Federal Court of Australia Anglo American Investments Pty Ltd v Commissioner of Taxation [2021] FCA 1253 Appeal from: Application for leave to appeal: Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation [2021] FCA 974 File number: QUD 268 of 2021 Judgment of: MCKERRACHER J Date of judgment: 14 October 2021 Publication of reasons: 15 October 2021 Catchwords: EVIDENCE – application for leave to appeal primary judge's decision to allow re-opening of case for further cross-examination of key witness – proposed tender of a certificate of conviction for the purpose of cross-examination on credibility – whether certificate of conviction is inadmissible by reason of s 91 of the Evidence Act 1995 (Cth) – where the exception in s 92(2) does not apply because the witness is not a party to the proceedings – whether the facts sought to be proved by the certificate are facts that were in issue in the criminal proceeding – operation of ss 91, 92 and 178 of the Evidence Act Legislation: Acts Interpretation Act 1901 (Cth) s 15AB(1) Crimes Act 1914 (Cth) ss 43, 43(1) Evidence Act 1995 (Cth ss 91, 91(1), 92(2), 92(3), 103, 128, 178, 178(3), 190(3) Federal Court of Australia Act 1976 (Cth) s 24(1A) Taxation Administration Act 1953 (Cth) Pt IVC Cases cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Ahern v Deputy Commissioner of Taxation (Q) [1987] FCA 312; (1987) 76 ALR 137 Batey v Potts [2004] NSWSC 606; (2004) 61 NSWLR 274 Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd [1991] FCA 536; (1991) 32 FCR 379 Chevalley and Another v Industrial Court New South Wales and Others [2011] NSWCA 357; (2011) 82 NSWLR 634 Commercial Union Workers' Compensation (NSW) Limited v Clayton [2000] NSWCA 283 Commonwealth v Davis Samuel Pty Ltd (No 7) [2013] ACTSC; (2013) 282 FLR 1 146 Crawley v Vero Insurance Ltd (No 7) [2014] NSWSC 80 Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587 House v The King [1936] HCA 40; (1936) 55 CLR 499 Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392; (2014) 100 ATR 244 Josifoski Velevski [2013] NSWSC 1103 Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520; (1990) 27 FCR 388 Marsh v The Queen [2015] NSWCCA 154 Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 Murdoch University v Mainsbridge (1998) 84 IR 111 Oswal v Burrup Fertilisers Pty Ltd [2011] FCAFC 117; (2011) 85 ACSR 531 Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 R v Burns (2003) 137 A Crim R 557; [2003] NSWCCA 30 R v Eastman (No 21) [2017] ACTSC 255 R v El-Azzi [2004] NSWCCA 455 R v Hancock [1996] 2 Cr App R 554 R v McGoldrick [1998] NSWSC 121 R v Petroulias [2005] NSWCCA 75; (2005) 62 NSWLR 663 R v Jones (No 3) [2007] NSWSC 771 R v Jones (No 7) [2007] NSWSC 1158 R v Ronen (2004) 211 FLR 297; [2004] NSWSC 1290 Re HIH Insurance Ltd (in liq) [2015] NSWSC 790 Roberts v Western Australia [2005] WASCA 37; (2005) 29 WAR 445 Smith v Queen [2001] HCA 50; (2001) 206 CLR 650 The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 Tieu v The Queen [2016] NSWCCA 111; (2016) 92 NSWLR 94 Wyman v Queensland [2015] FCAFC 108; (2015) 235 FCR 464 Heydon JD, Cross on Evidence (9th ed, LexisNexis Australia, 2012) Division: General Division Registry: Queensland National Practice Area: Taxation Number of paragraphs: 62 Date of hearing: 14 October 2021 Counsel for the Applicants: Mr J Hyde Page Solicitor for the Applicants: Mark Ord, Lawyer & Consultant Counsel for the Respondent: Ms K Stern SC with Ms C Ensor Solicitor for the Respondent: Australian Government Solicitor ORDERS QUD 268 of 2021 BETWEEN: ANGLO AMERICAN INVESTMENTS PTY LTD ATF THE ANGLO AMERICAN CHARITABLE AND CULTURAL TRUST First Applicant MELBOURNE CORPORATION OF AUSTRALIA PTY LTD Second Applicant PHOTO ADVERTISING (INTERNATIONAL) PTY LTD Third Applicant AND: COMMISSIONER OF TAXATION Respondent order made by: MCKERRACHER J DATE OF ORDER: 14 OCTOBER 2021 THE COURT ORDERS THAT: 1. Leave to appeal be refused. 2. The interlocutory application be dismissed. 3. The applicants pay the respondent's costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCKERRACHER J: 1 The applicants, three companies, have brought taxation appeal proceedings in this Court against the Commissioner of Taxation, who is also the respondent to the present application. The applicants seek leave to appeal from the decision and orders of the primary judge given on 5 August 20201 (Orders) granting leave to the Commissioner to re-open his case in all three proceedings for the limited purpose of cross-examining the key witness, Mr Vanda Gould, on certain evidence said to go to his credibility. The further cross-examination, pursuant to the limited grant of leave, is listed for 25 and 26 October 2021. The applicants also seeks orders that the hearing on 25 and 26 October 2021 be adjourned (interlocutory application). 2 The limited grant of leave to further cross-examine Mr Gould is to permit: (a) in respect of proceeding QUD 512 of 2018 (the Anglo American Proceeding), cross-examination with respect to two certificates being Mr Gould's certificate of conviction in the District Court of New South Wales (Certificate of Conviction) and the certificate recording the refusal of leave to appeal of the Court of Criminal Appeal of the Supreme Court of New South Wales (NSWCCA Certificate); and (b) in respect of proceedings QUD 513 of 2018 and QUD 399 of 2019 (the Melbourne Corporation Proceeding), cross-examination with respect to the NSWCCA Certificate. The Certificate of Conviction has already been tendered and received into evidence without objection and Mr Gould has been cross-examined in respect thereof. 3 The Certificate of Conviction records the conviction of Mr Gould for attempting to pervert the course of justice contrary to s 43(1) of the Crimes Act 1914 (Cth) in the context of appeals brought against the Commissioner under Pt IVC of the Taxation Administration Act 1953 (Cth) (TAA) by companies which Perram J held were controlled by Mr Gould: Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392; (2014) 100 ATR 244 per Perram J (see, for instance, at [60]). 4 The three proceedings in which the primary judge granted leave to re-open are all appeals under Pt IVC of the TAA by companies which were at all relevant times controlled by Mr Gould. In each of those proceedings, Mr Gould is the principal lay witness relied on by the applicants. Heavy reliance is placed upon the affidavits and oral evidence, and hence the credibility, of Mr Gould. The Commissioner directly challenges Mr Gould's credibility and the parties share the view that it is a central issue in the proceedings. 