Thasthahir v The Commissioner of the Australian Federal Police
[2019] VSC 731
•11 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CONFISCATION AND PROCEEDS OF CRIME LIST
S CI 2015 04474
IN THE MATTER OF the Proceeds of Crime Act 2002(Cth)
IN THE MATTER OF the suspect SHAHUL HAMEED THASTHAHIR
| SHAHUL HAMEED THASTHAHIR | Applicant |
| v | |
| THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Respondent |
---
JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 November 2019 |
DATE OF RULING: | 11 November 2019 |
CASE MAY BE CITED AS: | Thasthahir v The Commissioner of the Australian Federal Police |
MEDIUM NEUTRAL CITATION: | [2019] VSC 731 |
---
PRACTICE AND PROCEDURE – Implied undertaking not to disclose documents obtained in a proceeding for a collateral purpose – Application for leave to use those documents in related proceeding – whether special circumstances demonstrated – leave granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Thasthahir, in person | |
| For the Respondent | Ms E Ruddle | The Commissioner of the Australian Federal Police |
HER HONOUR:
On 22 June 2015, funds totalling $999,900 were seized by the Australian Federal Police (‘AFP’) at Tullamarine. The Commissioner for the AFP (‘the Commissioner’) made an application to this Court to restrain those funds pursuant to ss 25 and 19 of the Proceeds of Crime Act 2002 (Cth)[1]. That application was made on notice to Mr Thasthahir and his brother (from whom the funds were seized). Orders restraining the funds were made by Riordan J on 15 December 2015.
[1]Referred to in these reasons as the Proceeds legislation.
Mr Thasthahir has filed applications for exclusion and compensation in relation to these restrained funds. In support of the applications Mr Thasthahir served four affidavits. The Commissioner is subject to an implied undertaking that she not use the affidavits for purposes other than the conduct of this proceeding. The Commissioner has applied for limited release from this implied undertaking to permit them to be used in proceedings listed for hearing in the County Court of Victoria also under the Proceeds legislation relating to other restrained property.
The four affidavits served that the Commissioner seeks release from the undertaking are:
i. Alistair Gordon Grigor (solicitor for Mr Thasthahir), sworn 8 September 2015 (‘the Grigor affidavit’);
ii. Asan Ibrahim Thasthahir (the father of Mr Thasthahir), sworn 8 October 2015; and
iii. Two affidavits of Mr Thasthahir, sworn 12 October 2015 and 11 August 2016.
On 4 December 2015, Mr Thasthahir was arrested and charged with importation of a commercial quantity of a border controlled drug. He has been incarcerated since that time.
Following a trial in the County Court, he was convicted and sentenced on 18 October 2018. He has recently obtained an extension of time to apply for leave to appeal against his conviction and leave to appeal is pending.[2]
[2]S EAPCR 2019 0203.
A further application was made by the Commissioner in 2018 to restrain other property that was identified and seized in Western Australia. As charges were pending in the County Court by this time, application for restraint of this other property was made to that Court. As a result of this chronology, Mr Thasthahir has proceedings commenced before he was charged restraining property in the Supreme Court and different property restrained by the County Court. He has filed exclusion and compensation applications in both proceedings and others (namely his wife and father) have filed exclusion and compensation applications in the County Court proceedings.
The Supreme Court applications are yet to be heard. They were fixed for hearing on 2 December 2019 but recently adjourned at the request of Mr Thasthahir. The County Court applications are listed for hearing on 18 November 2019. The Commissioner seeks exemption from the implied undertaking for the limited purpose of using the affidavits in the County Court proceeding.
Despite both parties agreeing that it would be preferable to have all restraint, exclusion and compensation matters heard together at the one time, that has not been possible. The legislation requires the Court that made the original restraining order to hear any exclusion and compensation applications. As a result, it has not been possible to have proceedings transferred and heard in one court. The fact that the applications were made some three years apart and in relation to different property may explain in part the way this complication has arisen. The proceedings in separate jurisdictions have made it more difficult for Mr Thasthahir to prepare appropriately for the various applications.
