FEDERAL COURT OF AUSTRALIA

Hua Wang Bank Berhad v Commissioner of Taxation (No 15) [2013] FCA 1124

THE COURT ORDERS THAT:

1.    Dr Joseph Ross be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 740-822, 842-875 and 926-933 of the transcript.

2.    Mr John Leaver be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 842-925 and 926-962 of the transcript.

3.    Both certificates are to bear the date 2 October 2013 and be effective from that date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Dr Joseph Ross be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 740-822, 842-875 and 926-933 of the transcript.

2.    Mr John Leaver be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 842-925 and 926-962 of the transcript.

3.    Both certificates are to bear the date 2 October 2013 and be effective from that date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Dr Joseph Ross be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 740-822, 842-875 and 926-933 of the transcript.

2.    Mr John Leaver be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 842-925 and 926-962 of the transcript.

3.    Both certificates are to bear the date 2 October 2013 and be effective from that date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Dr Joseph Ross be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 740-822, 842-875 and 926-933 of the transcript.

2.    Mr John Leaver be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 842-925 and 926-962 of the transcript.

3.    Both certificates are to bear the date 2 October 2013 and be effective from that date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Dr Joseph Ross be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 740-822, 842-875 and 926-933 of the transcript.

2.    Mr John Leaver be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 842-925 and 926-962 of the transcript.

3.    Both certificates are to bear the date 2 October 2013 and be effective from that date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Dr Joseph Ross be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 740-822, 842-875 and 926-933 of the transcript.

2.    Mr John Leaver be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 842-925 and 926-962 of the transcript.

3.    Both certificates are to bear the date 2 October 2013 and be effective from that date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Dr Joseph Ross be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 740-822, 842-875 and 926-933 of the transcript.

2.    Mr John Leaver be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 842-925 and 926-962 of the transcript.

3.    Both certificates are to bear the date 2 October 2013 and be effective from that date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On the eleventh and twelfth days of the trial I granted Dr Joseph Ross and Mr John Leaver, both witnesses, certificates pursuant to s 128 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) for reasons I gave in Hua Wang Bank Berhad v Commissioner of Taxation (No 9) [2013] FCA 1022. At that time I left to the legal representatives for Dr Ross and Mr Leaver the formulation of the precise orders and the form of the certificates. That has now been provided and in consequence I will make the following orders which will replace nunc pro tunc Order 4 of 1 October 2013 and Order 1 of 2 October 2013:

1.    Dr Joseph Ross be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 740-822, 842-875 and 926-933 of the transcript.

2.    Mr John Leaver be granted a certificate under s 128(5) of the Evidence Act 1995 (Cth) in respect of the evidence given by him in proceedings NSD 652-656 of 2011 and VID 672 and 887 of 2010 at pages 842-925 and 926-962 of the transcript.

3.    Both certificates are to bear the date 2 October 2013 and be effective from that date.

2    Dr Ross also sought an order (in effect, a declaration) that an affidavit sworn by him on 24 January 2012 was a document to which s 128(7)(b) of the Evidence Act applied. Dr Ross’s affidavit was not read before me as his evidence-in-chief was instead elicited orally. The basic question which now arises is whether s 128, which regulates the giving of evidence having a tendency to incriminate a witness, can apply in respect of affidavit evidence which is not read at a trial. Section 128(1) 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.

3    This provision certainly applied to the direct oral testimony given by Dr Ross at the trial. It may be possible that it would also have applied to Dr Ross’s affidavit evidence if that evidence had been read. Since it was not read, I do not, however, need to decide this question.

4    Section 128(1) does not, in my opinion, apply to the contents of an affidavit which has not been read. There are a number of steps involved in this conclusion.