5 In an ex tempore judgment, subsequently reported as Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation [2021] FCA 974, the primary judge ruled on the Commissioner's application to re-open. That application was directed to a great deal more evidence than just the two conviction certificates in respect of which the limited grant of leave to re-open and cross-examine was given. The applicants take issue with the primary judge's rejection of their argument, shortly stated, that the conviction certificates are rendered inadmissible by s 91(1) of the Evidence Act 1995 (Cth). His Honour's reasoning on this point appears at [26] of the judgment: 26 The criminal justice system outcomes are not sought to be tendered so as to prove any fact in issue in the taxation appeals by reference to a determination of such a fact in the criminal proceedings. The apprehension by the taxpayer companies that this was the use, a use forbidden by s 91 of the Evidence Act unless materially an exception found in s 92 was applicable, is, with respect, misplaced. The tender proposed by the Commissioner is for the more limited, albeit important, purpose of an assessment of credibility based on the fact that Mr Gould has been convicted, not just an offence carrying with it an element of dishonesty, but also one associated with an intentional interference with an exercise of Commonwealth judicial power. Rationally, such a conviction could affect an assessment of his credibility. (Emphasis added.) 6 The Commissioner says that it is the fact of Mr Gould's conviction, not any underlying facts, on which he seeks to rely as to credibility. That was the only basis on which the primary judge granted leave to re-open. The Commissioner relies upon s 103 of the Evidence Act which permits evidence which could substantially affect the assessment of Mr Gould's credibility to be adduced in cross-examination. 7 The applicants say that there are two relevant issues if leave is granted. The first issue is whether s 91 of the Evidence Act makes a criminal conviction inadmissible in a civil proceeding, subject to the limited exception contained in s 92(2) of the Evidence Act. The second is whether leave to re-open was wrongly granted by the primary judge. Clearly, the two questions are related. 8 The Orders are interlocutory. Thus, the applicants require leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicants must establish that the judgment of the primary judge is both attended by sufficient doubt to warrant the attention of the Full Court, and that they would suffer substantial injustice were leave not granted: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. Further, as the Orders involve an exercise of discretion, the applicants must show an error of the kind identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 505). 9 The Commissioner has sought to characterise the applicants' application as essentially one of leave to appeal from a strictly procedural decision. I have been referred to authorities to the effect that appellate courts exercise caution in reviewing such decisions and that applicants face a 'formidable task' and bear a 'heavy burden': Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 (at 177); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 per Jagot, Yates and Murphy JJ (at [42]); Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520; (1990) 27 FCR 388 per Wilcox and Gummow JJ (at 393); and Oswal v Burrup Fertilisers Pty Ltd [2011] FCAFC 117; (2011) 85 ACSR 531 per Mansfield and Foster JJ (at [8] and [11]). As is made apparent below, while the decision was on a matter of procedure, it was also based on a substantive point of law. What is undoubted however, is the discretionary nature of the primary judge's decision. An appellate court should generally not interfere with the exercise of judicial discretion in the making of interlocutory decisions unless it is satisfied that there has been some error of law or logic, or some unfairness which is apparent on the face of the reasons or implicit in the result: House v The King per Dixon, Evatt and McTiernan JJ (at 505); Ahern v Deputy Commissioner of Taxation (Q) [1987] FCA 312; (1987) 76 ALR 137 per Davies, Lockhart and Neaves JJ (at 147); and Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd [1991] FCA 536; (1991) 32 FCR 379 per French J (at 391). 10 In considering the applicants' contentions for error in the primary judge's decision, due regard must be had to the context in which ex tempore reasons are delivered. It is commonly the case that ex tempore reasons do not incorporate reference to every matter mentioned in an argument. That is because they are given in a context which assumes knowledge, by those to whom they are directed, of the submissions on which the decision is based. Ex tempore judgments should, accordingly, 'not be picked over': Wyman v Queensland [2015] FCAFC 108; (2015) 235 FCR 464 per North, Barker and White JJ (at [57]-[58]). In this case there were other matters at stake to which the reasons were substantially devoted. The issue to which this application relates is essentially addressed in just one paragraph, his Honour ruling against the bulk of the application to re-open in the other paragraphs. 11 The application does raise a substantive evidentiary point of principle going to the proper characterisation of the usage of the certificates in question. However, for the reasons that follow, I have ultimately reached the view that the decision was one of procedural discretion (i.e. whether leave should be given to re-open). Although the underlying evidentiary point is clearly substantive, it is a question that can only be properly and sensibly determined at the time the certificates are tendered, and against the backdrop of the specific use they are ultimately put to in the cross-examination of Mr Gould. BACKGROUND 12 The relevant proceedings are Pt IVC tax appeals and the key witness is Mr Gould. Mr Gould is also a key witness in a number of other Pt IVC proceedings where trials are pending. All these proceedings are civil in nature. 