The Commissioner of the Australian Federal Police v Chen (No 3)

I have earlier today made a ruling in relation to the admissibility of the original of certain documents which were annexed to the affidavit of the second defendant affirmed on 16 April 2022. Mr Norrie also seeks to tender annexure D and annexure F to that affidavit, although the originals of those documents have not been produced. I can infer from the consideration that during the adjournment of this case four original documents were located and have now been tendered, that searches have been made in respect of the two documents the subject of this ruling, unsuccessfully.

I think I can say that in the case of annexure D, the photocopy of the original annexed to the copy of the affidavit I have in my copy of the Court Book is poor, but there is a very clear copy of the translation of it made by the same accredited translator who translated the other documents. It does appear to be a document issued by the same bank, that is, the China Merchants Bank, as annexure E, the original of which I have admitted. The copy of annexure F is very clear, and the translation of it is also clear. It is a document which purports to record a transfer between the first defendant and the second defendant of an amount of RMB 900,000 with a notation indicating that the transfer was made from the second to the first defendant by way of a loan. There is nothing about the document which the translator has expressed any concern, and it's clear from p. 2540 of the Court Book that the original of that document is in much smaller format than the version propounded as annexure F. Again, I remind myself that I am dealing with a question of admissibility rather than acceptability at this stage of the proceedings. In her affidavit, the second defendant describes annexure D as a true copy of the certificate of deposit dated 28 March 2019, issued by her bank, showing that she made a deposit at that time of RMB $4,013,921.76. So far as annexure F is concerned, the second defendant describes that, as it appears to be on the face of it, as a receipt of the sum of RMB 900,000, from a bank account maintained by her, to the first defendant's bank account in China. The documents are potentially important in the second defendant and third defendant's case.

Section 48 of the Evidence Act 1995 (NSW) deals with the admissibility of documents. To put it in terms of the title to the provision, which does not form part of the provision, it deals with proof of contents of documents. Subsection 1 provides:

However, it is important to bear in mind that separate processes are often involved, and one may accept that there is an issue about these matters, and I've referred to the cross‑examination in general terms in my previous judgment, but the simple fact of the matter is, if I may put it that way, that s 48 permits proof of the contents of documents by the tender of the photocopy and permits proof of documents by the tender of a document which purports to be a copy of a document, and provided it is or appears to have been produced by a device such as a photocopier, and bearing those things in mind, in my judgment, the documents are admissible and I will admit them as part of the second defendant's affidavit.