Lee v Quest Investments Ltd
[2013] VCC 1358
•18 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
COMMERCIAL LIST
EXPEDITED CASES DIVISION
Case No. CI-12-02765
| JULIAN LEE | Plaintiff |
| V | |
| QUEST INVESTMENTS LTD | First Defendant |
| and | |
| MURCHISON HOLDINGS LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7-11 October 2013 | |
DATE OF RULING: | 18 October 2013 | |
CASE MAY BE CITED AS: | Lee v Quest Investments Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1358 | |
REASONS FOR RULING
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Subject: EVIDENCE
Catchwords: tendency evidence - admissibility
Legislation Cited: Section 97 Evidence Act2008 (Vic)
Cases Cited:Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; R v Cittadini (2008) 189 A Crim R 492; FB v R [2011] NSWCCA 217; R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356; AW v R [2009] NSWCCA 1; GBF v R [2010] VSCA 135
Ruling: The proposed Items 2 and 3 in the Plaintiff’s notice are not admissible under s97 of the Evidence Act (Vic) 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr F Lim | Francis Lim Barristers & Solicitors |
| For the Defendant | Mr I Jones SC with Mr P Baume | John Dick |
HIS HONOUR:
1 This ruling concerns certain evidence which the plaintiff seeks to adduce at trial as tendency evidence.
2 By notice, dated 19 March 2013, the plaintiff advised the defendants, pursuant to s97 of the Evidence Act2008 (Vic) (“the Act”) that the plaintiff intended to adduce evidence of character, reputation, conduct or tendency to prove that the defendants, through their controlling director and chairman, Wee Tiong Chiang (“Chiang”), has or had a tendency to act in a particular way or to have a particular state of mind.
3 Initially, there were five items of evidence listed in the notice. The plaintiff has agreed that Item 1 should be removed from the list. I have ruled that Items 4 and 5 of the list are already admissible because they are relevant to other issues in the proceeding. Accordingly, all that remains are Items 2 and 3 on the list. Although they are described in slightly different terms, I am advised by the plaintiff (and it is accepted by the defendants) that it is the same document in each case, namely, a decision of the District Court of Hong Kong Special Administration Region.
4 In his notice, the plaintiff said that the evidence he sought to adduce was intended to prove that Chiang had a tendency to:
(a)allege that payments from the Chiang interests to the opposing party were not payments for wages and/or commission but that the payments were for other purposes, including but not limited to a loan to the opposing party; and
(b)allege that the opposing party’s business cards were not printed by the defendants but were printed by the opposing party without the consent of the Chiang interests.
5 Section 97 of the Act is in the following terms:
“(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless –
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”
6 The plaintiff contends that the evidence regarding the case in Hong Kong is relevant to this case because it shows that Chiang has a tendency to characterise monies in a way which suits him at a particular time rather than have the monies bear their true characterisation. This is said to be relevant to the part payment which the plaintiff alleges he received by way of commission in relation to certain shares he procured friends or colleagues to buy in the defendant company. The plaintiff also sought to draw attention to Chiang’s conduct in alleging that another person associated with companies ultimately controlled by Chiang printed business cards for himself without the consent of the Chiang entities.
7 The tendency rule is a purposive rule which applies in both civil and criminal proceedings. It has been described as a “contingent exclusionary rule”.[1] Evidence is not admissible as tendency evidence unless:
“(a) the evidence has significant probative value; and
(b) reasonable written notice of the intention to adduce the evidence is given to the other parties to the proceedings.”
[1]Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at [48]
8 Tendency evidence is tendered to prove (by inference), that because on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person on an occasion relevant to the proceedings, acted in a particular way (or had a particular state of mind).[2]
[2]R v Cittadini (2008) 189 A Crim R 492 at [23] per Simpson J, McClellan CJ at CL agreeing; cited with approval in FB v R [2011] NSWCCA 217 at [23] per Whealy JA (Buddin and Harrison JJ agreeing)
9 The definition focuses on the purpose for which the evidence is tendered. It is for the Court to analyse the evidence to ascertain what is sought to be achieved by its admission.
