Que Noy v Qadir
[2020] NTSC 73
•2 December 2020
CITATION:Que Noy v Qadir & Anor [2020] NTSC 73
PARTIES:QUE NOY, Patsy
v
QADIR, Mohammad Nawaz
and
REGISTRAR-GENERAL FOR THE NORTHERN TERRITORY
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:79 of 2019 (21928711)
DELIVERED: 2 December 2020
HEARING DATES: 22 May, 1, 11, 18 and 30 June 2020
JUDGMENT OF: Hiley J
CATCHWORDS:
EVIDENCE – Witness evidence – Re-examination – Meaning of “matters arising out of evidence given by the witness in cross-examination” in s 39(a) of the Evidence (National Uniform Legislation) Act 2011 (NT) – Similar to the common law meaning – May extend beyond removal of ambiguities and uncertainties that have emerged as a result of answers given by the witness in cross-examination – May be permitted where an answer given in cross-examination would leave the court with an impression of the facts 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 – Must arise from evidence given in answers to questions – Not sufficient if the answer does not materially add to what the witness has said in chief.
EVIDENCE – Discretions - Exclusion of evidence – Operation of s 135 of the Evidence (National Uniform Legislation) Act 2011 (NT) – Admission in re-examination of evidence that was not disclosed and was not led in chief would be unfairly prejudicial – Probative value of the proposed evidence substantially outweighed by the danger that the evidence might be unfairly prejudicial to the other party – Prejudice could not be cured by adjournment and payment of costs.
EVIDENCE – Privileges – Self-incrimination privilege – Unlikely that a party would have reasonable grounds to object to giving evidence in chief or in re-examination under s 128 of the Evidence (National Uniform Legislation) Act 2011 (NT) – Such a person could not be compelled to give such evidence in chief or in re-examination – Privilege waived if the person gives evidence that might tend to incriminate him or herself – Provision of certificate under s 128.
Evidence (National Uniform Legislation) Act 2011 (NT), s 39, s 128, s 135
Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264; Hadid v Australis Media Ltd (unreported, NSWSC, Sperling J, 5 November 1996); ASIC v Rich [2005] NSWSC 1015; AON Risk Services Australia td v Australian National University (2009) 239 CLR 175; Song v Ying [2010] NSWCA 237, applied.
Prince v Samo (1838) 7 Ad & El 627 (QB); Connell v R (No. 6) (1994) 12 WAR 133; Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765; Lowe v Lang [1999] NSWSC 801; Ollis v Melissari [2005] NSWSC 1016; Ewin v Vergara (No. 2) (2012) 209 FCR 288; R v Dirani (No. 18) [2018] NSWSC 1134, considered.
REPRESENTATION:
Counsel:
Plaintiff:A Wyvill SC, P Morgan
First Defendant: G O’Brien-Hartcher
Second Defendant: K Smith
Solicitors:
Plaintiff:King & Wood Mallesons
First Defendant: Bowden McCormack Lawyers
Second Defendant: Solicitor for the Northern Territory
Judgment category classification: A
Judgment ID Number: Hil2016
Number of pages: 38
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINQue Noy v Qadir & Anor [2020] NTSC 73
No. 79 of 2019 (21928711)
BETWEEN:
PATSY QUE NOY
Plaintiff
AND:
MOHAMMAD NAWAZ QADIR
First Defendant
AND:
REGISTRAR-GENERAL FOR THE NORTHERN TERRITORY
Second Defendant
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 2 December 2020)
Introduction
At the resumption of the hearing on 30 June 2020 I rejected an application by Mr O’Brien-Hartcher, counsel for the first defendant (the defendant), to re-examine the defendant “on certain matters which relate to the first defendant’s ability to pay the plaintiff with available funds”[1], namely the matters set out in paragraphs [2] – [6] of his affidavit promised 22 June 2020.[2] Although I gave brief reasons at the time, I said that I would publish more fulsome reasons for that ruling. These are those reasons.
Paragraphs [2] – [6] of that affidavit referred to photographs that the defendant said he had retrieved from his phone of some of the cars his business had purchased, repaired and sold prior to May 2017 and to annotations he recently made opposite each photograph showing details of amounts of cash paid to purchase and repair cars and amounts of cash he received on sale of the cars depicted in the photographs. The photographs and annotations were contained in Annexure 2MNQ1 and comprised 38 pages. Those photographs and annotations were the same as some of those contained in a larger bundle of 64 pages of photographs and annotations that I had already marked as MFI D13 on 1 June 2020. The defendant said the annotated photographs showed details of some of the cash income which he had earned and part of which he had available in May 2017. He said he used some of that cash to pay instalments to the plaintiff.
