Australian Securities and Investments Commission v Flugge and Geary (Ruling No 1)
[2015] VSC 791
•29 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS’ LIST
S CI 2007 10077
IN THE MATTER OF AWB LIMITED (ACN 081 890 459)
BETWEEN:
| AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION | Plaintiff |
| v | |
| TREVOR JAMES FLUGGE | Defendant |
- AND -
S CI 2007 10081
IN THE MATTER OF AWB LIMITED (ACN 081 890 459)
BETWEEN:
| AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION | Plaintiff |
| v | |
| PETER ANTHONY GEARY | Defendant |
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JUDGE: | ROBSON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 October 2015 |
DATE OF RULING: | 29 October 2015 |
CASE MAY BE CITED AS: | ASIC v Flugge & Geary (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 791 |
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EVIDENCE – s 32 Evidence Act 2008 (Vic) – Leave to use document in court to revive memory – s 32(2)(a) – Whether witness memory exhausted – s 32(2)(b) – Meaning of ‘at such a time’ in s 32(2)(b)(ii) – Whether events must be fresh in the memory of the witness at the time when they find the document to be accurate under s 32(2)(b)(ii) – Leave not granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J O’Bryan AM SC with Mr J P Moore QC, Mr C H Truong and Ms C E Klemis | Australian Securities and Investments Commission |
| For the Defendant in S CI 2007 10077 | Mr S K Dharmananda SC, with Mr R F R Pintos-Lopez | Corrs Chambers Westgarth |
| For the Defendant in S CI 2007 10081 | Mr I D Hill QC with Mr A Tragardh | Galbally Rolfe |
HIS HONOUR:
During evidence-in-chief, Mr Officer was asked whether he attended an International Grains Conference in London in June 1999. Mr Officer said that he did. Mr Officer was asked who attended from AWB. Mr Officer said that if his recollection served him correctly, Mr Flugge, Ms Martin and, in all likelihood, Mr Emons were in attendance. Mr Officer was then asked whether there was any discussion in London about the proposal that the Iraqi Grain Board would impose inland trucking or transportation fees in its contracts. He said:
I don’t recall as of this moment but from reading earlier documents from the Cole Inquiry, I understand that there was.
He was then asked by Mr O’Bryan:
Do you regard what those documents disclose as accurate or not?
At that point, Mr Flugge’s counsel objected, submitting that ASIC could not examine Mr Officer by reference to documents from the Cole Inquiry rather than giving his recollection of events.
Arising from that objection, ASIC applied under s 32 of the Evidence Act 2008 (Vic) (the Act) for leave to enable Mr Officer to refresh his memory by referring to certain documents from the Cole Inquiry.
Section 32 of the Act is as follows:
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account -
(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that -
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.
(3)If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
(4)The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.
As the section provides, in considering whether to give leave under s 32(1) the court must take into account the matters set out in sub-ss 32(2)(a) and 32(2)(b).
ASIC applied under s 32 for leave to show Mr Officer selected paragraphs of a statutory declaration that he had made for the Cole Inquiry and which was tendered into evidence at the inquiry. That statutory declaration was signed by Mr Officer and is dated 8 February 2006.
In particular, ASIC sought leave to refer Mr Officer to paragraphs 1 to 5 and paragraphs 32 and 33 (in part) of that statement. Paragraphs 1, 2, 3 and 4 said as follows:
I, Nigel Charles Officer of (blank)
company manager, do solemnly and declare as follows:
1.I made a statement to the Inquiry dated 4 January 2006, (my first statement).
2.I have reconsidered the material set out in my first statement. I prepared that statement without the benefit of any documents which concerned the relevant events. The events took place between 6 to - 7 years ago. At the time I made my first statement and when I participated in the confidential hearing before the inquiry on 5 January 2006, I had not focussed my mind clearly and in sufficient detail on the events of interest to this Inquiry as they had unfolded in the course of my employment in 1999 and 2000 with AWB. Having reviewed the documents provided to me by the Inquiry I have done my best to recall how those events took place.
3.I have read the undated statement of Mark Adrian Emons (the Emons statement).
4.I have also been provided with a folder of documents by the Inquiry pursuant to a direction made by the Honourable TRH Cole AO, RFD, QC dated 3 February 2006. In addition, I have read the transcript of the evidence given by various witnesses to this Inquiry.