The four affidavits for which release is sought all came about early in the conduct of the Commissioner’s first application for restraint. Three predate criminal charges against Mr Thasthahir. The Grigor affidavit was sworn in support of an application for an adjournment of the application for restraint and sets out instructions given to Mr Grigor who was at that stage acting for Mr Thasthahir. Mr Grigor’s firm no longer represents Mr Thasthahir, who is now self-represented. Mr Asan Ibrahim Thasthahir lives in India and deposes to matters concerning the source of the cash seized on 22 June 2015. The Grigor affidavit annexes and earlier affidavit sworn 23 June 2015, said to be needed by the Customs and Australian Federal Police to explain where the money came from. Mr Thasthahir’s affidavit of 12 October 2015 also deals relevantly with matters pertaining to the funds seized on 22 June 2015. His second affidavit sworn 11 August 2016 was to comply with the order of Riordan J that he provide a sworn statement pursuant to sub-section 39(1)(ca) of the Proceeds legislation setting out interests in property and liabilities.
Are the affidavits subject to the implied undertaking?
The ‘Harman undertaking’ as it was commonly known,[3] or ‘implied undertaking’ as confirmed by the High Court in Hearne v Street[4] prevents a party who obtains documents through court processes from using those documents for collateral purposes. The undertaking applies to documents including those produced by discovery, answers to interrogatories, affidavits or witness statements. The undertaking is a substantive obligation owed to the court. As was described in Hearne v Street:
“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.”[5]
[3]Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[4](2008) 235 CLR 125.
[5]Ibid [96].
The Commissioner accepts that three of the four affidavits are produced either by specific order or by a timetabling order and are clearly subject to an implied undertaking. The fourth affidavit, that of Mr Grigor, was said by the Commissioner to have been produced voluntarily and so not subject to the undertaking. Release was sought as a matter of completeness. It seems to me that an affidavit of a solicitor sworn in support of an application that she or he is instructed to make on behalf of a client in proceedings may well fall within the description of disclosure produced ‘otherwise’ by reason of the court processes and is properly subject to the undertaking.[6] Without deciding the question I will treat the Grigor affidavit on the same basis as the other three affidavits.
[6]Voluntary production to avoid compulsory orders for production of an expert report was held to fall within the class of documents and information to which the implied undertaking applied see King (Trustee) in the matter of Zetta Jet Pty Ltd v Linkage Access Limited [2019] FCA 1408.
In what circumstances should a party be released from its undertaking?
A court to whom the obligation is owed can release a party from the undertaking by order. The appropriate test for release from the undertaking is whether ‘special circumstances’ exist to justify the release and where the release would not occasion injustice.[7] In Springfield Nominees, Wilcox J discussed the circumstances where there might be a ‘legitimate reason’ why documents discovered in one proceeding should be made available in another proceeding and noted relatively rare occasions for such circumstances to arise. ‘Special circumstances’ are not ‘special’ by consideration only of those rare occasions but ‘special’ in relation to all the various circumstances of the actions in which the obligation has arisen.[8]
[7]Springfield Nominees Pty Ltd and Others v Bridgelands Securities Ltd and Others (1992) 110 ALR 685 (‘Springfield Nominees’).
[8]Ibid 692.
Wilcox J then set out a number of factors to consider when determining whether ‘special circumstances’ arise. They include:
(a) The nature of the document;
(b) The circumstances under which it came into existence;
(c) The attitude of the author of the document and any prejudice the author may sustain;
(d) Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
(e) The nature of the information contained in the document, particularly whether it contains sensitive commercial or personal information;
(f) The circumstances in which the document came into the hands of the applicant for leave; and
(g) The likely contribution of the document to achieving justice in the second proceeding.
The Commissioner seeks to use the affidavits in the County Court for three identified purposes:
(1) to cross examine Mr Thasthahir on inconsistencies between affidavits filed in this proceeding and those filed in the County Court proceeding;
(2) to cross examine Mr Asan Ibrahim Tasthahir on inconsistencies between affidavits filed in this proceeding and those filed in the County Court proceeding; and
(3) to allow the County Court to assess the total property said to have been acquired by Mr Thasthahir, including that acquired with the assistance of his father in order to properly assess his claims to lawful acquisition.
These are legitimate forensic purposes in the conduct of the County Court proceeding although it is not necessary for a person applying for release from the undertaking to identify specifically how it intended to the use the documents in the second proceeding.[9]
[9]Laen Pty Ltd v At the Heads Pty Ltd & Ors per Davies J [13].
