Cao and Trong (No 2)
[2021] FamCA 369
FAMILY COURT OF AUSTRALIA
| CAO & TRONG (NO. 2) | [2021] FamCA 369 |
| FAMILY LAW – EVIDENCE – re-examination – permissible boundaries of re-examination – respondent in reality seeking to adduce evidence-in-chief under the guise of re-examination – common law rule on re-examination – s 39 of the Evidence Act – whether leave required to adduce new evidence in re-examination – elements of s 192 of the Evidence Act – held, this was new evidence for which leave should not be given – extensive review of authorities on point. |
| Evidence Act 1995 (Cth), ss 39, 192 |
| Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765 International Relief and Development Inc v Ladu [2013] FCA 1216 Prince v Samo [1838] 112 ER 606 The Queen’s Case [1820] 129 ER 976 Wentworth v Rogers (No. 9) (1987) 8 NSWLR 388 Wentworth v Rogers (No. 10) (1987) 8 NSWLR 398 Wojcic v Incorporated Nominal Defendant [1969] VR 323 |
| APPLICANT: | Mr Cao |
| RESPONDENT: | Ms Trong |
| INTERVENOR: | Deputy Commissioner of Taxation |
| FILE NUMBER: | MLC | 2555 | of | 2016 |
| DATE DELIVERED: | 3 June 2021 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 16, 17 March 2020, 24, 25, 26, 27, 31 May 2021 & 1, 2, 3 June 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr R. Ingleby |
| SOLICITOR FOR THE APPLICANT: | Westminster Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr W. Smith |
| SOLICITOR FOR THE RESPONDENT: | JK Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr P. Sest QC with Mr H. Mazloum |
| SOLICITOR FOR THE INTERVENOR: | Australian Government Solicitor |
Orders
I refuse leave to the respondent to adduce further evidence and re-examine about the eight page document dated 29 April 2019.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cao & Trong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2555 of 2016
| Mr Cao |
Applicant
And
| Ms Trong |
Respondent
And
| Deputy Commission of Taxation |
Intervenor
EX TEMPORE REASONS FOR JUDGMENT
Introduction
At the conclusion of the respondent’s cross-examination Mr Smith of counsel announced his intention to re-examine the respondent. Mr Smith circulated six documents that he said he wanted to tender as part of the respondent’s case. Five of those documents were received as exhibits without protest by counsel for the applicant and by counsel for the ATO. The sixth document was the subject of trenchant opposition.
This ruling addresses the reception into evidence or the rejection of that sixth document.
For the reasons that follow I refuse the application to re-examine on that document.
The impugned document
Before addressing other aspects of this application it is necessary to record certain observations about the document Mr Smith wished to adduce into evidence in the re-examination of the respondent. It is eight pages in total. On the top line the document records email transmission details stating that the document is from the respondent at her Gmail address and that the recipient of the email is also the respondent at the same email address. Details of the sender and the recipient appear in blue in accordance with common experience in the transmission of emails. The date of the transmission of the email is shown as 29 April 2019 at 8:44:24pm EST. The subject is recorded as “msn”.
No information was provided about whether the document had been discovered. It seemed to be common ground that over the entirety of this litigation and despite the respondent having made eight affidavits between May 2016 and April 2020 the respondent now sought to introduce into evidence the document, but it was not exhibited to any affidavit on which the respondent relied in this proceeding.
The document set out what purported to be some conversational exchange over several dates. The earliest date was 12 November 2003, the second was 10 December 2003, the third was 12 December 2003 and the last was 16 December 2003. Whether the entries on those dates was a complete and exhaustive narrative of the conversation it purported to be was not stated. Unlike how text messages are conventionally put into evidence by the production of one or more screenshots of the relevant text message, in the document Mr Smith wished to tender the document appeared so that one person, the respondent, was recorded as “Ms Trong” and the person to whom she was apparently interacting in that exchange was not stated in some instances. When that emerged the document simply read on a new line “says” with a gap in the sequence of characters that preceded the word “says”. In other instances words were attributed to the applicant when the document stated “Mr Cao says”. Then followed an apparent word-perfect transcription of what he was alleged to have said. In other places symbols were used such as “=?+?+?”, or initials such as “S&P”, “IPO”, “TT” or “MIDF”. In other instances abbreviations were used such as “prk” or “slg”.