13 In the Anglo American Proceeding, a hearing was conducted during June and October 2019. Mr Gould gave evidence and was cross-examined. Mr Gould was not asked any questions during cross-examination about the criminal charges pending against him at the time. The Commissioner was aware of the criminal charges against Mr Gould at the time of the trial in the Anglo American Proceeding. The Commissioner was aware of this in part because Mr Gould applied for, and was given, a certificate under s 128 of the Evidence Act in respect of his testimony in the Anglo American Proceeding. The basis on which Mr Gould's application for a certificate under s 128 was made to the primary judge was that the pending charges against Mr Gould in the District Court created a risk of self-incrimination. Absent the primary judge's decision to re-open, there would be no evidence in the Anglo American Proceeding about the criminal charges or conviction of Mr Gould. Judgment was reserved in October 2019 with the parties requesting that delivery be deferred pending the hearing and determination the Melbourne Corporation Proceeding. 14 After the first trial of Mr Gould in the District Court in August 2018 resulted in a hung jury, Mr Gould again stood trial in the District Court for attempting to pervert the course of justice (the Criminal Proceeding) in October and November 2019. On 26 November 2019 he was found guilty. The prosecution case was that Mr Gould had coached a witness to give false testimony. 15 In the Melbourne Corporation Proceeding, a hearing was conducted in September and October 2020. Mr Gould gave evidence for the applicant company in each proceeding and was cross-examined, including, without objection, as to his credibility given his conviction in the Criminal Proceeding. Indeed, the Certificate of Conviction was tendered without objection. 16 In July 2021, the Commissioner filed interlocutory applications in all three proceedings, in which judgment is reserved, seeking leave to re-open for the purpose (amongst others which were refused by the primary judge) of adducing evidence that Mr Gould had been convicted of attempting to pervert the course of justice and, further, that the conviction was upheld by the Court of Criminal Appeal of New South Wales. 17 The evidence the Commissioner was granted leave to tender was the Certificate of Conviction and the NSWCCA Certificate made under s 178 of the Evidence Act, which show Mr Gould has been convicted of attempting to pervert the course of justice contrary to s 43(1) of the Crimes Act, and which further shows that his appeal from the conviction has been dismissed. The Certificate of Conviction paraphrases the s 43(1) description of the offence, and also provides seven lines of high level particulars about the offence. 18 The seven lines of description is in no way relevant to the facts to be determined in these proceedings. 19 It may be accepted that the grant of leave to cross-examine relating to the conviction will be confined to cross-examination on credibility alone, as that was the express basis on which the order was granted. The applicants do not suggest otherwise but contend, at least in this instance, that such cross-examination must inevitably be in contravention of s 91 of the Evidence Act. STATUTORY PROVISIONS 20 Section 91(1) of the Evidence Act is as follows: 91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. 21 An exception to s 91 is contained in s 92(2) of the Evidence Act. It is common ground that the s 92(2) exception does not apply in this case because Mr Gould is not himself a party to the present proceedings (or a person through or under whom a party claims). Section 92(2) says: 92 Exceptions … (2) In a civil proceeding, subsection 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction: (a) in respect of which a review or appeal (however described) has been instituted but not finally determined; or (b) that has been quashed or set aside; or (c) in respect of which a pardon has been given. 22 Section 178 of the Evidence Act provides a procedure for proving, by certificate of the kind sought to be adduced here, particulars of a criminal conviction that are otherwise admissible under the Evidence Act (s 178 certificate). 23 The offence of which Mr Gould was convicted is set out in s 43(1) of the Crimes Act as follows: 43 Attempting to pervert justice (1) A person commits an offence if: (a) the person attempts to obstruct, to prevent, to pervert or to defeat the course of justice in relation to a judicial power; and (b) the judicial power is the judicial power of the Commonwealth. THE CENTRAL ISSUE 24 At the interlocutory hearing before the primary judge, the arguments focussed on whether the evidence the Commissioner was seeking to tender will be used 'to prove the existence of a fact that was at issue in that proceeding' (i.e. in the Criminal Proceeding). If the Commissioner's proposed evidence answers this description, the applicants say it should be excluded by s 91. Although both parties accept that the exception in s 92(2) does not apply, the applicants say that exception is relevant to the proper construction of s 91(1). 25 The Commissioner's argument, (which the primary judge accepted at [26] of his Honour's reasons), is that the conviction in the Criminal Proceeding was not a fact at issue in the Criminal Proceeding, so evidence is admissible to prove that Mr Gould was convicted. 26 In the Evidence Act the expressions 'fact in issue' and 'fact at issue' are not defined. The applicants contend that the cases indicate that both expressions extend to, and include, the ultimate issue of guilt in a criminal trial: Marsh v The Queen [2015] NSWCCA 154 per Harrison J (at [50] and [56]), R v Eastman (No 21) [2017] ACTSC 255 per Kellam AJ (at [84] and [86]-[87]), R v Petroulias [2005] NSWCCA 75; (2005) 62 NSWLR 663 per Spigelman CJ and Hunt AJA (at [28]) and Mason P (at [134]). In Smith v Queen [2001] HCA 50; (2001) 206 CLR 650, their Honours Gleeson CJ, Gaudron, Gummow and Hayne JJ said (at [7]): In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding. (Emphasis added, citations omitted.) 