Another weighty contribution from StephenJ below on the Wilson appeal to the Supreme Court in the matter of Chief Magistrate Peter Lauritsen's ruling on Wilson's claim of client legal professional privilege.

 

Some Comments on the appeal in Mitchell v Wilson

1.    There is no question that the Police have enough evidence to meet the requirements in S125 of the Evidence Act.

The question on appeal is simply whether they have presented enough of it in admissible form.

Ultimately if the appeal is successful in having the matter remitted for rehearing there is no doubt that a case could be made even should Blewitt not be called as a witness in such an eventuality.

The Affidavit of Mitchell and the sworn Witness Statements are not available but in relation to the Affidavit it could be expected that Mitchell would have outlined the manner in which evidence had been collected, given a brief overview of its contents, referred to the witness statements as an attachment and stated his belief that on this basis the relevant documents had been created in furtherance of fraud.

His affidavit is likely to contain some reference to the matters covered in detail by Blewitts statement.

2.    Evidence if relevant and not objected to is admissible.

The weight to be given to that evidence once admitted is a further factor to be considered.

 

3.    The rules relating to hearsay have been codified under the Evidence Act.

They affect the question of admissibility.

Obviously they can only apply if the Act itself applies in determining that    admissibility.

 

The interaction of the Evidence Act with other statutory provisions relating to evidence was referred to in the Report of the Victorian Law Reform Commission on the introduction of the Act.( Implementing the Uniform Evidence Act: Report [2006] VLRC 8).

The Evidence Act was designed to operate together with other evidentiary provisions.

EVIDENCE ACT 2008 - SECT 8

Operation of Acts

This Act does not affect the operation of the provisions of any other Act

 

The situation in NSW in relation to the rules of court governing the admission of evidence was described in the following way

 

. In Protective Commissioner v B and Another (BC9702917, 23 June 1997, unreported) Hodgson J in the Supreme Court of NSW was required to rule on the possible exclusion of affidavits by a person who was unable to attend for cross examination. Order 38 rule 9 of the NSW Supreme Court Rules provides that a party may require the attendance for cross-examination of a person making an affidavit and that where the attendance of a person is required, the affidavit may not be used unless the person attends or is dead or the court grants leave to use it.

46. We agree with the approach taken by his Honour when he said, in response to a submission that the admissibility of the affidavit was entirely governed by the Evidence Act:

"The objection to these affidavits raises at least two questions in relation to the new Evidence Act.
...
The second question which the application raises concerns the place of affidavits in the scheme of the new Evidence Act.
Pt 2.1 of the Act deals with the giving of evidence by witnesses, and Pt 2.2 deals with the giving of evidence by the tender of documents. It seems clear that Pt 2.1 is directed to the giving of evidence by witnesses who are actually present in court (see particularly s21 to s23 and also s26 to s28).
It was suggested by Mr Greenwood for the respondent that, accordingly, affidavits should be regarded as documents and therefore admitted into evidence only to the extent that the Act allows hearsay material. Accordingly, on this approach, an affidavit could be read in the absence of the deponent only if the deponent was not available, as provided by s63 of the Act, or, alternatively, if the conditions referred to in s64(2) of the Act were fulfilled.
There is reference in s170 to s173 of the Act to the giving of evidence by affidavits in certain circumstances, but they are only very limited circumstances and do not apply to the present case.
In my opinion the Act should not be interpreted as putting an end to the possibility of evidence being adduced by affidavit, in those circumstances where the practice of the court was to permit evidence to be adduced in this way prior to the passing of the Act. S52 of the Act does seem to be adequate to preserve this practice.
On that approach, the question of whether these affidavits should be permitted to be read would fall to be determined under Pt38 r9 of the Supreme Court Rules, rather than under s63 and s64 of the Evidence Act."

The Victorian Act has an equivalent to S52 referred to above.

See also Chang and Su [2002] FamCA 156 and  DPP v Gibson [2012] VSC 297

Gibson concerned a conflict between the Evidence Act and the Road Safety Act.

It was resolved in favour of the provisions of the Road Safety Act on the basis of a literal reading of S8 and the Law Reform Committee report.

That report made the following comments about Affidavits and the rules of court.

