French v Triple M Melbourne Pty Ltd & Ors (Ruling No 3)
[2008] VSC 549
•19 November 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7928 of 2005
| MARK FRENCH | Plaintiff |
| v | |
| TRIPLE M MELBOURNE PTY LIMITED ACN 095 319 903 & Ors | Defendants |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10-14, 17-21, 24-28 November and 1 December 2008 | |
DATE OF JUDGMENT: | 19 November 2008 | |
CASE MAY BE CITED AS: | French v Triple M Melbourne Pty Limited & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 549 | |
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EVIDENCE – Practice – Cross-examination – Contents of document disclosed – Whether cross-examiner required to tender whole document – Document tendered in redacted form.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.J. Hayes with Ms J.E. Treleaven | Russell Kennedy |
| For the Defendants | Mr B. McClintock SC with Mr S. O’Meara | Monahan & Rowell |
HIS HONOUR:
I have set out the background to this claim in my two previous rulings and adopt what I have said previously for the purpose of this ruling. This ruling covers whether the cross-examiner is required to tender a document upon which a witness was cross-examined.
Dr Graeme Trout, the Deputy Director of the Australian Sports Drug Testing Laboratory (“ASDTL”), gave evidence on 17 November 2008 concerning the testing and analysis for equine growth hormone (“eGH”) on a number of items discovered in the plaintiff’s room at the Del Monte campus of the Australian Institute of Sport. Dr Trout had, in preparation for this litigation, provided a report to the defendants’ solicitors dated 4 August of this year.
In the course of cross-examination of Dr Trout, Mr Hayes, who appears with Ms Treleaven for the plaintiff, put the following matters to Dr Trout:
“Q: Indeed that's why you say in your report on 4 August 2008, where you talk about the washings that you examined: ‘They can be used as a guide as to whether an item had been in contact with eGH, but it must be considered that our laboratory, this is the Australian Sports Drug Testing Laboratory, had no control over the items between their original seizure and their later analysis.’ And you go on to say: ‘In fact some had been used for DNA analysis, and this process is likely to have washed off significant amounts of eGH had it been present,’ do you see that?
A: That's correct, yes.
Q: And by that you were concerned, and you included that statement in your report of possibility that the washings you examined were cross-contaminated from other items in the bucket?
A: I don't think that's what I was saying.”
Subsequently, Mr McClintock SC, who appears with Mr O’Meara for the defendants, sought to require Mr Hayes to tender Dr Trout’s report on the basis that the cross-examination as to part of its contents made the report tenderable at his request. Mr Hayes resists being called upon to tender the report contending that the cross-examination was upon discrete matters, and did no more than emphasise matters which had been previously cross-examined upon without reference to the report.
For a considerable time it has been well known in practice that where a cross-examiner refers to the contents of documents in cross-examination of a witness, he or she runs the risk of being called upon to tender that document, or at least part of it.
A somewhat oblique reference to the rule first appears in an unreported New South Wales decision of Walsh J in Oakes v Gaudron[1]. In that case, a medical practitioner was cross-examined about an X-ray, and gave evidence relating to the X-ray, but the cross-examiner did not tender the X-ray. His Honour held that he had gone into evidence and was in evidence because of his cross-examination.
[1]Unreported Walsh J, NSW Supreme Court, 23 May 1963.
Subsequently, in the well-known, indeed, seminal, (at least to members of counsel) article by Mr Michael McHugh QC, as he then was, entitled The Cross-examination on Documents,[2] the author adverted to a series of propositions concerning cross-examination on documents. Proposition 13 reads as follows:
“If the cross-examiner shows the document to the tribunal of fact or directly or indirectly gets any of its contents before the tribunal of fact, he can be required to tender the document.”
[2]1985 1 Australian Bar Review, 51, 60.
After reference to Oakes v Gaudron the learned author went on to say:
“Such rulings in my experience have been made fairly frequently at nisi prius. Sometimes a witness will be shown a plan and asked some questions about it. The rule of thumb test I have always used is: If the transcript is understandable without the tender of the document, then you are not required to tender it, but if the transcript is incomprehensible without the plan or the document or whatever it was, then you are obliged to tender it if your opponent requires you to do so. That may be open to some debate or some refinement, but broadly speaking you put yourself in evidence if you indirectly get the contents before the tribunal.”[3]
[3]1985 1 Australian Bar Review 51, 60.
This article was subsequently cited by the learned authors of Cross on Evidence in the current edition as authority for the following proposition:
“If a cross-examiner shows a document to a tribunal of fact, or indirectly, by means of cross-examination gets any of its contents before the tribunal of fact, the cross-examiner can be required to tender the document, or at least parts relevant to cross-examination, if this is necessary in order to make the transcript understandable.”[4]
[4]JD Heydon Cross on Evidence, Aust Edition [17560].
The only reported authority that I could locate on the application of the rule is that of Thiess v TCN Channel Nine Pty Ltd (No.4).[5] In that case, the witness was cross-examined on the basis of certain answers given to officers of the Fitzgerald Commission, which was contained within a document the bulk of which was not related to the subject matter of the cross-examination.
[5][1992] QdR 549.
Williams J, after referring to both Mr McHugh’s paper, the then current edition of Cross on Evidence, and the facts in Oakes v Gaudron, determined that the cross-examiner should not be required to tender the whole of the document, but only those parts upon which there was cross-examination. His Honour, it appears, applied the rule of thumb test postulated by Mr McHugh, namely, that if the transcript is not understandable without the tender of the document, then the cross-examiner ought to be required to tender the document.
Williams J determined that it was appropriate to sever parts of the document so that the only parts that were tenderable were those that referred to the subject matter of the cross-examination and no more.[6]
[6]This approach is consistent with the views of Mr Giles QC, as he then was, also contained the article in (1985) 1 Australian Bar Review 72, subsequently agreed to by Mr McHugh QC, 73.
It is, I think, also a matter of commonsense and fairness that, provided it is practical, the part referable to the cross-examination and an understanding of it should be the subject of tender. In other words, in an appropriate case it is desirable that those parts of the document irrelevant to the cross-examination or an understanding of it be excluded. Finally, it is to be noted that Williams J in Thiess also adverted to the problems in a jury trial of dealing with the status of the evidence not referable to the cross‑examination which would form part of the exhibit if the whole document was tendered.
Accordingly, I think that the principle to be applied is whether the cross-examination of Dr Trout concerning the contents of the parts of his report is understandable without requiring the tender of those parts of his report related to the cross-examination.
In my view, Mr Hayes’ cross-examination was directed to those parts of the report dealing with the possibility of cross-contamination of the samples in two aspects. First, the lack of control by ADSTA over the items submitted to it by another laboratory. Secondly, the prospect of cross-contamination generally.
The cross-contamination, particularly that relating to the eGH being washed off and the possibility of cross-contamination of the washings from the other items cannot, in my view, be understood without reference to relevant parts of the report. This is particularly so given Dr Trout’s final answer to a question concerning this issue in his report: “ I don’t think that’s what I was saying.”
In summary, the defendants are not entitled to require the cross-examiner to tender the whole of the report. However, the cross-examiner can be required to tender those parts relevant to the cross-examination. The report should be redacted to include only those parts which will constitute exhibit D19.[7]
[7]Note: Although marked as the defendants’ exhibit, the proper course given the cross-examiner (plaintiff’s counsel) was required to tender the redacted document should have been to mark it as an exhibit tendered by the plaintiff.
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