27 The applicants contend that this view of 'fact in issue' and s 91(1) is supported by the decision of Brereton J in Re HIH Insurance Ltd (in liq) [2015] NSWSC 790 where his Honour said (at [55] and [58]-[59]): 55 These issues were addressed by the Australian Law Reform Commission in its "Interim Report: Evidence" (ALRC 26), which culminated in the Evidence Acts of 1995. A part of that report was directed specifically to the rule in Hollington v Hewthorn. The report deals with convictions, acquittals and civil judgments. The result is the regime now to be found in ss 91, 92 and 93 of the (NSW) Evidence Act 1995. Essentially, the Law Reform Commission recommended that convictions should be admissible, but only in proceedings to which the person convicted, or that person's privy, was a party. That recommendation was based on what was thought to be the relatively high probative value of a conviction, but recognised that it was merely evidence and neither conclusive nor gave rise to any presumption of correctness. … 58 I am of course not concerned in this case with the admissibility of a civil judgment, but I have referred to that passage because, in the context in which it appears in the Law Reform Commission's report, it makes clear that the intent of s 91 was to address not what are sometimes conventionally, but not entirely accurately, described as judgments – being reasons for judgment or remarks on sentence – but the formal record of a judgment of the Court in a civil proceeding, analogous to the formal conviction or acquittal in a criminal proceeding. Thus what s 91 is addressing is the formal record of conviction, the formal record of acquittal or the formal judgment or order disposing of a case in a civil case. It is not addressing the reasons for judgment, the findings of fact made by a judge in the course of coming to the final conclusion, nor the remarks on sentence, all of which remain no more than the opinion of the judge. 59 As Hunt AJA explained in the Court of Appeal in Ainsworth v Burden [2005] NSWCA 174, there may be some cases in which, quite apart from establishing the facts found in it, reasons for judgment might be admissible. But s 91 is an exclusionary provision, not a facultative provision. It does not make admissible anything that was not formerly admissible at common law. At least so far as they deal with matters of fact, reasons for judgment and remarks on sentence are inadmissible hearsay or opinion, excluded by the rule in Hollington v Hewthorn and not made admissible by s 91. For that reason, I must respectfully disagree with the views of Button J in R v Jacobs (No 5) [2013] NSWSC 946, [23], where his Honour appears to have held that remarks on sentence are findings of fact admissible to prove facts that were not in issue in the criminal proceedings. The view that reasons for judgment or remarks on sentence are not admissible to prove the facts that they find is supported by the judgment of the Court of Appeal in Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWSC 325, [9]-[10]. 28 The applicants say this passage clearly indicates that s 91 is directed to the exclusion of evidence going even to the bare fact of conviction, such as the formal record or certificate of a conviction. 29 It is further submitted that, in cases where evidence of a conviction has been admitted under the exception in s 92(2), courts have considered its probative significance to be limited. A conviction that is proved by way of a s 178 certificate has been held to be evidence only of the bare fact the relevant person has been found guilty of the offence: see Chevalley and Another v Industrial Court New South Wales and Others [2011] NSWCA 357; (2011) 82 NSWLR 634 per Bathurst CJ (at [58]), Batey v Potts [2004] NSWSC 606; (2004) 61 NSWLR 274 per Gzell J (at [13]) and Josifoski Velevski [2013] NSWSC 1103 per Kunc J (at [25]). At the outer limit, it has at most been used as non-specific evidence that the factual elements of the offence occurred as historical fact: The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 per Hodgson JA (at [9]). These cases are said to indicate that a conviction only evidences the elements of the offence at a high level of generality and a conviction that is proved under s 92(2) cannot be evidence of the detailed facts of the criminal case or evidence of what the accused person 'actually did': Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 per McColl JA (at [9]-[10]). 30 The applicants also raise a number of constructional points directed to the interpretation and operation of s 91 and s 92 which may be summarised as follows: (1) Section 91 appears under the heading 'Exclusion of evidence of judgments and convictions'. They argue that as a matter of first impression, it would be a strange outcome if a statutory provision titled 'Exclusion of evidence ... of convictions' allows a s 178 certificate or court order to be used to prove a person has been convicted of a crime. When a s 178 certificate or court order is used to prove a person has been found guilty at the end of a criminal trial, it is put to a very specific probative use. It is used as evidence of conviction. There is a difference between using a s 178 certificate as evidence a person has been convicted and using it to prove other matters. The heading to s 91 indicates it is the former that is impermissible under s 91 (the heading argument). (2) Section 92(2) purports to deal with evidence that is probative of criminal convictions, and to set out criteria that must be satisfied if such evidence is to be received in a civil trial. The intent of s 92(2) can only be achieved if s 91 has the prima facie effect of excluding such evidence; if s 91 does not have this prima facie effect, there is no necessity to consider whether the criteria in s 92(2) are satisfied. The language of s 92(2) warrants close attention. Section 92(2) applies to 'civil proceedings' and it applies to evidence that a person 'has been convicted of a criminal offence'. The text of s 92(2) does not refer to evidence probative of other matters. In other words, if evidence is tendered in a civil proceeding for the purpose of showing a person has been convicted of an offence, this is the scenario that most clearly falls within the s 92(2) exemption (provided the person is a party), and the conviction is not of the kinds described at s 92(2)(a)-(c). 31 The applicants argue that the conclusion reached by the primary judge runs counter to the scheme of the legislation. The applicants contend that his Honour held that s 91 lets in evidence that proves a person has been convicted, yet the heading in s 91 refers to the exclusion of evidence of convictions and the text of s 92(2), with its reference to evidence that a person 'has been convicted of an offence' indicates that evidence proving a criminal conviction can only be received in a civil trial if the conviction was of 'a party, or a person through or under whom a party claims', and the conviction is not described by any of s 92(2)(a)-(c). 