Before the Court is an aspect of the defendants' Further Amended Notice of Motion filed on 26 June 2017 dealing with the admissibility of a document said to be of the State Border Service of the Ukraine.
In paragraph 1 of the defendants' Further Amended Notice of Motion, the defendants seek an order in accordance with Section 192A of the Evidence Act 1995 (NSW) ("the Act") that the documents referred to in Schedule 1 to the Notice of Motion be admitted into evidence at the final hearing of each of the three proceedings before the Court.
Schedule 1 includes the following document:
"5. The extract from the database about the crossing of the state border of the Ukraine by citizens of the Russian Federation in the period from 1 January 2010 to 17 October 2011 contained in the notice from Colonel D B Vlasko, First Deputy Head of the Main Centre, State Border Service of Ukraine to O Melnyk, Public Prosecutor of the Public Prosecutor's Office of Ordzhonikidzevskyi dated 8 October 2011."
It was accepted at the hearing of this aspect of the Motion that the reference to the document dated 8 October 2011 in paragraph 5 of the Schedule to the Further Amended Notice of Motion should be a reference to the document dated 18 October 2011.
The defendants submitted, in summary, that the document in question should be admitted into evidence at the final hearing of the three proceedings.
The plaintiff initially submitted in summary:
1. That the document should not be admitted because it did not comply with the admissibility requirements of the Act;
2. If it did, it should be excluded under Section 135 of the Act.
The Court had the benefit of both written and oral submissions from the parties.
It was agreed by the parties that the Court would first consider the threshold question as to whether the requirements of the Act were satisfied before there was any consideration of the exercise of the Court's discretion under Section 135 of the Act.
[3]
Background to the application
This application is an aspect of a long running dispute between the parties. The essential issue in dispute in the three proceedings is whether a person who insured his life with each of the defendants, a Mr Vladimir Safronov, died in the Ukraine on 7 March 2010. The plaintiff says that he did. The defendants say that he did not and that a person who died on 7 March 2010 in the Ukraine was not Mr Safronov. This dispute has given rise to related proceedings both in the Ukraine and in this State. It has also given rise to numerous highly contested interlocutory disputes in these proceedings. The document the subject of this application is said to be relevant to the determination of the central issue.
[4]
Applicable legislation
Section 48 of the Act provides as follows:
"48 Proof of contents of documents
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
(a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question,
(b) tendering a document that:
(i) is or purports to be a copy of the document in question, and
(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents,
(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) - tendering a document that is or purports to be a transcript of the words,
(d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it - tendering a document that was or purports to have been produced by use of the device,
(e) tendering a document that:
(i) forms part of the records of or kept by a business (whether or not the business is still in existence), and
(ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary,
(f) if the document in question is a public document - tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed:
(i) by a person authorised by or on behalf of the government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory, or
(ii) by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country, or
(iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.
(2) Subsection (1) applies to a document in question whether the document in question is available to the party or not.
(3) If the party adduces evidence of the contents of a document under subsection (1) (a), the evidence may only be used:
(a) in respect of the party's case against the other party who made the admission concerned, or
(b) in respect of the other party's case against the party who adduced the evidence in that way.
(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:
(a) tendering a document that is a copy of, or an extract from or summary of, the document in question, or
(b) adducing from a witness evidence of the contents of the document in question."
Section 156 of the Act provides as follows:
"156 Public documents
(1) A document that purports to be a copy of, or an extract from or summary of, a public document and to have been:
(a) sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document, or
(b) certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document,
is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.
(2) If an officer entrusted with the custody of a public document is required by a court to produce the public document, it is sufficient compliance with the requirement for the officer to produce a copy of, or extract from, the public document if it purports to be signed and certified by the officer as a true copy or extract.
(3) It is sufficient production of a copy or extract for the purposes of subsection (2) if the officer sends it by prepaid post, or causes it to be delivered, to:
(a) the proper officer of the court in which it is to be produced, or
(b) the person before whom it is to be produced.
(4) The court before which a copy or extract is produced under subsection (2) may direct the officer to produce the original public document."
Section 156(1) refers to a document that purports to be a copy of, or an extract from or summary of, a "public document".
