Lords v Von Thomann
[2014] WASC 302
•25 AUGUST 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LORDS -v- VON THOMANN [2014] WASC 302
CORAM: BEECH J
HEARD: 18 AUGUST 2014
DELIVERED : 18 AUGUST 2014
PUBLISHED : 25 AUGUST 2014
FILE NO/S: CIV 2409 of 2012
BETWEEN: DONNA JEAN LORDS
WAYNE FRANCIS GRIMSHAW
PlaintiffsAND
JOHN VON THOMANN
LISA BENWELL
Defendants
Catchwords:
Evidence - Prior consistent statement - Recent invention or reconstruction exception - Whether email is admissible under this exception
Legislation:
Nil
Result:
Objection upheld
Category: B
Representation:
Counsel:
Plaintiffs: Mr R R Cywicki
Defendants: Mr N D C Dillon
Solicitors:
Plaintiffs: Holborn Lenhoff Massey
Defendants: Vogt Graham Lawyers
Case(s) referred to in judgment(s):
I v The State of Western Australia [2006] WASCA 204
Leeks v XY (2008) 21 VR 118
Nominal Defendant v Clements (1960) 104 CLR 476
R v Fraser (1996) 65 SASR 260
Smith v The Queen (2001) 206 CLR 650
Transport & General Insurance Co Ltd v Edmondson (1961) 106 CLR 23
Wentworth v Rogers (No 10) (1987) 8 NSWLR 398
BEECH J: (These reasons were delivered orally in the course of the trial of the action, and have been edited from the transcript).
Introduction
The plaintiffs object to the tender by the defendants of an email.
In this action the plaintiffs (the Sellers) sue the defendants (the Buyers) on a contract of sale of land.
The Buyers defend the action on the basis of misrepresentations said to have been made by the Sellers' agent to the Buyers.
Among other things, the Buyers plead that the Sellers' agent made representations at an inspection of the property attended by Ms Debra Holland on 24 July 2008. The Buyers refer to this as the Second Inspection. I will do the same. The Sellers deny that these representations were made. The Sellers also deny that the Second Inspection took place at all. That is apparent from the pleadings and from the witness statements that have been exchanged.
The proposed evidence
Ms Holland is the next witness to be called by the Buyers. She will give evidence about the Second Inspection.
The Buyers seek to tender an email that bears the date 25 July 2008, from Ms Holland to her sister.
The email refers to having inspected the property and to certain features of it, including stain glass windows and its cluttered character.
At the time that, on Ms Holland's proposed evidence, that email was sent, there was no dispute between the parties. At that time, the parties were negotiating after a first offer had been made.
The Buyers put their arguments for the receipt of this evidence in two ways. First, the Buyers say that the email is admissible because it is relevant, and that it is evidence of the truth of its contents; namely that the Second Inspection occurred. Secondly, in the alternative, the Buyers submit that the email is admissible to rebut a suggestion of recent invention.
The Sellers object to the email on two grounds: that it is a prior consistent statement; and that it infringes the best evidence rule. For the reasons that follow, I uphold the first ground of objection, but not the second.
Relevance as a ground for admission
The Buyers submit that, if accepted, the email could rationally affect the assessment by the tribunal of fact of the probability of the existence of a fact in issue; namely, whether the Second Inspection occurred.
That way of putting things reflects a commonly applied test of relevance; see, for example, Smith v The Queen.[1] However, in my opinion, the issue here is not one of relevance. Relevance is necessary but not sufficient in order for evidence to be received. As the quote from Wigmore in Smith[2] makes clear: 'Relevant evidence is admissible unless some specific rule forbids [it]'.
[1] Smith v The Queen (2001) 206 CLR 650 [7].
[2] Smith v The Queen [6].
Here, there is a specific exclusionary rule, namely, the rule against receipt of prior consistent statements.
Thus, in my view, contrary to the apparent tenor of the Buyers' submissions, the court does not have a general discretion to assess the nature and extent of any prejudice to the opposing party from the admission of proposed evidence, and then to decide whether the exclusion of the evidence is warranted. Rather, the court is bound to apply the established exclusionary rules. One of those rules is the rule against the admission of prior consistent statements.
For these reasons I reject the Buyers' first contention. The email is admissible only if it falls within an exception to the general rule against admitting a prior consistent statement of a witness.
Prior consistent statements - legal principles
The general rule is that the prior consistent statement of a witness is not admissible.[3] In order for this rule not to apply, the case must be brought within one of the limited number of exceptions to it.
[3] Nominal Defendant v Clements (1960) 104 CLR 476, 479, 484 ‑ 485, 490 ‑ 491; Leeks v XY (2008) 21 VR 118 [23]; J D Heydon AC, Cross on Evidence (9th ed) [17250].
One established exception is to rebut a suggestion of subsequent invention or reconstruction. That is the only potentially relevant exception in this case. The well‑known statements of Dixon CJ and Windeyer J in Nominal Defendant v Clements explain the exception.