5    To begin with the Evidence Act does not directly seek to regulate the giving of affidavit evidence. It contemplates three kinds of evidence. The first is the testimonial evidence given by witnesses in court. This is regulated by Part 2.1. Although Part 2.1 does not, in terms, say that it only applies to evidence given by witnesses in court, that is nevertheless a necessary implication from its terms. The part deals with a number of topics which make no sense outside of a curial context (see, e.g., those dealing with the compellability of witnesses (ss 12, 14-19)); or which are unworkable unless they take place in a courtroom, such as the provisions dealing with the competence of witnesses (see, e.g., s 13(5) which requires the court to tell the witness certain matters); or which are meaningless outside a courtroom such as provisions authorising the court to make orders (s 26); or which simply assume that the evidence is given in a courtroom such as Division 3 (‘General rules about giving evidence’), Division 4 (‘Examination in chief and re-examination’) and Division 5 (‘Cross-examination’). Similar sentiments about the operation of Part 2.1, or elements of it, have been expressed before: see, for example, the cases collected in Jill Anderson, Neil Williams & Louise Clegg, The New Law of Evidence (LexisNexis, 2nd ed, 2008) p 155 footnote 1.

6    The second kind of evidence is the admission of documents which is dealt with in Part 2.2 of the Evidence Act.

7    Part 2.3 deals with the third category of evidence which, loosely speaking, is everything else. It is headed ‘Other Evidence’. Apart from regulating views (in ss 53, 54) Part 2.3 has no substantive content leaving the whole field to pre-existing law or practice. So much flows from s 52 of the Evidence Act which provides:

52 Adducing of other evidence not affected

This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.

8    Where, therefore, evidence is to be adduced which is not testimony of witnesses elicited in court (governed by Part 2.1), or the tender of documents (governed by Part 2.2) or a view (governed by Part 2.3, ss 53, 54) its adduction will be governed by rules of law or rules of practice found dehors the Evidence Act and, in effect, preserved by s 52. This will include familiar activities such as the tendering of real evidence (e.g. the bloody knife or the missing shoe). It also includes, as Hodgson JA observed in Aneve Pty Ltd v Bank of Western Australia Ltd [2005] NSWCA 441 at [70], the giving of evidence by affidavit. Section 52, therefore, directs the attention of those interested in the regulation of affidavit evidence to other laws. What might these be?

9    In the case of the Federal Court provision is made for the making of affidavits in Division 29.1 of the Federal Court Rules 2011 (Cth) (‘the Rules’) and for their use in s 47 of the Federal Court of Australia Act 1976 (Cth) (‘the FCA Act’). Section 47(1) - (6) provides:

47 Oral, video link, telephone and affidavit evidence

Civil proceedings other than trials of causes

(1)    In a civil proceeding, not being the trial of a cause, testimony shall be given by affidavit or as otherwise directed or allowed by the Court or a Judge.

Note: For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

Civil trials of causes

(2)    At the trial of a cause, proof may be given by affidavit of the service of a document in or incidental to the proceedings in the cause or of the signature of a party to the cause or of his or her solicitor to such a document.

(3)    The Court or a Judge may at any time, for sufficient reason and on such conditions (if any) as the Court or Judge thinks necessary in the interests of justice, direct or allow proof by affidavit at the trial of a cause to such extent as the Court or Judge thinks fit.

(4)    Notwithstanding any order under subsection (3), if a party to a cause desires in good faith that the maker of an affidavit (other than an affidavit referred to in subsection (2)) proposed to be used in the cause be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the cause unless that person appears as a witness for such cross‑examination or the Court, in its discretion, permits the affidavit to be used without the person so appearing.

(5)    If the parties to a cause so agree and the Court does not otherwise order, testimony at the trial of the cause may be given by affidavit.

(6)    Subject to this section and section 47A and without prejudice to any other law that would, if this subsection had not been enacted, expressly permit any testimony to be otherwise given, testimony at the trial of causes shall be given orally in court.