The term "public document" is defined in the dictionary to the Act, in part, as follows:
"public document means a document that:
…
(b) forms part of the records of the government of a foreign country, or
(c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, or
…"
[5]
Submissions
In their written submissions handed up on 1 May 2017, counsel for the defendants submitted, in summary, as follows:
1. The 18 October 2011 letter from the State Border Service of the Ukraine to the Public Prosecutor's Office was part of the records considered by the Ukrainian Court in the related proceedings;
2. The letter is a summary of the Ukrainian State Border Service database and is admissible under Section 48(4) of the Act or under Section 48(1)(f) of the Act;
3. The letter is a "public document" under Section 156 of the Act as it purports to be an extract from, or summary of, a public document which has been certified as an extract or summary by a person who might reasonably be supposed to have custody of the public document;
4. The translation of the document shows it is a document from the State Border Service of the Ukraine, there is a coat of arms of Ukraine on the document and it is addressed to the Public Prosecutor's Office;
5. Therefore it is a "public document" within the definition as it forms part of the records of a government of a foreign country.
In further written submissions filed 4 July 2017, senior counsel for the defendants submitted, in summary, as follows:
1. The defendants claim that the relevant document is admissible under Sections 48(4), 48(1)(f) and 156 of the Act;
2. The document in question is plainly a public document and the document may be tendered under Section 48 of the Act;
3. On the face of the document it purports to have been printed by the authority of the government of a foreign country so that it is admissible under Section 48(1)(f) of the Act;
4. On the face of the document it is issued in accordance with Clause 23 of the "Provisions" being a law of the Ukraine and is approved by the decree referred to in the document;
5. The point raised by the plaintiff about Section 156(1) of the Act and the absence of a seal or certification does not affect the admissibility of the document as the effect of Section 156(1) is to deem a document, which is on its face a copy or an extract of another document, to be a public document if it has a seal or certification. On the face of the document sought to be tendered by the defendants, it is not necessary for the defendants to rely on Section 156 because Section 48(1)(f) renders the document admissible in any event;
6. If the Court determines that the document could only be admissible under Section 156(1) of the Act, the Court should apply a purposive construction looking objectively at what must have been the intent of the legislature. Section 156 is aimed to facilitate the admissibility of documents from foreign countries and accordingly words such as "seal" or "certified" must be given a broad meaning so as to ensure that the legislation achieves its purpose. The document on its face is plainly an authentic document; and
7. The Court should exercise its general discretion under Section 190 of the Act to dispense with the application of Section 156 should the plaintiff be seeking to prevent the admissibility of a document which is plainly authentic, relevant and has a high probative value.
Counsel for the plaintiff submit, in summary:
1. Section 48(1)(f) of the Act can be of no assistance to the defendants as the section requires, in the case of a public document, that the document be, or purports to be, a copy of the document in question. The letter dated 18 October 2011 purportedly from the State Border Service does not purport to either itself constitute or to be a copy of the State Border Services' records regarding border crossings. If anything, it is only an extract of a very limited number of the records. Section 48(1)(f) does not apply to extracts but to the documents themselves;
2. Sections 48(1)(e) and 48(4)(a) of the Act do not help the defendants as those sections do not by their terms apply to public documents. There would be no utility to Sections 48(1)(f) and 156 of the Act if a party could use Sections 48(1)(e) or 48(4) in the manner suggested by the defendants. These sections do not enable the contents of the State Border Service records to be adduced by means of the purported letter from the State Border Service dated 18 October 2011. Whether that document should be admitted therefore comes down to whether the terms of Section 156 of the Act are satisfied and also whether any other provision of the Act would prevent the letter being adduced;
3. The letter dated 18 October 2011 is not a "public document" within the Act as it does not satisfy the requirements of Section 156(1) of the Act as the document is not sealed or certified within the section;
4. The term "certified" is used in various sections in the Act such as Sections 155, 158, 179 and 180. The sections referred to appear to contemplate certification of a document in the strict sense of a person formally attesting to a given document being an authentic copy of another document. This is contrary to the much broader meaning which the defendants submit should be given to the word "certified" in Section 156. It seems unlikely that the legislature intended there to be any different meaning to be given to the word "certified" in different sections in the Act;
5. There are sound reasons for requiring nothing less than a formal attestation by some appropriate person that the information on the document to be tendered is indeed an extract from the relevant public document: see NAB v Rusu (1999) 47 NSWLR 309 at [34] per Bryson J. In essence, for the Court to feel confident in relation to a document it is very important to have a witness pledge or certify that the narration is true and they will be a person who is responsible for it;
6. The Court should not exercise its discretion under Section 190 of the Act, relating to the waiver of the rules of evidence, simply because Section 156 is seen as a "technical" ground. Under Section 190(3) of the Act, in a civil proceeding the court may order that the stated provisions referred to do not apply where the matter to which the evidence relates is not genuinely in dispute or the application of those provisions would cause or involve unnecessary expense or delay. The plaintiff submits that this matter is clearly genuinely in dispute and the importance of the records means that the court would not exercise its discretion.
