Hamod v State of New South Wales

Supreme Court of NSW|2007-08-31|Before: Harrison J

CITATION : Hamod v State of New South Wales (No 6) [2007] NSWSC 1366

DECISION : See paragraphs [52] - [53] for details of orders made.

CATCHWORDS : CIVIL PROCEDURE - interlocutory application for access to documents for forensic examination - dispute as to authenticity of platinum bullion certificate - application opposed in absence of orders for proper security arrangements and payment of associated costs - document allegedly uninsurable - orders for forensic examination of document made - plaintiffs to make such security arrangements as advised

LEGISLATION CITED : Evidence Act 1995 Uniform Civil Procedure Rules 2005

Anthony Hamod (First Plaintiff) PARTIES : Hamock Investments Pty Limited (Second Plaintiff) State of New South Wales (First Defendant) UBS Australia Limited (Second Defendant)

COUNSEL : D E Baran (Plaintiffs) M R Speakman SC (Second Defendant)

Simon Diab & Associates (Plaintiffs) SOLICITORS : I V Knight, Crown Solicitor (First Defendant) Allens Arthur Robinson (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20147 of 2003 Anthony Hamod & Anor v State of New South Wales & UBS Australia Limited

JUDGMENT 1 HARRISON J: On 19 July 2007, on the application of the second defendant by its notice of motion filed 12 July 2007, I made the following orders regarding access by the second defendant to the "Platinum Certificate" which is the subject matter, inter alia, of the present proceedings: - 2. Subject to Order 3 hereof, on or before 31 July 2007, the plaintiffs make available at the Manly premises of Forensic Document Services Pty Limited, for non-invasive examinations by Paul Westwood (an expert to be retained on behalf of the second defendant), the document alleged by the plaintiffs to be the "Platinum Certificate" referred to in paragraph 9 of the sixth amended statement of claim, for a period of up to four successive days.

Direct that within seven days the second defendant provide to the plaintiff written undertakings by a duly authorised representative of the second defendant which include undertakings in or to the effect of those contained in the letter dated 4 July 2007 from Allens Arthur Robinson to Simon Diab & Associates together with an undertaking that the Platinum Certificate will be returned safely to the care, custody and control of the plaintiff following forensic examination. 2 On 9 August 2007 I made orders by consent vacating those orders. 3 The second defendant now seeks the following order pursuant to rule 23.8 UCPR and s 169 of the Evidence Act 1995: - On or before 14 September 2007, the plaintiffs make available at the Manly premises of Forensic Document Services Pty Limited, for non-invasive examinations by Paul Westwood (an expert to be retained on behalf of the second defendant), the document alleged by the plaintiffs to be the "Platinum Certificate" referred to in paragraph 9 of the sixth amended statement of claim, for a period of up [sic] four successive days. 4 In support of its application, the second defendant has proffered a series of undertakings. They are as follows: - "The second defendant, by its undersigned duly authorised officer, gives the following undertakings with respect to the document described as the "Platinum Certificate" in paragraph 9 of the sixth amended statement of claim (the Certificate ):

that it will not alter, damage or destroy the Certificate;

that it will not, without further order or prior written permission from the plaintiffs:

(b) permit Paul Westwood ( Mr Westwood ) of Forensic Document Services Pty Limited ( FDS ) or any employee or agent of FDS to conduct,

any examinations of the Certificate other than physical, non-invasive examinations;

that it will not, without further order or prior written permission from the plaintiffs:

(b) permit Mr Westwood or any employee or agent of FDS to conduct,

that, subject to being entitled to disclose a photocopy of the Certificate and its contents (on conditions of confidentiality) to any potential witness or expert in these proceedings and its legal representatives, it will keep the contents of the Certificate strictly confidential;

that it will ensure that the Certificate is kept secure while it is in the custody of Mr Westwood or FDS; and

that it will return the Certificate to the first plaintiff or his legal representative on demand, or on completion of the examination of the Certificate to be made by Mr Westwood pursuant to order 2 of the orders made by the Hon Justice Harrison in these proceedings on 19 July 2007." 5 The present application is strongly opposed by the plaintiff. However, the plaintiff accepts the second defendant's undertakings as adequate for their purposes having regard to the context in which they are given. So much appears from the following concession made by counsel for the plaintiff: - "BARAN: Yes. Yes, and that is the most pressing matter. And if that can be organised and if Mr Hamod can undertake the inspection as he has requested to your Honour through me, then it would appear that the orders would be appropriate. I am accepting the undertakings given by my friends. It really comes to the procedure of the inspection and security arrangements " (Emphasis added) 6 In support of its application the second defendant relied upon the affidavits of Paul Denison Westwood sworn 12 July 2007, Jane Margaret McCosker sworn 18 July 2007 and Patrick Hamilton Holmes sworn 28 August 2007. Mr Westwood's affidavit had also been relied upon by the second defendant in support of its original application. 7 Ms McCosker is a solicitor and her affidavit was read without objection. Mr Westwood had given her information with the benefit of which she cited examples of facts that it may be possible to establish if Mr Westwood were given the opportunity to undertake the examinations he proposed. Her evidence in this respect was as follows: - 7.1 The Video Spectral Comparator ( VSC ) 2000 examination will detect any watermarks in the Certificate that are visible under ultraviolet light.