32 There is no dispute that evidence showing Mr Gould has been found guilty of attempting to pervert the course of justice is 'evidence of the decision … in an Australian or overseas proceeding'. It is the second part of s 91(1) that is presently relevant. The Commissioner succeeded before his Honour by arguing that Mr Gould's conviction would not be tendered in the instant case to prove a fact that was in issue in the Criminal Proceeding. Was Mr Gould's guilt a fact in issue in the Criminal Proceeding? – The applicants' arguments 33 The question posed by the text of s 91(1) is whether Mr Gould's guilt, and the view of the District Court on Mr Gould's guilt, was a fact in issue in the Criminal Proceeding. The applicants say it was. The applicants say the present case highlights an important difference between the nature of an item of evidence, and the probative use of an item of evidence. In s 91 it is the latter that is said to provide the test for exclusion. Section 91 excludes evidence when that evidence is probative of the same factual questions that were at issue in the earlier court proceeding. As a matter of ordinary concepts, the applicants say most people would agree that in a criminal trial, a question the court must determine is whether the court regards the accused person as guilty. The nature of a criminal offence is such that this issue is a factual one, arising from the elements of the relevant offence. 34 I am not persuaded as to the applicants' reasoning on this point, nor do I consider that the passage from Smith (at [7]) quoted above supports their position. While it may be accepted that the constituent elements of an offence will be the principal facts in issue, Smith does not go so far as to say that the offence itself is a fact in issue. In my view, guilt of the accused is the ultimate conclusion that flows from proof, to the requisite standard, of the elements of the offence. 35 The applicants also take issue with the primary judge's reasoning (at [26]) that the proposed evidence will not be tendered to prove that Mr Gould took deliberate steps to pervert the course of justice, but rather to prove that a court has found Mr Gould guilty of the crime of attempting to pervert the course of justice, and that this could support inferences about Mr Gould's credibility. 36 The applicants contend this is incorrect for two reasons. First, they say a criminal conviction can only bear on a convicted person's credibility to the extent the conviction is evidence of the underlying crime. A person may be convicted of murder or attempting to pervert the course of justice, but this will only be probative of the credibility of that person because it is likely the person engaged in the relevant criminal acts and, one infers, is a dishonest person whose testimony as a witness may be unreliable. This is a point made both by Heydon JD, in Cross on Evidence (9th ed, LexisNexis Australia, 2012) (at [5195]) and in Roberts v Western Australia [2005] WASCA 37; (2005) 29 WAR 445 per McLure J (at [145]). It must be noted however that the discussion in the earlier edition of Cross On Evidence and Roberts occurs in the context of the common law rules regarding evidence of prior judgments. Roberts occurred in a jurisdiction where there is no equivalent to s 91 and s 92 of the Evidence Act. If the Court uses the criminal conviction to draw inferences about Mr Gould's credibility it will necessarily, the applicants say, be using it as proof of the central fact that was at issue in the Criminal Proceeding. 37 Secondly, it is contended that it is not possible to separate the guilty verdict in a criminal proceeding from the question of guilt that was a fact at issue for the court trying the criminal case. If such a distinction exists, it is artificial and should not be dispositive of the present case. The applicants argue that if the distinction between the outcome of a criminal case and the key issue in that criminal case has merit, which I consider it does, it is outweighed by other considerations (viz: the heading to s 91 which says 'Exclusion of evidence … of convictions'), and the legislative policy reflected in s 92(2). 38 In that regard, the applicants say the implication to be drawn from s 92(2) is that in a civil proceeding, s 91 excludes evidence that a person has been convicted of a crime. Any view of s 91 whereby evidence that a person has been convicted of a crime is 'freely' admissible, and is admissible independently of s 92(2), is a view that undercuts s 92(2). The evident purpose of s 92(2) is to limit the evidence of criminal convictions that can be received in civil proceedings to only those cases where the convicted person is a party, or a person through whom a party claims, and the conviction is not of the kinds described at s 92(2)(a)-(c). Achieving this purpose, the applicants say, means rejecting a construction of s 91 that allows evidence of a criminal conviction to be tendered in a civil proceeding when the conviction does not satisfy s 92(2). 39 The applicants rely on the extrinsic materials which they say indicate the legislature was seeking, in s 91 and s 92, to erect a regime under which criminal convictions would be admissible in some circumstances, but not all: Australian Law Reform Commission Report 26 on Evidence (ALRC Report) (at Ch 35, [772]–[774]). Section 92(2) provides that evidence of a conviction is admissible if the convicted person is a party to the civil proceeding in which the conviction is tendered. The applicants contend that the rationale given in the extrinsic materials is that litigants in a court case should not be burdened with the consequences of a conviction in a criminal proceeding if the litigants were not parties to the criminal proceeding that resulted in the conviction: ALRC Report (at Ch 35, [772]-[774]). 