The Commissioner of the Australian Federal Police v Chen (No 3)

[2022] NSWSC 1745

Supreme Court

New South Wales

Medium Neutral Citation:	The Commissioner of the Australian Federal Police v Chen (No 3) [2022] NSWSC 1745
Hearing dates:	7, 8, 29, 30 September 2022
Date of orders:	30 September 2022
Decision date:	30 September 2022
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Annexures D and F admitted.
Catchwords:	EVIDENCE – documentary evidence – authenticity of documents – admissibility of a photocopy of original documents
Legislation Cited:	Evidence Act 1995 (NSW), s 48
Category:	Consequential orders
Parties:	Commissioner of the Australian Federal Police Bob Chen (First Defendant) Baijing Hu (Second Defendant) T.J. International Trading Pty Ltd (Third Defendant)
Representation:	Counsel: 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 have earlier today made a ruling in relation to the admissibility of the original of certain documents which were annexed to the affidavit of the second defendant affirmed on 16 April 2022.  Mr Norrie also seeks to tender annexure D and annexure F to that affidavit, although the originals of those documents have not been produced.  I can infer from the consideration that during the adjournment of this case four original documents were located and have now been tendered, that searches have been made in respect of the two documents the subject of this ruling, unsuccessfully.

2. I think I can say that in the case of annexure D, the photocopy of the original annexed to the copy of the affidavit I have in my copy of the Court Book is poor, but there is a very clear copy of the translation of it made by the same accredited translator who translated the other documents. It does appear to be a document issued by the same bank, that is, the China Merchants Bank, as annexure E, the original of which I have admitted. The copy of annexure F is very clear, and the translation of it is also clear. It is a document which purports to record a transfer between the first defendant and the second defendant of an amount of RMB 900,000 with a notation indicating that the transfer was made from the second to the first defendant by way of a loan. There is nothing about the document which the translator has expressed any concern, and it's clear from p. 2540 of the Court Book that the original of that document is in much smaller format than the version propounded as annexure F. Again, I remind myself that I am dealing with a question of admissibility rather than acceptability at this stage of the proceedings. In her affidavit, the second defendant describes annexure D as a true copy of the certificate of deposit dated 28 March 2019, issued by her bank, showing that she made a deposit at that time of RMB $4,013,921.76. So far as annexure F is concerned, the second defendant describes that, as it appears to be on the face of it, as a receipt of the sum of RMB 900,000, from a bank account maintained by her, to the first defendant's bank account in China. The documents are potentially important in the second defendant and third defendant's case.

3. Section 48 of the Evidence Act 1995 (NSW) deals with the admissibility of documents. To put it in terms of the title to the provision, which does not form part of the provision, it deals with proof of contents of documents. Subsection 1 provides:

A party may adduce evidence of the contents of documents in question by tendering the document in question or by any one or more of the following methods –

…

Tendering a document that:

is or purports to be a copy of the document in question, and

has been produced, or purports to have been produced, by a device that reproduces the contents of documents,

…

Subsection 2 of s 48 makes it clear that those alternative means of proving the contents of a document are available to a party even where the party has possession of the original document. That is to say, the effect of s 48 is to abrogate the rule at common law, sometimes referred to as the best evidence rule, that only the original of a document was admissible. It seems to me, as I said earlier in my previous judgment, that questions of admissibility and acceptability are separate, although their separation sometimes may be less significant in a case like the present, which is a civil case, where I am both the tribunal of law and of fact.

4. However, it is important to bear in mind that separate processes are often involved, and one may accept that there is an issue about these matters, and I've referred to the cross‑examination in general terms in my previous judgment, but the simple fact of the matter is, if I may put it that way, that s 48 permits proof of the contents of documents by the tender of the photocopy and permits proof of documents by the tender of a document which purports to be a copy of a document, and provided it is or appears to have been produced by a device such as a photocopier, and bearing those things in mind, in my judgment, the documents are admissible and I will admit them as part of the second defendant's affidavit.

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Decision last updated: 16 December 2022