Note: For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

10    Leaving aside use of affidavits in interlocutory proceedings (not here pertinent), the effect of s 47 is that affidavits are ‘used’ or evidence by affidavit is ‘given’ at the trial of a cause. It is the practice of the Federal Court that this occurs by each affidavit being read. On occasions this will encompass the practice of counsel reading aloud the contents of the affidavit on to the transcript although, in more recent times, the Court will often dispense with this requirement and allow the affidavit to be taken as if it had been read in full.

11    The consequence of this is that the mere swearing of an affidavit under Division 29-1 of the Rules cannot be the giving of evidence under s 47 of the FCA Act to which s 128(1) of the Evidence Act can apply. Affidavit evidence is given at trial when it used under s 47 of the FCA Act and that occurs only when it is read in accordance with the practice of the Court.

12    As I indicated above this means that Dr Ross’s affidavit was never used at trial. I do not need to decide therefore whether s 128(1) of the Evidence Act would have applied if it had been read in the proceeding.

13    There are two footnotes to these conclusions.

14    The first is that an affidavit is also a document and, subject to the requirements for the tender of documents at trial in Part 2.2 of the Evidence Act being satisfied, it may be tendered as a document. Because the words contained in an affidavit will consist of representations made by a person outside of court an affidavit will generally be largely inadmissible hearsay. However, if an exception to the hearsay rule can be engaged (such as, for example, the unavailability of the maker of the affidavit or as an admission) then it may be admitted as a document. When so used, however, it is not being ‘used’ within the meaning of s 47 of the FCA Act as testimonial evidence (and hence admitted under Part 2.1) but rather as a document tendered under Part 2.2 of the Evidence Act. The distinction is critical because the opposing party has no right to cross-examine the deponent of an affidavit admitted as a document but does have such a right when evidence is taken by affidavit under s 47 of the FCA Act.

15    The second footnote is the decision of Lindgren J in Harrington-Smith v State of Western Australia (2002) 121 FCR 82 at [26]. In that case his Honour was called to determine, in the context of a native title proceeding, whether a witness statement sworn to by more than one person ought be received in evidence. To the extent that that passage suggests that the affidavits and statements need to be sworn because of s 21 of the Evidence Act I would respectfully disagree. Section 21 is contained in Part 2.1 and, as I have endeavoured to show, Part 2.1 does not deal with affidavits, or for the same reasons, with statements. It is more likely, I think, that the requirements for how statements or affidavits are to be prepared is governed by s 52 of the Evidence Act and, therefore, derivatively by the Rules.

16    For those reasons, I do not accept – and indeed it was not suggested – that the anterior preparation of an affidavit can be an event to which s 128(1) of the Evidence Act can itself apply.

17    Instead, Mr Peadon of counsel put his argument on the basis of s 128(7) of the Evidence Act which provides:

128 Privilege in respect of self-incrimination in other proceedings

(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.

Note:    Subsection 128(7) differs from subsection 128(7) of the NSW Act. The NSW provision refers to a NSW Court instead of an Australian Court.

18    His argument was that the affidavit was a document ‘obtained as a direct or indirect consequence’ of Dr Ross giving the evidence in respect of which I have granted the certificate.

19    No occasion arises for me permissibly to consider this issue. In the proceeding before me no attempt is being made to use the affidavit to incriminate Dr Ross. Hence there is no issue before me to which s 128(7)(b) could relate. The inquiry sought to be raised is, therefore, hypothetical and is beyond the jurisdiction of a court exercising federal jurisdiction: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355 [45].

20    If the question arose – which it does not – it would be necessary to resolve a series of related issues such as whether Dr Ross had waived the privilege by swearing the affidavit in the first place. Such a debate would have been informed by the presence of a contradictor. Since the Commissioner is not seeking to incriminate Dr Ross he has no present interest in resisting the proposed relief under s 128(7). In those circumstances, I decline this aspect of the relief sought by Dr Ross.

21    Mr Leaver seeks a similar order in relation to three affidavits which he had sworn but which had not been read in this proceeding. I decline this for the same reasons.

Associate:

Dated:    31 October 2013