40 The applicants argue that the view that s 91 allows criminal convictions to be admitted as evidence in later civil proceedings, even if only as to credibility, defeats the purpose the legislature had in mind by enacting, in s 92(2), a set of criteria to limit the exception to the admissibility of criminal convictions to only very confined circumstances. Substantial injustice 41 The applicants say that they will suffer substantial injustice if the decision of the primary judge is wrong because liability will have been determined on the basis of inadmissible evidence. They say that if the three proceedings continue to final judgment and are determined on the basis of wrongly admitted credibility evidence, the authorities indicate that any re-trial would need to be determined by a different judge. That is the rationale for determining the admissibility question prior to the final judgment. I will return to a consideration of this factor, but I pause only to observe that it is only the Anglo American Proceeding in which neither certificate has yet been tendered. The Certificate of Conviction was tendered, and cross-examination of Mr Gould proceeded, in the subsequent hearing of the Melbourne Corporation Proceeding, without objection. COMMISSIONER'S ARGUMENTS 42 The Commissioner argues that contrary to the main argument in the proposed ground of appeal, s 91 of the Evidence Act does not render the Certificate of Conviction inadmissible as evidence of the fact that Mr Gould was convicted of an offence under s 43 of the Crimes Act. A distinction must be drawn, it is submitted, between: (a) the fact of conviction itself, which may (as s 178 makes clear), be proven by the Certificate of Conviction; and (b) facts that were in issue in the criminal proceeding, which may not (by reason of s 91 of the Evidence Act) be proved by evidence of a decision or a finding of fact in an Australian proceeding. 43 This distinction is apparent from the language used in s 91 of the Evidence Act. Whilst the meaning of the word 'conviction' is context dependent, the High Court has established that a conviction either is or, once accepted by the Court, flows from the jury's verdict of guilt: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 per Dawson and McHugh JJ (at 507) and see also Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 per Barwick CJ (at 301-302), Jacobs J (at 313) and Aicken J (at 334). 44 The Commissioner argues that a conviction is a determination by a court of guilt or criminal responsibility in respect of the particular offence or offences: Maxwell per Dawson and McHugh JJ (at 510), Toohey J (at 520) and Gaudron and Gummow JJ (at 531). The fact of there having been such a determination of guilt is not 'a fact that was in issue in the [criminal] proceeding'. A conviction does not occur until there is an acceptance by the court of either a plea of guilty, or acceptance by the court of a finding of a guilty verdict. The fundamental distinction is that a conviction is the outcome of the criminal proceeding itself which flows, either directly or through acceptance by the Court, from the jury's verdict. It is evidence of the elements of the offence of which a person was convicted, but not of the underlying facts which led to the conviction: See, for example, Sukkar (at [9]), where the following statements were made by Hodgson JA (with whom Tobias JA agreed): The conviction of the opponent is evidence of the elements of the offence with which he was convicted, but not of the detailed facts found by the sentencing judge or by the Court of Criminal Appeal dealing with his appeal: Evidence Act 1995 (NSW) ss.91 and 92, Gonzales v. Claridades [2003] NSWSC 508, 58 NSWLR 188. The detailed facts set out in the Court of Criminal Appeal's judgment R v. Sukkar [2005] NSWCCA 54 may have some relevance to the opponent's reputation, but cannot support findings by this Court as to what the opponent actually did, beyond the bare elements of the offence with which he was convicted. 45 Sukkar was cited in Livanes (at [10]), where the New South Wales Court of Appeal said: In [Sukkar], Hodgson JA (with whom Tobias JA agreed) held (at [9]), applying Gonzales v Claridades, that "[t]he conviction of the opponent is evidence of the elements of the offence with which he was convicted, but not of the detailed facts found by the sentencing judge ... [and could not] support findings by [the] Court as to what the opponent actually did, beyond the bare elements of the offence with which he was convicted". 46 To describe the fact of a conviction as being 'a fact that was in issue in the proceedings' misconstrues the trial process, the Commissioner says. The conviction cannot occur until the conclusion of the proceedings and the delivery (usually by jury) of a verdict. In no sense is it 'in issue' in the proceeding. However in this instance the applicants argue that it will necessarily record a finding as to a fact in issue. But the real question is whether, in doing so, it is used to prove a fact that was in issue in the criminal proceeding. 47 The Commissioner contends that the applicants' reliance upon the heading to s 91 of the Evidence Act only invites examination of what it is that s 91 prohibits. As is clear from the terms of s 91, it affects only a limited exclusion of evidence of a conviction, namely where it is sought to be admitted 'to prove the existence of a fact that was in issue in the proceeding'. The section does not provide an all-encompassing prohibition on the admissibility of a conviction. Recourse to the heading does not alter that position. The Evidence Act expressly provides for admissibility of a certificate of conviction. The Commissioner says that provision would serve no purpose if the applicants' arguments were correct. What the Evidence Act does is to limit the effect the certificate would have. It does not preclude the admissibility of the certificate. 48 Further the Commissioner contends that there being no ambiguity or obscurity in the language of s 91, there is no basis to turn to extrinsic material: s 15AB(1) of the Acts Interpretation Act 1901 (Cth). In any event, he says, the terms of [771]-[774] of the ALRC Report do not support the applicants' proposed ground of appeal. It is made clear at [771] of the ALRC Report that the rationale of the proposed exclusionary rule was only focussed upon convictions to the extent that they were relied upon 'to prove the facts on which they are based'. It was that 'rule' which the ALRC was considering at [771]-[774]. The famous but controversial case of Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587, referred to by the ALRC at [771], was one in which the plaintiffs in civil proceedings for damages had sought to prove that the defendant had driven negligently. They sought to rely upon a conviction of that defendant for careless driving in criminal proceedings. It was sought to rely upon the conviction to prove the underlying fact of careless driving which was a fact in issue in the criminal proceedings. The Court of Appeal rejected that use. The decision has not been followed in all Australian states but in any event, the Commissioner says this case is entirely different. Use of the Certificate of Conviction is to support a contention as to credibility only, having regard to the nature of the offence recorded by the conviction. 