It is clear, therefore, that in making that supplementary statutory declaration, Mr Officer had refreshed his memory from a folder of documents, reading Mr Emons’ statement and reading the transcript given by various witnesses to the Cole Inquiry.
As to paragraphs 32 and 33, the supplementary statutory declaration reads:
32.During 9 and 10 June 1999, I attended the annual International Grains Conference in London. I have attended many of these conferences. They usually last 2 days and involve an evening cocktail function and a one day conference. The usual attendees include grain buyers, sellers, traders and customers from all over the world.
33. I refer to paragraphs 13 to 16 and 24 to 30 of Mark Emons’ statement. They detail what Mark Emons told me about the imposition (which was not negotiable) of a fee for inland transport costs (paragraphs 13 to 16) and the discussions at and following the International Grains Conference (paragraph 24 to 30). Although I do not recall the specific conversations during the conference, I believe Mark Emons’ record is accurate and I have no reason to disbelieve him.
Paragraph 33 of the supplementary statement then goes on to deal with further discussions at the conference, which it is not necessary to set out.
ASIC submitted that passages from Mr Emons’ statement referred to in paragraph 33 of Mr Officer’s supplementary declaration should also be shown to Mr Officer.
ASIC submitted that the conditions under s 32 are satisfied.
ASIC said that Mr Officer had exhausted his recollection and therefore would be unlikely to recall the fact or opinion without the document under s 32(2)(a).
I am satisfied that the witness will not be able to recall the fact of which he has been asked without using the document.
The second thing I must take into account are the alternate conditions in s32(2)(b). That is:
32(2)(b)whether so much of the document as the witness proposes to use is, or is a copy of, a document that –
(i)was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.
ASIC does not rely on s 32(2)(b)(i), that is a document written by the witness, rather ASIC relies on (ii) because Mr Officer’s supplementary statutory declaration adopted passages from Mr Emons’ statement as accurate at the time of the Royal Commission. ASIC says at that time events were fresher in Mr Officer’s memory and, Mr Officer found those documents to be accurate as he swore they were accurate before the Royal Commission.
There was a dispute between the parties as to the proper construction of s 32(2)(b)(ii). That dispute concerned the meaning of the phrase ‘at such a time’ in s 32(2)(b)(ii).
The defendants submit that ‘at such a time’ in s 32(2)(b)(ii) refers to a time when the events referred to in the document were fresh in the witness’ memory. On this construction s 32(2)(b)(i) refers to a document written or made by the witness whereas s 32(2)(b)(ii) refers to a document that the witness, found to be accurate. Under s 32(2)(b)(ii), the document could be a document prepared by a person other than the witness. On this construction the witness would have needed to look at the document at a time when the events were fresh in his or her memory and find the document was accurate as to the recorded events.
The defendants submit that as Mr Officer’s supplementary statutory declaration says that he does not recall specific conversations during the conference, relevant events were not fresh in his mind when he found Mr Emons’ statement to be accurate (as the declaration says he did).
ASIC contend that such a construction is not a true alternative and would give no work for s 32(2)(b)(ii) to do. ASIC says that the words ‘at such a time’ refer to the time that the witness saw the document. In this case it would be when Mr Officer saw Mr Emons’ statement, without establishing that the events recorded in it were fresh in his mind and his memory at that time. On ASIC’s construction, s 32(2)(b)(ii) would merely require Officer to express an opinion on Mr Emons’ credit.
I prefer the defendants’ construction; that is, whether the witness prepares a document or someone else prepares a document that the witness finds to be accurate, the events recorded must be fresh in the witness’ mind at the time that the witness either wrote the document or found a document written by another person to be accurate.
ASIC made no attempt to establish that when Mr Officer read Mr Emons’ statement, the events were fresh in his memory - or in the words of the Court of Appeal, in a decision I will come to in a moment - to establish that the events could be recalled. Nor could they, in view of Mr Officer’s declaration that he did not recall the specific conversations during the conference but that he believed Mr Emons’ record is accurate and he had no reason to disbelieve him. As I have mentioned, the statutory declaration was made relying on documents provided at the direction of Mr Cole and after Mr Officer had read the evidence of other witnesses.
In my opinion, it would be an extraordinary change to the rules of evidence to allow a witness to revive his or her memory or read into evidence a document not prepared by the witness or not found by the witness to be accurate where the events recorded were fresh in the witness’ mind. As it is, that construction has been upheld by our Court of Appeal, as I will discuss shortly.