A cursory reading of the document indicated that it was not simply a screenshot of four days’ worth of text messages involving the applicant, the respondent and one other unidentified person. For that matter the document called for explication before it was possible for a reader to know what abbreviations meant or what various symbols on the document meant. No explanation was offered by which it was possible to understand who created the document, how it was created, why it was created, from what source documents it was created, whether it exhaustively set out the totality of exchanges between 12 November 2003 and 16 December 2003, who attributed to the applicant the words recorded as having been said by the applicant and who attributed to the respondent the words attributed to her.
Dr Ingleby and Mr Sest QC complained about the document being received into evidence in re-examination.
Mr Smith submitted that he wished to rely on the document for several reasons. First, he said Dr Ingleby and Mr Sest QC had cross-examined the respondent on a wide ranging array of issues as to credit, and in particular, why certain matters about which the respondent gave evidence in answer to questions in cross-examination had not been the subject of evidence in the many affidavits made by the respondent. Second, Mr Smith submitted that the document he wished to tender addressed factual matters bearing upon the question of the source of funds for the acquisition of real estate that the respondent asserted was provided by her. Mr Smith contended that an attack had been squarely made on the respondent’s credit and that in re-examination he should have an opportunity to adduce evidence that responds to evidence obtained in cross-examination where that evidence obtained in cross-examination would be prejudicial to the respondent.
Self-evidently, the applicant and the ATO did not cross-examine on the document. Precisely when it was produced was not the subject of evidence. Dr Ingleby argued that it was open for me to construe events in such a way that the document may well have been produced in April 2019 and that the respondent’s legal advisers had made a deliberate decision not to put the document into evidence by exhibiting it to one of the respondent’s affidavits. Dr Ingleby submitted that the respondent should not be permitted to adduce the document in re-examination especially when no cross-examination had been directed to it. Dr Ingleby argued that the document was in the nature of evidence‑in‑chief and the time had long passed for the respondent to adduce evidence-in-chief under the guise of re-examination.
Mr Smith argued that the document addressed the contentions advanced by the applicant in paragraph 24(c) of his affidavit made 3 March 2020. It must be pointed out that the contents of the document that Mr Smith wanted to tender in re-examination through the respondent was not put to the applicant when Mr Smith was cross-examining the applicant.
Permissible bounds of re-examination
In support of his proposal to re-examine the respondent and in the process tender the impugned document, Mr Smith argued that s 39(a) of the Evidence Act permitted his proposal or he sought leave to do so under s 39(b) of the Evidence Act. I raised with Mr Smith that the document itself and no aspect of the document had been the subject of cross-examination so I questioned how any evidentiary foundation had been laid to re-examine on the document in the first place.
Mr Smith submitted that s 39(a) of the Evidence Act applied. He called in aid the decision of the Full Court of the Supreme Court of Victoria in Wojcic v Incorporated Nominal Defendant,[1] the decision of the Court of Appeal of New South Wales in Wentworth v Rogers (No. 9),[2] the decision of Hamilton J in Drabsch v Switzerland General Insurance Co Ltd[3] and the decision of Kenny J in International Relief and Development Inc v Ladu.[4]
[1] [1969] VR 323.
[2] (1987) 8 NSWLR 388.
[3] [1999] NSWSC 765.
[4] [2013] FCA 1216.
At common law one view about the permissible scope of re-examination inured to the effect that re-examination was limited to matters arising out of cross‑examination and where the re-examination was directed to either permitting the witness to give evidence he or she was stopped from giving during cross-examination or where the re-examination was directed to clarifying or correcting evidence on which the witness had, during cross-examination, given contradictory evidence and which, if left uncorrected in re-examination might mislead the court.
In the decision of Wojcic v IND the court relied on several old English authorities. The first was The Queen’s Case.[5] There the House of Lords held as follows –
I think the counsel has a right, upon re-examination, to ask all questions, which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and, also, of the motive, by which the witness was induced to use those expressions; but, I think, he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness.
[5] [1820] 129 ER 976.
In Wojcic v IND the Court of Appeal also relied on the decision in Prince v Samo.[6] There, Lord Denman CJ held as follows –
My opinion was that the witness might be asked as to every thing said by the plaintiff, when he appeared on the trial of the indictment, that could in any way qualify or explain the statement as to which he had been cross-examined, but that he had no right to add any independent history of transactions wholly unconnected with it.
