Australian Securities and Investments Commission v Flugge and Geary (Ruling No 7)

[2015] VSC 795

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE Not Restricted

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:	17 November 2015
DATE OF RULING:	17 November 2015
CASE MAY BE CITED AS:	ASIC v Flugge & Geary (Ruling No 7)
MEDIUM NEUTRAL CITATION:	[2015] VSC 795

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EVIDENCE – Admissibility of transcript of interview under s 45 Evidence Act 2008 (Vic) – Party cross-examined on prior inconsistent statement contained in the transcript – Application for tender of whole transcript rejected.

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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:

1. I have before me an application by ASIC to tender the record of interview of 12 January 2006 of Mark Adrian Emons by Mr Condon, who was assisting the Cole Inquiry.  The record of interview and deals with the London Grains Conference held in 1999 amongst other matters.   

1. During examination in chief of Mr Emons, portions of Mr Emons statutory declaration provided at the Cole Inquiry were tendered.  Thereafter, in cross-examination of Mr Emons, Mr Dharmananda referred to the statutory declaration and tendered two lines of the record of interview, lines 27 and 28 on page 104.

1. Mr O’Bryan now seeks to tender the whole transcript of the record of interview.  Mr Flugge objects to the tender.

1. In his application, Mr O’Bryan relies on two grounds:  one, that the matter has become relevant in view of the attack on Mr Emons’ credit during cross-examination by Mr Flugge, and I presume ASIC wants to use the document to support Mr Emons’ credit.  The second ground is that Mr Emons was cross-examined on a portion of the document and the portion he was cross-examined on was tendered in evidence on behalf of Mr Flugge (lines 27 and 28 on page 104).

1. At common law, if a document was cross-examined on, the other party could demand that it be tendered.  The common law rule has now been superseded by the Evidence Act 2008 (Vic) (the Act).  It is clear from the provisions of the Act relied on that if the section is enlivened, it is a matter in the court’s discretion as to whether or not the whole document or a portion of the document should be admitted into evidence.  

1. The relevant provision is section 45 of the Act, which provides:

45       Production of documents

(1)This section applies if a party is cross-examining or has cross-examined a witness about—

(a)a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or

(b)a previous representation alleged to have been made by another person that is recorded in a document.

(2)If the court so orders or if another party so requires, the party must produce—

(a)       the document; or

(b)such evidence of the contents of the document as is available to the party—

to the court or to that other party.

(3)       The court may—

(a)examine a document or evidence that has been so produced; and

(b)       give directions as to its use; and

(c)       admit it even if it has not been tendered by a party.

(4)Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.

(5)The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

1. It is important to take into account the circumstances surrounding the tender by Mr Flugge of lines 27 and 28 on page 104, of the interview transcript; the tendered excerpt is as follows:

MR CONDON: Okay, well, just say, ‘I also said to him’ – just to remind me what you said, sorry?

MR EMONS: Look, I said to him, you know, it was subject to UN approval.

MR CONDON: ‘That the contract was subject to UN approval.’

MR EMONS: And he said ‘Well, if that comes through, it’s all well and good.’  

1. As noted above, the tender arose from the fact that in paragraph 42 of the statutory declaration, which was adopted by Mr Emons in his evidence before the Cole Royal Commission, and tendered by ASIC during examination in chief, Mr Emons said:

The matters discussed on those occasions include, probably more than once, the issue of trucking fees being quoted at the price of US$12 per tonne.  I recall saying in relation to this words to the effect, ‘The contract is subject to UN approval.  If that comes through, it’s all well and good.’

1. The Court heard evidence that this statutory declaration was in fact drafted by Mr Condon, as is not unusual, based upon what Mr Condon thought he had heard Mr Emons say when he had been examined on 12 January 2006 in private session.

1. During cross-examination, Mr Dharmananda, senior counsel for Mr Flugge, put to Mr Emons that what he had said in the interview with Mr Condon was that Mr Flugge said, ‘[w]ell, if that comes through, it’s all well and good’, to establish that that part of the statutory declaration was incorrect.  That was the substance of the lines 27 and 28 of page 104 which Mr Flugge tendered as set out above.

1. In considering the relevance and fairness of what should be admitted, of course, anything that qualifies, or might undermine, or explain the tendered part of the transcript of interview as copied above, might well be tendered; but what Mr O’Bryan is seeking to tender has got nothing at all to do with that evidence.  Mr O’Bryan is seeking to tender the whole transcript.  

1. On 17 November 2015, I ruled on the tender of 12 extracts from other oral evidence and Mr Emons’ statutory declaration:  see ASIC v Flugge & Geary (Ruling No 6) [2015] VSC 794; not the evidence from the private session of 12 January 2006. Mr O’Bryan did not seek to tender the transcript of the interview at that stage as a whole; he did not seek to tender any parts of it.

1. Mr O’Bryan now seeks to tender the whole or part of the transcript of the interview to qualify or explain the two lines which have been tendered by Mr Flugge.  I reject that submission.  Mr O’Bryan did not refer me to any part of the transcript that qualified or explained the two lines tendered by Mr Flugge.

1. The substance of Mr O’Bryan’s application is really that he wants to get into evidence hearsay evidence of Mr Emons to support Mr Emons’ credit in view of the attack that was made in cross-examination by Mr Flugge.  

1. In my view, in these circumstances, that is not an appropriate reason for seeking to tender evidence under s 45 of the Act. The purported basis upon which that tender is sought is supposedly that Mr Dharmananda referred to, and tendered, the two lines on page 104, but I think, in reality, is not based on that at all.

1. The application therefore, must be viewed as an attempt to tender a self-serving hearsay document to support the credit of Mr O’Bryan’s own witness after cross-examination has finished.  If that hearsay evidence was to be tendered, then it should have been done under the hearsay provisions (Part 3.2 of the Act) that were relied upon in relation to the tender of the 12 extracts referred to above (see ASIC v Flugge & Geary (Ruling No 6) [2015] VSC 794), and not on the basis that Mr Dharmananda had referred to the document. This has not been sought to be done. I therefore reject the tender.