I'm hearing an application made by the second and third defendants in these proceedings for exclusion orders pursuant to ss 31 and 94(1) of the Proceeds of Crime Act 2002 (Cth). During the course of the evidence, a number of affidavits of the second defendant, Baijing Hu, have been read, including an affidavit affirmed on 16 April 2022. When that affidavit was read, Dr O'Mahoney of counsel objected to the tender of certain annexed documents and an English translation of each of them, being annexures A, B, C, D and E to the affidavit. The principal ground of the objection was as to authenticity.
To overcome the objection, Mr Norrie of counsel, who appears for the applicants, has tendered what he asserts to be the original of each of those annexures, other than annexure D, which apparently, according to counsel's explanation, could not be located, and I marked them as MFI 1, 2, 3 and 4, respectively. Dr O'Mahoney maintains his objection.
The evidence is potentially important because it, as it were, corroborates in some respects the second defendant's evidence as to the legitimate source of some of the funds utilised to acquire the property, or other property relevant to the property, which she seeks, with the third defendant, to have excluded from the restraining order already made and from forfeiture to the Commonwealth. In considering the question of admissibility, authenticity, of course, is an important consideration, as well as the primary consideration of relevance. And the second defendant describes the documents in dispute at paragraph 5 to 18 of the affidavit to which I have referred. Relevant to the tender are ss 58 and 183 of the Evidence Act 1995 (NSW). I remind myself that generally speaking, there are two questions pertinent to any evidence, the first is admissibility and the second is acceptability to the tribunal of fact, although the distinction may not be so important in a civil case where there is an undivided tribunal.
Section 58 is in the following terms:
If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
Subsection 1 does not limit the matters from which inferences may properly be drawn.
And s 183 provides,
If a question arises about the application of a provision of this Act in relation to a document or thing, the court may -
examine the document or thing, and
draw any reasonable inference from it as well as from other matters from which inferences may properly be drawn.
I am of the view that in determining the admissibility of these documents, I may have regard to the evidence of the second defendant about them, as well as my examination of the context and form of the original documents that have now been tendered. The distinction between admissibility and acceptability may be important. The second defendant's evidence was very severely challenged as to her credit worthiness. But in determining the admissibility of these documents, it would be inappropriate for me to take those matters into account. They are matters which can only be brought to bear in my final determination of the issues in the case, when I, at the appropriate time after the close of the case for each party, and having had the benefit of the arguments of counsel, evaluate the evidence and give consideration to my decision about what evidence should be accepted and what should be rejected.
Like any tribunal of fact, it would be open to me to reject part of the evidence of any witness, and at the same time, to accept other parts of the evidence of the same witness. And accordingly, I repeat it does not seem to me that in terms of my decision about the admissibility of these documents, that I need to make any decision, provisional or otherwise, about the acceptability or reliability of the second defendant's evidence.
I'm conscious of the fact that during cross‑examination, the second defendant did acknowledge that certain documents which had been propounded for the purpose of obtaining mortgages were shown to be not genuine. That is not to say that the second defendant admitted any part in their fabrication. Even so, as I have said, those matters are matters for my evaluation when I make a decision, and are not matters which, in my view, properly touch upon the question of admissibility that I now have to determine.
To some extent, the argument over the admissibility was diverted by reference to the decision of Bryson J in National Australia Bank Limited v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539 ("Rusu") at [19] where his Honour said, "… a question of authenticity is not a question as to the relevance of documents within s 58(1), which treats authenticity as part of the material on which relevance may be determined". I should say that that matter was drawn to my attention by reference to the 16th edition of Mr Odgers SC's standard text on the law of evidence being the Uniform Evidence Law published by Thomson Reuters. With respect, it is difficult to understand why Mr Odgers continues to give such prominence to the Rusu decision [EA 50.58.60] p 386. The decision has been expressly disapproved of by intermediate appellate Courts in the Australian judicial hierarchy but specifically by a Court of Criminal Appeal constituted by Bathurst CJ, Hoeben CJ at CL, and Leeming J in Gregg v The Queen [2020] NSWCCA 245; see [362] to [372] and [714] to [716]. Mr Odgers is apparently aware of the decision because it is cited at footnote 159 in his work. As I have said, that so far as it is relevant to say, the very strong bench expressly disapproved of and overruled the decision in Rusu. The Chief Justice pointed out that in making the statement of opinion at [19], Bryson J had not had the benefit of being referred to s 183 of the Evidence Act.
I accept the force of Dr O'Mahoney's submission that I am at something of a disadvantage given that I am asked to consider what are said to be documents created by institutions in a foreign country with which I am unfamiliar, unlike documents produced by Australian institutions in the English language. Even so, one can get a sense of the documents by reference to their appearance, quality and content, including what appear to be official stamps or seals, as one would find with official documents throughout the civilised world, and I propose to take such matters into account.
Annexure A, which is MFI 1, is said to be a certificate of the dissolution of the second defendant's first marriage in China. It is in a booklet form, and I thought it bore some similarities to the form of her marriage certificate, which is not disputed. But it seems to me that, whatever its relevance, the document is what it purports to be; and although I obviously cannot read the content in the Mandarin language, I have the benefit of the translation of it and reading the translation and considering the original. I am satisfied for the purpose of admissibility that it is what it purports to be.
In this regard, I have also taken into account that the translation attached to the affidavit has been carried out by a person who is accredited by NAATI, and the translator has rendered it as being a document of the Ministry of Civil Affairs of the People's Republic of China; and she has identified that seal on the cover page of the document and her translation of it adds, I think, greatly to the feeling of authenticity that I have garnered by inspecting the document itself. I will admit MFI 1 in due course.
MFI 2 and 3 are both said to be tax invoices, or rather, invoices of the People's Republic of China Tax Office; and in her affidavit the second defendant says it is a tax invoice issued by the Changping District Government for tax levied on the sale of a property owned by the second defendant in China in October 2011. Once again, the translation aids my decision. It also is translated by the same accredited translator, and from the translation one gets a sense that it is what it purports to be, at least at the stage of admissibility. Again, it has a feel of a government proforma document, and it also bears what appears to be an official seal on the face of it. I will admit MFI 2 in due course.
MFI 3, which is annexure C, which is also translated, is said by the second defendant to be a similar tax invoice, this time issued in a different district of the People's Republic of China but relating to the sale of another property of which the second defendant was the owner. Again, the translation of that document I think aids to my understanding. For similar reasons, having inspected the original document, I am satisfied it is authentic and I will admit it in due course.
I then come to annexure E. It is said to be a transaction statement of the China Merchants Bank covering the calendar year 1 January 2011 to 31 December 2011. On the face of the document, certain matters, as with the tax invoices, are rendered not only in the Mandarin language in Mandarin characters but also in the English language. Although that is unexplained, it is perhaps explicable given that English language is the language of international commerce and is an official language in the province of Hong Kong. Having regard to the quality of the paper, the set‑out of the statement and the appearance of a seal on the face of each page, I am satisfied that it too is authentic, and I propose to admit it.
For these reasons, I admit MFI 1 as exhibit D, MFI 2 as exhibit E, MFI 3 as exhibit F, and MFI 4 as exhibit G. On that basis I will also allow the photocopies annexed to the affidavit in question to be received in evidence as part of the affidavit.
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Decision last updated: 16 December 2022