49 It is doubtful, the Commissioner says, whether the judgment of Brereton J in HIH Insurance (at [58]-[59]) provides support for the applicants' proposed ground of appeal. It is accepted, as his Honour there says, that s 91 of the Evidence Act addresses a formal record of conviction, but there was no reason to examine the purpose of reliance on a conviction in that case. HIH Insurance was addressing admissibility for the purpose of proving underlying facts of admitted facts, a plea of guilty and reasons for judgment at 'least so far as they deal with matters of fact' in the criminal proceedings. The court in HIH Insurance was not addressing the admissibility of a certificate of conviction to prove the fact of conviction alone so as to ground submissions as to credit. CONSIDERATION 50 For essentially the reasons that follow, I do not consider the bare fact of a criminal conviction, as evidenced by certificates under s 178 such as those sought to be cross-examined on here, to itself be a fact that was in issue in the Criminal Proceeding. Further, it is important in this case that the certificates are only to be cross-examined on for the purpose of impugning credibility. They are not being tendered to prove a fact in these proceedings that was in issue in the Criminal Proceeding. 51 This distinction is supported by the terms of s 91 when read together with those of s 178. Section 178(3) provides that a certificate of conviction given under that section 'is also evidence of the particular offence.' It does not make mention at all of proof of 'facts in issue in a proceeding'. The use of these two different phrases provides a strong indication that a conviction, and the particular offence, are not facts in issue for the purposes of s 91. If those two phrases are treated as equivalent, s 178(3) would be given no work to do. By s 92, the specific preclusion in s 91 as to proof of the underlying facts in issue (meaning something different from evidence of the particular offence) does not apply to proof of committing an offence where the person is a party and the conviction is not caught by any of s 92(2)(a)-(c). In other words, in those circumstances only (not presently applicable) it is permissible to go further than s 178(3) to prove not just the offence, but also the underlying facts in issue in the criminal proceedings. That is a very different position to the present, which is concerned with the tender of evidence of a conviction and the particular offence for the purpose of cross-examination on credit only. 52 Regard must also be had to s 92(3) which provides that the 'hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section'. This provision removes the basis for the continued reliance on the rule in Hollington v Hewthorn for strictly limiting the uses to which evidence of a conviction can be put (provided that the requirements of s 92(2) are satisfied): Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 per Campbell J (at [66]); Murdoch University v Mainsbridge (1998) 84 IR 111 per Ryan, Marshall, North JJ (at 121). Contrary to the applicants' submission that the Commissioner's construction of s 91 gives s 92(2) no work to do, the effect of s 92(3) is that there is no longer any express prohibition on the use of conviction evidence (in the confined circumstances of s 92(2)) for the purpose of proving a fact that was in issue in that criminal proceeding. Although courts may be reluctant to draw any inference as to underlying facts from a conviction, this need not always be the case. The approach of Refshauge J in Commonwealth v Davis Samuel Pty Ltd (No 7) [2013] ACTSC; (2013) 282 FLR 1 146 (at [431]-[432]) is illustrative of the point, in contrast to the authorities cited by the applicants dealing with s 92(2) (cited above at [29]). In that case, Refshauge J said: 431. It is clear to me that s 92(3) removes the basis for the rule in Hollington v F Hewthorn & Co Ltd [1943] KB 587 at 601 that a conviction does not provide even prima facie evidence of the facts on which it was based. 432. Thus, so long as the evidence is admissible under s 92(2), the convictions would be powerful evidence that it was Mr Muir who made the April and September payments. (Emphasis added.) 53 The question of whether cross-examination on the certificates will ground a credibility inference is a matter that can only be ruled upon at the time of cross-examination. It is conceivable that questions may be asked that could offend s 91, but I consider that, absent knowledge of the precise way in which questions in relation to the certificates are put to Mr Gould, it is not possible for a conclusion to be safely reached. To the extent that Roberts (at [145]) suggests there is no utility whatsoever in allowing cross-examination on a conviction going to credit without evidence of the underlying facts, the relevant underlying facts in this case, if not in all cases, is only that a jury was satisfied beyond reasonable doubt of Mr Gould's guilt of the offence with which he was charged. No further relevant information is known nor sought to be adduced. And, even then and importantly, the value of this information would ultimately be a question of weight to be determined by the primary judge. 54 On the matter of weight, it is important to have regard to the precise reasoning and orders of the primary judge. His Honour has said only that the certificates could affect an assessment of Mr Gould's credibility. Clearly no assessment has yet been made, nor has tender of the certificates been allowed, although in some form and for some purpose it seems likely that the tender will be permitted. At this stage, by the relevant orders it is sought to appeal, all that has been permitted is the opportunity to cross-examine Mr Gould on his conviction. 