Mr Thasthahir opposes the release from the applied undertaking. He says that the two proceedings have no overlap because the property that is the subject of each application is entirely different and that any reliance on the affidavits would cause a prejudice to him. Mr Thasthahir’s father has likewise subsequently indicated his opposition.
The Commissioner submits that although the proceedings concern different property about which there is no overlap, they are nevertheless closely related by a commonality of parties, issues, evidence of lawful provenance of the restrained property and evidence concerning Mr Thasthahir’s criminal offending. In particular, the Commissioner submits that without reliance upon the affidavits subject to the implied undertaking, the County Court cannot be put in a position as to the lawful provenance overall of restrained property in both proceedings.
I accept that there is no commonality in the property affected by each proceeding but there are overlapping issues regarding the sources of funds used to acquire various property. It is relevant that the County Court be appraised of the totality of the financial circumstances surrounding Mr Thasthahir’s property ownership, including any contributions made by his father.
If separate property were restrained in different applications in the same court, it would be possible, and indeed often desirable, to hear and determine all matters together. In those circumstances the Court would have before it all documents in relation to all proceedings. Testing of evidence for any inconsistency could be achieved by testing sworn statements compelled by orders made under section 39 of the Proceeds legislation or otherwise. Such sworn statements are explicitly admissible in proceedings under the Proceeds legislation, even if it tends to incriminate or expose a person to a penalty.[10] In circumstances where the legislation precludes the two proceedings being heard together, but the information would otherwise be able to be admitted even though it might be prejudicial, it cannot amount to a prejudice to the maker of the statement that it be able to be used in these circumstances. Rather, the interests of justice are served by ensuring that the evidence can be appropriately tested in both of the applications, as if they were being together.
[10]See Proceeds of Crime Act 2002 (Cth) s 39A(2).
Even if it is or may be prejudicial, opposition to release on this ground will not always be denied. In Griffiths & Beerens & Ors v Duggan & Ors (No. 2) Pagone J said:
A court might be ready to release a party from an undertaking if the party affected is willing for the release to be granted; it does not follow, however, that the unwillingness of the party affected will always weigh against release. Indeed, it may be that a party’s unwillingness to release an opposing party from an implied undertaking will be because the information sought to be relied upon will have direct, immediate and substantial adverse impact in the other proceedings. In such a case the opposition of a party affected by release from the undertaking may be to gain some forensic or tactical advantage and may suggest or supply the very reason why an implied undertaking should be released.[11]
[11][2008] VSC 230 [13].
If Mr Thasthahir or other witnesses are not able to be challenged on the evidence that they give to the County Court by the continued quarantining of other sworn evidence that they have given, then the constraint imposed by the implied undertaking detracts from the fair adjudication of the claims before the County Court and the achieving of justice in that proceeding. On their face the documents contain the sworn evidence that Mr Thasthahir and his father intend to adduce at the Supreme Court hearing. Once the County Court proceeding is heard it is probable that the affidavit evidence relied on will have been received into evidence, the Commissioner relieved of the implied undertaking and so free to use that evidence in the later exclusion and compensation hearing in the Supreme Court. If in fact the documents are prejudicial because of inconsistency as the Commissioner alleges, then the County Court should be in no different position than the Supreme Court in dealing with the evidence.
In releasing the Commissioner from the implied undertaking I make no comment on whether the material can be used in the way that the Commissioner contends, or even on whether the material is to or should be admitted into evidence. Those are matters for the County Court to rule on in due course if necessary. The County Court has power to manage its own proceedings to ensure that there is no misuse of documents put before it.
In my view special circumstances are demonstrated. In exclusion and compensation proceedings before the County Court, all explanations as to sources of funds given by the same witnesses ought be permitted to be used so that the County Court can be made aware of the full financial circumstances of the relevant witnesses and the sworn evidence of those witnesses about acquisition and the source of funds, given at various times and for different purposes.
I will therefore make an order releasing the Commissioner from the implied undertaking as identified in Hearne v Street not to make collateral use of the four affidavits identified and filed in this proceeding, only insofar as is necessary to enable the Commissioner to use the documents in County Court proceeding numbered CI 18 01625.
0
2
0