Permanent Trustee Company Ltd v Gulf Import and Export Company & Anor
[2007] VSC 267
•24 July 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 8130 of 2002
| PERMANENT TRUSTEE COMPANY LTD | Plaintiff |
| v | |
| GULF IMPORT AND EXPORT COMPANY and EMIRATES TRADING AGENCY LLC | Defendants |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2007 | |
DATE OF RULING: | 24 July 2007 | |
CASE MAY BE CITED AS: | Permanent Trustee Company Limited v Gulf Import and Export Company | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 267 | |
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PRACTICE AND PROCEDURE – Evidence - Tender of document – Cross-examination of witness on previous statement – Whether cross-examiner obliged to tender whole of document – Evidence Act 1958, s 36.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P J Jopling QC and Mr J F Styring | Minter Ellison |
| For the Defendants | Mr R M Garratt QC and Mr A M Thomas | Aitken, Walker and Strachan |
HIS HONOUR:
This ruling concerns whether the statement of the witness Paul Francis Delaney to the Australian Securities and Investments Commission (‘ASIC’) dated 31 March 2004 (“the statement”) should be admitted into evidence, and if so to what extent. The issue first arose on 25 June 2007 after counsel for the defendants had referred Delaney to the statement during cross-examination. Immediately thereafter, counsel for the plaintiff sought a ruling that counsel for the defendants was obliged to tender the statement in evidence under s 36 of the Evidence Act 1958. Counsel for the defendants opposed the application and I heard some limited argument on the matter. Not wishing to delay the hearing, I marked the statement as Exhibit 17 for identification. In effect, I deferred my decision on the tender. Then, on 5 July 2007 immediately following the close of evidence, counsel for the plaintiff renewed his application seeking that the whole statement be admitted absolutely. I heard brief oral submissions from both counsel and reserved my decision. Having given further thought to the matter, I now publish my reasons.
It is convenient to first consider the context in which the question of the tender of the statement was raised. In short, counsel for the defendants put to Delaney in cross-examination that he (Delaney) regarded the Bustan account as being “high risk”. Delaney responded:
“You keep using the term ‘high risk’. That’s not my understanding. I understood it as being weak. We were very well secured, as far as the bank was concerned.”
Counsel then asked Delaney to look at a document, but without revealing what it was. I interpolate that the document was Delaney’s ASIC statement. Counsel then put to Delaney that the bank classified Bustan as high risk. Delaney responded:
“I have made that comment to ASIC in my witness statement as a general term encompassing that it was a high risk account but, as I have already stated, as far as I was concerned we were very well secured and it depends on your definition of ‘high risk’.”
Delaney reiterated his evidence that he did not see Bustan as being a high risk of loss to the bank. There was no further questioning on this matter, and the witness handed the statement back to counsel.
Section 36 of the Evidence Act 1958 provides as follows:
“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject-matter of the cause or prosecution without such writing being shown to him. But if it is intended to contradict such witness by the writing, his attention must before such contradictory proof can be given be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always that it shall be competent for the court at any time during the trial or inquiry to require the production of the writing for inspection and the court may thereupon make such use of it for the purposes of the trial or inquiry as the court thinks fit.”
Counsel for the plaintiff submitted that in the present circumstances s 36 operates with the effect that cross-examining counsel is required to tender the whole of the statement, not just a passage in it. This was because counsel for the defendants had used the statement to contradict the evidence of Delaney. He submitted that the reference in s 36 to the Court being able to require production of “the writing” speaks of “the document generally” and there is nothing in the section to confine the operation of those words. In short, by cross-examining as he did, counsel for the defendants took the risk that opposing counsel might call for the whole document to be tendered.
Counsel for the defendants submitted that in the circumstances s 36 was not enlivened. He further submitted that, in any event, s 36 did not compel the tender of the statement. He referred to the commentary in Cross on Evidence at para 17540 as to the rationale behind s 36, namely that it had been enacted to alter the common law position established in The Queen’s Case[1] which had required, among other things, that if a witness was to be cross-examined with regard to a previous statement made by the witness in writing, the witness must be shown the document before any questions were asked with regard to it. Counsel referred to the discussion in Cross on Evidence as to the disadvantages said to arise from that rule, and that the authors of Cross consider[2] that s 36:
“appears to overcome all the disadvantages of the former law. The witness can be asked whether the witness made a statement and cross-examined on the general nature of its contents without being shown the document. The opponent of the cross-examiner cannot tender it. The cross-examiner is not obliged to put it in evidence, even if the cross-examiner shows it to the witness, but the cross-examiner must do so if the cross-examiner wishes to use the document as a contradictory statement made by the witness.” [references omitted]
Counsel first submitted that s 36 did not apply at all because he did not seek to use the statement as a contradictory statement made by the witness. As to this, he submitted that there is a difference between on the one hand giving the witness a document and asking him whether he still adheres to his evidence and on the other hand saying that a witness’s evidence should not be believed because he previously made an inconsistent written statement. Secondly, even it was held that contradictory use was made of the previous written statement, s 36 empowers the court to call for and look at the document, but with a discretion as to the use to be made of the document. Thirdly, if the court exercises the discretion to admit the statement in evidence, it goes to credit only, not to the truth of the matters contained in it.