In addition to wishing to give that evidence in re-examination the defendant indicated through his counsel that he would be seeking a certificate under s 128 of the Evidence (National Uniform Legislation) Act 2011 (NT) in respect of that evidence.[3]
Relevant background
The defendant’s income and his capacity to pay the plaintiff $300,000 on or shortly after 3 May 2017 (as required by the alleged contract[4]) and by 23 April 2018 (on the defendant’s case[5]), has always been an important evidentiary issue in this proceeding. Consequently the defendant:
(a)gave discovery of documents relating to this issue, in particular:
(i) bank statements that show monies received and monies paid out by him since 2012;
(ii) an email dated 18 October 2019 which attached 10 pages of photographs of motor vehicles, mostly damaged, and a car trailer – MFI P26; and
(iii) receipts for amounts totalling $300,000 alleged to have been written and signed by the plaintiff.
(b)included, in his affidavit promised on 4 April 2020 (Ex D11), five paragraphs headed “Means to pay for the Land”.[6]
Those five paragraphs identified four sources of cash. They referred to:
(a)him working as a taxi driver operator since 2008 – [39];
(b)him earning money from the business of NoLimit Panel and Paint – [40];
(c)an insurance payout of $48,000 in 2012 – [41];
(d)him having “made other money by selling parts of wrecked cars and selling low value repaired cars as part of the NoLimit Panel and Paint business and the customers usually pay by cash” – [42]; and
(e)cash that he brought back from the Philippines that he had previously sent there for a proposed business venture which never eventuated – [43].
The hearing, originally set down for four days, began on Tuesday, 5 May and continued until Friday 8 May. The matter was then adjourned to 20 May for further hearing. At that point the defendant had not been called to give evidence.
Shortly before the court adjourned on Friday 8 May Mr Wyvill SC, senior counsel for the plaintiff, identified a number of matters requiring the defendant’s attention between then and 20 May, including further disclosure of a telephone and other documents including further bank statements. Mr Wyvill SC said that those assisting him had been through the bank statements that had been discovered, and they showed a total gross income over the relevant period of some $301,000 that appears to have been expended on other transactions. He said that the plaintiff’s lawyers would be contending that when he entered into the contract with the plaintiff, the defendant did not have any capacity to pay $300,000, and that the defendant entered into the contract with the knowledge that he could not perform it.[7]
At the hearing on Wednesday 20 May, prior to calling the defendant to testify, Mr O’Brien-Hartcher informed the Court, and the plaintiff’s lawyers, that the defendant would be objecting to answering some questions under s 128(1) of the Evidence (National Uniform Legislation) Act and he would be seeking a certificate under s 128(3)(b). The objection would be to giving evidence that “might tend to or render him liable to any prosecution or court proceedings in relation to Commonwealth offences of tax fraud” or other offences to do with tax or revenue, whether they be offences under Northern Territory or Commonwealth laws.
Mr O’Brien-Hartcher conceded, correctly, that the defendant would probably not be entitled to such a certificate in respect of such evidence if it was given in chief, acknowledging that a witness cannot generally object to answering questions asked by his own counsel.[8]
The defendant was called to testify. His affidavit was tendered and some additional evidence was adduced from him in chief.[9] No attempt was made to lead oral evidence from the defendant about paragraphs [39] – [43] of his affidavit or otherwise in relation to his means to pay the $300,000 to the plaintiff, and in particular as to the sources and amounts of his cash receipts. Nor was there any attempt to tender any further material such as the photographs and annotations contained in MFI P26 or MFI D13, or to otherwise lead evidence about the matters raised by Mr Wyvill SC on 8 May. Cross-examination commenced later that day but was not completed. The hearing was adjourned to 22 May.[10]
The defendant had sent the annotated photographs now marked as MFI D13 to his solicitor on the morning of 20 May 2020. The defendant’s solicitors then provided the plaintiff’s lawyers with the annotated photographs. No explanation of the documents or their relevance was given at the time, except that the defendant’s solicitor believes he said words to the effect that “here are some car photos with markings made by our client.” Soft copies of the documents were emailed to the plaintiff’s solicitors at 4.50 pm on 20 May 2020 by a dropbox link, again with no explanation of the documents or their relevance.
MFI D13 comprises 64 pages, each containing one or more photographs of a motor vehicle and accompanying text identifying the model of the vehicle, costs and expenses, sale prices and purchase and sale dates. I understand that those vehicles do not include the vehicles depicted on MFI P26, namely the email and attachments that had been discovered prior to trial.
Mr Wyvill SC commenced his cross-examination of the defendant on the afternoon of 20 May. He did not cross-examine the defendant about MFI D13 or MFI P26, or about any of the information contained therein.[11] Mr Wyvill SC sought and received confirmation from the defendant that his sources of income between 2010 and 2018 were the two businesses referred to in his affidavit, namely as a taxi driver operator and his NoLimit Paint and Panel business.[12]
On 22 May 2020, by which time those acting for the plaintiff would have been aware of the recent production of the annotated photographs marked MFI D13, Mr Wyvill SC asked the defendant whether he was aware of his obligation to produce all documents that were relevant to issues in the proceeding including any document that would help to prove that he paid $300,000 to the plaintiff. The defendant said: “Yes, and I have [sic] been giving it to them”; and “Yes, I have sent photos of cars I’ve sold to my lawyers and they had that on record.”[13] Counsel did not ask any more questions about those photographs but continued to ask the defendant about his inadequate discovery and in particular of documents such as bank statements that might show his capacity to pay the $300,000 to the plaintiff.
