Younas v Commonwealth of Australia

WHEELAHAN J: 1 The primary question in this proceeding is whether Mohammed Shahid Humayun, who has been called as a witness by the applicant, was the applicant's "parent" at the time of his birth for the purposes of engaging s 10B(1) of the Australian Citizenship Act 1948 (Cth). 2 These are my reasons for overruling an objection to a course of cross-examination of Mohammed Shahid by senior counsel for the respondent that occurred on the fourth day of the hearing. 3 In cross-examination, senior counsel for the respondent took the witness to a document annexed to an affidavit of Adrian Patrick Downie affirmed 31 January 2024, being a transcript of an interview between the applicant and an officer of the Department of Home Affairs dated 8 September 2021. Senior counsel for the respondent foreshadowed that he proposed to put to the witness several representations of the applicant recorded in the transcript for the witness's comment. During the course of argument, and in the absence of the witness, senior counsel for the respondent identified four representations in the transcript of interview to which he proposed to refer the witness. 4 Counsel for the applicant objected to the cross-examination, relying on s 44 of the Evidence Act 1995 (Cth). Subject to the section, s 44(1) precludes a cross-examiner from questioning a witness about a previous representation alleged to have been made by a person other than the witness. However, s 44(2) permits a cross-examiner to question a witness about a representation and its contents if evidence of the representation has been admitted, or the Court is satisfied that it will be admitted. 5 The transcript of interview, which constitutes the evidence of the representations, has not yet been admitted. Counsel for the applicant submitted that the Court should not be satisfied that evidence of the representations will be admitted. As refined during the course of argument, four submissions were advanced on behalf of the applicant. First, it was submitted that the representations were not admissible under the business records exception to the hearsay rule in s 69 because s 69(3) was engaged. It was submitted that the representations recorded in the transcript of interview were made in connection with an investigation relating or leading to a criminal proceeding. 6 Second, it was submitted that the representations attracted the credibility rule in s 102 of the Evidence Act. It was submitted that the representations were relevant only because they affected the credibility of the witness, and were therefore not admissible. It was further submitted that the exception in s 103 of the Act was not engaged because that section is concerned with evidence that is adduced in the cross-examination of the witness, and that the representations in the transcript did not constitute evidence of that type. 7 Third, and in anticipation of a submission advanced by counsel for the respondent, it was submitted that the representations were not admissible under s 81 of the Evidence Act as any admissions contained in the transcript of interview were second-hand admissions. Counsel for the applicant submitted that s 82 of the Evidence Act had the effect of taking the evidence of the transcript of interview outside the scope of the admissions exception in s 81, such that the hearsay rule applied to render that evidence inadmissible to prove the truth of what was asserted in the interview. 8 Fourth, it was submitted that the representations were not otherwise relevant and admissible. 9 I ruled that I was satisfied that evidence of the representations would be admissible, indicating in the interests of time that I would give reasons later. I held that I was satisfied that the exception in s 69(3) of the Evidence Act was not engaged, and that the evidence of the representations was relevant to a fact in issue, which fell within the exception to the hearsay rule in s 69(2). 10 In relation to s 69(3) of the Evidence Act, counsel for the applicant relied in particular on three features of the transcript of the interview. The first was a warning given to the applicant that, under the "Australian Criminal Code", it is an offence to give false or misleading information to a Commonwealth official: see Criminal Code (Cth) s 137.1(1). The second was a statement that "information that you provide may be used or disclosed to Australian government agencies including the Australian Federal Police or authorities in other countries, including your country of origin". The third was a statement made by the officer to the applicant as follows: "This ends the interview. You may be interviewed again, all right, if we have any further questions." Counsel for the applicant submitted that these features suggested that some form of investigation was on foot relating or leading to a criminal proceeding. 11 I do not accept that the features of the interview relied on by counsel for the applicant suggest the existence of any sort of investigation relating or leading to a criminal proceeding. Commencing with the reference to the Criminal Code, s 137.1(5) provides that the offence provision in s 137.1(1) does not apply to the giving of information to a person exercising powers or performing functions under, or in connection with, a law of the Commonwealth if that person did not take reasonable steps to inform the other person of the existence of the offence against s 137.1(1). There is therefore nothing remarkable about the reference to the offence under the Criminal Code, and it is not indicative of any investigation that would engage s 69(3) of the Evidence Act. The import of the warning was that the applicant could commit an offence by providing false information in the interview, not that the interview had anything to do with an existing or anticipated criminal investigation. 12 The second element of the interview relied on by counsel for the applicant is concerned with the sharing of information: see Migration Act 1958 (Cth) ss 336E-336F. The bare generic warning that information might be shared is not indicative of the existence or potential existence of any investigation that would engage s 69(3) of the Evidence Act. 13 And with respect to the third feature relied upon, the mere statement by an executive officer that a person may be interviewed again does not imply that the person is the subject of an investigation relating or leading to a criminal proceeding. Such a statement is entirely consistent with the interview in question being for the purpose of informing the exercise of some administrative power or obligation in relation to the person. 