JOHNSON J: The Court is presently hearing, by way of an Amended Notice of Motion filed on 13 October 2020, an application by the Defendant, Rehana Ali Mohamed Memon, in proceedings commenced by the Plaintiff, the Commissioner of the Australian Federal Police for, amongst other things, an order under s.24 Proceeds of Crime Act 2002 (Cth) ("POC Act") for payment to the Defendant of reasonable living expenses.
These proceedings first came before me on 20 October 2020 in the Duty Judge List. For reasons explained in an unreported judgment delivered that day, I determined that the matter was not appropriate to be heard in the Duty Judge List, given the range of issues being raised (including constitutional issues) and the likely duration of the hearing required. At the request of the parties, I retained conduct of the matter and the Amended Notice of Motion was fixed for hearing today.
The parties have provided a series of written submissions on different topics, together with the filing of a number of affidavits on behalf of both the Plaintiff and the Defendant.
The hearing today has reached the point where the Defendant was to be cross-examined. The Defendant has filed no fewer than six affidavits in her own name upon which she seeks to rely on this application.
There are other affidavits, as well, from her instructing solicitor and affidavits for the Plaintiff, to which further reference is not required in this judgment.
The issues raised on the application concern aspects of the Defendant's financial requirements in the context of a claim for reasonable living expenses.
In the course of the mention of the matter on 20 October 2020, Mr King, counsel for the Defendant, noted that he wished to object to the Defendant being cross-examined upon her affidavits. There was no further articulation at that time of that issue, nor indeed has there been any further reference to it until the point was reached today when the Defendant was invited to step forward to enter the witness box.
It has been made clear by Mr O'Mahoney, who appears with Ms Tang, as counsel for the Plaintiff, that there is to be a substantial challenge to the truthfulness and reliability of the account given by the Defendant in her affidavits.
Mr King submitted that it was necessary for the Court to grant leave to the Plaintiff to cross-examine the Defendant in the present interlocutory application. He relied upon a number of decisions - Ren v Jiang [2014] NSWCA 1 (Leeming JA) at [11]-[13]; Wu v Avin Operations Pty Limited (No 3) [2006] FCA 1321 (Kenny J) at [18]; Mariusz Zmudzinski v Cheapa Campa Pty Limited and Camper Travel Pty Limited [2011] NSWSC 997 (Black J) at [3]-[4] and Bar-Mordecai v Attorney-General for the State of New South Wales (No 1) [2020] NSWSC 1216 (Davies J) at [8].
Mr King submitted that it was necessary for the Plaintiff to demonstrate why leave should be granted for the Defendant to be cross-examined, relying upon the general principles stated in those cases.
Mr O'Mahoney submitted that the statutory scheme contained in the POC Act was such that there was a real question as to whether the general principle requiring leave to cross-examine a deponent in an interlocutory application applies to an application under s.24 POC Act.
In any event, he submitted that the Court would grant leave in the circumstances of this case, given that there is a significant challenge to the truthfulness and reliability of the Defendant's account contained in her affidavits. Reliance was placed upon the recent decision of the Court of Appeal in Gwe v Commissioner of the Australian Federal Police [2020] NSWCA 247 at [68]ff.
It is important to keep in mind the nature of the application which is presently being heard by the Court. The extent to which a general principle concerning the need for leave to cross-examine a deponent in an interlocutory application operates must be considered in the context of the statutory scheme under consideration. The POC Act contains, in s.5, a statement of objects against which the present issue is to be considered. The POC Act contains an elaborate scheme for a Court to firstly make a restraining order (s.19), for persons to seek exclusion of property contained in restraining orders (s.31) and for persons, such as the present Defendant, to make application for allowance for living expenses under s.24 of the Act.
The Defendant, being the applicant in the present application, bears the onus of proof under s.317 POC Act with the standard of proof being the civil standard of the balance of probabilities.
To the extent that Mr King, at one point, referred to pending criminal proceedings against the Defendant and the risk that she may incriminate herself in some way if cross-examined, I note that s.128 Evidence Act 1995 (NSW) is available if such an eventuality arose. My present understanding of the affidavits sworn by the Defendant relating to her current financial circumstances, and what are said to be the living expenses sought for her and her children, indicates that trespassing into any areas of potential self-incrimination is somewhat unlikely. In any event, s.128 Evidence Act 1995 (NSW) is available if that eventuality arose.
It seems to me that there is a real question as to whether the requirement for leave to cross-examine a deponent in an interlocutory application extends to an application under s.24 POC Act. However, given the way in which the issue has arisen without effective detailed notice to the Court, and with the authorities relied upon not having been furnished to either the Plaintiff or the Court before Mr King rose to take the point, I do not express any concluded view on that question.
I will proceed on the basis that the general principle that leave is required to cross-examine a deponent in an interlocutory application has prima facie operation where application is made under s.24 POC Act.
The cases relied upon by Mr King, of course, are far removed from the circumstances of the present case. None of them involved an application under the POC Act.
I note, as well, the decision in Gwe v Commissioner of Australian Federal Police where Bell P (Bathurst CJ and Emmett AJA agreeing) emphasised (at [68]ff) the importance of cross-examination of a witness in proceedings under the POC Act where a challenge was to be made to the truthfulness and reliability of the account being given by the witness. Although the Court of Appeal in Gwe v Commissioner of Australian Federal Police was not dealing with a s.24 POC Act application, the general reasoning about the importance of cross-examination, and of fairly presenting to the witness in cross-examination matters which seek to challenge the credibility of the witness in important areas, has operation in the present context.
To the extent that leave to cross-examine the Defendant is required, I am well satisfied that it should be granted in this case. It is the Defendant who bears the onus of proof on the application. She has sworn six affidavits. The Court ultimately is required to apply the statutory formula contained in s.24 POC Act. It has been made clear in written submissions, and in what has been said to the Court this morning by counsel for the Plaintiff, that there is to be a significant challenge to the credibility and reliability of the account given by the Defendant with respect to her family expenses and related issues.
In the circumstances of this case, the Court will not be able to fairly and fully determine the issues falling for consideration without there being cross-examination of the Defendant.
Accordingly, to the extent that leave to cross-examine is required, given the interlocutory nature of the application, I grant the Plaintiff leave to cross-examine the Defendant in the proceedings.
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Decision last updated: 18 November 2020