The Commissioner of the Australian Federal Police v Memon (No. 2)

[2020] NSWSC 1636

Supreme Court

New South Wales

Medium Neutral Citation:

The Commissioner of the Australian Federal Police v Memon (No. 2) [2020] NSWSC 1636

Hearing dates:

13 November 2020

Date of orders:

13 November 2020

Decision date:

13 November 2020

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

The tender of MFI 2 is rejected.

Catchwords:

PROCEEDS OF CRIME – application under s.24 Proceeds of Crime Act 2002 (Cth) for payment to Defendant of reasonable living expenses – counsel for Defendant seeks to tender three non-contemporaneous documents relating to generalised and statistical household living expenses – no prior notice given to counsel for the Plaintiff of intention to tender documents – consideration of relevance and weight – issue of reasonable living expenses to be determined with reference to particular circumstances of the Defendant – documents not admitted

Legislation Cited:

Evidence Act 1995 (NSW)

Proceeds of Crime Act 2002 (Cth)

Cases Cited:

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Texts Cited:

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Category:

Procedural and other rulings

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
Rehana Ali Mohamed Memon (Defendant)

Representation:

Counsel:
Dr G O’Mahoney; Ms D Tang (Plaintiff)
Mr PE King (Defendant)

Solicitors:
Criminal Assets Litigation - Australian Federal Police (Plaintiff)
Peerzada & Associates (Defendant)

File Number(s):

2020/270652

Publication restriction:

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Judgment

1. JOHNSON J: At the close of evidence in this application under s.24 Proceeds of Crime Act 2002 (Cth) (“POC Act”) for an allowance be made for living expenses to the Defendant, counsel for the Defendant seeks to tender three documents.

2. The first document is an electronic news report dated 2 March 2019 entitled “It now costs $17,000 per year to raise two children”, this being an article by David Ross, a journalist it would seem with News Limited.

3. In addition, there is tendered a document dated 17 April 2018 entitled “New Estimates of the Costs of Raising Children in Australia”, being a media release from the Australian Institute of Family Studies, a body under the auspices of the Australian Government.

4. The third document is a document from the Australian Statistician dated 13 September 2017 under a heading “Household Expenditure Survey Australia: Summary of Results”.

5. Objection is taken by counsel for the Plaintiff to the tender of these items on a number of bases, including the late provision of the documents (effectively only in recent moments when the evidence concluded) as well as the relevance of this material to the determination of the question which the Court is required to consider in this case.

6. The submissions made by counsel in support of and against the admission of these documents are contained in the transcript (T112-114, 13 November 2020) and do not require repetition in this judgment.

7. Mr King, counsel for the Defendant, submits that s.75 Evidence Act 1995 (NSW) supports the admission of this material given the somewhat more liberal approach to admission of evidence in interlocutory proceedings, with the hearsay rule not to apply if the party who adduces the material also adduces evidence of its source. The source of this material is, of course, as identified in the various documents which are tendered.

8. It seems to me there are a number of difficulties with the tender of these documents, not the least being that no notice was given to counsel for the Plaintiff earlier in the day that there was an intention to tender material of this sort.

9. More importantly, however, the focus of this application, which has led to no fewer than six affidavits being filed from the Defendant, is the need to identify a proper objective foundation for an order that reasonable living expenses be ordered for the Defendant and her two children.

10. The material before the Court will be the foundation for determining that question. That issue will be determined in the particular circumstances of the Defendant. She is separated from her husband, with whom she still has contact and there has been association between them in recent times. He, after all, is the father of the two children who are 12 and 14 years of age. He lives and works in the city of Sydney.

11. It seems to me that generalised material of this sort, particularly of a vintage now of some years past, is of little potential use in the proceedings. The task for the Court is to determine whether the Defendant has discharged the onus which she bears to satisfy the requirements of s.24 POC Act.

12. This requires the Court to give attention to the particular circumstances of the Defendant and her family living where they are and what the evidence discloses about her particular needs, expenditure and income in the specific circumstances of her family.

13. Generalised material, which talks about the product of statistical information, can be of no real use.

14. It is reasonable to assume that there is an understanding that families need some financial flow for the purpose of feeding, clothing, housing and meeting the day-to-day needs of the family, but that is a specific enquiry directed to the evidence concerning the particular case.

15. I am conscious that the rules of evidence are more flexible and liberal on an interlocutory application such as this. The question remains, however, whether these three documents or any of them, if tendered, have any real probative value in determining the outcome of the s.24 POC Act application with respect to the Defendant.

16. It seems to me that they probably would have a tendency to distract, more than assist, if they were admitted.

17. I do not propose to admit any of those three documents, which will together be MFI 2.

18. I reject the tender of MFI 2.

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