14 Upon reading the whole of the transcript of the interview, I was satisfied that the representations were not made in connection with an investigation relating or leading to a criminal proceeding. The following combination of circumstances supports my conclusion - (a) the transcript is titled "Identity Interview held at MITA", being a reference to the Melbourne Immigration Transit Accommodation; (b) the interviewer identifies himself or herself as "an identity officer with the Department", stating that the interviewer needed to be satisfied as to who the applicant was; (c) the interviewer foreshadowed that the applicant would be asked questions about his identity - "[w]ho you are, who you really are"; (d) the applicant was asked questions that went to his identity, such as other names that he had used, his date and place of birth, the schools that he attended, and his place of residence in Lahore; (e) the applicant was repeatedly asked to state his "real name"; (f) the applicant was asked about his relationship with the witness, Mohammed Shahid, and was asked about the identities of his biological mother and other relatives; (g) towards the conclusion of the interview, it was suggested to the applicant that he obtain further information from Pakistan as to his identity, including with the assistance of his sister who was resident there; (h) the witness himself had pleaded guilty to offences relating to the giving of false and misleading information concerning the applicant, and was sentenced for that offending in February 2019; and (i) there is nothing about the interview of the applicant by an officer of the Department, which occurred more than two-and-a-half years later, that would suggest that a separate investigation leading to a criminal proceeding was being undertaken at that later time in relation to the applicant. 15 That brings me to the relevance of the representations. The four representations are relevant to the issue in dispute, namely whether Mohammed Shahid was the applicant's parent at the time of his birth. Each of the four representations is capable of bearing on that issue. By the conclusion of argument, counsel for the respondent only faintly, if at all, submitted that the representations were admissions by the applicant. Instead, the submissions for the respondent focussed on s 69(2) of the Evidence Act. It was submitted first that any representations made by the applicant in the interview on the basis of his own personal knowledge of the facts asserted were admissible under s 69(2)(a). It was then submitted that representations made by the applicant on the basis of "information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact" were admissible under s 69(2)(b). I accept this submission. 16 Strictly speaking, all of the relevant representations in the transcript of interview were made by the applicant. Some of the representations are admissible under s 69(2)(a) of the Evidence Act on the ground that the applicant had, or might reasonably be supposed to have had, personal knowledge of the asserted facts, such as the identity of his father, and the identity of the person who raised him. It may also be supposed that the applicant had personal knowledge of the asserted facts that the witness Mohammed Shahid had told the applicant certain things. To the extent that the transcript of interview is relied upon to prove the fact that Mohammed Shahid told the applicant those things, s 69(2)(a) applies and the evidence can be put to that hearsay purpose. 17 Counsel for the respondent also submitted that the transcript of interview would be admissible to prove the truth of what Mohammed Shahid told the applicant. It was not suggested that the applicant had personal knowledge that everything that he asserted Mohammed Shahid told him was true. Section 69(2)(a) therefore does not apply. But to the extent that the applicant made representations that tended to assert that what Mohammed Shahid told him was true, the applicant made those representations on the basis of information supplied by Mohammed Shahid, who would have personal knowledge of the asserted facts. This brings s 69(2)(b) into the analysis. The application of s 69(2)(b) was considered in Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352, where it was held by French CJ, Heydon and Bell JJ at [17] that s 69(2)(b) did not apply to the notes of ambulance officers attending an injury which recorded representations attributed to bystanders when it could not reasonably be supposed that the bystanders had personal knowledge of what was recorded. That is not the situation here, where I am satisfied that the witness had, or might reasonably be supposed to have had, personal knowledge of the asserted facts attributed to him, which relate to the age of the applicant when his biological father died, and the time from which the witness asserted that he assumed the role of the applicant's father. The breadth of the exception to the hearsay rule effected by s 69(2)(b) is discussed in Lancaster v The Queen [2014] VSCA 333; 44 VR 820 at [21]-[27] (Nettle and Redlich JJA and Almond AJA). 18 Because the representations will be admissible on the above grounds it is unnecessary to consider the extent to which the representations constitute admissions by the applicant. Further, in light of my reasons above, the credibility rule in s 102 of the Evidence Act is not attracted. The submission of counsel for the applicant that the exception in s 103 is concerned only with oral evidence adduced in cross-examination, and not other evidence, does not therefore arise: cf, McMahon v John Fairfax Publications Pty Ltd (No 5) [2012] NSWSC 218 at [26]-[34] (McCallum J); Pangallo v Smith [2015] ACTSC 313 at [98]-[99] (Mossop AsJ); Smith v Pangallo [2017] ACTCA 61; 83 MVR 155 at [46]-[54] (Burns and Perry JJ, Penfold J agreeing). I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.