Cornwell v The Queen

Judgment - ex tempore

1. Mrs Alexandra Moshos has sworn two affidavits dated 13 December 2013 and 23 January 2014 in these proceedings. Those affidavits were sworn in proceedings in the District Court of New South Wales, which were then transferred to this Court and stayed. Mr Mandoh, who appears for the first and third defendants in these proceedings, has indicated that he will seek to read these affidavits in the proceedings. A question has arisen as to whether, having regard to the way in which the first and third defendants put their case, the reading of the affidavits will be capable of giving rise to the result that Mrs Moshos would potentially incriminate herself in in respect of an offence or to a civil penalty arising, potentially, out of the contravention of s 181 of the Corporations Act 2001 (Cth) so far as it appears to be put by the first and third defendants that any appointment of an administrator was not undertaken in good faith and in the best interests of the companies or for a proper purpose, being in the statutory requirement posed upon directors under s 181 of the Corporations Act, a dishonest contravention of which is an offence under s 184 of the Corporations Act.
2. In the present case, it is plain that Mrs Moshos has sworn the affidavits, and I will assume that she has done so voluntarily, although Mr Johnson, who appeared for the former administrators, has at least raised the possibility that she may have done so under the influence of her husband. I make no assumption, one way or the other, in that regard. Mrs Moshos is not a witness, as I noted, under subpoena. She is, however, a witness who could have been called upon subpoena, so far as the first and third defendants would have had the ability to cause a subpoena directed to her to be issued by the Court. It is therefore not a case, for example, where an individual seeks to give evidence in his or her own case, where the proposition that he or she could subpoena himself or herself to give evidence is nonsensical.
3. A question has also been raised, which is of some significance so far as it is presently unclear whether Mrs Moshos has obtained independent advice, although she has been advised to do so, whether a certificate under s 128 of the Evidence Act 1995 (NSW) would be available in circumstances that Mrs Moshos chose to enter the witness box and affirmed or swore her affidavits. It is plain that such a certificate is likely to be available in respect of her cross-examination, to the extent that the requirements of s 128 of the Evidence Act are otherwise satisfied, but the area of greater difficulty is whether it may be given in respect of her affidavit evidence-in-chief.
4. Different views as to this question have been adopted in the cases. In Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1192; (2002) 217 ALR 719, Hamilton J took the view, founded in the wording of s 128 of the Evidence Act, that a certificate under that section could be given to a person associated with a corporation who had taken objection to answering a question on the basis that the answer may intend to incriminate him. In Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, the High Court observed, without deciding, that there was a question whether it could be said that a witness objects to giving evidence, the criterion for the giving of a certificate under s 128 of the Evidence Act, if he or she set out to give that evidence-in-chief. Mr Mandoh rightly points out that that decision was made in the context of a criminal trial and the balancing involved in the treatment of evidence of this kind in criminal and civil proceedings may well be different.
5. Both parties have drawn attention to the subsequent decision of the Court of Appeal in Song v Ying [2010] NSWCA 237; (2010) 79 NSWLR 442 where the observations of Hodgson JA (with whom Giles and Basten JJA agreed) at [20]ff are of considerable significance for the purposes of this application. I am, of course, bound by that decision so far as it is a unanimous decision of the Court of Appeal in respect of this issue. His Honour there emphasised that the true question was not whether a witness gave evidence-in-chief or in cross-examination, but whether he or she was actually compelled to do so or whether such compulsion was available if he or she did not do so. That point should be emphasised, because his Honour takes what is plainly a substantive approach, which has regard not to whether a subpoena has in fact been issued, but to whether a subpoena could have been issued to compel the witness to give evidence. That seems to me to be a sensible approach, because there would be little utility in denying a certificate under s 128 of the Evidence Act to a witness who voluntarily came to court, where a subpoena could be issued, and then granting that certificate after the formal step of issuing a subpoena to that witness was then taken. His Honour notes that it would not, in the ordinary case, be open to a witness who voluntarily gave evidence in their own case, to seek such a certificate, because it could not be said that that witness "objects" to giving that evidence. However, his Honour then pointed, in an analogy which has much in common with this case, to the position where a friend of a party (or, in this case, the wife of a party's controller) was called to give evidence and indicated that his approach did not mean that that person could not "object" to giving evidence within the meaning of s 128 of the Evidence Act, where he or she was compellable at the instance of the party and could not give instructions to legal advisors as to the scope of the evidence. His Honour there noted that the Court did not need to inquire whether the friend was giving evidence because he or she was compellable or because he or she wished to do so, because in either case, the existence of compulsion would be sufficient, referring there to the possibility of compulsion rather than to the fact that it had been exerted.
6. There have been subsequent decisions in the Family Court of Australia, including, for example, LGM v CAM [2011] FamCAFC 195. Those decisions seem to me to be of less assistance, because they often occur in circumstances where parties were obliged to give disclosure of their assets in such proceedings, and that disclosure in turn raises a risk of self-incrimination.
7. In Health Services Union NSW v Mylan [2014] NSWSC 1026, Hammerschlag J considered the position prior to the preparation of an affidavit, and expressed the view that there was no compulsion upon the witness in that case to give evidence, let alone "particular evidence", and that it could not be said that he objected to giving evidence and the relevant certificate under s 128 of the Evidence Act therefore could not be given. That decision may well be distinguishable, because the scope of the evidence to be given by the witness was not clear. In any event, his Honour's observations as to that question were not essential to his decision because he was able there to adopt the sensible approach of indicating that a subpoena could be issued to the witness and at that point the machinery of s 128 of the Evidence Act would apply.
8. It seems to me that I am bound to apply the approach adopted by the Court of Appeal in Song v Ying above. As I understand that approach, it draws attention to the question of whether Mrs Moshos was compellable, rather than compelled, by the first and third defendants to give evidence in the proceedings. I respectfully consider that that is a sensible approach, which gives priority to matters of substance rather than of form. It seems to me that Mrs Moshos was compellable by the first and third defendants to give evidence. If, for example, having now taken independent advice, she were to indicate that she did not wish to give evidence, it is predictable that the companies might then cause a subpoena to be issued to her to give evidence. In that situation, it seems to me that it would be a triumph of form over substance if the Court were to decline to grant a certificate under s 128 of the Evidence Act when Mrs Moshos has indicated that she is concerned as to giving evidence without such a certificate, bringing about the consequence that such a subpoena were then issued and the Court then granted such a certificate because Mrs Moshos was compelled to give that evidence.
9. For those reasons, it seems to me that, subject to satisfying the requirements of s 128 of the Evidence Act in respect of particular evidence, a certificate will be available in respect of evidence given by Mrs Moshos in chief, by affidavit in the proceedings, as well as in cross-examination. As presently advised, it seems to me that a significant part of Mrs Moshos' affidavit is likely to fall within the territory that might, on a proper analysis, expose Mrs Moshos to a penalty or potentially an offence, and would therefore be the proper subject of such a certificate.

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