I was referred to several cases. The first one is the case of Amaca Pty Ltd v CSR Limited,[1] a decision of Macaulay J. His Honour said:[2]
In my view, the provisions of section 32 of the Evidence Act are pertinent to the resolution of this issue. By operation of s 32(3), oral testimony may in certain circumstances take the form of a witness reading out aloud the contents of a document which the witness, with the leave of the court, has used to try and revive memory. There is no requirement in the language of the provision that the witness’ memory actually be revived, in whole or in part as a condition of the leave to read it aloud. Indeed, the sub-section only refers to the witness trying to revive memory. An example of where such a course was considered is the ruling of Kaye J in Director of Public Prosecution v Curran (No 2). There, a witness with certain psychological impairments was unable to recall events about which she had made a previous statement to police. Although in the particular circumstances of that case his Honour ultimately did not permit the witness to read out aloud the contents of her previous statement, his Honour clearly considered the court’s discretion in s 32(3) was engaged when a witness was unable to revive any memory despite referring to a previously made statement or record. I am of the same view.
[1][2015] VSC 582.
[2]Ibid, [176].
This case goes to a different point, that is, the document was not found to be accurate by the witness when the events recorded in the document were fresh in the witness’ mind. It does not go to the issue of whether it would in fact revive his memory.
I was also referred to the case of Tukuafu v The Queen,[3] a decision of the Court of Appeal, a joint decision of Maxwell P and Redlich and Whelan JJA. The court said:[4]
Similarly, section 32(3) of the Evidence Act 2008 permits, with the leave of the court, the reading into evidence of a document which is used in an attempt to revive the witness’ memory. In Director of Public Prosecution v Curran (No 2) Kaye J refused to allow the witness who was experiencing difficulties of recollection to read into evidence, pursuant to section 32(3), parts of her witness statement made to police on the day of the offending. His Honour considered to be ‘on the borderline’ but held that it would be unfair to the accused to permit the evidence where the witness had no recollection of the event the subject of the statement and little recollection of how the evidence came to be in her statement.
As a matter of principle and authority, there is nothing inherently objectionable of the admission into evidence of an account of events that a witness was able to give from memory at an earlier time, where the witness is unable to recollect those events at the time of cross-examination. The only condition for its admission is that the witness is able to say that the earlier account would have been a truthful account at a time when the events could be recalled.
[3][2014] VSCA 345.
[4]Ibid, [55]-[56].
I was also referred to the decision of Regina v Leanne Cassa,[5] a decision of the Supreme Court of New South Wales Criminal Division. In that judgment, Sperling J was considering whether a police officer could refresh his memory or give evidence from what was called a running sheet of a car registration number. The constable had gone to a motel and inspected the records of what cars were parked at it on a certain night which was a defence being raised by an accused, that they were not somewhere, they were at this motel. He sent by fax that information through to another policeman who entered into the running sheet. The question was whether the constable could rely on the running sheet. The judge held that the constable could not be shown the running sheet under s 32 of the Act but did permit it to be admitted under s 48(4) of the Act. In dealing with s 32 the learned judge said:[6]
[5][1999] NSWSC 651.
[6]Ibid, [15]-[18].
Section 32(2) prescribes matters which the court is to take into account in deciding whether to give leave to a witness to use a document to refresh the witness’ recollection. The matters specified are expressed to be without limiting the matters that the court may take into account. The specified matters are:
‘(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that -(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.’
As to paragraph (b) above, there are two relevant matters to be stated. First, there is a question as to whether the facts of the case comes within the ambit of paragraph (b). Whether they do is a matter which the court is obliged to take into account. Secondly, the matter specified in paragraph (b) is not a condition for the operation of section 32. It is a matter to be taken into account and it is a matter to be taken into account without limiting the matters that the court may take into account in deciding whether to give leave.
I was of the opinion that the facts of the case did not come within the ambit of (b). The running sheet was not written or made by Detective Senior Constable Trench nor was it examined by the witness and found to be accurate when the inspection of the registration was fresh in his mind.
In my view, that construction by Sperling J supports the construction put forward by the defendants in this case.