Dixon CJ said:
If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.[4]
[4] Nominal Defendant v Clements (479).
Windeyer J explained the exception in this way:
There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him.[5]
[5] Nominal Defendant v Clements (495).
It is clear, therefore, that in order for the exception to apply, there is no need for a suggestion of conscious dishonesty.
Although the exception is sometimes described as recent invention, it would be better described as subsequent invention or reconstruction. The imputation in cross‑examination does not have to be that the invention or reconstruction is 'recent'.[6]
[6] Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, 401; R v Fraser (1996) 65 SASR 260, 263.
It is not enough, in order for the doctrine to apply, for there to be simply an attack on the witness' testimony.[7] Nor is it enough if allegations of a prior inconsistent statement are made.[8]
[7] Clements (485, 495); I v The State of Western Australia [2006] WASCA 204 [30].
[8] Clements (485, 495).
Given the exceptional nature of the admission of evidence of prior consistent statements, care should be taken before the exception is applied.[9]
[9] Clements (479 ‑ 480); Transport & General Insurance Co Ltd v Edmondson (1961) 106 CLR 23, 28; I v WA [31].
When a prior consistent statement is admitted, it is not admitted as evidence of the truth of its contents, but as tending to disprove the allegation of concoction or reconstruction.[10]
[10] Clements (487); Transport & General Insurance v Edmondson (28); Leeks v XY [29] ‑ [36].
In cases where there is any doubt as to whether a suggestion of subsequent invention or reconstruction has been made, when evidence of a prior consistent statement is proposed to be tendered, cross‑examining counsel may disclaim that any such suggestion was made, failing which, the evidence may become admissible.[11]
[11] Transport & General Insurance v Edmondson (29 ‑ 30); I v WA [32].
The disposition of the objection
In this case, the Buyers point to the witness statements exchanged, including responsive witness statements, as revealing a stark conflict on the facts of whether there was a second inspection. In my opinion, the exchange of written witness statements, including responsive witness statements, does not alter the position in relation to the admissibility of prior consistent statements. The general rule against admission of evidence of that character continues to apply, unless and until there is an imputation of subsequent invention or reconstruction.
In my opinion, stark disagreement on the facts is not enough to render the exception applicable. To say that an event did not happen is not to be equated with saying that a witness who gives evidence that the event occurred has subsequently invented or reconstructed his or her evidence. There need not always be evidence to explain why one witness' evidence should not be accepted as true and reliable. The presence or absence of evidence explaining why the witness might have given evidence that is not reliable or true is a matter to be weighed in the process of assessing the whole of the evidence.
Generally, as is said in Cross,[12] evidence of prior consistent statements will only be admissible in re‑examination. However, it may be led in chief if the cross‑examination of a previous witness contained a suggestion that there was fabrication or reconstruction by that witness, and the succeeding witness.
[12] J D Heydon AC, Cross on Evidence (9th ed) [17310].
In this case, in cross‑examination of Mr von Thomann, it was put to him that his evidence about the Second Inspection was a recent invention.[13]
[13] ts 230 ‑ 231.
The Buyers submit that that means, in effect, that logically the Sellers are suggesting that Ms Holland's evidence about the Second Inspection is also a subsequent invention.
Taking into account the following three matters, I am not persuaded of that submission.
First, I do not think that that logically follows. I do not take the suggestion made to Mr von Thomann as necessarily involving any imputation about the evidence of Ms Holland.
Secondly, I apply the principle I have referred to already, that care is needed before coming to the view that the exception applies.
Thirdly, to the extent that there was any doubt, counsel for the Sellers has disavowed such an imputation,[14] in accordance with the practice outlined in Edmondson.
[14] ts 255.
For these reasons, in my opinion, the circumstances of the case, prior to cross‑examination of Ms Holland, do not make the subsequent invention or reconstruction exception applicable. Consequently, the general rule against admission of the prior consistent statement applies.
Whether the email becomes admissible in re‑examination will depend upon the course of cross‑examination.
Best evidence objection
For the sake of completeness, I also deal with the Sellers' other ground for objection to the email. The Sellers also object to admission of the email on the separate ground that it infringes the best evidence rule, and that the exception in s 73A of the Evidence Act 1906 (WA) does not apply. I reject that ground for the objection. In pars 14 and 17 of the Sellers' written submissions, it is said, in effect, that the explanation given by Ms Holland in her proposed evidence is questionable, and could give rise to an inference of unreliability.
In my view, that is a matter going to the weight to be accorded to the evidence, not to its admissibility. The email would, if the evidence in the second further witness statement of Ms Holland were given, then be admissible under s 73A. Of course, none of that arises at this stage, given my ruling that the email is inadmissible on the ground of the prior consistent statement rule.
Conclusion
For these reasons I uphold the objection to the email of 25 July 2008.
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