AFFIDAVITS AND STATUTORY DECLARATIONS

4.60 There is a strong common law tradition of requiring oral testimony at trial as

the best means of testing the evidence. Evidence in the form of affidavits or witness

statements has become a more common feature of common law civil trials only in

relatively recent times, although it has longer history in equity. It remains rare in

criminal trials.

4.61 The manner in which evidence is given is now largely a matter of court rules or

legislative provision. For example, rule 40.02 of the Supreme Court (General Civil

Procedure) Rules 2005 provides:

Except where otherwise provided by any Act or these Rules, and subject to any agreement

between the parties, evidence shall be given—

(a) on an interlocutory or other application in any proceeding, by affidavit;

(b) at the trial of a proceeding commenced by writ, orally;

(c) at the trial of a proceeding commenced by originating motion, by affidavit.

4.62 There is a range of provisions in Victoria which allow for the admission of

affidavits or statutory declarations to stand as evidence of their contents, effectively

allowing evidence in chief to be given in written form without requiring the witness to

attend.

CONCLUSION

4.64 Other than the very limited provisions in sections 170–3 and 181, the UEA

does not deal with the admission of affidavit evidence. In UEA jurisdictions it has

been held that affidavits ‘read’ in a proceeding are not hearsay and their admission is

not to be treated as a matter of admitting documentary evidence. However, this is on

the basis of statute or court rules which provide for their admission in certain

circumstances:183

the Act (UEA) should not be interpreted as putting an end to the possibility of evidence

being adduced by affidavit, in those circumstances where the practice of the court was to

permit evidence to be adduced in this way prior to the passing of the Act.184

4.65 The UEA leaves the manner in which evidence is to be given largely to the

practice of courts. There is no conflict between the UEA and provisions allowing for

evidence to be given by affidavit. Statutory declarations are not generally an accepted

means of giving evidence in court. If provisions which allowed for their admission

were in conflict with the UEA, section 8 would operate to preserve their admission.

 

4.    From the judgement of Lauritsen it appears that the only affidavit was that of Mitchell.

An affidavit requires an oral oath witnessed by the appropriate person as to its truth.

The frauds or crimes referred to by Mitchell in his affidavit must have been particularised sufficiently for this not to be the subject of the appeal.

This affidavit obviously referred to at least the sworn witness statements of Blewitt ,Cambridge, Jukes and Trio and may have contained references to other evidence.

The affidavit was obviously not objected to and neither were the statements other than that of Blewitt.

In any case the Affidavit would have been accepted under the Magistrate Court Rules reflecting the Supreme Court rules already referred to.

See Magistrates Court General Civil Procedures Rules R 40.02, R40.03, R40.04 (but see comments under point 9 below).

No question therefore arises as to the presence or otherwise of Hearsay evidence under the Evidence Act in relation to the contents of the Affidavit or the 3 unchallenged statements.

 

5.    At Common Law there appears to be an argument that Hearsay evidence was admissible for the purposes of determining whether LPP existed in the context of communications in furtherance of fraud.

 

Commissioner Australian Federal Police v Propend Finance Pty Ltd

(1997) 188 CLR 501;

Dawson J

The cases make it plain that those seeking to exclude legal professional privilege do not have to prove that the communication in question was in furtherance of a crime or fraud.

In requiring less than proof of an allegation of crime or fraud to displace legal professional privilege, the law has made a compromise in the public interest between the competing principles which require, on the one hand, the availability of all relevant evidence and, on the other, the protection of professional confidence. It has done so in favour of the availability of all relevant evidence by placing the threshold for the displacement of the privilege a considerable distance short of proof of the allegation of crime or fraud. No doubt that is so because it is in the public interest that the law should not countenance even the possibility of legal professional privilege being raised as a cloak to hide criminal or fraudulent activities. Proof - that is to say, admissible evidence of the existence of the crime or fraud - is not required. It is enough that circumstances are made to appear which sufficiently point to the bona fides and credibility of the allegation. It is apparent that for this purpose hearsay evidence cannot be excluded

Of course, in interlocutory proceedings hearsay is ordinarily admissible in the form of affidavit evidence upon the basis of information and belief, but it is apparent that in determining whether the privilege is displaced not even affidavit evidence is necessarily required