7.2 Detection of watermarks in the Certificate might assist in establishing whether it was actually created on before the date on which it was purportedly issued.

7.3 In Mr Westwood's experience, watermarks inserted in documents as a mark of their authenticity are inserted into the documents at the same time that the paper comprising them is manufactured.

7.4 Mr Westwood's practice upon detecting a watermark is to make further enquiries, by consulting reference documents such as records kept by paper manufacturers worldwide or speaking to people with relevant expertise with the aim of identifying the date on which that watermark is first recorded as having been used.

7.5 Discrepancies between the date of the document and the commencement date of a watermark may be significant.

7.6 The Electro-Static Detection Apparatus ( ESDA ) may also establish whether the Certificate was created on or before the date on which it was purportedly issued.

7.7 Latent writing impressions in the Certificate found using the ESDA may be able to identify the date on which those impressions were made.

7.8 Mr Westwood's other examinations might identify the date on which the signatures appearing on the Certificate were added to it.

7.9 A comparison between latent writing impressions identified using the ESDA and the date upon which signatures were placed upon the Certificate may be significant.

7.10 Photomicrography examination might reveal the technology used to manufacture the Certificate.

7.11 A comparison between the date of the manufacture of the Certificate and the date when the technology to manufacture it was first developed may be significant. 8 Ms McCosker also gave evidence that Mr Westwood would be likely to require two or three full days to analyse every page of the Certificate using the examinations that he proposes. If he were to analyse only selected pages of the Certificate in the same way, Mr Westwood estimated that he could complete those examinations in one day of between eight and twelve hours of work. 9 Security arrangements which exist at FSD's premises include the following: - 9.1 Back to base alarm system.

9.4 The door giving access to the room in which the safe is located has a lock.

9.5 The Certificate will be placed in the safe overnight if required.

9.6 Only three people know the combination to the safe.

9.7 The same three people have a key to the room in which the safe is located.

9.8 The Australian Federal Police and the New South Wales Police have each from time to time allowed original documents to be released to Mr Westwood and kept at his premises. These include documents said to be of "national significance". 10 Mr Holmes is also a solicitor and his affidavit was read without objection. Mr Westwood had given him information that the workroom at the FDS premises in Manly is approximately 7m by 2.5m. It contains the examination equipment and work areas for four FDS employees. At any given time during business hours, FDS personnel are usually conducting examinations and performing other work for several clients, most of which is confidential. If the plaintiff or his legal representatives were to be present in the workroom while examinations of the Certificate were taking place, FDS would have to cease work for all other clients during the examination and remove all documents and other materials relating to that work. 11 One wall of the workroom is a glass wall that looks out over a courtyard. The whole workroom is visible from the courtyard through the glass wall. Mr Westwood is prepared to allow the first plaintiff and its legal representatives to observe the proposed examinations of the Certificate from the courtyard through the glass wall. The Certificate would generally be visible at all times through the wall whenever it was in the workroom apart from the occasions when it was inside certain pieces of equipment. 12 In order properly to conduct the proposed examinations of the Certificate, Mr Westwood would need to have access to all the pages of the Certificate at the same time. This was said to be for the following reasons: - 12.1 The examinations would need to include contemporaneous visual comparisons of various characteristics of different pages of the Certificate including visual comparisons of the physical qualities of the paper, the inks used for the printing on the pages, the printing methods used, any latent writing impressions appearing on the various pages and any guillotine striations on the edges of the pages

12.2 The comparative visual analysis may help to determine the likelihood that the Certificate was (or all of its pages were) created when it is said to have been created, whether there are any inconsistencies in the characteristics between the different pages of the Certificate and whether any part of the Certificate has been altered or amended since that time. These matters may assist in forming a view about the genuineness of the Certificate. 13 The second defendant also issued a notice to produce to each of the plaintiffs. These notices were in relevantly identical terms which were at follows: - 13.1 All current policies of insurance in relation to the [ Platinum Certificate ];

13.2 All documents that refer to the Platinum Certificate being held at, or transported to, places outside Australia within the five years preceding the date of this notice;

13.3 All documents that refer to any arrangements made or measures taken in respect of the security of the Platinum Certificate while it was located at, or being transported to or from, any places outside Australia within the five years preceding the date of this notice;

13.4 All documents (including, without limitation, any insurance policies) referring to any insurance arrangements that were in place in respect of the Platinum Certificate while it was located at, or being transported to or from any places outside Australia within the five years preceding the date of this notice;

13.5 . . . 14 No documents were produced in response to these notices. 15 In opposing the application the plaintiff relied upon the affidavits of Simon Diab sworn 20 August 2007 and of the first plaintiff sworn 24 August 2007. 16 Mr Diab's affidavit annexes a series of correspondence and related material that has passed between the solicitors for the parties concerning the present issue since 14 May 2007. Most of this material is uncontroversial but some of it is very significant and should be referred to in detail. 17 By his letter dated 18 May 2004 Mr Diab advised the solicitor for the second defendant, "that our client consents to giving access to Mr Paul Westwood to examine the Platinum Certificate". However, the letter went on to say, "due to security concerns, our client does not consent to the Platinum Certificate be[ing] taken to Mr Westwood's premises in Manly". 18 By his letter dated 20 June 2007, Mr Diab rejected an offer proposed by the solicitor for the second defendant to arrange for police officers to escort Mr Hamod and the Platinum Certificate to Mr Westwood's Manly premises. This is unsurprising. 19 On 4 July 2007, the second defendant proffered the undertakings referred to above. 20 By his letter dated 31 July 2007, Mr Diab advised the solicitor for the second defendant as follows: - "We are further instructed to confirm that our client consents to Mr Westwood's inspection of the Platinum Certificate. Our client is now content to have Mr Westwood inspect the Platinum Certificate at his Manly premises subject to the following:

The Platinum Certificate remains in our client's possession at all times;

Mr Hamod, Mr Hamod's security consultant and I inspect Mr Westwood's premises on a date prior to taking the Platinum Certificate to those premises;

Mr Hamod and I attend the examination of the Platinum Certificate and remain with the Certificate while it is being inspected;

Mr Hamod shall provide Mr Westwood with one page of the Platinum Certificate at a time and once Mr Westwood completes his examination of that page of the Certificate, Mr Hamod will retrieve that page and provide Mr Westwood with another page of the Certificate;

If Mr Westwood requires more than one day for examination of the Platinum Certificate, Mr Hamod retains the Certificate and returns it to Mr Westwood's premises the following day;

Reasonable security operation to be undertaken to safeguard Mr Hamod and the Certificate while in transportation to and from Mr Westwood's premises and during the examination process;

Your clients pay the costs of the above referred to security operation. We are in the process of obtaining costs for security and shall advice [sic] you of same once at hand; and

Your clients pay my costs of $600 (which is the rate I charge Mr Hamod in this matter) while attending to the inspection referred to in paragraph 2 above and for attending to the examination referred to above including travel time." 21 These matters drew a detailed response from Allens Arthur Robinson by letter dated 2 August 2007. Most of the conditions were acceptable to the second defendant. The following responses, however, should be noted: - "3. As we have previously proposed, Mr Westwood is content for Mr Hamod and Mr Diab to be present on FDS's premises while the examination of the Certificate is taking place. However, Mr Westwood cannot agree to having Mr Hamod and Mr Diab present in the actual laboratory when the examination is taking place. This is for a number of reasons including that FDS conduct various highly confidential work for other clients in the laboratory and there is limited space in there. Mr Westwood is happy for Mr Hamod and Mr Diab to remain in a room outside the laboratory on FDS's premises while the examination is being conducted. Alternatively, we are informed by Mr Westwood that there is a courtyard outside the laboratory with a window that looks into the laboratory and that Mr Hamod and Mr Diab are welcome to observe the examination from there.

Our client does not agree to this condition. Where are informed by Mr Westwood that he needs to have access to all of the pages of the Certificate at the same time in order that he can conduct comparative examinations and cross-referencing of different pages.

Our client does not agree to pay the cost of any "security operation" referred to in numbered paragraph 6 of your letter. In relation to this issue, we note the following:

(a) Our client has already provided an undertaking as to the security of the Certificate during the examination process.

(b) Justice Harrison's orders of 19 July 2007 did not make it a condition of the proposed examination that our client pay for any "security operation" proposed by your client. Having regard to the undertaking our client has provided, it is our client's view (with respect to his Honour) that this was entirely appropriate and we expect that Justice Harrison would not make any order for our client's payment of any "security operation" in the event that his Honour reconsiders our client's application for an order for access to the Certificate.

(c) Under rule 21.5(2)(a) of the Uniform Civil Procedure Rules 2005, your client is required (as part of his discovery obligations) to make the original Certificate available for inspection by our client. That requirement is not subject to any condition that our client pay any costs of your client associated with making it available.

(d) Ordinarily, such an inspection for the purposes of discovery would take place at your offices (and your client has previously consented to the Certificate being examined by Mr Westwood at your offices). This would involve the transportation of the Certificate from the place where it is being stored to your offices. Our client would not be liable for the cost of any security measures your client wished to take in respect of the transport of the Certificate to your offices or its inspection at your offices.

(e) We can see no reason why there is any greater "security risk" associated with the transportation of the Certificate to Mr Westwood's premises and its examination there than would be associated with its transportation to and inspection at your offices. Accordingly, there is no reason why our client should be required to pay for any "security operation" that your client wishes to undertake in respect of the transportation of the Certificate to Mr Westwood's premises or its examination there. This is particularly so in circumstances where our client has given an undertaking as to the security of the Certificate while it is at Mr Westwood's premises.

(f) However, to allay any concerns your client has in this regard our client, Mr Westwood and FDS are willing to undertake that they will not by themselves, their servants or agents disclose (until after the event in court or in any expert report or affidavit) to anyone other than our client's legal advisers, Mr Westwood and other staff of FDS the date or time at which the Certificate will be, or is proposed to be, examined at the premises of FDS in Manly." 22 The plaintiff's solicitor had earlier sought quotes from Chubb Security Services and Armaguard by letters in identical terms dated 19 June 2007. The job was in each case described in the following terms: - "To transport our client and a bank bearer certificate valued by our client to be worth about AUD $200,000,000,000. Our client would need to be transported from a suburb in Sydney to be disclosed in due course to Manly. The distance of the trip is not more than 50 km. Your brief will be to transport our client and the certificate to Manly, the certificate would be examined at an office in Manly, you will then transport our client and the certificate back to the original location. Your armed personnel must guard our client and the certificate from the time our client is picked up until he is returned to his original location." 23 Both organisations indicated that they would be unable to provide the services requested. In the case of Chubb, a representative advised Mr Diab that insurance for the job would cost approximately $400 million, assuming a syndicate could be arranged to underwrite the risk. 24 Mr Diab subsequently consulted with a representative from Corporate Protection Services International Pty Ltd. In a letter dated 28 June 2007, the chief executive officer of that company Mr Lambie, advised Mr Diab in the following terms: - "Such a risk assessment process cannot be undertaken at this time without knowing the current location of the document, the intended delivery location, duration of the examination, the secure location where the document is to be returned and the intended timings of the operation.

There is no doubt due to the purported value of the questioned document that most professional security organisations will not accept liability and formalised indemnity will be sought in respect of the transportation and security process.

As a result of the purported value of the questioned document, the recorded threats made against the security of the questioned document and the family of the plaintiff we would recommend that any security transportation process be undertaken in consultation with the New South Wales Police."

"Due to the limited information currently available I am not able to provide any indicative costing for the security transportation operations." 25 Mr Lambie subsequently advised that before he would be able to quantify his costs of providing security to transport the document from Raby to Manly, remain with it and bring it back up to four times, he would first need to undertake a security assessment. The cost of such an assessment was said to be $1200. 26 Mr Hamod's affidavit is relatively long and difficult to summarise. It tells a remarkable and intriguing tale going back to June 1994 when Mr Hamod received the Certificate for security for costs and commissions said to have been earned by him for the supply of services for the sale of several other certificates held by PT Galaxy Trust Indonesia. Mr Hamod said that in June 1994 he conducted a due diligence on the Certificate with Pierre Grumbacher, the clearance officer of the second defendant through Alfima Trust and satisfied himself that the Certificate was authentic and valid and issued by the second defendant as a bearer certificate for a deposit of platinum. 27 However, in the following month, a group of business people from Italy headed by Antonio Enini (the Enini Group) kidnapped Mr Hamod and Michael O'Dowd, the representative of PT Galaxy Trust Indonesia, and escorted them to Italy where they were kept under tight security for a period of time and where they were subject to attempts to force them to negotiate the sale of the Certificate and other certificates to clients of the second defendant. In early August 1994 the Enini Group then escorted them to Zurich to negotiate the sale of the Certificate and other certificates to Manix Group Limited, a client of the second defendant. Mr Hamod said that while in Zurich, Mr George Kurian introduced Ms Mary Podge, a former secretary of the board of the second defendant, who inspected the original of the Certificate and confirmed that it was authentic and valid and issued by the second defendant. 28 In August 1994, while staying in a hotel in Zurich, Mr Hamod deliberately caused a public nuisance so that the Swiss police would arrest him and assist him and Mr O'Dowd to escape from the Enini Group. Between early August and 22 August 1994, the Swiss police kept Mr Hamod in custody with the original of a Certificate to investigate its authenticity and validity. About 22 August 1994 the Swiss police released Mr Hamod after they had confirmed that the certificate was authentic and valid "and issued by the Swiss authority" through the second defendant. Mr O'Dowd was found alive in Italy. 29 Mr Hamod said that as a result of his refusal to deposit the Certificate in the safekeeping account in a bank in Switzerland, he was asked to leave the country as the certificate was a bearer certificate and his life was in danger so long as he carried with him. Subsequently, an armed unit of the Switzerland Armed Forces escorted him through Zurich and the airport to the door of a waiting plane. 30 In late August 1994 Mr O'Dowd escaped from the Enini Group and resumed negotiations for the sale of other certificates to Metropolitan Life Assurance of America, a buyer that Mr Hamod had previously introduced. In September 1994 Mr O'Dowd, on behalf of PT Galaxy Trust, demanded that he return the Certificate before it would pay his costs and commissions from the sale of other bullion certificates. Mr Hamod said that when he refused to do so before payment of his costs and commissions, Mr O'Dowd and his associates threatened to kidnap Mr Hamod's daughter and rape her until such time as the certificate was returned. 31 Back in Australia by October 1994, Mr Hamod then attended the Nowra police station with the original Certificate and with documents associated with the sale of other bullion certificates. Mr Hamod said that he was also in possession of other documents giving him the lawful right to hold the Certificate until such time as he received payment of his costs and commissions. He lodged complaints about the threats from Mr O'Dowd and his associate Mr Clarke to kidnap his daughter and harm her. Mr Hamod said that Detective Superintendent Green inspected the Certificate and conducted a due diligence on its authenticity and validity and on associated documents. Detective Superintendent Green referred the matter to the Australian Federal Police. 32 That same month Senior Constable Dunlop of the AFP called Mr Hamod and arranged to interview him about the threats that had been made. Senior Constable Dunlop subsequently informed him that the AFP had received a complaint from Interpol about the alleged theft of the Certificate from the Indonesian authority. Apparently unknown to him at this time, officers of the first defendant and of the AFP installed listening devices on his phones and in his house. In the meantime, Mr John McMurtrie, the managing director of the second defendant, conveyed an invitation to him through Mr Nicholas Wall to deposit the original of the Certificate in a safekeeping account with the second defendant against which he could draw funds from time to time. 33 Mr Hamod then says that from 5 December 1994, in the face of his refusal to trade with the second defendant on the Certificate on the terms and conditions stipulated by Mr McMurtrie, including his execution of a guarantee document for payment of $600 million in commission to Mr Wall and others, Mr Philip Ludowici and others from the second defendant conspired with corrupt police officers to collect the original of the Certificate, fabricate evidence to injure him, and damage his reputation and his business. 34 On 5 December 1994, 2 January 1995 and 20 January 1995 Mr Hamod supplied the second defendant with a full copy of the Certificate and asked it to conduct due diligence and confirm its authenticity and validity. According to Mr Hamod, Mr Ludowici and Mr Philip Muhlbauer, both executive officers of the second defendant, forged one page of a certificate and made written statements to the police alleging that the forged page was a copy of the Certificate in his possession. On 20 January 1995, Mr Hamod was arrested. On the same day the New South Wales police raided his house and his office. His documentary and electronic records associated with the Certificate were seized and detained together other business and personal records. 35 In February 1996, the Certificate was collected by police officers from the exhibits safe and taken without Mr Hamod's knowledge or consent to Switzerland where it was handed over to "third parties" without a court order or other authority to do so. Police officers ultimately returned the Certificate to the safe. 36 On 3 April 1998, after the dismissal of charges against him at committal, police officers refused to release the Certificate to Mr Hamod. Magistrate Horler ordered it to be returned to him forthwith. 37 Mr Hamod says that between 1994 and 2007 a number of business consultants and financial institutions have conducted due diligence enquiries on a copy of the certificate and "confirmed" that the Certificate is authentic and valid. In late March 2000, HSBC supplied a copy of the Certificate to Pierre Grumbacher, the second defendant's clearance officer, who confirmed the authenticity and validity of the Certificate from the copy of the original. 38 Mr Hamod has sworn a statement dated 26 July 2007 for use in the principal proceedings. It was not read before me but I am aware that it is extremely voluminous. Mr Hamod sought to refer to some 28 exhibits to that statement. Some of these are contained in a volume of material described as a "bundle of documents from which an inference may be drawn that [the second defendant] acknowledged the validity of the platinum certificate or alternatively positively asserted its invalidity". Of these, only exhibits AH18, AH20, AH41, AH103, AH166, AH178, AH200, AH203, AH 205, AH208, and AH219 are included in the volume. This material will presumably be relied upon in support of the proposition that the second defendant has approached the validity of the Certificate in an inconsistent and opportunistic way so that the force of an indignant assertion that it should be entitled to examine it forensically is correspondingly reduced. 39 It is important immediately to observe that almost none of the documents contained in the bundle lend support to this argument. For example, AH174 is a document that has been executed by Mr Hamod. It appears neither to have been issued nor adopted by the second defendant. Similarly, AH178 is a letter from Saade Makhlouf to Mr Hamod and contains nothing that would appear to bind the second defendant to a particular view about the authenticity of the Certificate. Unfortunately, almost all of the other documents in the bundle fall into this category. 40 One document that does not is a letter from Allens Arthur Robinson dated 4 April 2005 to Krohn Rechtsanwälte. Paragraph 4 of that letter is in the following terms: - "You correctly note that no agreement has been reached between UBS and your client concerning the realisation of the Certificate. This is because the Certificate is not valid. We are instructed that it is a forgery and was not issued by UBS. Indeed, we are instructed that UBS does not - and never has - issued bearer certificates for platinum bullion or any precious metals. UBS has consistently denied the validity of the Certificate. Mr Hamod has been told this many times. It has also been made clear to all of the various legal representatives that Mr Hamod has used during the course of the Australian legal proceedings." 41 Part of paragraph 8 of the same letter, to similar effect, is in the following terms: - "As the Certificate is not valid and was not issued by UBS:

(a) UBS does not know what "Guarantee of Certificate No. 4404 C.H. 27009" is purported [sic] to mean but considers it to be a nonsense; and

(b) the Certificate has no legitimate value." 42 Doing the best I can, I have been unable to detect any single document in the bundle from which an inference could be drawn that the second defendant had at some time acknowledged the validity of the Certificate. Certainly the second defendant's defence to the sixth amended statement of claim pleads in unequivocal terms that the Certificate was "a forged, bogus and invalid document". I am unaware that the second defendant has adopted any other view of the Certificate in its responses to any previous versions of the current statement of claim. 43 Mr Hamod's affidavit contains the assertion that because the second defendant has filed a defence to the sixth amended statement of claim, pleading that the Certificate is a forgery, it "has no need to inspect the original of the Certificate". This contention seems to me either to confuse or to ignore the distinction on the one hand between a pleaded fact, and the burden that may be imposed upon a party to litigation to lead evidence in order to prove it on the other hand. 44 Mr Hamod was cross-examined on his affidavit. Some extracts from that cross-examination are set out below: - "SPEAKMAN

Q. Did you travel to Beirut in February 2005? A. Yes, I did.

Q. You are familiar with the platinum certificate that is much talked about in these proceedings? A. Yes, I am but not an expert, just from what I was told.

Q. When you travelled to Beirut in February 2005, did you take the platinum certificate with you? A. Yes, I did.

Q. On 17 February 2005, did you have a meeting at your brother, Salim Hamod's house on the outskirts of Beirut? A. Yes, I did.

Q. At that meeting, was there a Mr Ehlert? A. Stephen Ehlert.

Q. Did he tell you who he was? A. Yes.

Q. What did he say? A. He was the chief of the BKA, Interpol for the Middle East and he was the representative of the German government working out of the German Embassy in Beirut.

Q. Was there a Mr Hadad at the meeting? A. Yes.

Q. Did he tell you who he was? A. Yes, he was assistant to Mr Ehlert and he was member of the BKA Interpol of the Middle East.

Q. Was Mr Jason Lymbery at the meeting? A. I believe, yes.

Q. Who was he? A. He's my assistant. He travels with me whenever security is involved. He travels with Beirut for the purpose to looking after me.

Q. Was Mr Kamil Hamod at the meeting. A. That is my brother.

Q. Was he at the meeting? A. Yes.

Q. Was Mr Pierre Hamod at the meeting? A. Yes.

Q. Was the platinum certificate at the meeting? A. Yes. And Mr Salim Hamod was there too.

Q. You agree that, apart from the people that I have asked you about, no one else was at the meeting? A. No. There was someone else at the meeting. My sister in law - Salim's wife - Veronica was there. And my sister in law, Mary, I think may have been in and out because she, they was serving coffee, drinks, what ever. And I'm not sure whether my brother, Paul, was there or not. But I think he was there. He might have gone to get something, back in the meeting again. The focus was between me and Mr Ehlert. Mr Haled and Salim.

Q. Is your best recollection apart from the people you have named as being there and may or may not have been there, there was no one else at the meeting. A. Not to the best of my recollection, no.

Q. No one else? A. Salim, my brother was there.

Q. No one else? A. Not to the best recollection.

Q. At the meeting, did you produce the original of the platinum certificate? A. Yes, that's the purpose of the meeting was for, for inspection of that certificate.

Q. Did you show that to Mr Ehlert? A. Yes. Actually I put it on the table and Mr Ehlert looked at it page by page while I'm standing beside it.

Q. When you travelled to Beirut in February 2005, did you fly there from Sydney? A. Yes.

Q. Who accompanied you on the aircraft? A. Jason Lymbery and my brother Salim from Beirut to here. Mr Jason Lymbery accompany me from here to Beirut and back Beirut for security reason and my brother, Salim Hamod travelled from Beirut to Sydney to accompany me from Beirut and Sydney and back.

Q. On the aircraft, did you carry any weapons? A. No.

Q. Did you have the platinum certificate in your possession on the aircraft? A. Yes." ***** "SPEAKMAN

Q. You then deposited the platinum certificate in a deposit box? A. Yes. Then I arranged to open account--

Q. --just answer my questions. Was that a deposit box with the bank you named? A. Yes, Berenberg Bank.

Q. Which branch that was deposited? A. In Hamburg, in the office actually.

Q. Look at page 314. Did you return to Beirut on 11 March 2005? A. Yes, I did.

Q. Did you return to Sydney on 16 March 2005? A. If I stated it here, yes, I did.

Q. When you returned to Sydney, did you have a certificate with you? A. No. It was in a deposit box in the Berenberg Bank in Germany.

Q. Is the certificate now in Australia? A. Yes.

Q. When did it return to Australia? A. I travelled back to Beirug with Salim in April and collected the certificate and returned back to Australia.

Q. When you returned back to Australia, did you fly back to Australia? A. Yes, I did.

Q. Were you accompany by your brother, Salim, on that flight? A. No.

Q. Were you accompanied by any one on that flight? A. No.

Q. Did you carry any weapons on that flight? A. No but I had an assurance from-- " *****

"Q. You gave evidence that you went to Beirut and there were people there, I think, described Mr Ehlert and also the chief of the BKA? A. The Ehlert is the chief.

Q. Were there any arrangements made regarding security at that time? A. Yes.

Q. What were they? A. Mr Ehlert is the chief of Interpol and he arranged for security to accompany us from Sydney.

Q. What was the security? A. Members of Interpol were on the same flight. He told me which flight number to select and he told me he arranged security with Interpol to accompany me all the way to Beirut and all the way to Germany, back to Beirut with the security.

Q. Did you ever see any one carrying weapons who accompanied you? A. I did see a couple of people looking at us, fit people, seems to be security people but I didn't see any weapons.

Q. You then gave evidence about a meeting with Dr Nielsen in Hamburg. Was there any security arrangements made for that particular occasion? A. There was security arranged by Mr Ehlert. All the through during our entire visit to Germany but I did not see any security people around me.

Q. Mr Ehlert is the chief of the BKA? A. Yes.

Q. That's-- A. --for the Middle East.

Q. What's the BKA? A. BKA is actually, I got the business card, equivalent to Federal Police of the Australia, Australia Federal Police.

Q. When you have had the meeting at Berenberg Bank, did you observe any security on that occasion? A. There was security people at the door, there is security people outside the room.

Q. On the flight back to Australia, firstly prior to that flight, was there any security that accompanied you? A. I made arrangement with the CIA in America and with [Mossad] to accompany me--

Q. What if any security arrangements were made, on the flight in respect of coming back to Australia in 2005? A. I made arrangements with Tom Luns(?) and CIA to provide security for me to collect the certificate from Germany back to Australia.

Q. Who is Tom Luns? A. Tom Luns is number 3 in CIA, from the top.

Q. At any time, Mr Hamod, in any of these meetings, did you leave the certificate in the hands of other people without you being present? A. Never out of my sight. Never out of my hands even when Dr Nielsen seen it, I had to flick page by page. He was not allowed to see it, hold as a whole document.

Q. You gave evidence about the document being put in the box with the Berenberg Bank. Do you know what security there was in relation to that deposit box? A. There was a lock up key, I have got the key up to day, still the box. The key with me. The key is with my brother, Salim, in case of my death.