55 The Commissioner says he is not seeking to tender the Certificate of Conviction to prove any fact that was in issue in Mr Gould's second criminal trial. Rather, the Commissioner would rely upon the conviction for an offence of attempting to pervert justice as something that could affect an assessment of the credibility of Mr Gould under s 103 of the Evidence Act. The primary judge said (at [26]) 'Rationally, such a conviction could affect an assessment of his credibility'. As held by McCallum J in Tieu v The Queen [2016] NSWCCA 111; (2016) 92 NSWLR 94 (at [129]) 'prior convictions for offences of dishonesty [are] capable of substantially affecting the assessment of … credibility so as to fall within the exception to the credibility rule provided for in s 103 of the Act': see also R v Jones (No 7) [2007] NSWSC 1158 per Buddin J; R v Jones (No 3) [2007] NSWSC 771 per Buddin J; R v Ronen (2004) 211 FLR 297; [2004] NSWSC 1290 per Whealy J (at [48]); R v Burns (2003) 137 A Crim R 557; [2003] NSWCCA 30 per Buddin J (at [102]-[104]); Commercial Union Workers' Compensation (NSW) Limited v Clayton [2000] NSWCA 283 per Stein JA with whom Powell and Fitzgerald JJA agreed; R v McGoldrick [1998] NSWSC 121 per Hidden J (with whom Studdert and James JJ agreed); and R v Hancock [1996] 2 Cr App R 554 per Gleeson CJ (with whom James and Dowd JJ agreed). 56 It is the fact of the conviction for attempting to pervert the course of justice, rather than any of the facts in issue in the criminal proceedings, which is relied upon as affecting Mr Gould's credibility. There is precedent for the approach taken by the primary judge. It has been held that 'evidence of a conviction for corruption as a police officer (that is, a conviction for serious dishonesty) had substantial probative value in relation to [an] appellant's credibility and/or reliability, and specifically so in relation to the jury's assessment of the evidence he gave in the trial': per Simpson JA in R v El-Azzi [2004] NSWCCA 455 (at [189]). Indeed reasons for judgment, and the judgment itself, have been admitted in a civil case to establish the terms of a judgment and its effect, as distinct from the purpose of proving the facts there found: Crawley v Vero Insurance Ltd (No 7) [2014] NSWSC 80 per Beech-Jones J (at [20]). 57 It is too early to say that the re-opening orders from which it is sought to appeal should not have been made on the basis of any potential contravention of s 91. Whether there is any possible contravention of s 91 will depend very much on the course the cross-examination, and even the form that the proposed tender of the certificates takes. The only order made at this stage is that there be leave to re-open for that purpose. The reasoning for that order is that the conviction 'could' go to credibility. No conclusion is yet reached that it does. The tender is yet to be made and questions yet to be asked. Rulings on specific questions may be necessary. Whether the certificate does ultimately go to credibility and/or only credibility is yet to be ruled upon. It is not yet known whether questions under s 190(3) of the Evidence Act may arise. It may be that the applicants seek to advance all the arguments they have addressed in this application to the primary judge in opposition to specific questions or any tenders as and when they arise. But given the narrow scope of the permitted cross examination, it is impossible to say at this point that a contravention of s 91 of the Evidence Act must inevitably arise as the applicants assert. Accordingly, there is no error in the exercise of the discretion to re-open, having regard to House v The King principles. 58 For all these reasons, it follows that there was no error in the primary judge's succinct reasoning for his conclusion at [26] of his Honour's reasons, and ground 1 of the proposed appeal would not enjoy a sufficient prospect of success to grant leave to appeal from the judgment. Nor to the extent there may be an exercise of discretion as a result of that reasoning, is there any House v The King error. Substantial injustice 59 Senior Counsel for the Commissioner raised a number of important points in oral submissions going to substantial injustice. First, as noted, only in the Anglo American Proceeding has there been no evidence adduced of Mr Gould's conviction. The Certificate of Conviction has been tendered without objection in the Melbourne Corporation Proceedings and cross-examination on that document ensued. Thus, the primary judge is already confronted with a situation where he must compartmentalise the evidence in one proceeding from that in another. That is an entirely standard process for judicial officers. I do not perceive the tender of the NSWCCA Certificate as adding anything to the evidence of the conviction beyond that contained in the Certificate of Conviction, save as to confirm it, and dispel the concerns the parties previously raised before the primary judge at an earlier time when a prospect existed of his Honour delivering judgment prior to the resolution of Mr Gould's appeal. Clearly that is no longer a concern. 60 In these circumstances, it is difficult to see how, if it is ultimately found on an appeal that the certificates were inadmissible, this would necessitate re-trials as the applicants suggest. Certainly, it could only possibly require a re-trial in the Anglo-American Proceeding, but as noted, his Honour is already apprised of the Certificate of Conviction in the Melbourne Corporation Proceeding and is yet to deliver judgment in any proceeding. Particularly given that his Honour would be hearing cross-examination on the certificates at a discrete hearing, completely divorced from the evidence received already in the Anglo American Proceeding now some years ago, it is by no means clear that a re-trial by another judge would be the necessary consequence of an ultimate appellate finding of the inadmissibility of the disputed evidence. 61 On this basis, I also do not consider the applicants have demonstrated a substantial injustice. CONCLUSION 62 For these reasons, leave to appeal must be refused and the interlocutory application for an adjournment be dismissed with costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher. Associate: Dated: 15 October 2021