Can I ask you, Ms Interpreter, to explain. I want [the husband] to tell me where the $200,050 is; and if he either refuses to tell me or he genuinely no longer has the money, he starts a gaol sentence today. THE INTERPRETER: Okay. [The husband] says that he fell sick. He put the money in the back of the car and that when he looked for that, they were no longer there.
HIS HONOUR: Can you ask him is there any money left in any account with [the bank]?
THE INTERPRETER: Okay. All I have left is about $3000.
HIS HONOUR: Then can you ask him is there somebody who can bring his toiletries because he is going into a police cell in about five minutes time?
THE INTERPRETER: Okay. Sir, [the husband] insists he doesn’t have any money, okay? No, I don’t have anybody.
HIS HONOUR: Then can you please tell him he will be going to gaol until the money is produced.
THE INTERPRETER: I don’t have any money. Somebody stole the money.
HIS HONOUR: Then can you please tell [the husband] he will be in gaol for a very long time.
THE INTERPRETER: I don’t have any money.
HIS HONOUR: I am getting the police here now. They are going to take you into custody and put you in a cell.
THE INTERPRETER: Okay. I can’t do anything about it.
HIS HONOUR: Very well. While we are waiting for them, you need to go to the witness box, please...
HIS HONOUR: Now after you received th[e wife's property settlement] application, the sale of that house at [D] finished, it was sold. Do you agree with that?
THE INTERPRETER: I had to sell it because I didn’t have any more money to pay.
HIS HONOUR: But it was sold or the sale completed after 26 February. Do you agree with that?
THE INTERPRETER: I sold the house before I received the papers.
HIS HONOUR: On 1 March, you deposited a sum of $200,050 with [the bank]. Do you remember that?
THE INTERPRETER: Yes.
THE WITNESS: Yes.
HIS HONOUR: At around that time, you had opened three accounts with the [the bank]?
THE INTERPRETER: Yes.
HIS HONOUR: And after those –that money was deposited to your account on 1 March, you would appear to have withdrawn nearly all of it.
THE INTERPRETER: Yes.
HIS HONOUR: A number of those withdrawals occurred by telephone banking.
THE INTERPRETER: No, it’s not through the telephone, no; I went to the bank.
HIS HONOUR: So if your bank statements say that you had made withdrawals by telephone banking, that’s not correct?
THE INTERPRETER: No, it’s not by telephone.
HIS HONOUR: Now a number of the transactions say “funds transferred to term deposit.” Do you have a term deposit with the [bank]?
THE INTERPRETER: No, I haven’t got an account, a term account.
HIS HONOUR: Then before we proceed any further, can I make very clear to you what is occurring. If I could ask you to translate that, please.
THE INTERPRETER: Yes, I did have an account there but I closed.
HIS HONOUR: You were under oath to tell me the truth.
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: And [Counsel] who appears for your wife is going to make some further inquiries during the course of the day to get documents from [the bank].
THE INTERPRETER: She can do so.
HIS HONOUR: And if those – if documents are produced by [the bank] that show that any of the answers you give me are not correct, you will be charged with perjury.
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: For now, you are charged with the offence of contempt of court in that you have with full knowledge of the application of [the wife] sought to dispose of or conceal the funds the subject of those proceedings.
THE INTERPRETER: I hid them behind the seat of the car.
HIS HONOUR: If you could just interpret that, please, though, Ms Interpreter.
THE INTERPRETER: I took them out to get a farm.
HIS HONOUR: Very well. Do you understand, [the husband], that you are charged with a criminal offence?
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: Do you understand that you are charged with a criminal offence?
THE INTERPRETER: I don’t understand.
HIS HONOUR: You – after you were served with [the wife’s] application, you allege you have disposed of all of the money that the application sought to divide between you and [the wife].
THE INTERPRETER: No, it’s not true, I did not do it for that.
HIS HONOUR: And until the matter is dealt with to finality, which may take some months, you will be held in custody in gaol.
THE INTERPRETER: I can’t do anything; I have said the truth, whatever happens.
HIS HONOUR: Do you understand that you will very shortly be going to gaol, as in today?
THE INTERPRETER: I can’t do anything; I have said the truth
His Honour then required the husband's friend, Mr B, to go from the back of the court into the witness box.