Finally, insofar as cases are concerned, I refer to the case of Green v Emergency Services Telecommunications Authority,[7] another decision of the Victorian Court of Appeal. This was a joint judgment of Ashley, Priest and Santamaria JJA. The court said:[8]
As to the criticism that appellant’s counsel was not permitted to put to his client in re-examination parts of the medical histories omitted in cross-examination, it is clear that during re-examination appellant’s counsel sought the opportunity for his client to look at the defendant’s court book, and to refer her to parts of the histories noted in the medical reports that had not been elicited in cross-examination. He was not permitted to do so. Nor should he have been. It had not been elicited that the appellant had read the medical reports at the time when the relevant matters were fresh in her memory and ‘found by [her] to be accurate.’ And although the appellant could have given evidence of what she told various doctors (as prior consistent statements to rebut recent invention), she could not do it by reference to documents of which she was not the author, or which she had not read at the time when the events were fresh in her memory and found to be accurate.
[7][2014] VSCA 207.
[8]Ibid, [86] (citations omitted).
I consider this case strong support for the defendants’ contention that the reading of the document and the finding that that document is accurate under s 32(2)(b)(ii) has to be at a time when the events are fresh in the memory of the witness.
On the question of the meaning of fresh in his or her memory, I refer to Uniform Evidence in Australia,[9] in which the authors refer to a High Court decision of Graham v The Queen,[10] and say as follows:
In Graham v R the High Court considered this term in the context of the freshness requirement in s 66 (first-hand hearsay exception). The court concluded that:
The word ‘fresh’ in its context in s 66 means ‘recent’ or ‘immediate’. It may also carry a connotation that describes the quality of the memory (as being ‘not deteriorated or changed by the lapse of time’) but the core of the meaning intended is to describe the temporal relationship between ‘the occurrence of the asserted fact’ and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours and days, not … in years.
[9]Neil Williams SC, John Anderson, Judith Marychurch and Julia Roy, Uniform Evidence in Australia (Lexis Nexis Butterworths Australia, 1st ed 2015) 109, [32-5]. [emphasis changed].
[10](1998) 195 CLR 606.
The authors go on:[11]
In response to the decision in Graham the Evidence Amendment Act 2008 (Cth), and the Evidence Amendment Act 2007 (NSW), introduced section 66(2A) to confirm that the question of whether a memory is ‘fresh’ for the purpose of s 66(2) is to be determined by reference to factors in addition to the period of time between the occurrence of the asserted fact and the making of the representation. Those matters are now specifically stated to also include (but are not limited to) the age and health of the person and the nature of the event concerned.
Thus, the view expounded by Wood CJ at [common law] in R v Adam, that the majority judgment in Graham ‘was not intended to confine the expression “freshness” strictly or exhaustively in terms of mere hours or days’ has been embraced by amendment to the Commonwealth and New South Wales Acts. As the ALRC underlined, a measure of flexibility is appropriate and was always intended. On the other hand, the flexibility would not ordinarily go so far as to enable reliance on a written record that was made several years after the event.
[11]Neil Williams SC, John Anderson, Judith Marychurch and Julia Roy, Uniform Evidence in Australia (Lexis Nexis Butterworths Australia, 1st ed 2015) 109, [32-5]. (citations omitted).
I have included that reference in deference to the submission by Mr Hill that there was High Court authority on the issue of freshness.
Before I make a ruling on the application, it is also appropriate that I refer to s 192 of the Act. Section 192 provides, under the heading, ‘Leave, permission or direction may be given on terms’ as follows:
(1)If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2)Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account-
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b) the extent to which to do so would be unfair to a party or to a witness; and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d) the nature of the proceeding; and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
Consistent with that section, I take into account this is a civil penalty proceeding which can have serious consequences for the defendants. Secondly, I take into account that Mr Emons is being called, so that the evidence may be admitted by Mr Emons if relevant, in any event. I have formed the view that the failure of Mr Officer to give Mr Emons’ hearsay evidence should not prejudice ASIC’s case.
Further, I consider it would be unfair to Mr Flugge for evidence of what Mr Emons said to be led through Mr Officer. It would deny Mr Flugge the opportunity to challenge that evidence in cross-examination. The evidence is pure hearsay for which Mr Officer could say nothing more than that is what he was told or that is what Mr Emons said.
Accordingly, for these reasons I refuse to grant leave under s 32(1) of the Act to allow Mr Officer to use his statutory declaration given to the Cole Royal Commission to revive his memory about any discussions which were held at the International Grains Conference in London in June 1999.
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