R v Danks No. DCCRM-98-178 Judgment No. D4

[1999] SADC 4

R v DANKS

[1999] SADC 4

Judge Anderson
Criminal

1 The Accused is charged with 9 counts of Imposition upon the Commonwealth contrary to Section 29B of the Crimes Act 1914. It is alleged that the offences occurred in South Australia and Tasmania between November 1982 and November 1994. The total alleged overpayment is $29,602.69.
2 This argument arose initially upon a Rule 9 Notice filed on behalf of the Accused.
3 At the initial hearing I required the Director of Public Prosecutions to make such an application as the prosecution relied solely upon statements obtained from two persons resident in the United States of America sought to be adduced as evidence pursuant to the provisions of the Foreign Evidence Act 1984 ("the Act").
4 Whether foreign material may be adduced as evidence requires the exercise of a discretion after the separate matters of Part 3 of the Act are established.  It seemed to me that there was an onus upon the prosecution in this regard.
5 There is no issue but that Part 3 of the Act is applicable.  The proceedings are ".... criminal proceedings for an offence against the law of the Commonwealth" : Section 20(1)(a).
6 Mr Mancini of counsel for the Accused has opposed the application upon the various bases set out in his quite extensive Rule 9 Notice filed on 2 December 1998.
7 Mr Loftus of counsel for the Director of Public Prosecutions has tendered certificates purportedly made pursuant to Section 26(1) of the Act.  Section 26 is in these terms:
"26.1(1)     The Attorney-General or an authorised officer may, by signed writing, certify that specified foreign material was obtained as a result of a request made to a foreign country by or on behalf of the Attorney-General.

1. It is presumed (unless evidence sufficient to raise doubt is adduced to the contrary) that the foreign material specified in the certificate was obtained as a result of that request.

1. In this section:
            "authorised officer" means a person:

(a) who holds or performs the duties of a Senior Executive Service office (within the meaning of the Public Service Act 1922) in the Attorney-General’s Department; and

(b)     whom the Attorney-General has, by notice published in the Gazette, appointed as an authorised officer."

8 Each Certificate relates to further certification and an affidavit from each of two persons resident in the United States of America.  The affidavits are purportedly made by Frank Gerard Zamostny and Andrea Lyn Walton, referred to in paragraphs 1.1 and 1.2 respectively of the Director’s application.
9 Mr Mancini submitted that it was necessary that the request of the Attorney-General for the collection of foreign material be produced.  In my opinion, as I said in the course of his submissions, the provisions of Section 26 disentitle any further investigation of any such request when the certificates referred to in that section are in place.  In my opinion, the certificates purportedly made by the named authorised officers are satisfactory for the purposes of Section 26(1), there having been no attempt to lead any evidence in accord with Section 26(2).
10 Mr Mancini also submitted that what was sought to be adduced from the two named persons was not "testimony" as that term is used in Part 3 of the Act.
11 The definition of that term is not included in the provisions of the Act.  I looked then at the dictionaries.  The definitions appearing in Stroud’s Judicial Dictionary, 5th Edition, The Oxford English Dictionary, 2nd Edition and The Macquarie Dictionary, 2nd Edition make it quite plain that statements of the type put forward here are testimony for present purposes.
12 The affidavits of each of Zamostny and Walton have been sworn.  There are several technical defects, in a local sense, to which my attention was drawn and to which I shall return.
13 Section 22(1)(a) requires that testimony must have been taken on oath or affirmation.  That has been done.  Consequently, Section 22(1)(b) has no role to play.  The section is disjunctive in that sense and not conjunctive as Mr Mancini submitted.
14 Criticism was made of the purported certification of the respective affidavits with some emphasis being placed upon the fact that the affidavit of Walton contained a court order and that of Zamostny did not.  In my opinion, the certification of each affidavit by a United States officer is sufficient to comply with the provisions of Section 22(2)(a).
15 Each affidavit is presented taped and sealed by the seal of the Department of Justice of the United States of America.  The submission that Section 22(2)(b) requires that the affidavit itself and/or its constituent pages bear an official or public seal is incorrect.  The form of each sealed document is such that this subsection has been complied with.
16 The use of foreign material as evidence is not to be approved if it is shown "to the court’s satisfaction .... that the person who gave the testimony concerned is in Australia and is able to attend the hearing" : Section 24(2)(a).  I have accepted the assurance of Mr Loftus from the Bar table that both Zamostny and Walton are not in Australia.  The respective affidavits support that assurance.
17 Section 24(2)(b) prohibits use of the foreign material were the evidence to be not admissible had it been adduced from the person at the hearing.  Mr Mancini made submissions under the general topic of fairness which also were relevant to this subsection.  In my opinion, the material within each affidavit would have been admissible were the evidence to be given viva voce.  I do not agree that there is anything to support the submission that the evidence has been unlawfully obtained.  I have looked through the material tendered by Mr Mancini and am not able to find any support for his submission that the provision of this information is in breach of the laws of the United States of America.  Indeed, the scraps of legislation, if that is what they are, which are annexed to the affidavit of Ms Tonkes, clearly allow for information to be provided for law enforcement purposes.
18 Section 25 is the basis to Mr Mancini’s submission that it would be unfair to the Accused to permit the foreign material to be adduced as evidence.  I set out that section in full.
25.(1)        The court may direct that foreign material not be adduced as evidence if it appears to the court’s satisfaction that, having regard to the interests of the parties to the proceeding, justice would be better served if the foreign material were not adduced as evidence.