Then the bank was telephoned, and a bank officer, who was not sworn in, spoke to the court. The officer told the court that there had not been telephone banking, as appeared on the statements, but cash withdrawals, and it appeared that the wrong code had been inputted when describing the transactions on the statements.
His Honour then considered jailing the husband immediately, but put it off when a letter from the husband's GP stating that he had dementia was produced. The matter was then adjourned to another day. His Honour said:
I’m going to release [the husband] on condition that he appear on the next occasion and that he present 120,000 bucks or he goes to gaol next time. I don’t believe for one second his story, or his friend’s story about 200 grand in the back of the car; not for one second. I would slot him for perjury now, if somebody could produce a $20 note that shows he was lying. But I’m just unimpressed that he is served with an application, and two working days later, banks the cheque and proceeds to withdraw it by telephone banking – whether he did it or somebody else – but he must have given them the details for telephone banking after 1 March because that’s when he set up the account, as it would appear, a new customer of [the bank].
And the moment he is able to do that, within the space of eight working days the money has gone; in just enough time for it to all be gone before the first return date. So that’s the course I will take. It’s just an issue of how long. But he goes to gaol next time unless he brings 120 grand in cash, because until he can prove otherwise I’m not buying his story....
HIS HONOUR: Now, Ms Interpreter, can I ask you just to interpret some very brief things. [The husband], we’re letting you go home. But you need to be back here in two weeks’ time on 21 April. There are a number of other things you need to do in the meantime that [Ms L] will explain to you. But the two important things you need to be conscious of is that you need to go to [W] Police Station every day to report so that I know that you haven’t left. And you need to bring $120,000 with you to court on 21 April or you will be going straight to gaol, not passing go, not collecting $200. Because I am not believing your story at all about the money being taken from your car, and if you don’t have money here bring your toiletries you won’t be leaving next time. I am deadly serious you will be in gaol this time in a fortnight if that money isn’t here. Thank you. [Ms L], and to the rest of your team, thank you for the assistance.(emphasis added)
Second appearance 21 April, 2011
His Honour said (Transcript 21 April 2011, page 2, lines 38- 46):
HIS HONOUR: No, no. If you say that has happened, I accept that from you. I did make very clear to [the husband] today, though, that he brings 120 grand or he brings his toiletries because he starts his sentence today if the money is not here.
[MR H]: HE says he doesn’t have the money.
HIS HONOUR: Then I have already taken that evidence and made very clear to him I don’t believe it. I have already convicted him. If he doesn’t come up with the money, he starts his sentence today.
HIS HONOUR: Well, if that’s so, he will have to deal with Conlan J about that, because I dealt with it last time. It’s a done deal. Does [the husband] get a pension?..
HIS HONOUR: And [the husband] will find himself entirely deprived of the balance of that account and I will be garnisheeing his pension, and he will be starting his sentence ...
HIS HONOUR: But as I said, [Mr H], I need to stand the matter in the list. [The husband] is not to leave the registry because I hear what you say in relation to the findings that could or should be made, but I have already made them. He has already been convicted. He has already been sentenced. I suspended it on the last occasion. The suspension ends today. I made very clear the 120 is here, because I don’t believe he doesn’t have it.
I suppose, being blunt, I don’t particularly want to see the Sunday Telegraph with a banner headline about the nasty Federal Magistrate who caused an elderly deaf man to get beaten in jail, when it’s not achieving a purpose. If it achieved a purpose, well, he can cop the beating. But it’s not going to achieve a purpose. So I think, certainly, that would be the course. But it’s an issue, then, of – I think, you wouldn’t have had the opportunity, yet – I haven’t look at the file, but you – no, you have, sorry. You filed a response, [Mr H]. (Emphasis added)
As Chief Justice Bryant noted:
His Honour was ultimately persuaded by Counsel for the husband that he should dispense with the order requiring him to attend at the police station every day. Counsel for the wife indicated to his Honour that her client was sufficiently protected by the injunctive orders and a restraint on the husband from leaving the country and did not require the husband to report to the police station. His Honour’s response was (Transcript, 21 April 2011, page 12, line 39):
HIS HONOUR: Certainly. Very well, and we can bury that as well.
His Honour then made an order dispensing with reporting to the police at all.
What his Honour did with the contempt application itself is not clear as it is not mentioned.
The bank
Federal Magistrate Harman joined the bank as a party. No application had been made to join the bank. No one from the bank was given the opportunity to repond to the application before it was heard.
What his Honour said speaks for itself:
One thing I would propose doing, and I’m fully conscious they’ve had no notice of it, but I don’t particularly care about that, is join [the bank] because I think that’s the best way I’m doing(sic) to get them here, and I think if I am incorrect in disbelieving [the husband], will give you the best shot to protect [the husband’s] interests - - -
... I know we haven’t given any notice to [the bank], although, we did, in fact, have some person from [the bank] whose name I can’t remember give some evidence by telephone on the last occasion, which is how it came to be that, in fact, we became aware that each of the transaction descriptions on the [bank’s] banking records was wrong. So I suppose to that extent, that’s probably the notice they’re getting. But I want to join them as a party because – if they’re disgruntled by that, well, they can appeal. They can’t get a costs order against the court. They certainly won’t be getting one against the parties.
If I am incorrect in my suspicion as to the veracity of [the husband’s] evidence about what happened with his money, then, that will give you the best shot to protect [the husband’s] position and seek orders against [the bank] as to anything that has happened that may have been fraudulent but not involving [the husband]. And [Counsel for the wife], that will, if I’m right about that and there has potentially been some collusion or otherwise, that will give your client the best shot of doing something about it....
:
So it’s an issue of whether we’re going to a conciliation conference, whether we’re simply coming back to see what [the bank] has to say for themselves, and I will make sure, in joining them, that I express very clearly why because something that is not quite right has been going on at [the bank]. Seeing as they have control of my money and my wife, I’m not particularly excited about that....
I don’t want to, for the reasons I’ve already described, [solicitor for the husband], put you to the difficulty and expense of dragging you in to Sydney, although, it probably suits [the bank]. But probably, the more inconvenience we create for the (sic), the better.
His Honour adjourned the proceedings to June, but noted these things first:
The [Bank] is joined as a party because:
the material produced by the [bank] on subpoena purporting to be the proper business records of the bank would appear to be either inaccurate or fraudulent;
evidence given when the matter was last before the Court would give rise to a suggestion of collusion between one or more bank offers (sic) and/or [the husband] or other persons;
the opening of the accounts and their operation relevant to these proceedings would appear highly unusual and would appear to involve substantial cash withdrawals within a short period of time and would not have been reported to the appropriate agency and would have the affect to [the husband’s] knowledge of frustrating the Wife’s application and subverting the Courts jurisdiction.
The evidence available in the mater (sic) to date would also suggest a lack of duty of care by the bank towards [the husband] in that he is elderly, suffers a hearing difficulty, is suggested to be affect (sic) by dementia and the transactions which had occurred would appear to have been assisted or undertaken by persons other than [the husband]; and
If one or all of the above are ultimately found proven by the evidence in this case the Court will consider making orders for compensation or restitution against the [bank].
Third appearance 11 June, 2011
When the matter next came before his Honour in June, the bank was represented. This exchange took place between his Honour and counsel for the bank:
HIS HONOUR: And if they don’t, there’s nothing produced and there’s a subpoena outstanding and I’m entitled to arrest the managing director of [the bank] right now because they have had three months to comply with the subpoena and have chosen not to, other than to produce documents which mislead the court. And I’m not suggesting that’s deliberate but they do and they’ve got this man arrested and put in custody.
[MS B]: Your Honour, may I take umbrage and say [the bank] did not get [the husband] arrested. As I understand, that was your Honour’s bench warrant.
His Honour then did this:
I note that a subpoena addressed to the [bank] was previously served and made returnable 7 April 2011, and with respect to that subpoena (a) documents were produced by the [bank]; (b) after the matter had been dealt with and interim determinations made with respect to the substantive proceedings, and following cross-examination of the husband and another witness in his case, further documents were produced by the [bank], and an officer of that bank contacted to give evidence by phone which suggested that each of the documents that had been produced by the bank to the court in purported compliance with the subpoena did not accurately reflect the transactions which had, in fact, occurred.