Kirby J

Some decisional authority suggests that evidence, even "strong evidence" is required to "do away with the privilege"[378]. Whilst what is required will depend upon the particular facts of each case[379] and although surmise and conjecture will never be sufficient, something less than the full proof of illegality by admissible evidence must suffice. This is because of the nature and purposes of the compulsory process, the interlocutory stage at which the consideration of this issue typically takes place and the complete unacceptability of turning that stage into a full-scale trial of the suggested illegality[380]. The primary decision-maker is certainly entitled to look at the sworn information[381]. But something more is required, by way of "admission or affidavit allegations of facts"[382]. Otherwise, the information amounts to no more than the prosecutor's assertion of what it is hoped may be proved. When some evidence is supplied then, "the seal of secrecy is broken"[383]. But not before

 

It appears to have been assumed that this case established that admissible evidence was required for these purposes but Gummow McHugh and Gaudron actually decided the issue on the basis that the copies in question were not made in furtherance of any fraud and Brennan held that the relevant affidavit which had been made to obtain the search warrant was not evidence in the proceedings in question. The comments of these Judges on admissible evidence were therefore obiter.

Whatever the position under the Common Law the issue in relation to Blewitts statement must be determined under the Evidence Act.

It was not presented in the form of an Affidavit and was objected to.

A ruling was made on it by Lauritsen under S64 of the Evidence Act.

EVIDENCE ACT 2008 - SECT 64

Exception—civil proceedings if maker available

    (1)     This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

    (2)     The hearsay rule does not apply to—

        (a)     evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

        (b)     a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation—

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence

Lauritsen must be taken to have waived the notice requirements under s67.

It should be noted that the section is predicated on the maker of the statement being available.

6.    Lauritsen was also entitled to take into account the actual documents which are the subject of the LPP claim in determining the S125 issue.

     

7.    If the statement of Cambridge was anything like those he has prepared for previous matters it will contain copious information on the money flows and Bank accounts involved.

 

It will contain information on the transactions surrounding Kerr St and  information about the application of monies received from Theiss for private purposes .

As noted by Lauritsen it is evidence that the AWU received none of these monies.

Wilson’s interview is a matter of public record. It serves merely to confirm the above (in relation to Kerr St) but is unnecessary to the final conclusion.

 

Trio believed the association was part of the AWU. He thought the invoices were from the AWU.

Jukes says that throughout he believed he was dealing with Wilson in his AWU capacity.

Trio was not able to say whether any services were provided, Jukes could only say that some service (which waned) was provided.

We have Mitchells affidavit that strong evidence exists to lead him to believe an arrangement for false invoicing exists. We also have whatever direct references Mitchell made in his affidavit to Blewitts evidence and we can take note of the fact that Blewitts evidence was sworn and helped Mitchell to the conclusion he reached.

Without looking directly at Blewitts statement there is enough evidence to show that the AWU, at least, was incorrectly deprived of funds the payers believed were going to it, and that it is a reasonable conclusion that Theiss were invoiced for services which never occurred.

 

 

8.    If it was apparent to Lauritsen that ample evidence had been presented during the course of the proceedings why should it not be open to him to form the view that calling Blewitt would involve undue delay.

In making this decision he is entitled to take into account the reduced level of proof required and perhaps in the words of Kirby J referred to in point 5 above

“the complete unacceptability of turning that stage into a full-scale trial of the suggested illegality”

In any event no difference would have enured to the final result and consequently why should the Supreme Court remit the matter even if the appeal on hearsay is upheld.

 

 

9.    Finally S109 provides for appeal from Civil Proceedings.

Part 4 of the Magistrates Court Act relates to Warrants and Criminal Proceedings.

Part 5 relates to Civil Proceedings.

S100 (in Part 5) sets out the extent of its jurisdiction in these matters.

Basically, subject to monetary limits, it relates to damages, debt and equitable  

relief. It also includes jurisdictions conferred by other Acts.

Provisions concerned with search warrants are contained in sub division 5 of Part 4 of the Magistrates court Act

It is only the Magistrates Court Criminal procedures rules that make reference to search warrants.eg R33.

Appeals in Criminal proceedings appear to be provided for under the Criminal Proceedings Act.

 It must be doubted that the appeal has been instituted under the correct provision.