Yet further written submissions were relied upon by the parties. In their written submissions dated 17 August 2017, counsel for the plaintiff relied on alleged inconsistencies in documents from the State Border Service raising doubts in relation to the veracity of the 18 October 2011 letter.
In their reply submissions dated 7 September 2017, counsel for the defendants refer to the context of the correspondence in 2011 from the State Border Service and rely on that correspondence as clearly dispelling any suggestion that the 18 October 2011 letter is anything other than a genuine document from the State Border Service.
As stated above, the defendants submitted that the significant issue in the proceedings is whether Mr Safronov is dead or not. It was submitted that the document dated 18 October 2011 is highly relevant to that fact in issue as if Mr Safronov was deceased on 10 March 2010 (which purports to be an exit date for him in the records) he would not be involved in movements in or out of the Ukraine. The inference to be drawn from the records is that Mr Safronov was entering and exiting the Ukraine after the date of his alleged death and this thus suggests that he was alive. The evidential onus would then fall on the plaintiff to rebut the inference by, for example, establishing that the document which appears to be a public document of a foreign country cannot be relied upon, for example because it has been falsified.
[6]
Evidence
In support of their Further Amended Notice of Motion, the defendants read and relied upon paragraph 66 of the affidavit of Michael Iacuzzi sworn on 7 April 2017 which provides as follows:
"Annexed to this affidavit behind Tab 26 of the Exhibit is a true copy of the letter from the State Border Service of Ukraine to the Public Prosecutor's Office dated on or about 18 October 2011 extracted from the Kharkiv Court Book (with English translation)."
Tab 26 included the Ukrainian version of the relevant document and the English translation. On the Ukrainian version there is what appears to be a logo which the translation indicates is the coat of arms of the Ukraine. There is a stamp at the bottom of the document which the translation indicates to be a blue rectangular stamp of the Public Prosecutor's Office of the Ordzhonikidzevskyi District of the City of Kharkiv. There is also a bar code. There does not appear to be a formal seal of the State Border Service of the Ukraine.
The plaintiff relied on the affidavit of Josh Thomas Mennen affirmed 17 August 2017 which notes differences in the headings used in 2011 documents said to be all from the Ukrainian State Border Service. This is said to raise issues concerning "the authenticity of the SBS letter dated 18 October [2011]".
On 7 September 2017, the Court was forwarded submissions in reply, of that date, from Counsel for the defendants.
Also forwarded at that time were two affidavits on which the defendants sought to rely being:
1. The affidavit of Matthew Corkhill sworn 6 September 2017; and
2. The affidavit of Anton Novakov sworn 25 September 2017.
It is important to set out the background of the relevant orders made by the Court.
On 27 June 2017, the Court made the following order:
"2. In respect of the border records application:
(a) The defendants are to file and serve on the legal representatives for the plaintiff and the Associate to Dicker DCJ any written submissions on which they wish to rely, not exceeding 10 pages, in relation to the public document point by 5pm on 4 July 2017.
(b) The plaintiff is to serve on the legal representatives for the defendants and the Associate to Dicker DCJ any responsive written submissions on which he wishes to rely in relation to the public document point, not exceeding ten pages, by 5pm on 11 July 2017."
On 3 August 2017, the Court made the following orders:
"1. The plaintiff is to serve on the legal representatives for the defendants and the Associate to Dicker DCJ any further written submissions on which he wishes to rely in relation to the State Border Service records application, not exceeding five pages, by 5pm on 17 August 2017.
2. The defendants are to file and serve on the legal representatives for the plaintiff and the Associate to Dicker DCJ any written submissions on which they wish to rely in response, not exceeding five pages, in relation to the State Border Service records application by 5pm on 31 August 2017."
On 17 August 2017, the Court received:
1. Further submissions from the plaintiff;
2. A further affidavit of Mr Mennen affirmed 17 August 2017.
On 18 August 2017, Mr Corkhill on behalf of the defendants indicated that the defendants did not object to the plaintiff reading Mr Mennen's affidavit affirmed 17 August 2017 on the application and the Court taking it into account.
On 31 August 2017 the Court made the following order:
"By consent:
The defendants are to file and serve on the legal representatives for the plaintiff and the Associate to Dicker DCJ any written submissions on which they wish to rely in response, not exceeding five pages, in relation to the State Border Service records application by 5pm on 7 September 2017."
The order dated 31 August 2017 was for the defendants to serve any written submissions on which they wished to rely in response. The 7 September 2017 email from Mr Corkhill served both written submissions and additional affidavits as indicated above. In the defendants' 7 September 2017 submissions leave is sought to rely on the additional affidavit material (see paragraph 1).
The Court notes that parties should not forward new affidavits on which they wish to rely with written submissions, particularly submissions served in reply. If an application is sought to be made to rely on new affidavit material, a Notice of Motion should be filed seeking leave to reopen the evidence on the application or at least the matter should be relisted so that the necessary application can be made.
I have reviewed the further material on which the defendants seek to rely. I grant leave to rely on paragraphs 1 to 4 of Mr Corkhill's 6 September 2017 affidavit (and Annexure A to that affidavit) as it responds to Mr Mennen's affidavit affirmed 17 August 2017, referred to above.
I do not grant leave to rely on the remainder of the affidavit material forwarded by the defendants on 7 September 2017 as:
1. It falls outside the 31 August 2017 grant of leave;
2. It raises new issues; and
3. The defendants had Mr Novokov's affidavit at the time the application was heard.
Having reviewed Mr Mennen's 17 August 2017 affidavit and paragraphs 1 to 4 of Mr Corkhill's 6 September 2017 affidavit, I am satisfied that the State Border Service letter dated 18 October 2011 on which the defendants seek to rely is authentic. Annexure A to Mr Corkhill's 6 September 2017 affidavit shows the receipt of the 18 October 2011 letter in its context and in my view negates any suggestion that the 18 October 2011 letter is not authentic.
Accordingly, the issues to be determined remain those put in issue in the remainder of the parties' written submissions. I now turn to consider those submissions.
[7]
General observations
The defendants seek to have admitted into evidence the 18 October 2011 document to show that Mr Safronov was alive after the date on which it is alleged he died. It is accordingly an important document to the defendants' case. The plaintiff opposes the admission of the document for the same reason as it seems to suggest that Mr Safronov was alive after he was alleged to have died. The plaintiff submits that the document is not reliable as it is not a true copy of the border records, is not issued under the seal of the State Border Service and is not certified.
[8]
Section 48(1)(f) of the Act
In my view, the submissions on this section made by the plaintiff should be preferred. The use of the words "a document that is or purports to be a copy of the document in question" in the section would require in the present case the relevant document to be either itself the State Border Service's records regarding the relevant border crossings or to be a copy of those records. What is in question in the present case is a purported summary or extract of alleged records not the documents constituting those records. See also Section 47 (2) of the Act.
Accordingly, in my view the section does not apply to the relevant document in the present case.
[9]
Sections 48(1)(e) and 48(4)(a) of the Act
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 the majority of the High Court explained the task of statutory construction as follows at [69]-[70]:
"[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme."
This statement of principle in the Project Blue Sky case has been followed in many subsequent appellate decisions.
In the present case, there are specific provisions in Section 48 and in Part 4.3 Division 2 of the Act (which includes Section 156) dealing with public documents and "matters of official record". Sections 48(1)(e) and 48(4)(a) of the Act do not on their face apply to public documents such as the document in question but are general provisions. In the light of the presence of specific sections relating to the admissibility of public documents, including foreign public documents, in my view the submissions of the plaintiff should be accepted.