1. Without limiting the matters that the court may take into account in deciding whether to give such a direction, it must take into account:

(a)     the extent to which the foreign material provides evidence that would not otherwise be available; and

(b)     the probative value of the foreign material with respect to any issue that is likely to be determined in the proceeding; and

(c)     the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them; and

(d)     whether exclusion of the foreign material would cause undue expense or delay; and

(e)     whether exclusion of the foreign material would unfairly prejudice any party to the proceeding."

He drew attention to the fact that the section refers, on more than one occasion, to the interests of each side.

19 Subsection (2) gives guidance as to the matters relevant to the exercise of this discretion, accepting that general principles of fairness have a part to play.
20 It has been the Director of Public Prosecutions’ position for some time that without this foreign material, and particularly that of Zamostny, there is no other evidence against the Accused and the matter could not proceed.
21 This material is therefore of significant probative value from the prosecution’s point of view. Mr Mancini submitted that that is not so for several reasons. I have dealt with his submission as to illegality. I think it more likely than not that the evidence complies with the provisions of subsections 45A and 47 of the Evidence Act 1929. No effort seems to have been made to rely upon Section 59B of that Act. That there is some purported need to cross examine Zamostny as to the law of the United States of America is a submission which I fail to understand. He is an officer of the bureaucracy not shown to have any legal expertise at all. So I do not see that a failure to cross examine him on this topic or generally, having regard to the nature and content of his affidavit, is something which is unfair to the Accused. His evidence is not factual. He is to prove payments made from records kept in the ordinary course of business and of which, I assume, he has no personal knowledge. Cross examination on this topic is unlikely, in any substantial way, to challenge the contents of his affidavit. I am unable to comprehend how the cross examination of Zamostny might possibly lead to his evidence being inadmissible.
22 Mr Mancini, in his original Rule 9 Notice, expanded upon his submission that it would be unfair to allow the foreign material to be adduced as evidence.
23 Whilst I am concerned that the prosecution seems to have lost a sense of balance when one has regard to the fact that the Accused is aged and significantly infirm and, on two occasions, that when called upon to make good overpayments did so without demur within two weeks and now, nearly two years later, finds himself in this Court, I am not persuaded that the matters personal to him to which Mr Mancini referred have a place on the scales for the purposes of Section 25 of the Act.
24 There is no doubt that the form of the foreign material does not accord strictly with the provisions of the Supreme Court Rules relating to affidavits.  However, having regard to the manner of the certification of the material, that it is under seal and that Section 23(2) does not require it to be in the form of an affidavit, I am not of the view that these defects of form have become defects of substance.
25 There is nothing in the submission based on non compliance with Section 66 of the Evidence Act as the material, in my opinion, complies with Section 23 of the Act.
26 Overall, the totality of matters put forward as going to the interests of the Accused and so affecting the Section 25 discretion or the larger Bunning v Cross type discretion do not produce an unfairness of the type contended for by Mr Mancini.
27 Accordingly, upon the application of the Director of Public Prosecutions, there will be an order in terms of paragraphs 1.1 and 1.2 of the application, permitting the certified foreign material to be adduced as evidence in these proceedings.
28 The application in the Accused’s Rule 9 Notice filed on 2 December 1998 is refused.
29 For the sake of completeness, I note that Mr Mancini has indicated that a subpoena previously issued to the Director of Public Prosecutions is no longer proceeded with.