Hua Wang Bank Berhad v Commissioner of Taxation (No 9) [2013] FCA 1022
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 653 of 2011 |
BETWEEN: | HUA WANG BANK BERHAD Applicant |
AND: | COMMISSIONER OF TAXATION Respondent |
IN THE FEDERAL COURT OF AUSTRALIA | |
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 652 of 2011 |
BETWEEN: | BYWATER INVESTMENTS LIMITED Applicant |
AND: | COMMISSIONER OF TAXATION Respondent |
IN THE FEDERAL COURT OF AUSTRALIA | |
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 654 of 2011 |
BETWEEN: | CHEMICAL TRUSTEE LIMITED Applicant |
AND: | COMMISSIONER OF TAXATION Respondent |
IN THE FEDERAL COURT OF AUSTRALIA | |
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 655 of 2011 |
BETWEEN: | SOUTHGATE INVESTMENT FUNDS LIMITED Applicant |
AND: | COMMISSIONER OF TAXATION Respondent |
IN THE FEDERAL COURT OF AUSTRALIA | |
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 656 of 2011 |
BETWEEN: | DERRIN BROTHERS PROPERTIES LIMITED Applicant |
AND: | COMMISSIONER OF TAXATION Respondent |
IN THE FEDERAL COURT OF AUSTRALIA | |
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | VID 672 of 2010 |
BETWEEN: | DEPUTY COMMISSIONER OF TAXATION Applicant |
AND: | HUA WANG BANK BERHAD Respondent |
IN THE FEDERAL COURT OF AUSTRALIA | |
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | VID 887 of 2010 |
BETWEEN: | DEPUTY COMMISSIONER OF TAXATION Applicant |
AND: | CHEMICAL TRUSTEE LIMITED First Respondent DERRIN BROTHERS PROPERTIES LIMITED Second Respondent BYWATER INVESTMENTS LIMITED Third Respondent |
JUDGE: | PERRAM J |
DATE: | 8 OCTOBER 2013 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 During the course of the testimony of Dr Ross and Mr Leaver both objected, through counsel, to answering questions on the basis that their evidence might tend to incriminate them or expose them to a civil penalty. The subject matter of their evidence concerned the complex taxation affairs of the taxpayers who are presently before the Court.
2 In the case of both Dr Ross and Mr Leaver I am more than satisfied that their testimony about the affairs of the taxpayers will expose them to a significant risk of prosecution for tax related offences. I permitted objection to be taken to the whole of the testimony because the complexity of the subject matter did not readily permit individual question and answers to be identified as self-incriminating and their effect as such, in the manner of a mosaic, was likely to emerge from a consideration of them as a whole.
3 Section 128(1) - 128(7) of the Evidence Act 1995 (Cth) provides:
128 Privilege in respect of self‑incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b) is liable to a civil penalty.
(2) The court must determine whether or not there are reasonable grounds for the objection.
(3) If the court determines that there are reasonable grounds for the objection, the court is to inform the witness:
(a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b) that the court will give a certificate under this section if:
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii) the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of such a certificate.
(4) The court may require the witness to give the evidence if the court is satisfied that:
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b) the interests of justice require that the witness give the evidence.
(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(6) The court is also to cause a witness to be given a certificate under this section if:
(a) the objection has been overruled; and
(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(7) In any proceeding in an Australian court:
(a) evidence given by a person in respect of which a certificate under this section has been given; and
(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
4 In the case of both gentlemen I was satisfied, for the reasons given above, of the matter in s 128(2). I informed both witnesses the matters required by s 128(3) and both indicated a willingness to answer the questions. Both are, therefore, entitled to a certificate under s 128(5).
5 I granted Mr Leaver a certificate under s 128(5) ‘in relation to the evidence given about his tax affairs’ on 1 October 2013. On 2 October 2013 I made an order on the same terms with respect to Dr Ross. On that date Mr Peadon, who acts for both Dr Ross and Mr Leaver, made an application to extend the terms of Mr Leaver’s certificate in response to evidence given in his cross-examination on 1 October 2013. I acceded to that request.
6 Counsel are to bring in an appropriate form of direction.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. |
Associate:
