UBS Admits Bullion Certificate Worth Billions
by, Paul Collin
- - - -
COURTESY: Kentron Intellect Research ( KIR )
SOURCE: Unwanted Publicity Intelligence ( UPI )
UBS Admits Bullion Certificate Worth Billions
by, Paul Collin
SWITZERLAND, Zurich - July 7, 2010 - International law enforcement authorities were perplexed after a federal court in Australia determined from official experts that a UNION BANK OF SWITZERLAND ( UBS AG ) platinum bullion certificate of deposit ( CD ) valued at $170,000,000,000 existed in the wake of latter denials from UBS after verifying it existed for the Israel Central Bank.
Federal cases surrounding Beirut, Lebanon businessman Anthony Hamod ( of Sydney, Australia ) saw Australia Federal Police arrest him, keep him jailed for 9-months, afterwhich the Australia federal court released him and ordered the $170,000,000,000 billion dollar valued platinum bullion UNION BANK OF SWITZERLAND ( UBS AG ) certificate of deposit ( CD ) be returned.
Anthony Hamod was no piker when it came to making international trade deals with the Middle East. Hamod was in the midst of negotiating a UNION BANK OF SWITZERLAND ( UBS AG ) platinum bullion certificate of deposit ( CD ) valued at $33,000,000,000 billion dollars with the Central Bank of Israel where UBS initially admitted the CD was genuine, however later UBS claimed it was being used in some fraudulent scheme and was a forgery. Authorities then arrested Hamod.
The UBS platinum bullion certificate of deposit was not proven genuine until after a team of forensic document experts, private security specialists, INTERPOL, BAK ( Middle East ), and even the U.S. Central Intelligence Agency ( CIA ) when Anthony Hamod withdrew the certificate from inside a BERENBERG BANK [ Hamburg, Germany ] safe deposit box holding at least one ( 1 ) platinum bullion certificate of deposit ( CD ) valued at $170,000,000,000 billion ( USD ).
The UNION BANK OF SWITZERLAND ( UBS AG ) financial instrument trail uncovered representatives of PT GALAXY TRUST INDONESIA and others involved with various bullion certificates of deposit even decades earlier when this incredibly remarkable complex international case grew from ( research references - below ).
Australia federal court cases ( criminal and civil ) surrounding Anthony Hamod produced hundreds of official documents and even handwritten notes by the federal court judge ( many image documents are available for viewing / reading by using the UPI research reference links provided near bottom of page ).
The following ( immediately below ) was transcribed from only a few of the hundreds of pages of federal court official documents ( see research references - near bottom of page ):
AUSTRALIA
New South Wales Supreme Court
Decisions
Hamod v. State of New South Wales ( No. 6 ) [ 2007 ] NSWSC 1366 ( 5 October 2007 )
Last Updated: December 3, 2007
NEW SOUTH WALES SUPREME COURT
CITATION: Hamod v. State of New South Wales ( No. 6 ) [ 2007 ] NSWSC 1366
JURISDICTION:
FILE NUMBER(S): 20147 of 2003
HEARING DATE{S): August 31, 2007
JUDGMENT DATE: October 5, 2007
PARTIES:
- Anthony Hamod ( 1st Plaintiff )
- HAMOCK INVESTMENTS PTY LIMITED ( 2nd Plaintiff )
VS.
- State of New South Wales ( 1st Defendant )
- UBS AUSTRALIA LIMITED ( 2nd Defendant )
JUDGMENT OF: Justice Harrison
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
- D.E. Baran ( Plaintiffs )
- M.R. Speakman SC ( 2nd Defendant )
SOLICITORS:
- SIMON DIAB & ASSOCIATES ( Plaintiffs )
- I.V. Knight, Crown Solicitor ( 1st Defendant )
- Allens Arthur Robinson ( 2nd Defendant )
CATCHWORDS:
CIVIL PROCEDURE – interlocutory application for access to documents for forensic examination – dispute as to authenticity of platinum bullion certificate - application opposed in absence of orders for proper security arrangements and payment of associated costs – document allegedly uninsurable – orders for forensic examination of document made – plaintiffs to make such security arrangements as advised
LEGISLATION CITED:
- Evidence Act 1995
- Uniform Civil Procedure Rules 2005
CASES CITED:
DECISION: See Paragraphs [ 52. ] - [ 53. ] for details of Orders made.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES
COMMON LAW DIVISION
JUSTICE HARRISON
October 5, 2007
20147 of 2003
Anthony Hamod & Anor v. State of New South Wales & UBS AUSTRALIA LIMITED
JUDGMENT
1. HARRISON J: On July 19, 2007 on the application of the Second Defendant [ UBS AUSTRALIA LIMITED ] by its Notice Of Motion filed July 12, 2007 I made the following Orders regarding access by the Second Defendant [ UBS AUSTRALIA LIMITED ] to the "Platinum Certificate" which is the subject matter, inter alia, of the present proceedings:
- 2 Subject to Order 3 hereof, on or before July 31, 2007 the Plaintiffs [ Anthony Hamod, et al. ] make available at the Manly [ Australia ] premises of FORENSIC DOCUMENT SERVICES PTY. LIMITED [ FDS ], for non-invasive examinations by Paul Westwood [ an expert to be retained on behalf of the Second Defendant ( UBS AUSTRALIA LIMITED )], the document alleged by the plaintiffs to be the "Platinum Certificate" referred to in paragraph 9 of the sixth amended statement of claim, for a period of up to four [ 4 ] successive days.
- 3 Direct that within 7-days the second defendant provide to the plaintiff written undertakings by a duly authorized representative of the Second Defendant [ UBS AUSTRALIA LIMITED ] which include undertakings in or to the effect of those contained in the letter dated July 4, 2007 from Allens Arthur Robinson to SIMON DIAB & ASSOCIATES together with an undertaking that the Platinum Certificate will be returned safely to the care, custody and control of the Plaintiff [ Anthony Hamod ] following forensic examination.
2. On August 9, 2007 I made orders by consent vacating those Orders.
3. The Second Defendant [ UBS AUSTRALIA LIMITED ] now seeks the following Order pursuant to rule 23.8 UCPR and s 169 of the Evidence Act 1995:
- On or before September 14, 2007 the Plaintiffs [ Anthony Hamod, et al. ] make available at the Manly [ Australia ] premises of FORENSIC DOCUMENT SERVICES PTY. LIMITED, for non-invasive examinations by Paul Westwood [ an expert to be retained on behalf of the Second Defendant ( UBS AUSTRALIA LIMITED ) ], the document alleged by the Plaintiffs [ Anthony Hamod, et al. ] to be the "Platinum Certificate" referred to in Paragraph 9 of the sixth [ 6th ] amended statement of claim, for a period of up [sic] four [ 4 ] successive days.
4. In support of its application, the Second Defendant [ UBS AUSTRALIA LIMITED ] has proffered a series of undertakings. They are as follows:
- "The second defendant, by its undersigned duly authorised officer, gives the following undertakings with respect to the document described as the "Platinum Certificate" in Paragraph 9 of the sixth [ 6th ] amended statement of claim ( the Certificate ) [ UBS Certificate of Deposit ( CD ) ]:
- 1 that it will not alter, damage or destroy the Certificate;
- 2 that it will not, without further order or prior written permission from the Plaintiffs:
- (a) conduct; or,
- (b) permit Paul Westwood ( Mr. Westwood ) of FORENSIC DOCUMENT SERVICES PTY. LIMITED ( FDS ) or any employee or agent of FDS to conduct, any examinations of the Certificate other than physical, non-invasive examinations;
- 3 that it will not, without further order or prior written permission from the plaintiffs:
- (a) conduct; or,
- (b) permit Mr. Westwood or any employee or agent of FDS to conduct, any chemical examinations of the Certificate;
- 4 that, subject to being entitled to disclose a photocopy of the Certificate and its contents ( on conditions of confidentiality ) to any potential witness or expert in these proceedings and its legal representatives, it will keep the contents of the Certificate strictly confidential;
- 5 that it will ensure that the Certificate is kept secure while it is in the custody of Mr. Westwood or FDS; and,
- 6 that it will return the Certificate to the First Plaintiff [ Anthony Hamod ] or his legal representative on demand, or on completion of the examination of the Certificate to be made by Mr. Westwood pursuant to Order 2 of the Orders made by the Honorable Justice Harrison in these proceedings on July 19, 2007."
5. The present application is strongly opposed by the plaintiff. However, the plaintiff accepts the second defendant's undertakings as adequate for their purposes having regard to the context in which they are given. So much appears from the following concession made by counsel for the plaintiff:
- "BARAN: Yes. Yes, and that is the most pressing matter. And if that can be organised and if Mr. Hamod can undertake the inspection as he has requested to your Honour through me, then it would appear that the orders would be appropriate. I am accepting the undertakings given by my friends. It really comes to the procedure of the inspection and security arrangements" ( Emphasis added )
6. In support of its application the Second Defendant relied upon the affidavits of Paul Denison Westwood sworn July 12, 2007, Jane Margaret McCosker sworn July 18, 2007 and Patrick Hamilton Holmes sworn 28 August 2007. Mr Westwood's Affidavit had also been relied upon by the Second Defendant [ UBS AUSTRALIA LIMITED ] in support of its original application.
7. Ms McCosker is a solicitor and her affidavit was read without objection. Mr Westwood had given her information with the benefit of which she cited examples of facts that it may be possible to establish if Mr Westwood were given the opportunity to undertake the examinations he proposed. Her evidence in this respect was as follows:
- 7.1 The Video Spectral Comparator ( VSC ) 2000 examination will detect any watermarks in the Certificate that are visible under ultraviolet light.
- 7.2 Detection of watermarks in the Certificate might assist in establishing whether it was actually created on before the date on which it was purportedly issued.
- 7.3 In Mr Westwood's experience, watermarks inserted in documents as a mark of their authenticity are inserted into the documents at the same time that the paper comprising them is manufactured.
- 7.4 Mr. Westwood’s practice upon detecting a watermark is to make further enquiries, by consulting reference documents such as records kept by paper manufacturers worldwide or speaking to people with relevant expertise with the aim of identifying the date on which that watermark is first recorded as having been used.
- 7.5 Discrepancies between the date of the document and the commencement date of a watermark may be significant.
- 7.6 The Electro-Static Detection Apparatus ( ESDA ) may also establish whether the Certificate was created on or before the date on which it was purportedly issued.
- 7.7 Latent writing impressions in the Certificate found using the ESDA may be able to identify the date on which those impressions were made.
- 7.8 Mr. Westwood's other examinations might identify the date on which the signatures appearing on the Certificate were added to it.
- 7.9 A comparison between latent writing impressions identified using the ESDA and the date upon which signatures were placed upon the Certificate may be significant.
- 7.10 Photomicrography [ Photochromography ] examination might reveal the technology used to manufacture the Certificate.
- 7.11 A comparison between the date of the manufacture of the Certificate and the date when the technology to manufacture it was first developed may be significant.
8. Ms. McCosker also gave evidence that Mr. Westwood would be likely to require 2 or 3 full days to analyse every page of the Certificate using the examinations that he proposes. If he were to analyse only selected pages of the Certificate in the same way, Mr. Westwood estimated that he could complete those examinations in 1-day of between 8-hours and 12-hours of work.
9. Security arrangements which exist at FDS premises include the following:
- 9.1 Back to base alarm system.
- 9.2 External door locks.
- 9.3 A safe with a combination lock.
- 9.4 The door giving access to the room in which the safe is located has a lock.
- 9.5 The Certificate will be placed in the safe overnight if required.
- 9.6 Only three [ 3 ] people know the combination to the safe.
- 9.7 The same three [ 3 ] people have a key to the room in which the safe is located.
- 9.8 The Australian Federal Police and the New South Wales Police have each from time to time allowed original documents to be released to Mr Westwood and kept at his premises. These include documents said to be of "national significance".
10. Mr. Holmes is also a solicitor and his affidavit was read without objection. Mr. Westwood had given him information that the workroom at the FDS premises in Manly is approximately 7m by 2.5m. It contains the examination equipment and work areas for four FDS employees. At any given time during business hours, FDS personnel are usually conducting examinations and performing other work for several clients, most of which is confidential. If the plaintiff or his legal representatives were to be present in the workroom while examinations of the Certificate were taking place, FDS would have to cease work for all other clients during the examination and remove all documents and other materials relating to that work.
11. One wall of the workroom is a glass wall that looks out over a courtyard. The whole workroom is visible from the courtyard through the glass wall. Mr. Westwood is prepared to allow the first plaintiff and its legal representatives to observe the proposed examinations of the Certificate from the courtyard through the glass wall. The Certificate would generally be visible at all times through the wall whenever it was in the workroom apart from the occasions when it was inside certain pieces of equipment.
12. In order properly to conduct the proposed examinations of the Certificate, Mr. Westwood would need to have access to all the pages of the Certificate at the same time. This was said to be for the following reasons:
- 12.1 The examinations would need to include contemporaneous visual comparisons of various characteristics of different pages of the Certificate including visual comparisons of the physical qualities of the paper, the inks used for the printing on the pages, the printing methods used, any latent writing impressions appearing on the various pages and any guillotine striations on the edges of the pages
- 12.2 The comparative visual analysis may help to determine the likelihood that the Certificate was ( or all of its pages were ) created when it is said to have been created, whether there are any inconsistencies in the characteristics between the different pages of the Certificate and whether any part of the Certificate has been altered or amended since that time. These matters may assist in forming a view about the genuineness of the Certificate.
13. The second defendant also issued a notice to produce to each of the plaintiffs. These notices were in relevantly identical terms which were at follows:
- 13.1 All current policies of insurance in relation to the [ Platinum Certificate ];
- 13.2 All documents that refer to the Platinum Certificate being held at, or transported to, places outside Australia within the five years preceding the date of this notice;
- 13.3 All documents that refer to any arrangements made or measures taken in respect of the security of the Platinum Certificate while it was located at, or being transported to or from, any places outside Australia within the five years preceding the date of this notice;
- 13.4 All documents ( including, without limitation, any insurance policies ) referring to any insurance arrangements that were in place in respect of the Platinum Certificate while it was located at, or being transported to or from any places outside Australia within the 5-years preceding the date of this notice;
- 13.5 . . . [ COURT EDITED-OUT ] . . .
14. No documents were produced in response to these notices.
15. In opposing the application the plaintiff relied upon the affidavits of Simon Diab sworn 20 August 2007 and of the first plaintiff sworn 24 August 2007.
16. Mr Diab’s affidavit annexes a series of correspondence and related material that has passed between the solicitors for the parties concerning the present issue since 14 May 2007. Most of this material is uncontroversial but some of it is very significant and should be referred to in detail.
17. By his letter dated 18 May 2004 Mr Diab advised the solicitor for the second defendant, "that our client consents to giving access to Mr Paul Westwood to examine the Platinum Certificate". However, the letter went on to say, "due to security concerns, our client does not consent to the Platinum Certificate be[ing] taken to Mr Westwood's premises in Manly".
18. By his letter dated 20 June 2007, Mr Diab rejected an offer proposed by the solicitor for the second defendant to arrange for police officers to escort Mr Hamod and the Platinum Certificate to Mr Westwood's Manly premises. This is unsurprising.
19. On July 4, 2007, the Second defendant proffered the undertakings referred to above.
20. By his letter dated July 31, 2007, Mr Diab advised the solicitor for the Second Defendant as follows:
- "We are further instructed to confirm that our client consents to Mr Westwood's inspection of the Platinum Certificate. Our client is now content to have Mr Westwood inspect the Platinum Certificate at his Manly [ Australia ] premises subject to the following:
- 1 The Platinum Certificate remains in our client's possession at all times;
- 2 Mr. Hamod, Mr. Hamod's security consultant and I inspect Mr. Westwood's premises on a date prior to taking the Platinum Certificate to those premises;
- 3 Mr. Hamod and I attend the examination of the Platinum Certificate and remain with the Certificate while it is being inspected;
- 4 Mr. Hamod shall provide Mr. Westwood with one page of the Platinum Certificate at a time and once Mr. Westwood completes his examination of that page of the Certificate, Mr. Hamod will retrieve that page and provide Mr. Westwood with another page of the Certificate;
- 5 If Mr. Westwood requires more than one day for examination of the Platinum Certificate, Mr. Hamod retains the Certificate and returns it to Mr. Westwood's premises the following day;
- 6 Reasonable security operation to be undertaken to safeguard Mr. Hamod and the Certificate while in transportation to and from Mr. Westwood's premises and during the examination process;
- 7 Your clients pay the costs of the above referred to security operation. We are in the process of obtaining costs for security and shall advice [ sic ] you of same once at hand; and
- 8 Your clients pay my costs of $600 ( which is the rate I charge Mr. Hamod in this matter ) while attending to the inspection referred to in Paragraph 2 above and for attending to the examination referred to above including travel time.”
21. These matters drew a detailed response from Allens Arthur Robinson by letter dated August 2, 2007. Most of the conditions were acceptable to the Second Defendant [ UBS AUSTRALIA LIMITED ]. The following responses, however, should be noted:
- “3 As we have previously proposed, Mr. Westwood is content for Mr. Hamod and Mr. Diab to be present on FDS’s premises while the examination of the Certificate is taking place. However, Mr. Westwood cannot agree to having Mr. Hamod and Mr. Diab present in the actual laboratory when the examination is taking place. This is for a number of reasons including that FDS conduct various highly confidential work for other clients in the laboratory and there is limited space in there. Mr. Westwood is happy for Mr. Hamod and Mr. Diab to remain in a room outside the laboratory on FDS’s premises while the examination is being conducted. Alternatively, we are informed by Mr. Westwood that there is a courtyard outside the laboratory with a window that looks into the laboratory and that Mr. Hamod and Mr. Diab are welcome to observe the examination from there.
- 4 Our client does not agree to this condition. Where are informed by Mr. Westwood that he needs to have access to all of the pages of the Certificate at the same time in order that he can conduct comparative examinations and cross-referencing of different pages.
7. Our client does not agree to pay the cost of any "security operation" referred to in numbered Paragraph 6 of your letter. In relation to this issue, we note the following:
(a) Our client has already provided an undertaking as to the security of the Certificate during the examination process.
(b) Justice Harrison's Orders of 19 July 2007 did not make it a condition of the proposed examination that our client pay for any "security operation" proposed by your client. Having regard to the undertaking our client has provided, it is our client's view ( with respect to his Honour ) that this was entirely appropriate and we expect that Justice Harrison would not make any order for our client’s payment of any "security operation" in the event that his Honour reconsiders our client’s application for an order for access to the Certificate.
(c) Under rule 21.5(2)(a) of the Uniform Civil Procedure Rules 2005, your client is required ( as part of his discovery obligations) to make the original Certificate available for inspection by our client. That requirement is not subject to any condition that our client pay any costs of your client associated with making it available.
(d) Ordinarily, such an inspection for the purposes of discovery would take place at your offices ( and your client has previously consented to the Certificate being examined by Mr Westwood at your offices ). This would involve the transportation of the Certificate from the place where it is being stored to your offices. Our client would not be liable for the cost of any security measures your client wished to take in respect of the transport of the Certificate to your offices or its inspection at your offices.
(e) We can see no reason why there is any greater "security risk" associated with the transportation of the Certificate to Mr. Westwood's premises and its examination there than would be associated with its transportation to and inspection at your offices. Accordingly, there is no reason why our client should be required to pay for any "security operation" that your client wishes to undertake in respect of the transportation of the Certificate to Mr. Westwood's premises or its examination there. This is particularly so in circumstances where our client has given an undertaking as to the security of the Certificate while it is at Mr. Westwood's premises.
( f ) However, to allay any concerns your client has in this regard our client, Mr. Westwood and FDS are willing to undertake that they will not by themselves, their servants or agents disclose ( until after the event in Court or in any Expert Report or Affidavit ) to anyone other than our client's legal advisers, Mr. Westwood and other staff of FDS the date or time at which the Certificate will be, or is proposed to be, examined at the premises of FDS in Manly [ Australia ].”
22. The plaintiff's solicitor had earlier sought quotes from CHUBB SECURITY SERVICES and ARMAGARD by letters in identical terms dated June 19, 2007. The job was in each case described in the following terms:
- "To transport our client and a bank bearer certificate valued by our client to be worth about AUD $200,000,000,000. Our client would need to be transported from a suburb in Sydney [ Australia ] to be disclosed in due course to Manly [ Australia ]. The distance of the trip is not more than 50 km. Your brief will be to transport our client and the certificate to Manly [ Australia ], the certificate would be examined at an office in Manly [ Australia ], you will then transport our client and the certificate back to the original location. Your armed personnel must guard our client and the certificate from the time our client is picked up until he is returned to his original location."
23. Both organisations indicated that they would be unable to provide the services requested. In the case of CHUBB, a representative advised Mr. Diab that insurance for the job would cost approximately $400,000,000 million, assuming a syndicate could be arranged to underwrite the risk.
24. Mr Diab subsequently consulted with a representative from CORPORATE PROTECTION SERVICES INTERNATIONAL PTY LTD. In a letter dated June 28, 2007, the chief executive officer of that company Mr. Lambie, advised Mr. Diab in the following terms:
- “Such a risk assessment process cannot be undertaken at this time without knowing the current location of the document, the intended delivery location, duration of the examination, the secure location where the document is to be returned and the intended timings of the operation.
There is no doubt due to the purported value of the questioned document that most professional security organisations will not accept liability and formalised indemnity will be sought in respect of the transportation and security process.
As a result of the purported value of the questioned document, the recorded threats made against the security of the questioned document and the family of the plaintiff we would recommend that any security transportation process be undertaken in consultation with the New South Wales Police.”
--
“Due to the limited information currently available I am not able to provide any indicative costing for the security transportation operations.”
25. Mr. Lambie subsequently advised that before he would be able to quantify his costs of providing security to transport the document from Raby to Manly [ Australia ], remain with it and bring it back up to four [ 4 ] times, he would first [ 1st ] need to undertake a security assessment. The cost of such an assessment was said to be $1200.
26. Mr Hamod’s affidavit is relatively long and difficult to summarise. It tells a remarkable and intriguing tale going back to June 1994 when Mr Hamod received the Certificate for security for costs and commissions said to have been earned by him for the supply of services for the sale of several other certificates held by PT GALAXY TRUST INDONESIA. Mr. Hamod said that in June 1994 he conducted a due diligence on the Certificate with Pierre Grumbacher, the clearance officer of the Second Defendant [ UBS AUSTRALIA LIMITED ] through ALFIMA TRUST Tand satisfied himself that the Certificate was authentic and valid and issued by the Second Defendant [ UBS AUSTRALIA LIMITED ] as a Bearer Certificate for a Deposit of Platinum.
27. However, in the following month, a group of business people from Italy headed by Antonio Enini ( the Enini Group ) kidnapped Mr. Hamod and Michael O'Dowd, the representative of PT GALAXY TRUST INDONESIA [ NOTE: see, e.g. Dr. Edison Damanik ], and escorted them to Italy where they were kept under tight security for a period of time and where they were subject to attempts to force them to negotiate the sale of the Certificate and other certificates to clients of the Second Defendant [ UBS AUSTRALIA LIMITED ]. In early August 1994 the Enini Group then escorted them to Zurich [ Switzerland ] to negotiate the sale of the Certificate and other certificates to MANIX GROUP LIMITED, a client of the Second Defendant [ UBS AUSTRALIA LIMITED ]. Mr. Hamod said that while in Zurich [ Switzerland ], Mr. George Kurian introduced Ms. Mary Podge, a former secretary of the board of the Second Defendant [ UBS AUSTRALIA LIMITED ], who inspected the Original of the Certificate and confirmed that it was authentic and valid and issued by the Second Defendant [ UBS AUSTRALIA LIMITED ].
28. In August 1994, while staying in a hotel in Zurich [ Switzerland ], Mr. Hamod deliberately caused a public nuisance so that the Switzerland police would arrest him and assist him and Mr. O'Dowd to escape from the Enini Group. Between early August and August 22, 1994 the Switzerland police kept Mr. Hamod in custody with the original of a Certificate to investigate its authenticity and validity. About August 22, 1994 the Switzerland police released Mr. Hamod after they had confirmed that the Certificate was authentic and valid "and issued by the Swiss authority" through the Second Defendant [ UNION BANK OF SWITZERLAND AUSTRALIA LTD. (aka) UBS AUSTRALIA LIMITED ]. Mr. O'Dowd was found alive in Italy.
29. Mr. Hamod said that as a result of his refusal to deposit the Certificate in the Safe-Keeping account in a bank in Switzerland, he was asked to leave the country as the Certificate was a Bearer Certificate and his life was in danger so long as he carried with him. Subsequently, an armed unit of the Switzerland Armed Forces escorted him through Zurich [ Switzerland ] and the airport to the door of a waiting plane.
30. In late August 1994 Mr O'Dowd escaped from the Enini Group and resumed negotiations for the sale of other certificates to Metropolitan Life Assurance of America, a buyer that Mr Hamod had previously introduced. In September 1994 Mr O'Dowd, on behalf of PT Galaxy Trust, demanded that he return the Certificate before it would pay his costs and commissions from the sale of other bullion certificates. Mr Hamod said that when he refused to do so before payment of his costs and commissions, Mr O'Dowd and his associates threatened to kidnap Mr Hamod's daughter and rape her until such time as the certificate was returned.
31. Back in Australia by October 1994, Mr. Hamod then attended the Nowra [ Australia ] police station with the original Certificate and with documents associated with the sale of other Bullion Certificates. Mr. Hamod said that he was also in possession of other documents giving him the lawful right to hold the Certificate until such time as he received payment of his costs and commissions. He lodged complaints about the threats from Mr. O'Dowd and his associate Mr. Clarke to kidnap his daughter and harm her. Mr. Hamod said that Detective Superintendent Green inspected the Certificate and conducted a due diligence on its authenticity and validity and on associated documents. Detective Superintendent Green referred the matter to the Australian Federal Police.
32. That same month Senior Constable Dunlop of the AFP [ Australia Federal Police ] called Mr Hamod and arranged to interview him about the threats that had been made. Senior Constable Dunlop subsequently informed him that the AFP had received a complaint from Interpol about the alleged theft of the Certificate from the Indonesian authority. Apparently unknown to him at this time, officers of the first defendant and of the AFP installed listening devices on his phones and in his house. In the meantime, Mr. John McMurtrie, the managing director of the second defendant, conveyed an invitation to him through Mr. Nicholas Wall to deposit the original of the Certificate in a safekeeping account with the second defendant against which he could draw funds from time to time.
33. Mr. Hamod then says that from December 5, 1994 in the face of his refusal to trade with the Second Defendant [ UBS AUSTRALIA LIMITED ] on the Certificate on the terms and conditions stipulated by Mr McMurtrie, including his execution of a guarantee document for payment of $600,000,000 million in commission to Mr. Wall and others, Mr. Philip Ludowici and others from the second defendant conspired with corrupt police officers to collect the original of the Certificate, fabricate evidence to injure him, and damage his reputation and his business.
34. On December 5, 1994, January 2, 1995 and January 20, 1995 Mr. Hamod supplied the Second Defendant with a full copy of the Certificate and asked it to conduct due diligence and confirm its authenticity and validity. According to Mr. Hamod, Mr. Ludowici and Mr. Philip Muhlbauer, both executive officers of the Second Defendant, forged 1-page of a certificate and made written statements to the police alleging that the forged page was a copy of the Certificate in his possession. On January 20, 1995 Mr. Hamod was arrested. On the same day the New South Wales Police raided his house and his office. His documentary and electronic records associated with the Certificate were seized and detained together other business and personal records.
35. In February 1996, the Certificate was collected by police officers from the exhibits safe and taken without Mr. Hamod's knowledge or consent to Switzerland where it was handed over to "third parties" without a court order or other authority to do so. Police officers ultimately returned the Certificate to the safe.
36. On April 3, 1998, after the dismissal of charges against him at committal, police officers refused to release the Certificate to Mr. Hamod. Magistrate Horler ordered it to be returned to him forthwith.
37. Mr. Hamod says that between 1994 and 2007 a number of business consultants and financial institutions have conducted due diligence enquiries on a copy of the certificate and "confirmed" that the Certificate is authentic and valid. In late March 2000, HSBC [ HONGKONG SHANGHAI BANKING CORPORATION ] supplied a copy of the Certificate to Pierre Grumbacher, the Second Defendant's [ UBS AUSTRALIA LIMITED ] clearance officer, who confirmed the authenticity and validity of the Certificate from the copy of the original.
38. Mr. Hamod has sworn a statement dated 26 July 2007 for use in the principal proceedings. It was not read before me but I am aware that it is extremely voluminous. Mr. Hamod sought to refer to some 28 exhibits to that statement. Some of these are contained in a volume of material described as a "bundle of documents from which an inference may be drawn that [ the Second Defendant ( UBS AUSTRALIA LIMITED ) ] acknowledged the validity of the Platinum Certificate or alternatively positively asserted its invalidity". Of these, only exhibits AH18, AH20, AH41, AH103, AH166, AH178, AH200, AH203, AH 205, AH208, and AH219 are included in the volume. This material will presumably be relied upon in support of the proposition that the Second Defendant [ UBS AUSTRALIA LIMITED ] has approached the validity of the Certificate in an inconsistent and opportunistic way so that the force of an indignant assertion that it should be entitled to examine it forensically is correspondingly reduced.
39. It is important immediately to observe that almost none of the documents contained in the bundle lend support to this argument. For example, AH174 is a document that has been executed by Mr. Hamod. It appears neither to have been issued nor adopted by the Second Defendant [ UBS AUSTRALIA LIMITED ]. Similarly, AH178 is a letter from Saade Makhlouf to Mr. Hamod and contains nothing that would appear to bind the Second Defendant [ UBS AUSTRALIA LIMITED ] to a particular view about the authenticity of the Certificate. Unfortunately, almost all of the other documents in the bundle fall into this category.
40. One document that does not, is a letter from Allens Arthur Robinson dated April 4, 2005 to Krohn Rechtsanwälte. Paragraph 4 of that letter is in the following terms:
- "You correctly note that no agreement has been reached between UBS [ UNION BANK OF SWITZERLAND ] and your client concerning the realization of the Certificate. This is because the Certificate is not valid. We are instructed that it is a forgery and was not issued by UBS [ UNION BANK OF SWITZERLAND ]. Indeed, we are instructed that UBS [ UNION BANK OF SWITZERLAND ] does not - and never has - issued bearer Certificates for Platinum Bullion or any precious metals. UBS [ UNION BANK OF SWITZERLAND ] has consistently denied the validity of the Certificate. Mr. Hamod has been told this many times. It has also been made clear to all of the various legal representatives that Mr. Hamod has used during the course of the Australia legal proceedings."
41. Part of Paragraph 8 of the same letter, to similar effect, is in the following terms:
- "As the Certificate is not valid and was not issued by UBS [ UNION BANK OF SWITZERLAND ]:
- ( a ) UBS [ UNION BANK OF SWITZERLAND ] does not know what "Guarantee of Certificate No. 4404 C.H. 27009” is purported [ sic ] to mean but considers it to be a nonsense; and
- ( b ) the Certificate has no legitimate value."
42. Doing the best I can, I have been unable to detect any single document in the bundle from which an inference could be drawn that the Second Defendant [ UNION BANK OF SWITZERLAND AUSTRALIA LTD. (aka) UBS AUSTRALIA LIMITED ] had at some time acknowledged the validity of the Certificate. Certainly the Second Defendant's defense to the sixth [ 6th ] amended statement of claim pleads in unequivocal terms that the Certificate was "a forged, bogus and invalid document". I am unaware that the Second Defendant has adopted any other view of the Certificate in its responses to any previous versions of the current statement of claim.
43. Mr. Hamod's Affidavit contains the assertion that because the Second Defendant [ UNION BANK OF SWITZERLAND AUSTRALIA LTD. (aka) UBS AUSTRALIA LIMITED ] has filed a defence to the sixth [ 6th ] amended statement of claim, pleading that the Certificate is a forgery, it "has no need to inspect the original of the Certificate." This contention seems to me either to confuse or to ignore the distinction on the one hand between a pleaded fact, and the burden that may be imposed upon a party to litigation to lead evidence in order to prove it on the other hand.
44. Mr. Hamod was cross-examined on his affidavit.
Some extracts from that cross-examination are set out below:
QUESTIONS BY: M.R. SPEAKMAN ( S.C. )
ANSWERS BY: ANTHONY HAMOD ( 1st PLAINTIFF )
Q. Did you travel to Beirut [ lebanon ] in February 2005?
A. Yes, I did.
Q. You are familiar with the Platinum Certificate that is much talked about in these proceedings?
A. Yes, I am but not an expert, just from what I was told.
Q. When you travelled to Beirut in February 2005, did you take the Platinum Certificate with you?
A. Yes, I did.
Q. On February 17, 2005 did you have a meeting at your brother's [ Salim Hamod ] house on the outskirts of Beirut [ Lebanon ]?
A. Yes, I did.
Q. At that meeting, was there a Mr. Ehlert?
A. Stephen Ehlert.
Q. Did he tell you who he was?
A. Yes.
Q. What did he say?
A. He was the Chief of the BKA, INTERPOL for the Middle East and he was the representative of the Germany government working out of the Germany Embassy in Beirut [ Lebanon ].
Q. Was there a Mr. Hadad at the meeting?
A. Yes.
Q. Did he tell you who he was?
A. Yes, he was assistant to Mr. Ehlert and he was member of the BKA INTERPOL of the Middle East.
Q. Was Mr. Jason Lymbery at the meeting?
A. I believe, yes.
Q. Who was he?
A. He's I disagreeistant. He travels with me whenever security is involved. He travels with Beirut [ Lebanon ] for the purpose to looking after me.
Q. Was Mr. Kamil Hamod at the meeting.
A. That is my brother.
Q. Was he at the meeting?
A. Yes.
Q. Was Mr. Pierre Hamod at the meeting?
A. Yes.
Q. Is he your brother?
A. Yes.
Q. Was the Platinum Certificate at the meeting?
A. Yes. And Mr. Salim Hamod was there too.
Q. You agree that, apart from the people that I have asked you about, no one else was at the meeting?
A. No. There was someone else at the meeting. My Sister-in-law ( Salim Hamod's wife ) Veronica [ Hamod ] was there. And my Sister-in-law ( Mary ) I think may have been in and out because she, they was serving coffee, drinks, what ever, and I'm not sure whether my brother ( Paul ) was there or not, but I think he was there. He might have gone to get something, back in the meeting again.
The focus was between me and Mr Ehlert, Mr. Haled and Salim [ Hamod ].
Q. Is your best recollection apart from the people you have named as being there and may or may not have been there, there was no one else at the meeting.
A. Not to the best of my recollection, no.
Q. No one else?
A. Salim, my brother was there.
Q. No one else?
A. Not to the best recollection.
Q. At the meeting, did you produce the Original of the Platinum Certificate?
A. Yes, that's the purpose of the meeting was for, for inspection of that Certificate.
Q. Did you show that to Mr Ehlert?
A. Yes. Actually I put it on the table and Mr. Ehlert looked at it page-by-page while I'm standing beside it.
Q. When you travelled to Beirut [ lebanon ] in February 2005, did you fly there from Sydney [ Australia ]?
A. Yes.
Q. Who accompanied you on the aircraft?
A. Jason Lymbery and my brother Salim [ Lymbery ] from Beirut [ Lebanon ] to here. Mr. Jason Lymbery accompany me from here to Beirut [ Lebanon ] and back to Beirut [ lebanon ] for security reason and my brother, Salim [ Hamod ] travelled from Beirut [ Lebanon ] to Sydney [ Australia ] to accompany me from Beirut and Sydney and back.
Q. On the aircraft, did you carry any weapons?
A. No.
Q. Did you have the Platinum Certificate in your possession on the aircraft?
A. Yes."
--
"SPEAKMAN
Q. You then deposited the platinum certificate in a deposit box?
A. Yes. Then I arranged to open account --
Q. --just answer my questions. Was that a deposit box with the bank you named?
A. Yes, BERENBERG BANK [ Hamburg, Germany ].
Q. Which branch that was deposited?
A. In Hamburg [ Germany ], in the office actually.
Q. Look at page 314. Did you return to Beirut [ Lebanon ] on March 11, 2005?
A. Yes, I did.
Q. Did you return to Sydney on March 16, 2005?
A. If I stated it here, yes, I did.
Q. When you returned to Sydney [ Australia ], did you have a certificate with you?
A. No. It was in a deposit box in the BERENBERG BANK in Germany.
Q. Is the certificate now in Australia?
A. Yes.
Q. When did it return to Australia?
A. I travelled back to Beirut [ Lebanon ] with Salim [ Hamod ] in April [ 2005 ] and collected the certificate and returned back to Australia.
HIS HONOUR: April this year [ 2005 ].
WITNESS: 2005.
SPEAKMAN
Q. When you returned back to Australia, did you fly back to Australia?
A. Yes, I did.
Q. Were you accompany by your brother, Salim [ Hamod ], on that flight?
A. No.
Q. Were you accompanied by any one on that flight?
A. No.
Q. Did you carry any weapons on that flight?
A. No but I had an assurance from -- "
--
"Q. You gave evidence that you went to Beirut [ Lebanon ] and there were people there, I think, described Mr. Ehlert and also the chief of the BKA?
A. The Ehlert is the Chief.
Q. Were there any arrangements made regarding security at that time?
A. Yes.
Q. What were they?
A. Mr Ehlert is the chief of Interpol and he arranged for security to accompany us from Sydney [ Australia ].
Q. What was the security?
A. Members of INTERPOL were on the same flight. He told me which flight number to select and he told me he arranged security with INTERPOL to accompany me all the way to Beirut [ Lebanon ] and all the way to Germany, back to Beirut [ Lebanon ] with the security.
Q. Did you ever see any one carrying weapons who accompanied you?
A. I did see a couple of people looking at us, fit people, seems to be security people but I didn't see any weapons.
Q. You then gave evidence about a meeting with Dr. Nielsen in Hamburg [ Germany ]. Was there any security arrangements made for that particular occasion?
A. There was security arranged by Mr. Ehlert. All the through during our entire visit to Germany but I did not see any security people around me.
Q. Mr. Ehlert is the Chief of the BKA?
A. Yes.
Q. That's --
A. -- for the Middle East.
Q. What's the BKA?
A. BKA is actually, I got the business card, equivalent to Federal Police of the Australia, Australia Federal Police.
Q. When you have had the meeting at BERENBERG BANK, did you observe any security on that occasion?
A. There was security people at the door, there is security people outside the room.
Q. On the flight back to Australia, firstly prior to that flight, was there any security that accompanied you?
A. I made arrangement with the CIA [ Central Intelligence Agency ] in America and with [ Mossad ] to accompany me --
OBJECTION ( SPEAKMAN )
Q. What if any security arrangements were made, on the flight in respect of coming back to Australia in 2005?
A. I made arrangements with Tom Luns ( ? ) and CIA [ Central Intelligence Agency ] to provide security for me to collect the certificate from Germany back to Australia.
Q. Who is Tom Luns?
A. Tom Luns is number 3 in CIA, from the top.
Q. At any time, Mr Hamod, in any of these meetings, did you leave the certificate in the hands of other people without you being present?
A. Never out of my sight. Never out of my hands even when Dr Nielsen seen it, I had to flick page by page. He was not allowed to see it, hold as a whole document.
Q. You gave evidence about the document being put in the box with the Berenberg Bank. Do you know what security there was in relation to that deposit box?
A. There was a lock up key, I have got the key up to day, still the box. The key with me. The key is with my brother, Salim, in case of my death.
HIS HONOUR
Q. Did you ever let the certificate out of your possession?
A. Never.
Q. Where is it today; I don't mean the address. Is it with you here today?
BARAN: I objection to your question."
--
"HIS HONOUR: You see my dilemma. If the contention is going to be and it may be a perfectly reasonable statement “I never let out of it my possession”. Somebody might suggest to me that that doesn't make any sense unless with it's with him now.
--
BARAN: Could I ask leave to ask questions arising out of what your Honour said."
--
"Q. Is it your position that you have the certificate put away somewhere safe?
A. It is in the safe deposit box. Only 2 people knows where the box is. And access to the box is my brother, Salim.
Q. Is it your position that the issue you raised before his Honour is that when it comes to showing that certificate to any one else, you must be present?
A. That's correct."
45. A number of things emerge from this evidence:
First, Mr. Hamod has travelled outside Australia as recently as 2005 with the Certificate.
Secondly, these trips with the Certificate were made either without elaborate security arrangements or alternatively in circumstances where Mr. Hamod arranged his own security.
Thirdly, the Certificate has not remained in Mr Hamod's physical custody or possession at all times. For example, there were times when he took the Certificate overseas and when he gave his evidence before me when the certificate was in a safety deposit box or place of safe custody rather than in his immediate personal custody.
46. It also emerges from the evidence before me that the Certificate is not presently insured and was not insured even on trips outside Australia. There seems to be no dispute that the Certificate is, in practical terms, uninsurable. Certainly no evidence of the Certificate ever having been insured has been provided and the strong inference from the response to the notices to produce is to like effect.
47. Moreover, there is no material before me that records the type of security arrangements that were put in place when the Certificate was taken overseas in the way described. This absence stands in relatively stark contrast to the security arrangements that Mr. Hamod urges are now necessary for the purposes of the examination of the Certificate sought by the second defendant.
48. On behalf of the Plaintiff [ Anthony Hamod ] it is argued in opposition to the inspection that it is without utility. This is because the Second Defendant [ UBS AUSTRALIA LIMITED ] has always maintained that the certificate was invalid or a forgery. According to this argument, nothing that could possibly emerge from Mr. Westwood’s examination of the Certificate could alter that position.
49. That argument is somewhat curious. If Mr. Westwood's examination of the Certificate demonstrated, contrary to the second defendant's contentions, that it was in fact valid and genuine, the status of the second defendant's sworn defence would be immediately imperilled. It does not appear to me to be accurate to suggest that the second defendant can or should be limited to evidence upon which it presently intends to rely if better evidence were available. This is so even though Mr Westwood's examination of the certificate may produce results that support the plaintiff.
50. It will be recalled that in my judgment on July 19, 2007 I made the following remarks about the relevance of an understanding of whether or not the Certificate is or is not genuine:
- "[ 23. ] The Plaintiff [ Anthony Hamod ] argues that no good reason has been provided by the second defendant for the forensic examination to take place in any event. However, it seems to me that that proposition flies in the face of the facts which underpin the very proceedings which the Plaintiff [ Anthony Hamod ] has commenced. The unfortunate arrest and temporary incarceration of the plaintiff were significantly associated with an anticipation on the part of the New South Wales Police Service that the Plaintiff’s [ Anthony Hamod's ] Certificate was not genuine or that its provenance, when properly understood, gave no support to the Plaintiff’s [ Anthony Hamod ] contention that his possession of it was lawful.
- [ 24. ] The admissibility of any report prepared by Mr. Westwood proving the results of his examination of the Platinum Certificate is not an issue with which I am presently concerned. It seems to me reasonably arguable that the second defendant has good reason to seek an examination of the document and I consider that it should not be frustrated in its attempt to do so unless very good reasons can be shown."
51. The significant issue before me is whether or not transportation within Australia for the purpose of scientific examination of the Certificate from an undisclosed location near Sydney [ Australia ] to the suburb of Manly [ Australia ] ought to be ordered having regard to the security concerns expressed on behalf of the plaintiff. It is not suggested that the Court does not have the power to make such an order.
52. In my opinion such an order should be made. It should be made having regard to the undertakings proffered by the second defendant which the plaintiff has acknowledged are acceptable to him. It should be made on terms that Mr Hamod is entitled to remain with, or in close proximity to, the Certificate at all times, including being within any room at Mr Westwood's premises where scientific testing takes place. It should be made on terms that Mr Hamod make such arrangements for the security of the Certificate while it is being transported to Mr Westwood's premises as he is advised to make having regard to his particular experience from previous occasions when he has transported the Certificate both between locations within Australia and to destinations overseas.
53. Bearing in mind that the date referred to in the second defendant's notice of motion has now passed, and in order that the parties may have the best opportunity to formulate orders most suitable to them in the light of the matters to which I have referred, I invite the them to bring in draft minutes of an order giving effect to what I have proposed.
LAST UPDATED: November 30, 2007
Reference
www.austlii.edu.au/au/cases/nsw/supreme_ct/2007/1366.html
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Hamod v State of New South Wales ( No. 7 ) [ 2007 ] NSWSC 1395 ( 8 October 2007)
Last Updated: December 3, 2007
NEW SOUTH WALES SUPREME COURT
CITATION: Hamod v State of New South Wales ( No 7 ) [ 2007 ] NSWSC 1395
JURISDICTION:
FILE NUMBER(S): 20147 of 2003
HEARING DATE{S): October 8, 2007
JUDGMENT DATE: October 8, 2007
PARTIES:
Anthony Hamod ( First Plaintiff )
HAMOCK INVESTMENTS PTY. LIMITED ( Second Plaintiff )
State of New South Wales ( First Defendant )
UBS AUSTRALIA LIMITED ( Second Defendant )
JUDGMENT OF: Justice Harrison
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
R.T. McKeand SC and D.E. Baran ( Plaintiffs )
M.T. Hutchings ( First Defendant )
M.R. Speakman SC ( Second Defendant )
SOLICITORS:
Simon Diab & Associates ( Plaintiffs )
I.V. Knight, Crown Solicitor ( First Defendant )
Allens Arthur Robinson ( Second Defendant )
CATCHWORDS: CIVIL PROCEDURE – interlocutory application for access to documents for forensic examination – costs of security arrangements
LEGISLATION CITED:
CASES CITED:
DECISION: See paragraph [ 10. ] for details of orders made.
JUDGMENT: IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
JUSTICE HARRISON
October 8, 2007
20147 of 2003
Anthony Hamod & Anor v State of New South Wales & UBS Australia Limited
JUDGMENT:
1. JUSTICE HARRISON: On October 5, 2007 I published my reasons for judgment on the question of access by the second defendant to the Platinum Certificate for the purposes of expert forensic examination. I invited the parties to bring in draft minutes of an order giving effect to what I proposed.
2. The matter came before me this morning on a number of issues including the proposed form of orders for that purpose. Subject to two [ 2 ] matters, the parties are effectively in agreement as to what should occur.
3. The first [ 1st ] of those matters is the question of the cost of security arrangements that Mr. Hamod considers necessary to put in place for the transport of the Platinum Certificate to and from Mr. Westwood's premises at Manly. The Plaintiff contends that the Second Defendant [ UBS AUSTRALIA LIMITED ] should bare such costs. The Second Defendant [ UBS AUSTRALIA LIMITED ] contends that the plaintiff should pay for these costs himself.
4. At present I do not have evidence before me of what the cost might be to secure the safe passage of the Platinum Certificate on its proposed journeys to and from Manly. As my judgment has suggested, the document is wholly uninsurable. Furthermore, no specific security proposal has been formulated.
5. The evidence reveals that Mr. Hamod has from time to time travelled to various Australia and international locations with the Platinum Certificate, apparently quite safely. Despite having been involved in some quite extraordinary adventures since coming into possession of the certificate, including the fact of possession of it having been taken from him by third parties for some time, the document has always been returned to Mr Hamod and remains in his possession now.
6. The success which Mr Hamod has so far had in conveying the certificate to and from various destinations leads me to conclude that it is highly likely that he will be able to do so again for the limited purposes of the proposed inspection. Significantly, apart from general concerns for the document's safety, the evidence does not reveal a specific threat of any sort which I could meaningfully consider in forming my views on this issue.
7. In my opinion Mr. Hamod should make, and should bear the cost of, his own security arrangements.
8. Secondly, the costs of the application are sought by each of the parties to it. In addition, the second defendant seeks an Order that the Plaintiff pay its costs of the Notice Of Motion filed on July 12, 2007 and that those costs be assessable and payable forthwith.
9. The second defendant was successful in its application for an order that the Platinum Certificate be examined by its forensic document examiner. I am not satisfied that there are any circumstances which would displace an order that the plaintiff pay the second defendant's costs of the motion in those circumstances. However, the ultimate allocation of costs as between and among the parties in these proceedings is potentially complicated. In my opinion it is appropriate that assessment and recovery of such costs should await the making of final costs orders when the proceedings are concluded.
10. Accordingly, the following orders should be made:
1. Order that, subject to Order 5, the first plaintiff deliver to Paul Westwood on October 22, 2007 and on each of the succeeding 3-days at the Manly premises of FORENSIC DOCUMENT SERVICES PTY. LTD. the Platinum Certificate which is the subject of these proceedings.
2. Order that, subject to Order 5, Paul Westwood be permitted to conduct non-invasive examinations of the certificate at those premises between 9:00 a.m. and 6:00 p.m. on each day, or between such earlier and later times as the First [ 1st ] Plaintiff [ i.e. Anthony Hamod ] and the Second [ 2nd ] Defendant [ UBS AUSTRALIA LIMITED ] may agree.
3. Order that the first plaintiff shall be entitled to remain with, or in close proximity to, the Platinum Certificate at all times while it is at the premises pursuant to Order 1 and Order 2, including being in any room at the premises in which examinations are taking place.
4. Order that, subject to Order 5, Paul Westwood return the Platinum Certificate to the First Plaintiff [ Anthony Hamod ] by no later than 6:00 p.m. on each day, or such later or earlier time as may have been agreed.
5. Order that, if earlier than 6:00 p.m. on the last examination day Paul Westwood informs the First Plaintiff [ Anthony Hamod ] that he has concluded his examinations pursuant to Order 2, Mr. Westwood should give the certificate to the First Plaintiff [ Anthony Hamod ] at that time and the First Plaintiff [ Anthony Hamod ] will not thereafter be required to give it to Mr. Westwood again on any remaining days.
6. Note that the first plaintiff should make at his own cost such arrangements as he is advised to make or considers necessary for the security of the Certificate while it is being transported to and from the premises and that the second defendant will not be responsible for maintaining the security of the Certificate at those times.