Clearly, the legislature has decided to have specific provisions dealing with public documents such as the document in question. In those circumstances, the construction for which the defendants contend would be inconsistent with the language and purpose of all of the provisions of the Act viewed as a whole, as the majority of the High Court said in Project Blue Sky. See also Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 where Gavan Duffy CJ and Dixon J stated as follows:
"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
Accordingly, in my view, Sections 48(1)(e) and 48(4)(a) do not apply to the admissibility of the document in question in the present case.
[10]
Section 156 of the Act
As set out above in the description of the document in question, there does not appear to be a formal seal of the State Border Service of the Ukraine on the document.
Accordingly, the document in question does not appear to satisfy Section 156(1)(a) of the Act. It has not been sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document. In the present case, it has not been sealed with the seal of the State Border Service of the Ukraine.
The next question is whether the document has been "certified" as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document.
The document here appears to be a letter from Colonel Vlasko, the First Deputy Head of the Main Centre of the State Border Service of the Ukraine to the Public Prosecutor's Office of the Ukraine. It clearly purports to provide information contained in the database of the State Border Service of the Ukraine about the crossing of the State Border of the Ukraine by certain citizens of the Russian Federation in the period from 1 January 2010 to 17 October 2011. One of the relevant persons is Vladymyr Safronov and another person is Mr Oleg Zhyrnoklev.
The defendants clearly rely on this to suggest that the deceased, Mr Safronov (who no doubt it will be suggested is the person referred to in the 18 October 2011 letter), was exiting the Ukraine after the day on which he is supposed to have died.
The plaintiff submits that the document has not been "certified" within Section 156(1)(b) of the Act. It is said that this requirement is significant as it denotes a person focussing on the document and certifying as to its accuracy such that the document is a formal document and not merely a letter.
The defendants submit that the purpose of the legislation is merely to provide a document which accurately sets out the formal records of the foreign government entity and that is what the document in question in the present case achieves. The word "certify" should therefore be given a broad construction consistent with this objective.
In my view there is force in the submissions made on behalf of the plaintiff. It appears to me that Section 156 of the Act is designed to provide the Court with comfort as to the accuracy and reliability of the document. This is achieved by either the seal being applied to the document or a person taking responsibility for the accuracy of the material by "certifying" it. This is a frequently seen role and requires a person who is identified to personally place their certification on the document. This process brings home to the person the importance of undertaking an accurate identification of the document.
The translation refers to "Clause 23 of the Provisions" and says that "we are forwarding information" (emphasis added). There is no evidence as to what Clause 23 of the 'Provisions" is a reference to. The use of the word "we" does not establish a personal certification to an identified individual as the section requires. The apparent senior position of Colonel Vlasko also suggests that he himself probably did not undertake the task of sighting the records and obtaining the relevant extracts.
The word "certify" is not defined in the Act or the dictionary to the Act. In my view there is no reason why the word "certify" should not be given its usual meaning of a person formally attesting that a document is an authentic copy of another document or contains an authentic extract of another document. In my view a broader meaning would defeat the purpose of the section which is to attempt to make more likely the accuracy and reliability of the document sought to be tendered in the proceedings.
For these reasons in my view Section 156 of the Act is not satisfied.
[11]
Section 190 of the Act
Having regard to the importance of the document to the parties, it is clear that the matter to which the document relates is genuinely in dispute between the parties.
Whilst the rejection of the document is likely to cause or involve expense or delay, the importance of the document must be taken into account in considering whether the rules of evidence should be waived under Section 190(3) of the Act. Further, there is no evidence before me as to the expense, difficulty or delay for the defendants in obtaining a sealed or certified version.
Having regard to the clear importance of the document to the issues in the proceedings, in my view it is inappropriate to exercise the discretion in Section 190(3) of the Act at this stage on the current evidence.
[12]
Conclusion
For all of the above reasons, in my view the document in question is not admissible under any of the sections relied upon by the defendants and I reject the application.
Accordingly the court makes the following order:
1. The application by the defendants for an order that the document referred to in Schedule 1 paragraph 5 to the Further Amended Notice of Motion filed on 26 June 2017 being the extract from the database of the State Border Service of Ukraine be admitted into evidence at the final hearing of the three proceedings is dismissed.
[13]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 September 2017
Parties
Applicant/Plaintiff:
Gerasimov (As Executor of the Estate of the Late Vladimir Safronov)