[6] [1838] 112 ER 606.
The Court of Appeal of New South Wales in Wentworth v Rogers (No. 10)[7] made observations about the common law rule of evidence relating to re-examination. It was held as follows by the Court of Appeal –
It is well established that it is proper in re-examination to elicit from the witness facts which explain away or qualify facts which have been elicited in cross-examination which are prejudicial to the witness' credit or from which prejudicial inferences could be drawn: R v Phair [1986] 1 Qd R 136 at 137; Wojcic v Incorporated Nominal Defendant [1969] VR 323 at 326. The rule marches in tandem with the related principle that when a witness has been cross-examined as to part of a written or oral statement made by him, examining counsel becomes entitled to prove in re-examination such other parts of the statement as are necessary to explain or qualify it; Meredith v Innes (1930) 31 SR (NSW) 104 at 112; 48 WN 5 at 6-7.
[7] (1987) 8 NSWLR 398.
The Evidence Act commenced operation in 1995.
In Drabsch v Switzerland General Insurance Co Ltd Hamilton J made observations about re-examination. It is as well to record them. His Honour said the following –
5.Authorities have made plain that the re-examiner is not limited solely to eliciting clarifications or giving explanations where there is an ambiguity, but is allowed:
“... wherever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it:”
Cross on Evidence (Aust ed, 1996) par 17,605; Wojcic v Incorporated Nominal Defendant [1969] VR 323 at 326; Wentworth v Rogers [No 10] (1987) 8 NSWLR 389 at 409; and see 6 Wigmore on Evidence (Chadbourn Rev) s1896. It has been specifically decided by the Full Court in South Australia that these matters extend to subjective considerations going to the mental state of the witness at the time of answer: Reg v Lavery (No 2) (1979) 20 SASR 430 at 435 and 451, Reg v Szach (1980) 23 SASR 504 at 511-9; 566-70; 587-8. In the Evidence Act 1995 this broad approach is in my view adopted by the wording of s 39(1) and confirmed by s 108(1).
6.There have been various statements in the past as to limitations upon re-examination. It has been stated that the re-examiner may not cross-examine his own witness: Phipson on Evidence (14th ed, 1990) par 12-28. This is no doubt true if it means that, having obtained an answer from a proper question in re-examination, the re-examiner attempts, particularly if by leading questions, to deflect the witness from that answer or get him to modify it. It is also sometimes said that in re-examination one cannot get the witness to alter or reverse an answer, or a clear answer, given in cross-examination, but I can find no authority for a proposition in those terms.
7.Whilst modern authority rejects the proposition that re-examination is limited to clarifications and explanations of ambiguities, it may be that it is correct that, where the question in re-examination is put upon the basis of making a necessary clarification or explanation, and it appears to the Court that there is no lack of clarity or ambiguity, then the question may be rejected, particularly if the result of allowing it may well be that the Judge would feel obliged in his or her discretion to allow considerable further cross-examination as a result of the answers: see Hadid v Australis Media Ltd SCNSW Sperling J 5 November 1996 unreported; Shipp v Cameron (No 2) SCNSW Einstein J 13 October 1997 unreported.
The decision of Kenny J in International Relief and Development Inc v Ladu was more concerned with fairness considerations of permitting counsel to have leave to confer with a witness prior to re-examination, a matter quite different to the issue for my consideration on this application.
From the authorities surveyed above, the most expansive examination on the issue of re-examination under s 39 of the Evidence Act was given by Hamilton J. Of course, as a matter of doctrine of precedent I am not bound to follow or apply that decision. However I take his Honour’s exposition of principle to be scholarly and that I should apply it.
Submissions of the applicant and the ATO
Dr Ingleby and Mr Sest QC relied on contentions that were aligned, although not on all issues. In précis form, Dr Ingleby submitted as follows –
a)the mischief in acceding to the respondent’s application to tender the impugned document by way of re-examination lay in the consequences of that course;
b)if Mr Smith’s course is adopted in tendering the impugned document that will enliven a call for the production of all source documents from which the impugned document was produced and it will almost axiomatically lead to Dr Ingleby applying for leave to further cross-examine the respondent and it may well lead to an application to recall the applicant to put the document to him for his response;
c)according to conventional principles of cross-examination, the tendering of the document will not serve the purpose of “explaining away or qualifying facts” elicited in cross-examination; and
d)in reality this proposal described as re-examination is little more than a further attempt to adduce evidence-in-chief that should have been adduced well prior to the start of the trial.
