudent to proceed on the basis that both were filed and subject to the obligation. It was also not clear whether either affidavit has been read in proceedings which have occurred. Again, the cautious approach is to assume that they have not.
The first question to consider is whether the Commissioner is a proper person with a proper interest. The Commissioner is investigating a series of serious criminal charges with a view to providing evidence to the Director of Public Prosecutions for potential use in the first respondent’s trial. She is a public official seeking access to the document as part of the duties she carries out. She seeks an order permitting her to provide the documents to another public body for the use of the documents in the prosecution of the serious offences. It seems to me beyond doubt that the Commissioner is a proper person with a proper interest in seeking the documents.
The first respondent contends that the prospective use of the documents is not a proper purpose because there is no legitimate purpose. It seems to me that the affidavits may well contain admissions which could be used against the first respondent in the hearing. Further, cross-examination on a document which contains a prior inconsistent statement to evidence that has been given in the proceedings is a well-established legitimate forensic purpose and would be available to the Crown in the event that the first respondent gives evidence.
The subject matter of the affidavits, namely who was in control of the financial affairs of B Pty Ltd at the relevant times is likely to be a central and important issue of the trial and may well be.
The prosecution of criminal offences is in the public interest, which is served, all other things being equal, by appropriately making available documents subject to the Harman obligation which are relevant to the prosecution either to support the Crown’s case or to support the first respondent’s case.
The first respondent submitted that she would be prejudiced by the release of the document because she may be cross-examined upon them. That, indeed, may be the effect of the documents but that does not make it an improper purpose.
The first respondent also submitted that prejudice is caused by the delay in bringing this application which will leave her only a short time to deal with two lengthy affidavits. Accepting, for the moment, that the delay is undesirable, the relevant paragraphs of the affidavits were readily identified in the course of the applicant’s submissions today and, in any event, would not appear to be difficult to locate quickly within the affidavits. Significantly, there is no evidence from the first respondent’s solicitors that they will have any particular difficulty in dealing with the affidavits.
There were submissions as to the utility of the affidavit and the role of the second respondent in his evidence in the trial. I do not consider they are relevant to the release of the documents, and they are matters for the Director of Public Prosecutions, the Crown prosecutor and the trial judge. So too is the question of relevance. It was said that much in the affidavits that has not been redacted remains irrelevant to the proceedings before the District Court. Again, the question of relevance is very much a matter for those involved in that trial and given that significant parts of the affidavits are clearly relevant, I do not think this is a consideration that carries any weight.
I accept that there is a risk that the contents of the affidavits might become public if they are used in the trial. The Commissioner has proposed that the affidavits be redacted so as to minimise any such harm. In particular, the parenting aspects of the affidavits can and have been hidden so as to protect the interests of the children and third parties referred to in those parts of the affidavits. Any agencies reporting that aspect of the trial proceedings would, of course, need to bear in mind the restrictions imposed by s 121 of the Family Law Act 1975 (Cth) (“the Act”).
Insofar as the second respondent may be affected, he consents to the application.
It was said in submissions that the affidavits may have an effect on the public generally. It is not at all too clear to me why the affidavits themselves as a whole, as opposed to selected passages, would become generally available and, indeed, it is quite possible that the District Court judge could limit the public reporting of that aspect of the trial. Leaving that aside, I do not accept that that process would affect potential jurors because by the time the affidavits are used in the trial, the jury will have been empanelled for some time.
The second respondent submits that notwithstanding r 15.13, there is still a requirement to be satisfied that special circumstances exist to make the documents available. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (“Springfield Nominees”) at 225, Wilcox J described those circumstances as including:
… the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
Those considerations do not vary significantly from that set out in r 15.13(5). In any event, that rule does not contain an exclusive list of matters to be taken into account and I accept that the considerations raised by Wilcox J in SpringfieldNominees are appropriate matters to consider.
In the present case, the document pre-existed the litigation which Wilcox J considered, and I respectfully agree, is a matter that is likely to weigh in favour of release of the document rather than against it. It was created for litigation and although it would not enter the public domain broadly because of the application of s 121 of the Act, it nonetheless becomes a publicly available document in that the court which hears family law matters, except in exceptional circumstances, is an open court and anyone could be present to hear anything that occurred in relation to it. Whilst it is a consideration, it is one that does not carry a great deal of weight. The personal data has been redacted. I take these extra matters into account along with the earlier considerations under r 15.13(5).
A week ago the applicant served a redacted version of the affidavits upon the first respondent. They have had no response. That redaction was today criticised as being inadequate although the criticism was directed not so much to particular parenting aspects but to the relevance of the matters generally.
Having regard to the fact that the first respondent has had the proposed redacted affidavits for a week and has not proposed any further redactions and the submissions that were made as to any further redactions today were of the most general kind, I am not satisfied that the use of the documents, as redacted, would work any significant unfairness or prejudice on the first respondent, the second respondent, the children or anyone else mentioned in those affidavits.
In short, the affidavits deal with matters that are relevant to the criminal trials. They are made by a person who is the subject of that transaction, and the affidavits have, at least, the potential to be important to the proper determination of that case and the administration of justice. Accordingly, I propose to grant leave as sought in relation to the affidavits as redacted.
In that event, the first respondent made an oral application that she have access to the three affidavits of the second respondent which she asserts may then become relevant to the proceedings. The parties have sensibly agreed that the way to deal with this application is for those affidavits to be made available to the applicant who will appropriately redact them in the same manner and an order be made that they may be provided to the ODPP for use in the proceedings.
There was some debate as to whether that was a sufficient order to enable the first respondent to have access to them. It seems to me that once the documents are made available to the ODPP they will become documents that are relevant to the proceedings which would need to be disclosed to the first respondent.
If that, in fact, turns out not to be the case she can make the appropriate application either to the relevant District Court judge or to a judge of this Court to remedy what would, in that event, seem to be an unfairness that ought to be remedied.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 22 July 2022
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