The Commissioner of the Australian Federal Police v Chen

[2022] NSWSC 1728

Supreme Court

New South Wales

Medium Neutral Citation:

The Commissioner of the Australian Federal Police v Chen [2022] NSWSC 1728

Hearing dates:

7 September 2022

Date of orders:

7 September 2022

Decision date:

07 September 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Allow paragraph 17

Catchwords:

EVIDENCE – affidavit evidence – statement of indirect speech – statement allowed

Cases Cited:

Commonwealth of Australia v Riley (1984) 5 FCR 8

Hamilton-Smith v George (2006) 247 FCR 238; [2006] FCA 1551

Texts Cited:

J.D. Heydon, Cross on Evidence (7th ed, 1996, Butterworths)

Category:

Procedural rulings

Parties:

The Commissioner of the Australian Federal Police (Plaintiff)
Bob Chen (First Defendant)
Baijing Hu (Second Defendant)
TJ International Trading Pty Ltd (Third Defendant)

Representation:

G. O’Mahoney and D. Habashy (Plaintiff)
A. Norrie (2nd and 3rd Defendants)

Solicitors:
Minter Ellisons (Plaintiff)
L’Orient Legal (2nd and 3rd Defendants)

File Number(s):

2020/268257

Judgment

1. I am dealing with the admissibility of affidavits read on the application by the applicant. I will give some reasons for this current ruling because I am told that there are other objections to the same effect. I am dealing with the affidavit of the first applicant, Ms Baijing Hu, affirmed on 20 January 2022. Paragraph 17 is in the following terms:

"In 2016, Bob requested to rent one of the bedrooms of my property at 3 Douglas Avenue, Chatswood NSW 2067 (the Chatswood property). I agreed but he did not pay any rent until November 2018".

2. Dr O'Mahoney of counsel who appears for the respondent, the Commissioner of the AFP, with Mr Habashy, objects on the ground that the statement is in indirect speech rather than direct speech.  He also submitted that the convention of requiring witnesses to render conversations in direct speech, even if only as to the substantial effect of the words actually used, is important because it permits the Court to understand for itself what was actually said and facilitates cross‑examination where conversations are disputed.

3. Mr Norrie of counsel in response has submitted that the requirement that witnesses give evidence of conversations in direct speech is no more than a rule of practice rather than a rule of law, and it should not be insisted upon. Frequently, the requirement gives rise to significant artificiality in the witness' evidence, and he has referred to the decision of Besanko J in Hamilton-Smith v George (2006) 247 FCR 238; [2006] FCA 1551, and to the authorities referred to therein. I did not understand Dr O'Mahoney to take issue with the content of those decisions.

4. In Commonwealth of Australia v Riley (1987) 5 FCR 8, the Full Court of the Federal Court (at 34) said: "The rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed." The learned author, JD Heydon, in the seventh edition of Cross on Evidence referred to that decision with approbation.

5. He also pointed out the following: 

"...it is hard to see why witnesses must be compelled in uttering untruths on oath by giving a form of words in direct speech with which they are not happy and which they cannot actually recollect in preference to their own words in indirect speech so long as mere conclusions are avoided". 

In his analysis in Hamilton-Smith v George, Besanko J at [79] pointed out the distinction between recounting the actual words used, recounting the substance or effect of what was said, or recounting the witness' conclusions as to the effect of the conversation.

6. His Honour said that the third category of evidence is always inadmissible, and this is consistent with the analysis of Mr Heydon.  I will allow myself the observation that para 17 is not a mere conclusory statement as to the deponent's understanding of the effect of what was said.  Rather, it is a rendering in indirect speech of her recollection as to what was said.  It is true that she does not actually state that she cannot now remember precisely what was said or even words to that actual effect.  However, it does not seem to me that this is necessary to render the form in which the evidence is given inadmissible.

7. I acknowledge that the rule of practice is observed for good reason of the type put by Dr O'Mahoney, and I am also of the view that the conversation contained in para 17 could not have been a very complex or long one.  I am satisfied on the basis of the authorities I have referred to, like Besanko J, that the evidence is admissible in that form.  It may be that there are other conversations where the line between a mere conclusory statement on the one hand and a statement in indirect speech encapsulating the substance of what has been said will be crossed, but such matters can be dealt with when they arise.  I allow paragraph 17.

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Decision last updated: 16 December 2022