Q. Did you ever let the certificate out of your possession? A. Never.

Q. Where is it today; I don't mean the address. Is it with you here today?

BARAN: I objection to your question." *****

"HIS HONOUR: You see my dilemma. If the contention is going to be and it may be a perfectly reasonable statement "I never let out of it my possession". Somebody might suggest to me that that doesn't make any sense unless with it's with him now. ***** BARAN: Could I ask leave to ask questions arising out of what your Honour said." *****

"Q. Is it your position that you have the certificate put away somewhere safe? A. It is in the safe deposit box. Only 2 people knows where the box is. And access to the box is my brother, Salim.

Q. Is it your position that the issue you raised before his Honour is that when it comes to showing that certificate to any one else, you must be present? A. That's correct." 45 A number of things emerge from this evidence. First, Mr Hamod has travelled outside Australia as recently as 2005 with the Certificate. Secondly, these trips with the Certificate were made either without elaborate security arrangements or alternatively in circumstances where Mr Hamod arranged his own security. Thirdly, the Certificate has not remained in Mr Hamod's physical custody or possession at all times. For example, there were times when he took the Certificate overseas and when he gave his evidence before me when the certificate was in a safety deposit box or place of safe custody rather than in his immediate personal custody. 46 It also emerges from the evidence before me that the Certificate is not presently insured and was not insured even on trips outside Australia. There seems to be no dispute that the Certificate is, in practical terms, uninsurable. Certainly no evidence of the Certificate ever having been insured has been provided and the strong inference from the response to the notices to produce is to like effect. 47 Moreover, there is no material before me that records the type of security arrangements that were put in place when the Certificate was taken overseas in the way described. This absence stands in relatively stark contrast to the security arrangements that Mr Hamod urges are now necessary for the purposes of the examination of the Certificate sought by the second defendant. 48 On behalf of the plaintiff it is argued in opposition to the inspection that it is without utility. This is because the second defendant has always maintained that the certificate was invalid or a forgery. According to this argument, nothing that could possibly emerge from Mr Westwood's examination of the Certificate could alter that position. 49 That argument is somewhat curious. If Mr Westwood's examination of the Certificate demonstrated, contrary to the second defendant's contentions, that it was in fact valid and genuine, the status of the second defendant's sworn defence would be immediately imperilled. It does not appear to me to be accurate to suggest that the second defendant can or should be limited to evidence upon which it presently intends to rely if better evidence were available. This is so even though Mr Westwood's examination of the certificate may produce results that support the plaintiff. 50 It will be recalled that in my judgment on 19 July 2007 I made the following remarks about the relevance of an understanding of whether or not the Certificate is or is not genuine: - " [23] The plaintiff argues that no good reason has been provided by the second defendant for the forensic examination to take place in any event. However, it seems to me that that proposition flies in the face of the facts which underpin the very proceedings which the plaintiff has commenced. The unfortunate arrest and temporary incarceration of the plaintiff were significantly associated with an anticipation on the part of the New South Wales Police Service that the plaintiff's Certificate was not genuine or that its provenance, when properly understood, gave no support to the plaintiff's contention that his possession of it was lawful.

[24] The admissibility of any report prepared by Mr Westwood proving the results of his examination of the Platinum Certificate is not an issue with which I am presently concerned. It seems to me reasonably arguable that the second defendant has good reason to seek an examination of the document and I consider that it should not be frustrated in its attempt to do so unless very good reasons can be shown." 51 The significant issue before me is whether or not transportation within Australia for the purpose of scientific examination of the Certificate from an undisclosed location near Sydney to the suburb of Manly ought to be ordered having regard to the security concerns expressed on behalf of the plaintiff. It is not suggested that the Court does not have the power to make such an order. 52 In my opinion such an order should be made. It should be made having regard to the undertakings proffered by the second defendant which the plaintiff has acknowledged are acceptable to him. It should be made on terms that Mr Hamod is entitled to remain with, or in close proximity to, the Certificate at all times, including being within any room at Mr Westwood's premises where scientific testing takes place. It should be made on terms that Mr Hamod make such arrangements for the security of the Certificate while it is being transported to Mr Westwood's premises as he is advised to make having regard to his particular experience from previous occasions when he has transported the Certificate both between locations within Australia and to destinations overseas. 53 Bearing in mind that the date referred to in the second defendant's notice of motion has now passed, and in order that the parties may have the best opportunity to formulate orders most suitable to them in the light of the matters to which I have referred, I invite the them to bring in draft minutes of an order giving effect to what I have proposed.

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At a glance

Court

Decision date

Before

Source

Judgment (121 paragraphs)

Parties