On behalf of the ATO, Mr Sest QC advanced a collection of propositions in support of his contentions that the proposed re-examination should be refused. He contended –
a)the respondent carefully and thoughtfully answered Mr Sest QC early in her cross-examination that the contents of her affidavits were true and correct and that they contained the whole truth;
b)the proposed document does not explain away any answer the respondent gave in cross-examination;
c)on the proper construction of the impugned document, it reveals that the respondent was fully aware of the applicant’s financial affairs as at 2003;
d)if the document the respondent wished to tender were to be admitted into evidence, Mr Sest would almost certainly apply to cross-examine the respondent again and he may also apply to cross-examine the applicant again;
e)the respondent over several affidavits that are already in evidence has deposed to her version of the source of funds towards the acquisition of various parcels of real estate, on which she was cross-examined at length; and
f)the impugned document does not explain away or qualify facts given in evidence elicited in cross-examination.
By way of reply Mr Smith proposed several arguments. In no special order, he submitted –
a)this evidence was important to this case, especially in relation to the respondent’s evidence in this case about Nexus and the source of funds from it;
b)this document verified her contentions in that regard;
c)the document on its face does not need to explain away a particular issue before it can be tendered in re-examination;
d)whatever may be the consequences to the trial, especially as to its prolongation if this proposed re-examination was allowed, the consequences to the respondent of refusing leave to re-examine on the document far outweigh any prejudice to the applicant and the ATO; and
e)if leave is required to re-examine on this issue, then under s 39(b) the respondent sought that leave.
So far as the criteria for the grant of leave was concerned, all counsel addressed on s 192(2) of the Evidence Act. The section enumerates five elements that must be considered before leave is granted where leave is required.
Consideration
Two issues fell for determination, namely, whether under s 39 the proposed re-examination related to matters arising out of evidence given by the respondent in cross-examination and if not, whether leave under s 39(b) should be granted under s 192.
In my view the proposed tender does not arise out of cross-examination. The impugned document was not put in evidence by the respondent. It was not the subject of cross-examination. The document does not explain away her answers in cross-examination that she provided almost no evidence in the many affidavits made by her about the source of funds she said she contributed to acquire real estate. In my view the better characterisation of the present re-examination proposal is that it is in reality an attempt to adduce new evidence-in-chief. That is not the function of re-examination. In addition, the document is near meaningless without explanation of its creator, how it was created, when it was created, why it was created and why it was not previously adduced in evidence.
I take the view that it does not relate to a matter arising out of the respondent’s cross‑examination.
The proposed evidence to be led in re-examination is in the nature of “other evidence” under s 39(b) of the Evidence Act for which leave is required. A consideration of the elements of s 192(2) therefore was necessary. To those I now turn.
So far as s 192(2)(a) is concerned, the proposed re‑examination is in reality new evidence. It will add to the duration of the trial of this proceeding.
So far as the grant of leave being unfair is concerned, any unfairness cuts both ways. This trial has had a lamentable history. It could not be said that the respondent was unaware of this evidence. She has had an abundance of opportunity to put the evidence forward. To date she has chosen not to do so, presumably on advice. Her decision to now rely on that evidence will orchestrate a hardship to the applicant who wants this trial to end and to the ATO which seeks a very large sum of money. If the point was as important as Mr Smith says it is, I find it extraordinary that the importance of the point has been lost for as long as it has.
So far as s 192(2)(c) is concerned, I am unable to share the respondent’s characterisation of the importance of the evidence. It is significant that over the entire life of this litigation no attempt to adduce evidence by this document was made.
This is a property alteration proceeding as well as a claim by the Child Support Registrar as well as a claim for the payment of a large sum in unpaid tax.
I have the power to adjourn this proceeding. It will go off part heard in any event. But that is not the panacea for such an enormous omission in the conduct of the case. In any event, by allowing this new evidence to be adduced the case will be prolonged, at immense cost and considerable inconvenience.
For those reasons I refuse leave to adduce further evidence about the eight page document dated 29 April 2019.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 3 June 2021.
Associate:
Date: 4 June 2021
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