10 As stated by Sackville J (Whitlam and Mansfield JJ agreeing), in Jacara Pty Ltd v Perpetual Trustees WA Ltd[3]:
“ …the question is whether the evidence of conduct is relevant to a fact in issue via propensity: insofar as the evidence establishes the propensity of the relevant person to act in a particular way, is it a link in the process of proving that the person did in fact behave in the particular way on the occasion in question?”
[3](2000) 106 FCR 51 at [61]
11 The definition in the Dictionary to the Evidence Act 2008 (Vic) states that the “probative value” of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
12 No specific statutory guidance is given as to the adjective “significant”. It has been held that the evidence must be “important” or “of consequence”[4], recognising that:
“…the significance of the probative value of the tendency evidence must depend on the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact.”[5]
[4]R v Lockyer (1996) 89 A Crim R 457, 459
[5]R v Lock (1997) 91 A Crim R 356, 361
13 Accordingly, the evidence must be more than merely relevant but can have less than a substantial degree of relevance.[6] The question for the trial judge is whether the evidence is important in establishing the facts in issue.[7]
[6]AW v R [2009] NSWCCA 1 at [47]
[7]Ibid
14 The Court can take into account a variety of factors in assessing the probative value of the evidence sought to be led. The factors include:[8]
[8]Jill Anderson, Neil Williams SC and Louise Clegg, The New Law of Evidence: Annotation and Commentary on the Uniform Evidence Acts (LexisNexis Butterworths, 2nd ed, 2009) [97.17]
· the other evidence that has been or will be adduced;
· whether the tendency evidence is disputed;
· whether the tendency evidence goes to a critical fact in the case;
· when the other conduct occurred;
· the number of incidents establishing the tendency;
· the degree of similarity between other incidents and also between the other incidents and the subject event;
· whether the evidence discloses unusual features, and underlying unity, system or pattern.
15 The court’s focus is on the quality and not necessarily the quantity of the evidence. However, in my view the proposed material is deficient both in quality and quantity. I do not consider that the foreshadowed evidence should be admitted as tendency evidence.
16 The Hong Kong case involved a context where money which the employee claimed he received as wages was said by Chiang to be a loan from him. Here, the issue is whether Lee was an employee of, or a consultant to, either or both of the defendant companies; and, if he were, was he an investment manager or merely an administrative officer. The evidence from the Hong Kong case does not have significant probative value in that context.
17 The plaintiff also relies upon the Hong Kong case regarding the business cards printed for Lee. In the Hong Kong case, the employee alleged that he was an employee of QTL, had a QTL name card, worked on QTL projects and had a QTL email address. QTL, through Chiang, denied that Lee was an employee at any time and claimed that his QTL name card was printed without authority.
18 The Court accepted that the claimant was an employee, and, to that extent, disbelieved Chiang and Wong. However, the judgment made no explicit finding regarding the name cards, even though a finding that the cards were authorised would have been consistent with a rejection of the evidence of Chiang and Wong.
19 In the present case, Lee relies upon the business card naming him as investment manager as supporting his allegations. The defendants deny he was employed in such a position. The tendency said to arise from the Hong Kong case is too vague or general to be of much use in the case. Especially when there was no express finding made, the Court cannot regard the reference to business cards in the judgment as having significant probative value.
20 The plaintiff here relies in effect upon the Hong Kong case, and initially at least, the case in Melbourne Magistrates Court which was referred to in items 4 and 5 of the notice. The Victorian Court of Appeal has noted that, as a matter of principle, a tendency could be recognised on the basis of only two incidents.[9] It will depend on the nature of the tendency and the particular facts. Here, neither the number of incidents nor the evidence of the incidents is so striking as to be of significant probative value.
[9]GBF v R [2010] VSCA 135 at [34]
21 Accordingly, although Lee’s counsel might seek to attack the credit of the defendants’ witnesses, I rule that the proposed Items 2 and 3, referred to in the notice regarding tendency evidence, are not admissible under s97 of the Evidence Act 2008 (Vic).
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