[1](1820) 2 Br & B 284; 129 ER 976.
[2]At para 17540.
In my view, the statement should not be admitted into evidence. I so conclude for the following reasons.
In my view, s 36 does not require the subject statement to be tendered. Section 36 simply allows a witness to be cross-examined as to his or her previous written statement without the witness being shown the writing, but subject to the condition that if the cross-examiner wishes to use the written statement to contradict the witness, the cross-examiner must draw the witness’ attention to those parts of the writing which are to be used for the purpose of contradicting the witness. Further, the court may at any time require the production of the writing for inspection, and may make such use of it as the court thinks fit. In short, s 36 regulates the manner in which counsel may cross-examine a witness as to his or her previous written statement.
Guidance as to the application of s 36 is found in the authorities. In Wood v Desmond[3] Herron J referred to s 55 of the Evidence Act 1898 (NSW)[4] and said that while a judge may require a statement to be put in evidence when counsel has cross-examined on it[5], it does not always follow that the judge must make such a ruling, as to which his Honour referred to the decision of Walton v Deaton[6], which was followed in Alchin v Commissioner for Railways[7]. In Alchin Jordan CJ observed that while the judge may require a statement to be admitted in evidence, the mere fact that counsel has cross-examined a witness as to a previous written statement does not necessarily involve his having to tender the statement in evidence. Further, if the cross-examination is as to some part only of the statement, only that part of the statement and such other parts as are so connected with that part as to be necessary to explain it, may be put in evidence. The Chief Justice also observed that “it needs to be kept in mind that, in the case of a witness who is not a party, any evidence which may be elicited in cross-examination as to the contents of a former statement of his, whether written or oral, is not evidence in the cause of the facts contained in the statement. It is admissible only for the purpose of testing the value of the witness’s present evidence”[8]. Some fifty years later, in Trade Practices Commission v TNT Management Pty Ltd[9] Franki J rejected the argument that cross-examining counsel was obliged to tender a document he had showed to the witness in circumstances where the witness was not cross-examined for the purpose of showing any inconsistency between his evidence and the document, and no suggestion was made that any inconsistency existed. His Honour said it was not an appropriate case to exercise any powers it may have under the proviso to s 55(1) of the Evidence Act 1898 (NSW)[10].
[3](1961) 78 WN 65.
[4]Now repealed, the provision was relevantly identical to s 36.
[5]See R v Jack (1894) 15 LR (NSW) 196; 10 WN 202.
[6](1930) 31 SR (NSW) 393 per Halse Rogers J at 401-402.
[7](1935) 35 SR (NSW) 498 per Jordan CJ at 509-510.
[8]At 509.
[9](1984) 56 ALR 647.
[10]At 680-681.
I now turn to consider the application of s 36 to the facts of the present case. It may be assumed that when counsel showed the statement to Delaney, he intended to use it (the statement) in order to contradict Delaney’s evidence (or more accurately to have Delaney contradict his evidence) as to the Bustan account not being “high risk”. In this sense, s 36 was enlivened and counsel was required to comply with its terms. In my view, counsel did so comply, in that he drew Delaney’s attention to the relevant part of the written statement he sought to use to contradict him. Ultimately, however, Delaney explained that he adhered to his evidence. After that happened, counsel did not (and does not now) seek to attack Delaney’s credit on the basis of the statement or any perceived inconsistency between his evidence and the statement. Indeed, counsel for the defendants stated unequivocally that he does not seek to make anything further out of the statement.
Notwithstanding the fact that counsel for the defendants does not seek to rely on the statement in any way, counsel for the plaintiff submitted that by using the statement to attempt to contradict the witness, s 36 was enlivened and (on the request of counsel for the plaintiff) thereby required that cross-examining counsel tender the entire statement. Further, as I understood the submission, the tender was not limited to credit but went to the truth of the facts contained in the statement. I reject these submissions. Although I consider that s 36 was enlivened, there is nothing in its terms to suggest that counsel is required to tender any part of the statement, let alone the entire document which in this case runs to 191 paragraphs over 55 pages and no doubt contains material of no relevance to the issues in the trial. On the contrary, the wording of s 36 and the authorities referred to above make it clear that the Court has a discretion to make such use of the statement as it sees fit in the circumstances.
As to the exercise of the discretion in the present case, I note that counsel for the plaintiff did not approach the matter in terms of seeking to persuade me to exercise a discretion to require the statement to be admitted, but rather sought to rely on the general assertion that the statement should be admitted because it had been used to attack Delaney’s credit and s 36 required that it be admitted. Counsel did not specifically identify how the Court would be assisted by having the statement in evidence. In my view, the Court would not be assisted by having the statement in evidence. There is simply no issue surrounding the statement to resolve. Counsel for the defendants does not rely on it at all. There is no reason to justify the exercise of the discretion under s 36 to require the statement to be admitted.
For these reasons, the application by counsel for the plaintiff that Exhibit 17 be admitted absolutely is refused.
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