7. Grant liberty to the parties to apply on 3-days notice.
LAST UPDATED: November 30, 2007
Reference
www.austlii.edu.au/au/cases/nsw/supreme_ct/2007/1395.html
- -
Hamod v State of New South Wales ( No 10 ) [ 2008 ] NSWSC 611 ( June 18, 2008 )
Last Updated: June 19, 2008
NEW SOUTH WALES SUPREME COURT
CITATION: Hamod v State of New South Wales ( No 10 ) [ 2008 ] NSWSC 611
JURISDICTION:
FILE NUMBER(S): 20147 of 2003
HEARING DATE(S): June 17, 2008
JUDGMENT DATE: June 18, 2008
PARTIES:
Anthony Hamod ( First Plaintiff )
Hamock Investments Pty Ltd ( Second Plaintiff )
State of New South Wales ( First Defendant )
UBS Australia Limited ( Second Defendant )
JUDGMENT OF: Justice Harrison
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
R.T. McKeand SC ( Plaintiffs )
J.E. MacOnachie QC with M.T. Hutchings ( First Defendant )
M.R. Speakman SC ( Second Defendant )
SOLICITORS:
SIMON DIAB & ASSOCIATES ( Plaintiffs )
I.V. Knight, Crown Solicitor ( First Defendant )
Allens Arthur Robinson ( Second Defendant )
CATCHWORDS: EVIDENCE – s 136 Evidence Act 1995 – application by a defendant to limit the use to be made of evidence potentially unfairly prejudicial to that defendant – documents admitted only as evidence of their contents and not as evidence of their truth EVIDENCE – criminal proceedings in Local Court – proceedings against present plaintiff as defendant dismissed – application by plaintiffs to tender transcript of proceedings in claim for malicious prosecution – no particular portion of transcript identified by plaintiffs as relevant to a fact in issue – tender rejected
LEGISLATION CITED: Civil Procedure Act 2005, and Evidence Act 1995
CATEGORY: Procedural and other rulings
CASES CITED:
A v. New South Wales [2007] HCA 10
Commonwealth v. Griffiths [2007] NSWCA 370; (2007) 245 ALR 172
D'Orta-Ekenaike v. Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Jamieson v. The Queen [1993] HCA 48; (1993) 177 CLR 574
R v. Beydoun (1990) 22 NSWLR 256
Ringrow Pty Ltd v. BP Australia Limited [2003] FCA 933
Roach v. Page (No 11) [2003] NSWSC 907
Young v. Coupe [2004] NSWSC 546
TEXTS CITED:
DECISION:
1. Pursuant to s 136 Evidence Act 1995 I limit Exhibits AU to AAAK inclusive in accordance with the terms of the usual document limitation.
2. I reject the tender of the whole of the transcript of the proceedings before Magistrate Horler in the Local Court.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
JUSTICE HARRISON
June 18, 2008
20147 / 2003
Anthony Hamod and Hamock Investments Pty. Ltd. v State of New South Wales and UBS Australia Limited ( No 10 )
JUDGMENT:
1. HIS HONOUR: On the eleventh [ 11th ] day of the hearing it became necessary to consider two [ 2 ] separate applications by the Plaintiffs to tender certain documents.
Section 136 Evidence Act 1995
2. First, on 13 June 2008 the plaintiffs tendered a series of documents that were referred to in the first plaintiff's principal statement in the proceedings. Those documents were admitted by me and became Exhibits AU to AAAK inclusive: see transcript 409-420 inclusive.
3. The second defendant had objected to the tender of those documents. At the point of their admission the second defendant sought in the alternative an order pursuant to s 136 of the Evidence Act 1995 limiting the use that could be made of them. The precise terms of that limitation were described as the "usual document limitation", which was defined to mean that a document so limited should be admitted only as evidence of the contents of a communication in the form of that document between the named author or authors of the document and the addressee or addressees of the document, and not as evidence of the truth of its contents (including not as evidence of any earlier communication to which the document may have referred). Not all of the documents tendered were a communication properly so described but the limitation on the use of the documents sought by the second defendant is not for present purposes relevantly affected.
4. Section 136 evinces a legislative intention to allow evidence, otherwise admissible, to be rejected or its use to be limited if a particular use of the evidence might be unfairly prejudicial to a party: see Roach v Page (No 11) [2003] NSWSC 907. In that case Sperling J, after referring to authority, said at par 34:
"[ 34. ] Where s60 is involved, a further consideration is introduced. The following observations were made, albeit in obiter, in Quick v Stoland Pty Limited (1998) 87 FCR 371. Branson J said at 377-8:
'It is not necessary in the context of this case to give detailed consideration to the circumstances in which, and the extent to which, evidence of the factual basis of an expert opinion will amount to evidence of the truth of that factual basis: cf Eastman v The Queen (1997) 76 FCR 9 at 78-79. It may be that a different result will follow depending upon the form in which the expert gives evidence of the factual basis of his or her opinion; that is, whether such evidence is given in the form of a representation or, alternatively, in the form of an identification of a hypothetical assumption. If s60 of the Act does operate to give mere form significance in this way, the result cannot be regarded as entirely satisfactory. In cases where there is a genuine dispute as to the relevant facts, it might be expected that a court would ordinarily limit the operation of s60 of the Act by exercising the power vested in it by s136 of the Act'."
5. At pars [ 37. ] and [ 38. ] his Honour continued as follows:
"[ 37. ] According to these opinions, where hearsay representations of fact are included in a document as the basis for an expert opinion stated in the document and the facts so represented are contentious, there is a strong case for limiting the use of such representations to their role as assumptions on which the opinion is based. That the representations in the document have become evidence of the facts stated by the fortuitous circumstance that they provide the basis for an expert opinion is seen as an imposition on the opposite party amounting to unfair prejudice.
[ 38. ] By parity of reasoning, the same circumspection should apply where a document admitted into evidence as part of a relevant course of events is relied upon as evidence and opinions of the facts stated in it pursuant to ss 60 and 77. That is particularly so where the opposite party cannot test the truth of the representations by cross-examination, or where the basis of the opinion is not adequately disclosed."
6. None of the documents that the plaintiffs sought to tender was an expert opinion, but the principles referred to by his Honour apply by analogy to the present case notwithstanding.
7. In Young v Coupe [2004] NSWSC 546, White J dealt with an application to limit the use of a valuation report provided by an expert in the proceedings. At par [19] his Honour said that, because the report was relevant for a purpose other than proof of the value of a particular property, it was not appropriate to exclude it pursuant to s 135 of the Evidence Act 1995. His Honour said that the question was whether the use that could be made of the report should be limited in accordance with s 136. At par [20] his Honour said, referring to the decision of Hely J in Ringrow Pty Ltd v BP Australia Limited [2003] FCA 933 at par [27], that inability to cross examine ordinarily goes to weight rather than admissibility. White J then set out a series of principles which included that when hearsay or opinion evidence is admissible only because the evidence is relevant for a non-hearsay purpose or is relevant otherwise as opinion evidence (s 60 and s 77), special considerations apply. His Honour cited Sperling J in Roach v Page (No 11) (supra) at par [74] as follows:
"[ 74. ] Having regard to the terms and context of ss 135, 136 and 137 and the case law to which I have referred, I set out my view of considerations relevant to "unfair prejudice" as follows:
. . . [ COURT EDITED-OUT: Items ( a ), ( b ), ( c ), ( d ), ( e ), and ( f ) ] . . .
(g) Conversely, where the maker of the representation is available or is not shown to be unavailable and the party tendering the evidence does not call the person, that is a legitimate consideration in favour of a finding of unfair prejudice.
(h) Sections 60 and 77 give rise to special considerations. Unlike other exceptions to the hearsay rule and the opinion rule, it is not the objective of those sections to facilitate proof. They are there to avoid a distinction having to be made about evidence being used for one purpose and not for another. Where a document goes into evidence because the existence of the document is a relevant fact, the operation of these sections without a limiting order under s136 may have a consequence which the legislature cannot have intended. Any representation in the document which is probative of some other element in the tendering party's case becomes evidence of the content of the representation. Representations of fact become evidence of the truth of the representation, irrespective of whether they are first-hand or remote hearsay and irrespective of whether the source of the information is disclosed. Representations of expert opinion in the document are probative of whatever is the subject of the opinion expressed, irrespective of whether the author of the document is qualified to express the opinion and irrespective of whether the assumptions made for the purpose of expressing the opinion are specified. Such consequences cannot have been intended where the opposite party is disadvantaged by such consequences. Section 136 serves to avoid such unfairness."
8. The documents that are the subject of the plaintiffs' tender do not fall into a single category or even into a series of discrete categories that can easily be described. On the contrary, each document brings forth separate and different considerations. At the point when I originally admitted the documents into evidence I did so expressly upon the basis that, having regard to the need to manage this hearing as efficiently as possible, it was preferable, although by no means ideal, later to approach the second defendant's application pursuant to s 136 in the same general fashion.
9. Notwithstanding this approach, Mr. Speakman of Senior Counsel, who appears for the second defendant, sought to draw my attention to some of the documents in particular in order to emphasise the iniquity that he contended would flow from their unconstrained use in the proceedings for all purposes. In this respect it should be noted that the primary, and possibly the only, issue to which these documents were directed was that of whether or not the Platinum Certificate, which is at the heart of these proceedings, was or was not genuine or valid. The plaintiffs contend that it is and the second defendant contends that it is not. The truth or otherwise of the contents of the documents was therefore at the centre of the present debate.
10. Some examples of the documents are as follows. Exhibit AAT is a letter dated 6 January 1995 from HAMOCK INVESTMENTS PTY. LTD. to Nicholas Wall, above the signature of the first plaintiff. The subject matter of that letter is a proposed sale of the Platinum Certificate. The letter contains material suggesting that there may have been potential buyers for the certificate, inferentially supporting the proposition that the certificate is valid. The letter is inherently self-serving. It contains other representations that are arguably incapable of verification.
11. Exhibit AAO is a copy of a page from the Australian Financial Review on June 20, 2006. It contains what is described an "expression of interest" with respect to the sale of the Platinum Certificate. The document contains the following statement, clearly authorised by the First Plaintiff:
"I am the lawful holder of a Certificate of Deposit of Platinum Bullion issued by the UNION BANK OF SWITZERLAND on October 27, 1978 valued at today's prices for (sic) approximately $170,000,000,000 billion ( USD )."
12. The Plaintiffs' attempt to rely upon that statement by the First Plaintiff, as evidence of its truth, is a matter that the Second Defendant contends is prejudicial if admitted as evidence without limitation.
13. Exhibit AAAE is a document of some 213 pages. It is not possible conveniently or accurately to summarise its contents in any meaningful way. Pages 133 and following of that document, however, are portion of a statement by an unnamed person apparently given to the Australia Federal Police in the course of an interview on September 20, 1995 in Vancouver, CANADA.
The prejudice stemming from a document such as this by an unnamed deponent, if admitted into evidence without limitation, needs only to be stated to be understood.
14. Pages 19-21 of the same exhibit are a letter from the first [ 1st ] Plaintiff to federal agent Bishop of the Australia federal police, which contains, among other things, the following statement:
"I have recently received information and documents from overseas sources that confirmed that UBS AG did in fact breach (sic) the Trade Practices Act 1974 of Australia and did in fact commit criminal torts here in Australia including conspiracy to injury and fraud (sic) me and fraud (sic) HAMOCK INVESTMENTS PTY. LTD. from substantial amount of money."
15. That letter contains further similar statements. The second defendant contends that it would be prejudiced if such a letter were received in evidence without the limitation for which it contends.
16. Exhibit AX is a document of 79 pages that also defies convenient or accurate description. Page one of that exhibit is a letter dated 11 March 1994 from HAMOD HOLDINGS PTY. LTD. to Michael Brendan O'Dowd. That letter commences with an opening paragraph that includes the words "I wish to confirm that the Buyer's mandate had authenticated the Platinum Certificate". The letter is signed by the first plaintiff. It is unnecessary to elaborate upon the obvious prejudice that the second defendant says flows from the unlimited reception into evidence of such a document.
17. It was urged upon me by the second defendant that if my original decision to admit the documents under consideration into evidence was made having regard to the need to manage the present hearing efficiently, my adjudication of its application for a limitation upon that evidence pursuant to s 136 ought also to be informed by a similar approach.
18. Mr. McKeand of Senior Counsel, who since 2:00 pm on June 10, 2008 has appeared for the plaintiffs, argued that what he described as a "blanket approach" was not appropriate. Mr McKeand contended that notwithstanding the approach taken by me to the reception of the documents that he tendered, limiting the use of the documents pursuant to s 136 should be dealt with on what amounted to a case-by-case basis. Whereas such an approach undoubtedly conforms to principle, it seems to me that the documents tendered by the plaintiffs are so offensive to the notion that they should be admitted as evidence of the truth of their contents that a general approach in this case is warranted. In other words, special considerations apply. This is particularly so in my opinion having regard to the overriding principle described in s 56 of the Civil Procedure Act 2005.
19. Alternatively, Mr. McKeand contended that the documents were business records falling within s 69(2) of the Evidence Act 1995 and that as such should be admitted as exceptions to the hearsay rule. It will be immediately apparent that such a submission itself draws upon the need to reply upon generalities or what Mr McKeand earlier described as a "blanket approach" to make it good. However, even assuming that the documents in question form part of the records belonging to or kept by a person or organisation in the course of, or for the purposes of, a business, it is not possible with sufficient confidence to generalise, having regard to the wildly variable provenance of all of the documents, about whether or not representations contained in them were made by persons who had or might reasonably be supposed to have had personal knowledge of the facts asserted or on the basis of information supplied by a person who did.
20. The second defendant also contends that the plaintiffs ought not to be entitled to the benefit of s 69(2) because it does not apply to representations "prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding": s 69(3). In aid of this submission the second defendant relied upon the fact that s 69(3)(b) extended as well to a representation "made in connection with an investigation relating or leading to a criminal proceeding". Having regard to the fact that the criminal proceedings against the first plaintiff spanned the period from 20 January 1995 until April 1998, and that the present proceedings have themselves been on foot since 2000, much of the documentation sought to be tendered would be excluded under the relevant subsection. Detailed submissions permitting me to make an accurate appraisal of this argument were not provided.
21. In my opinion, a limitation upon the use of the documents in the terms sought by the second defendant is appropriate. Accordingly, what I have earlier described as the "usual document limitation" should apply to Exhibits AT to AAAK inclusive.
Transcript of Local Court proceedings:
22. Secondly, the plaintiffs sought to tender the whole of the transcript of the proceedings in the Local Court before Magistrate Horler. That transcript was Exhibit AH146 to the first plaintiff's principal statement in the proceedings and I am informed that it extends to four lever arch volumes of material. Mr Maconachie of Queen's Counsel who, with Mr Hutchings of counsel, appears for the first defendant, opposed the admission of that material upon the basis that it is irrelevant, is hearsay, and upon the further basis that it infringes principles of witness immunity.
23. One of the plaintiffs' causes of action against the first defendant is malicious prosecution. It was principally in the context of that cause of action that the contest about the application to tender the transcript was heard. The elements of that tort have been recently described in A v New South Wales [2007] HCA 10; at pars [54], [57]-[59] as follows:
"[ 54. ] It is on this basis that the tort has hitherto been understood as requiring proof of two distinct elements, one positive (malice) and the other negative (absence of reasonable and probable cause). The two requirements meet the two different kinds of case posited in Johnstone v Sutton - maliciously taking up a prosecution "for real guilt", and proceeding upon apparent guilt from circumstances which the prosecutor "really believes". That is, the positive requirement of malice, and the negative requirement of absence of reasonable and probable cause, each have a separate role to play in the tort. A conclusion about malice does not render irrelevant the inquiries about what the prosecutor did make, and should have made, of the material available when deciding whether to initiate or maintain the prosecution."
. . . [ COURT EDITED-OUT: Item # 55. & Item # 56. ] . . .
"[ 57. ] There are three features of the present law to which attention should be drawn. First, because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider is where the plaintiff has been acquitted of the offence charged. (It is convenient to leave aside what other circumstances suffice to show that the prosecution has ended in the plaintiff's favour, and focus on the paradigm case of acquittal.) That acquittal is not to be controverted. The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor.
[ 58. ] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.
[ 59. ] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light."
24. It is in my opinion critical for present purposes to observe that at the point of being asked to rule upon the admissibility of the four volumes of Local Court transcript, no party sought to direct my attention to it in any specific or detailed way. Submissions both in support of and in opposition to the tender of that transcript have proceeded upon the basis that a general understanding of the principles circumscribing the causes of action upon which the plaintiffs rely, in aid of the proof of which the transcript is said to be relevant, is sufficient for present purposes. I hasten as well to observe that I am not critical of that approach and indeed I recognise it to be a function of a genuine concern by all parties to this litigation that an efficient management of the proceedings necessarily commands the need for some compromises.
25. The first defendant does not contend that the transcript of the proceedings in the Local Court is in all circumstances and for all purposes inadmissible as a matter of principle having regard to the elements of the causes of action pleaded by the plaintiffs. Indeed, examples were discussed during argument that patently recognised circumstances where portion at least of the transcript may be particularly pertinent to an allegation that a prosecutor maintained a prosecution without reasonable and probable cause. Theoretically at least, therefore, the plaintiffs may seek to rely upon what transpired before the learned magistrate to demonstrate the existence of circumstances that ought to have led the prosecutor immediately to have sought to terminate the proceedings. I should also hasten to note that the plaintiffs do not limit the utility of the transcript only to such hypothetical circumstances. Indeed, Mr. McKeand emphasised that evidence given during the course of the proceedings may well illuminate the prosecutor's anterior decision to commence the prosecution in the first place.
26. The first defendant emphasised, by reference to the sixth amended statement of claim, that the plaintiffs have never sought to plead as an element of any of their causes of action facts referable to or stemming from anything that took place during the course of the Local Court proceedings. The first defendant says that nothing contained in particulars provided by the plaintiffs, that arguably hints at such a reliance, can be used by the plaintiffs to support any argument that their cause of action is in fact based, or relies, upon any circumstance that can be traced to those proceedings.
27. Mr. McKeand has sought to argue by analogy with the practice commonly adopted in commercial litigation in this Court that the transcript should for present purposes be treated as a bundle of documents admitted into evidence but to which I should only have regard if or when the plaintiffs are able to demonstrate that some portion or portions of it are relevant to the proof of a particular fact in issue. As beguiling as that submission may at first sight appear, it does not seem to me to be an appropriate course to adopt. Although I have not yet had the benefit of examining any portion of the transcript, it seems to me, unaided by that benefit, to be highly likely if not certain that not all of it, and probably not even most of it, will assist the plaintiffs in making out their pleaded case. Resorting once again to the overriding principle that this litigation should be conducted, justly, quickly and cheaply, it seems to me that the only proper and reasonable approach to the plaintiffs' application to tender this transcript is to reject the tender of it as a single exhibit at this stage, but to acknowledge that such a rejection should not operate as a constraint upon the plaintiffs from making such further application or applications to tender and to rely upon such portions of it as are demonstrably, or at least arguably, relevant to a particular issue or issues in the proceedings.
28. The first defendant also argued that the transcript was inadmissible for use in these proceedings upon the basis of witness immunity. In R v Beydoun (1990) 22 NSWLR 256 the Court stated the rule at 259 as follows:
"The rule as generally stated is that no civil action lies in respect of statements made in the course of and with respect to judicial proceedings. The authorities supporting that rule, so far as it precludes an action for defamation, were described as "clear, uniform and conclusive" and the law as "settled" in Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263, 265. So far as statements made by witnesses are concerned, such law was said to be "settled" in the appeal from that decision (Dawkins v Lord Rokeby (1875) LR 7 HL 744 at 754), and as "now quite certain" in Seanam v Netherclift (1876) LR 1 CPD 540 at 545, and as settled and undoubted, and the contrary unarguable, in Watson v M'Ewan [1905] AC 480 at 486. In the last- mentioned case (at 489), the absolute immunity of witnesses was extended to include statements made by them to a party's solicitor when their proofs of evidence are being taken. When dismissing a civil action claiming damages for false evidence given in other litigation, Lord Goddard CJ said that it was "perfectly clear and beyond peradventure" that such an action is unavailable: Hargreaves v Bretherton [1959] 1 QB 45 at 51: see also Roy v Prior [1971] AC 470 at 477."
29. The Court went on to say the following at 260:
"Civil actions such as malicious prosecution and abuse of process are not precluded by the rule, however, because they are based not directly upon statements made in the course of the judicial proceedings, but rather upon the instigation of the proceedings themselves (or upon their continuation), and notwithstanding that the plaintiff may seek to support his case by proving the falsity of statements made in those proceedings which form the basis of such a claim: Revis v Smith (at 141, 142) 1320; Kennedy v Hilliard (at 201); Fitzjohn v Mackinder (1861) 9 CBNS 505 at 533; 142 ER 199 at 210;Dunshea v Ryan (1901) 1 SR (NSW) 163 at 166; Coleman v Buckingham's Ltd [1963] SR (NSW) 171 at 180-181; 80 WN (NSW) 593 at 600; Roy v Prior (at 477-478). The availability of such actions appears to me to accord satisfactorily with the twofold rationale of the rule which the cases have identified.
It follows, in my view, that it is correct to say that no civil action lies in respect of statements made in the course of and with respect to judicial proceedings, provided that that proposition is understood as being limited to those actions which are based directly upon the making of such statements. The proposition does not exclude other civil actions merely because the truth of such statements (or the motive with which they are made) may be in issue in those other actions."
30. In this context I have also been referred, and have had regard, to Commonwealth v Griffiths [ 2007 ] NSWCA 370; ( 2007 ) 245 ALR 172 at pars [42]-[49] inclusive and D'Orta-Ekenaike v Victoria Legal Aid [ 2005 ] HCA 12; (2005) 223 CLR 1 at par [39].
31. These statements are relevant both to a consideration of the plaintiffs' arguments that the immunity should not apply and to the first defendant's argument that it should. This is because in the present proceedings the plaintiff has not demonstrated or identified a statement or statements made in the course of the Local Court proceedings that are said to form the basis of the claims pleaded as malicious prosecution. Conversely, but for the same reason, the first defendant's purported reliance upon the witness immunity rule does not arise until such time as the plaintiffs nominate or identify statements alleged by them to have been made in the course of the Local Court proceedings which are said to form the basis of the claim. Even if the plaintiffs' case for malicious prosecution is said to be based not directly upon statements made in the course of judicial proceedings but rather upon the instigation or continuation of the proceedings themselves, it seems to me that the necessary starting point in an application such as the present must be the identification by the plaintiffs of the statements made in the proceedings that form the basis of the claim which the plaintiffs will seek to demonstrate were false. Until that occurs it is not possible to consider the first defendant's reliance upon witness immunity in a meaningful context. The fact that the first defendant has not pleaded a reliance upon it – a point to which the plaintiffs directed my attention – would appear to be an emphatic enunciation of that proposition.
32. I recognise that in Jamieson v The Queen [ 1993 ] HCA 48; ( 1993 ) 177 CLR 574 at 590 Toohey and McHugh JJ observed that the immunity has been held not to apply to civil actions for malicious prosecution or abuse of process as these actions are based not on statements made in the course of judicial proceedings but on the instigation of the proceedings themselves. The plaintiffs sought to rely upon that statement as one disposing of the first defendant's attempt to rely upon witness immunity as a ground for opposing the tender of the transcript. However, that reliance by the plaintiffs is clearly ill founded to the extent that, on my understanding of the basis of the tender, the plaintiffs wish to direct particular attention to the content of statements made in the course of judicial proceedings, not merely as evidence of, or as something that occurred following, the instigation of the proceedings themselves. Limited to a cause of action based solely on the instigation of the proceedings, without regard to the statements made in the course of the proceedings, the proposed tender of the transcript in toto arguably lacks any obvious utility. Put simply, the passage from Jamieson relied upon does not support the plaintiffs' proposed tender of the transcript, having regard to their avowed intention, in some as yet unexplained way, to rely upon the content of the statements made by witnesses in the course of the Local Court proceedings.
33. Finally, in a way that appears to be self evident, it is not possible for me to give any proper consideration to the first defendant's hearsay objection without scrutinising the actual material sought to be tendered in some small detail at least. This should abide any such application by the plaintiffs to tender specific portions of the transcript as they may make.
34. Accordingly I reject at this stage the tender of the whole of the transcript of the proceedings before Magistrate Horler in the Local Court.
LAST UPDATED: June 18, 2008
Reference
www.austlii.edu.au/au/cases/nsw/supreme_ct/2008/611.html
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Supreme Court of New South Wales Decisions
Hamod v State of New South Wales ( No 11 ) [ 2008 ] NSWSC 967 ( September 17, 2008 )
Last Updated: September 19, 2008
NEW SOUTH WALES SUPREME COURT
CITATION: Hamod v State of New South Wales (No 11) [2008] NSWSC 967
JURISDICTION:
FILE NUMBER(S): 20147 of 2003
HEARING DATE(S): 16 September 2008
JUDGMENT DATE: 17 September 2008
PARTIES:
Anthony Hamod ( First Plaintiff )
HAMOCK Investments Pty. Ltd. ( Second Plaintiff )
State of New South Wales ( First Defendant )
UBS Australia Limited ( Second Defendant )
JUDGMENT OF: Justice Harrison
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
J E Maconachie QC with M T Hutchings ( First Defendant )
M R Speakman SC ( Second Defendant )
SOLICITORS:
In person ( First Plaintiff )
I V Knight, Crown Solicitor ( First Defendant )
Allens Arthur Robinson ( Second Defendant )
CATCHWORDS: JUDGES – disqualification – apprehended bias – conduct of judge in relation to litigant in person
LEGISLATION CITED:
CATEGORY: Procedural and other rulings
CASES CITED:
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215
British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 270
Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Raybos Australia Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
TEXTS CITED:
DECISION: Application dismissed
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
JUSTICE HARRISON
September 17, 2008
20147 / 2003
Anthony Hamod and Hamock Investments Pty Ltd vs. State of New South Wales and UBS Australia Limited ( No 11 )
JUDGMENT:
1. HIS HONOUR: This is an application by the plaintiffs for me to disqualify myself from the further hearing of this matter upon the basis of apprehended bias. By the time the application was made, the matter was into its eighteenth day. The application is made orally without notice or other formality. This is of no consequence as no formal procedure is required to support a bias disqualification application: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109; Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337. The very nature of the application may require some flexibility of procedure in informing a judge of the basis for the application. In any event, although the defendants oppose the application, no other specific ground of opposition based on form is raised.
Principles generally:
2. The authorities emphasise that any "reasonable apprehension of bias" must be "firmly established" before it is appropriate for a judge to disqualify himself or herself from participating in the proceedings. The question of the hypothetical observer's reasonable apprehension falls to be decided against the standards of ordinary judicial practice: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493, 508; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344, 365. The "reasonable apprehension" criterion means that neither an expectation about the way the judge is likely to decide the case, nor an express allegation of bias, is necessarily sufficient to generate a reasonable apprehension of partiality: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352.
3. It is a fundamental rule that every judicial tribunal must be, and be seen to be, impartial: Johnson (supra) at 501. Even in the absence of direct personal interest, a judge ought not to hear a case if a fair minded lay observer might reasonably apprehend an impartial judicial mind might not be brought to bear on the resolution of the proceedings: see, for example, Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. The reference to the fair minded observer has been described as in reality "no more than a personification of an objective test": see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at par [43] per Basten JA.
4. In deciding the question of "reasonable apprehension" it is important that judicial officers discharge their duty to sit, and do not accede too readily to suggestions of the appearance of bias. The issue in each case is whether the judge appointed to hear the matter might not bring an impartial and unprejudiced mind to its resolution: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215 at 230. A necessary corollary of this criterion is that a judge ought not to disqualify himself or herself except for proper reason: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272. The criterion of "reasonable apprehension" should not be subverted into a lesser enquiry as to whether it would be "better" for another judge to hear the case. Applying such an imprecise and impressionistic criterion could encourage a belief that a party can, by making disqualification applications, obtain a hearing before a judge thought to be more favourable: see Re JRL (supra) at 352.
5. The limitation of reasonableness is particularly important in deciding whether a judge's interlocutory rulings, or preliminary views of the likely outcome, indicate bias – irrespective of whether they are expressed at an early or late stage of the proceedings. Such interlocutory rulings or expressions ought not to be regarded as giving rise to a reasonable apprehension of bias unless they indicate a significant level of prejudgment in relation to matters relevant to the final resolution of the proceedings: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100. Generally speaking, because of the nature of the issues and the limited factual investigation that interlocutory proceedings involve, rulings on interlocutory matters are unlikely to justify a reasonable apprehension of bias: Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 270. See also Sir Anthony Mason, "Judicial disqualification for bias or apprehended bias and the problem of appellate review", Constitutional Law & Policy Review, Vol 1, #2 12 August 1998 at 21.
Plaintiffs' submissions:
6. Mr Hamod made submissions on behalf of the plaintiffs. These submissions were not at all times obviously or apparently directed to the subject matter of the application. Some generous allowance has therefore to be made in recalling them.
7. At the heart of much of what Mr Hamod relied upon was the fact that I have decided a number of interlocutory matters in these proceedings, both in the course of case management prior to the commencement of the hearing in June and also in the course of the hearing proper. These have included rulings on contested applications to amend the statement of claim ( [ 2008 ] NSWSC 518 ), to vacate the hearing ( [ 2007 ] NSWSC 1363 ), to strike out a notice to produce issued by the Plaintiffs ( [ 2008 ] NSWSC 125), to order the production for examination and inspection of the Platinum Certificate at the centre of the case ( [ 2007 ] NSWSC 1366 and 1395), to extend the time by which Discovery should be given ( [ 2007 ] NSWSC 1394 ) and several others including rulings on evidence and admissibility ( see, for example [ 2008 ] NSWSC 611 ). Mr Hamod has pointed to my judgments in which I have found against him as evidence supporting the proposition that an objective observer would apprehend that I brought less than an impartial mind to the determinations that I made.
8. It goes without saying that I am not able to express a view about my own partiality or otherwise except by reference to the applicable objective test. There is an obvious artificiality in the procedure to the extent that the party challenging my suitability for continuing in the proceedings is subject to a decision from the very person whose independence and impartiality he seeks to impugn. Resort to the objective test may not wholly assuage the particular plaintiffs' sense of unfairness in these or similar circumstances.
9. However, at the most fundamental level, in accordance with the authorities that I have briefly reviewed, an adverse decision is not of itself any support, viewed objectively, for the proposition that the decision maker has not brought an independent mind to the decision. Self evidently no decision could withstand the potential for successful attack as long as there were parties to the decision in contest over the outcome. In such cases the decision(s) will have to stand or fall on their merits. This is particularly so in cases where decisions have been made that were in accordance with concessions made by counsel appearing on behalf of the plaintiffs, such as [2007] NSWSC 1363, where a concession was made by counsel that an order vacating the hearing date could not be resisted if certain events did not occur. I understand that Mr Hamod brings forth my decision to vacate the hearing date at a later stage when the circumstances contemplated by the concession fell in as evidence of apprehended bias.
10. Perhaps the circumstance most significantly emphasised by the plaintiffs in this application is my decision not to grant the plaintiffs an order vacating the recommencement of hearing on 8 September 2008. That application was filed or foreshadowed on 13 August 2008 and heard on 20, 28 and 29 August 2008. The matter was adjourned for a period within that time frame in order to permit the plaintiffs to supplement their evidence on a particular matter.
11. The plaintiffs make at least two complaints about my decision on that application. First, and curiously, the plaintiffs contend that I indicated at an early stage of the proceedings that the application was "doomed to fail" and that I did them a considerable disservice by listening to the application and taking evidence over three days when I should instead have dismissed the application peremptorily and saved them the trouble. I note in passing that my review of the transcript of those days and of my reasons for judgment did not reveal any reference by me, or indeed by anyone at all, to the application being foredoomed. In any event, it seems to me that the hearing of the matter in the way that occurred would in all likelihood satisfy the concerns of the impartial lay observer.
12. Secondly, the plaintiffs complain that during the course of the cross-examination of the plaintiffs' former solicitor by Mr Hamod on behalf of the plaintiffs, I terminated that cross-examination unfairly and in a way that bespeaks or suggests that I had prejudged the matter of that I was otherwise unfair to or apparently biased against the plaintiffs. The transcript of that cross-examination is to be found at pages 41 to 51 inclusive on 28 August 2008. That passage of the evidence must necessarily for present purposes speak for itself. However it is timely to recall that the burden of the plaintiffs' argument in the application was that they had been deprived of the fruits of a costs assessment by the first defendant and that they were therefore without funds to finance the retention of legal advice and representation for the resumption of the hearing. I expressed the view to Mr Hamod at the time that I did not get the impression that his line of questioning was directed at the issue then under consideration. My question and Mr Hamod's reply should be noted:
"HIS HONOUR: None of the questions struck me as going to any of the issues in this case and I don't have the impression that any more questions will be any more relevant.
PLAINTIFF: I wish to assure you the questions are leading to the fact that most defendants are disobeying the court orders leading to the fact Mr Diab has withdrawn - and he wouldn't admit negligence but he offered me assistance."
13. At that stage I then said to Mr Hamod, "I take the view none of the questions you have foreshadowed is likely to be relevant and accordingly I will bring the cross-examination to an end". An impartial observer would have had the benefit of listening to the whole of the application to vacate the hearing and would have appreciated the issues raised by the plaintiffs in aid of the proposition that they were entitled to an adjournment. That observer would to my mind have been confronted with Mr Hamod's questions to Mr Diab about his allegedly negligent failure to perform in accordance with the plaintiffs' instructions and other matters not intimately or obviously connected to the application. That observer would have noted that objections taken by the defendants to some of Mr Hamod's questions were in all cases decided in the plaintiffs' favour.
14. That observer would also have considered my decision to continue with the hearing and the reasons that I did so. Once again I hasten to draw attention to the necessary artificiality of a decision by me on the apprehensions of a third party about my conduct. However, in my opinion, and subject to those constraints, a reasonable bystander would have viewed my decision to terminate the cross-examination in the circumstances as they applied at the time as not attended with any perceived absence of impartiality.
15. Mr. Hamod has also complained in terms that he has lost confidence in me. I take that to be a submission that he has lost confidence in my ability to decide issues in these proceedings in an unbiased and impartial way. That submission is in effect no more than a genuine and truthful statement by Mr Hamod of his feelings about me and about my continued role in the proceedings. It is not a separate and distinct ground of complaint but it is nevertheless a submission that an impartial and objective observer would have formed the same view.
16. One of the matters that need to be incorporated in the present application is the fact that the plaintiffs are now and have for some considerable periods during the history of these proceedings been unrepresented by counsel and/or solicitor. I have taken care as far as possible consistently with recognition of the competing claims in this case to accommodate that unfortunate fact. The relevant principles that apply to unrepresented litigants in applications such as the present were referred to at some length in the judgment of Basten JA in Lee v Cha (supra) at pars [48] – [49] as follows:
"[ 48 ] The Court was invited to assess the conduct of the trial judge in part by reference to the principles said to govern the conduct of a trial where one party is a litigant in person and not fluent in English. The relevant principles, if they can be so described, derive from the obligation of a trial judge to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the court as is reasonably practicable for the purpose of ensuring a fair trial: see, in relation to an accused in a criminal trial, MacPherson v The Queen (1981) 147 CLR 512 at 523 (Gibbs CJ and Wilson J), 534-535 (Mason J) and 546-547 (Brennan J), (Aickin J agreed with Mason J and Brennan J). Application of that principle will vary depending on the circumstances of the case and particularly as between trials with and without juries. In some courts, the principle has been reformulated in terms of more specific "guidelines": see Re F [2001] FamCA 348; (2001) 161 FLR 189 at [215] and [253] ( Nicholson CJ, Coleman and O’Ryan JJ ). The kind of assistance required in the circumstances may also be qualified where there are several parties in the same or similar interest so that the trial judge may be entitled to rely upon the assistance an unrepresented litigant has had from other parties.
[ 49 ] There will be cases where a failure to provide assistance to a litigant in person will give rise to a miscarriage, so that the trial may be overturned on appeal: MacPherson provides an example. However, it is important to note that although an appearance of partiality may be said to give rise to an unfair trial, a failure to provide sufficient information to an unrepresented litigant may result in the trial miscarrying without any suggestion of bias or apprehended bias on the part of the trial judge. Partiality is a specific form of unfairness; no broader complaint was raised by the present application."
17. Although it is difficult to review the conduct of the whole of the proceedings on the occasions when the plaintiffs were unrepresented, an impartial observer would have seen considerable latitude extended to the plaintiffs in many respects. Mr Hamod complains that he is unfamiliar with legal language, court jargon or the niceties of procedure and the rules of evidence. These matters notwithstanding, the case has proceeded to an important stage with the plaintiffs' case close to conclusion. The plaintiffs' failure to secure legal representation would not strike an objective observer as having caused or led the plaintiffs' case to fall at the first hurdle.
18. Mr. Hamod also professes a less than perfect understanding of English. If this is so it will have to be compared with his role in the proceedings as evidenced by the transcript and his statements and affidavits as well as his avowed participation in the construction of several amended versions of the current pleading on which the plaintiffs rely.
19. Finally I note that on many occasions I have drawn attention to the fact that Mr Hamod's absence of legal training is an impediment to his proper presentation of the plaintiffs' case and is inimical to their interests in these proceedings. None of my comments in that field was intended as a criticism of Mr Hamod personally or an indication of any prejudgment on my part. However, once again, no statement by me about that in apparent exculpation is germane to the present enquiry. I raise the matter as something to which the impartial observer would necessarily have regard in considering whether or not my comments were directed toward assisting the plaintiffs or were gratuitous remarks of a discouraging and disparaging nature.
Conclusion:
20. As far as I am able to determine the matter, the hypothetical "fair minded lay observer" identified in Ebner (supra) at 344 and elsewhere in the authorities would not have formed the view that I have not brought or might not bring an impartial mind to the resolution of the questions I am required to decide. I am aware that the plaintiffs do not take kindly to decisions that do not favour them. Unfavourable decisions are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias. I note that the plaintiffs do not suggest the existence of actual bias or improper prior association with or connection to the defendants or either of them.
Order:
21. The plaintiffs' application is dismissed.
LAST UPDATED: September 18, 2008
Reference
www.austlii.edu.au/au/cases/nsw/supreme_ct/2008/967.html
- - - -
SOURCE: Offshore Business News And Research ( Offshore Alert )
Posted: 11/20/2008 3:54:51 PM
By: AnExCIA [ Paul Collin ]
Black hole or Black Ops?
The following transcript information ( portions edited-out below ) was obtained from the official internet website for the New South Wales, Australia Supreme Court:
Hamod v. State of New South Wales ( No 6 ) [ 2007 ] NSWSC 1366 ( 5 October 2007 )
Last Updated: 3 December 2007
NEW SOUTH WALES SUPREME COURT
CITATION: Hamod v State of New South Wales ( No 6 ) [ 2007 ] NSWSC 1366
JURISDICTION:
FILE NUMBER(S): 20147 of 2003
HEARING DATE{S): 31 August 2007
JUDGMENT DATE: 5 October 2007
PARTIES:
Anthony Hamod ( First Plaintiff )
Hamock Investments Pty Limited ( Second Plaintiff )
State of New South Wales ( First Defendant )
UBS Australia Limited ( Second Defendant )
JUDGMENT OF: Justice Harrison
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
D.E. Baran ( Plaintiffs )
M.R. Speakman SC ( Second Defendant )
SOLICITORS:
Simon Diab & Associates ( Plaintiffs )
I V Knight, Crown Solicitor ( First Defendant )
Allens Arthur Robinson ( Second Defendant )
CATCHWORDS: CIVIL PROCEDURE – interlocutory application for access to documents for forensic examination – dispute as to authenticity of platinum bullion certificate - application opposed in absence of orders for proper security arrangements and payment of associated costs – document allegedly uninsurable – orders for forensic examination of document made – plaintiffs to make such security arrangements as advised
LEGISLATION CITED: Evidence Act 1995, and Uniform Civil Procedure Rules 2005
CASES CITED:
DECISION: See paragraphs [ 52. ] - [ 53. ] for details of orders made.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
JUSTICE HARRISON
5 October 2007
20147 of 2003 Anthony Hamod & Anor v State of New South Wales & UBS Australia Limited
JUDGMENT:
1. JUSTICE HARRISON: On 19 July 2007, on the application of the second defendant by its notice of motion filed 12 July 2007, I made the following orders regarding access by the second defendant to the "Platinum Certificate" which is the subject matter, inter alia, of the present proceedings:
. . . [ EDITED-OUT FOR BREVITY ] . . .
41. Part of paragraph 8 of the same letter, to similar effect, is in the following terms:
“As the Certificate is not valid and was not issued by UBS:
(a) UBS does not know what "Guarantee of Certificate No. 4404 C.H. 27009” is purported [sic] to mean but considers it to be a nonsense; and
(b) the Certificate has no legitimate value.”
42. Doing the best I can, I have been unable to detect any single document in the bundle from which an inference could be drawn that the second defendant had at some time acknowledged the validity of the Certificate. Certainly the second defendant's defence to the sixth amended statement of claim pleads in unequivocal terms that the Certificate was "a forged, bogus and invalid document". I am unaware that the second defendant has adopted any other view of the Certificate in its responses to any previous versions of the current statement of claim.
43. Mr. Hamod's affidavit contains the assertion that because the second defendant has filed a defence to the 6th amended statement of claim, pleading that the Certificate is a forgery, it "has no need to inspect the original of the Certificate". This contention seems to me either to confuse or to ignore the distinction on the one hand between a pleaded fact, and the burden that may be imposed upon a party to litigation to lead evidence in order to prove it on the other hand.
44. Mr Hamod was cross-examined on his affidavit. Some extracts from that cross-examination are set out below:
"SPEAKMAN
Q. Did you travel to Beirut in February 2005?
A. Yes, I did.
Q. You are familiar with the platinum certificate that is much talked about in these proceedings?
A. Yes, I am but not an expert, just from what I was told.
Q. When you travelled to Beirut in February 2005, did you take the platinum certificate with you?
A. Yes, I did.
Q. On 17 February 2005, did you have a meeting at your brother, Salim Hamod's house on the outskirts of Beirut?
A. Yes, I did.
Q. At that meeting, was there a Mr Ehlert?
A. Stephen Ehlert.
Q. Did he tell you who he was?
A. Yes.
Q. What did he say?
A. He was the chief of the BKA, Interpol for the Middle East and he was the representative of the German government working out of the German Embassy in Beirut.
Q. Was there a Mr Hadad at the meeting?
A. Yes.
Q. Did he tell you who he was?
A. Yes, he was assistant to Mr Ehlert and he was member of the BKA Interpol of the Middle East.
Q. Was Mr Jason Lymbery at the meeting?
A. I believe, yes.
Q. Who was he?
A. He's my assistant. He travels with me whenever security is involved. He travels with Beirut for the purpose to looking after me.
Q. Was Mr Kamil Hamod at the meeting.
A. That is my brother.
Q. Was he at the meeting?
A. Yes.
Q. Was Mr Pierre Hamod at the meeting?
A. Yes.
Q. Is he your brother?
A. Yes.
Q. Was the platinum certificate at the meeting?
A. Yes. And Mr Salim Hamod was there too.
Q. You agree that, apart from the people that I have asked you about, no one else was at the meeting?
A. No. There was someone else at the meeting. My sister in law - Salim's wife - Veronica was there. And my sister in law, Mary, I think may have been in and out because she, they was serving coffee, drinks, what ever. And I'm not sure whether my brother, Paul, was there or not. But I think he was there. He might have gone to get something, back in the meeting again. The focus was between me and Mr Ehlert. Mr Haled and Salim.
Q. Is your best recollection apart from the people you have named as being there and may or may not have been there, there was no one else at the meeting.
A. Not to the best of my recollection, no.
Q. No one else?
A. Salim, my brother was there.
Q. No one else?
A. Not to the best recollection.
Q. At the meeting, did you produce the original of the platinum certificate?
A. Yes, that's the purpose of the meeting was for, for inspection of that certificate.
Q. Did you show that to Mr. Ehlert?
A. Yes. Actually I put it on the table and Mr Ehlert looked at it page by page while I'm standing beside it.
Q. When you travelled to Beirut in February 2005, did you fly there from Sydney?
A. Yes.
Q. Who accompanied you on the aircraft?
A. Jason Lymbery and my brother Salim from Beirut to here. Mr Jason Lymbery accompany me from here to Beirut and back Beirut for security reason and my brother, Salim Hamod travelled from Beirut to Sydney to accompany me from Beirut and Sydney and back.
Q. On the aircraft, did you carry any weapons?
A. No.
Q. Did you have the platinum certificate in your possession on the aircraft?
A. Yes."
*****
"SPEAKMAN
Q. You then deposited the platinum certificate in a deposit box?
A. Yes. Then I arranged to open account--
Q. --just answer my questions. Was that a deposit box with the bank you named?
A. Yes, Berenberg Bank.
Q. Which branch that was deposited?
A. In Hamburg, in the office actually.
Q. Look at page 314. Did you return to Beirut on 11 March 2005?
A. Yes, I did.
Q. Did you return to Sydney on 16 March 2005?
A. If I stated it here, yes, I did.
Q. When you returned to Sydney, did you have a certificate with you?
A. No. It was in a deposit box in the Berenberg Bank in Germany.
Q. Is the certificate now in Australia?
A. Yes.
Q. When did it return to Australia?
A. I travelled back to Beirug with Salim in April and collected the certificate and returned back to Australia.
HIS HONOUR: April this year.
WITNESS: 2005.
SPEAKMAN
Q. When you returned back to Australia, did you fly back to Australia?
A. Yes, I did.
Q. Were you accompany by your brother, Salim, on that flight?
A. No.
Q. Were you accompanied by any one on that flight?
A. No.
Q. Did you carry any weapons on that flight?
A. No but I had an assurance from-- "
*****
"Q. You gave evidence that you went to Beirut and there were people there, I think, described Mr Ehlert and also the chief of the BKA?
A. The Ehlert is the chief.
Q. Were there any arrangements made regarding security at that time?
A. Yes.
Q. What were they?
A. Mr. Ehlert is the chief of Interpol and he arranged for security to accompany us from Sydney.
Q. What was the security?
A. Members of Interpol were on the same flight. He told me which flight number to select and he told me he arranged security with Interpol to accompany me all the way to Beirut and all the way to Germany, back to Beirut with the security.
Q. Did you ever see any one carrying weapons who accompanied you?
A. I did see a couple of people looking at us, fit people, seems to be security people but I didn't see any weapons.
Q. You then gave evidence about a meeting with Dr Nielsen in Hamburg. Was there any security arrangements made for that particular occasion?
A. There was security arranged by Mr Ehlert. All the through during our entire visit to Germany but I did not see any security people around me.
Q. Mr Ehlert is the chief of the BKA?
A. Yes.
Q. That's--
A. --for the Middle East.
Q. What's the BKA?
A. BKA is actually, I got the business card, equivalent to Federal Police of the Australia, Australia Federal Police.
Q. When you have had the meeting at Berenberg Bank, did you observe any security on that occasion?
A. There was security people at the door, there is security people outside the room.
Q. On the flight back to Australia, firstly prior to that flight, was there any security that accompanied you?
A. I made arrangement with the CIA in America and with [ Mossad ] to accompany me--
. . . [ EDITED-OUT FOR BREVITY ] . . .
References -
http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2007/1366.html
http://upintelligence.multiply.com/journal/item/4
One would think if one ( 1 ) of the posters at that TOPIX messageboard post could have at least spelled his surname ( Salim versus Selim ) properly...
Then again, maybe Tom Luns that may have been spelled three ( 3 ) ways Thomas? Tomy? Tommy? Luun? Luntz? Or, maybe even Tomy Loonz
AnExCIA [ Paul Collin ]
AND,
Posted: 11/20/2008 2:01:34 PM
By: ECONIC [ Paul Collin ]
February 9, 2007 thru February 24, 2007 message post ( below ) at TOPIX re: Hamod & UBS certificates ... Perhaps, posing as the Italian merchant broker mentioned in that UPI report, some TOPIX messageboard poster claimed to be Osvaldo Peruzzo ( Italy ) and curiously provided contact information [ 1000 Hilsboro Blvd., Suite 102, Deerfield Beach, Florida 33441, elmtree@bellsouth.net ] claiming to have known Anthony Hamod - for the sale of a certificate - curiously denoting "6,200 Metric Tonnes" ) and to have known Enini, Brandon O' Dowd and Mr. Carlo.
Then, as if to top that curious poster, another comes along claiming to be Selim Hamod [ providing contact information of Beirut, Lebanon, TEL ( mobile ): 00961 3 615 202, and shhamod@hotmail.com ], the supposed brother of Anthony Hamod.
Reference -
http://www.topix.com/forum/com/ubs/TCLMN17ODFMAUCSR2
We've seen wild tales like this before, as well as its afficianados whom seem to enjoy propagating stories that appear to exist at the center of a black hole where not one single ounce of illuminating truth can escape.
Why don't all these die hards forget these tales of deception, and move on? Well, because many are 'still collecting advance fees' based on these grandiose bank paper certificates and those falling for such ludicrous deals are the same easy marks and fools soon parted from their money as P.T. Barnum mentioned. Now there 'are' bigger fish to fry; less we forget those already fried to a crisp by such.
Regards,
ECONIC [ Paul Collin ]
Reference -
https://www.offshorealert.com/Forums.aspx?g=posts&t=39485
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Report Research Archive References -
https://web.archive.org/web/20120418173549/http://upintelligence.multiply.com/reviews/item/7 and,
https://web.archive.org/web/20060629163155/http://www.indymedia.org/en/2006/03/835443.shtml and,
https://web.archive.org/web/20110706134632/http://upintelligence.multiply.com/reviews and,
http://web.archive.org/web/20121024025523/http:/upintelligence.multiply.com/reviews/item/22 and,
http://web.archive.org/web/20120621151935/http://upintelligence.multiply.com/journal/item/2
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