After completion of Mr Wyvill SC’s cross-examination on Friday 22 May Mr O’Brien-Hartcher indicated that he wished to re-examine the defendant in relation to profits that he had made in the course of his business NoLimit Panel and Paint. Counsel also indicated that he would be seeking a certificate under s 128 of the ENULA in relation to that evidence. He was wishing to tender the photographs and information comprising MFI D13 and adduce the evidence contained in paragraphs [2] – [6] of Affidavit #2.
This presented two issues:
(a)whether or not such re-examination was permissible, and whether it should be allowed; and
(b)if such re-examination was allowed, whether or not a certificate should be granted under s 128 in the unusual circumstance where it was the defendant’s own counsel who was seeking to elicit the evidence in re-examination.[14]
Both counsel subsequently provided helpful written submissions.
In his written submissions of 28 May 2020 Mr O’Brien-Hartcher foreshadowed a desire to re-examine his client “on certain matters which relate to the first defendant’s ability to pay the plaintiff with available funds.”[15] Counsel identified particular passages of cross-examination which are said to have identified relevant matters which justify that re-examination[16]:
(a)Questions about his failure to disclose all documents concerning his ability to pay the $300,000 to the plaintiff, and the defendant’s answers, purportedly in response to those questions, that:
(i) “I have sent photos of cars I’ve sold to my lawyers and they had that on record.”[17]
(ii) “I would have to go through my computer to get more of my camera that I had … and [sic] got the photos that I had from previous cars.”[18]
(iii) “I’ve given the documents to my lawyers already”, referring to MFI D13.[19]
(iv) “I did not need to” when it was put to him that he had not disclosed any documents that suggest he had made an application for funding for the purchase.[20]
(b)Questions about his bank statements and whether:
(i) they showed withdrawals of money subsequently paid to the plaintiff[21];
(ii) he lied in his evidence when he said the bank statements contain records of transactions where he had withdrawn money and paid it to Ms Que Noy[22].
(c)The following exchange in relation to paragraphs [39] – [43] of his affidavit: “That’s what you rely upon for the means to pay Patsy? … Some of the money, yes.”[23]
(d)His rejection of counsel’s puttage that he did not have assets that totalled more than $100,000 as at 3 May 2017, and of counsel’s suggestion that was a lie and that his assets were “a few low value motor vehicles, equipment to do with your business and the money in those bank accounts” to which he responded: “When I refer to low value vehicles, it’s because I bought them really cheap at a low value. So that’s why I say low value. That’s what it means. I just want to put that on record.”[24]
(e)His denial that, according to his bank statements, his average income from his two businesses was $100,000 per annum.[25]
With the exception of (b) above, these are all matters which:
(a)were within the scope of the matters covered in his affidavit, and in particular paragraphs [39] – [43]; and
(b)he could have amplified in his affidavit, by further affidavit prior to trial, or during his evidence in chief.
In their written submissions of 29 May 2020[26] counsel for the plaintiff:
(a)referred to and relied on what Austin J said about re-examination in ASIC v Rich[27];
(b)contended that the evidence which the defendant was seeking to lead could have been led in chief but was not, perhaps for forensic reasons; and
(c)stressed the non-disclosure of documents such as those referred to in MFI D13.
Counsel for the defendant filed a supplementary outline of submissions on 11 June 2020[28] contending that:
(a)the defendant’s credit was directly challenged in cross-examination about his source of income and his ability to pay the plaintiff at the time of the signing of the contract; and
(b)the defendant should be given leave to re-establish his credibility under s 108(3)(b) of the ENULA, presumably by adducing evidence of a prior consistent statement.
In particular counsel referred to:
(a)Commentary by the Australian Law Reform Commission in its final report in 1985, at paragraph 628, where the authors give a broad interpretation to the intended meaning of s 39(a). However, I note that this broad approach has been rejected in cases such as Hadid[29].
(b)R v Dirani (No. 18)[30] where leave was given under s 39(b) for the Crown to re-examine a witness whose credibility was challenged during cross-examination and where the court would otherwise be left with “an impression of the facts which was capable of being construed unfavourably to the party calling the witness, and which represented a distortion, or an incomplete account of the truth as the witness was able to present it”[31];
(c)Drabsch v Switzerland General Insurance Co Ltd[32], where Hamilton J quoted the passage in Cross on Evidence quoted in [33] below, and other decisions about re-examination. His Honour said that a broad approach should be taken when construing s 39, noting that re-examination is not confined to clarifying or explaining an ambiguous answer given in cross-examination;
(d)Lowe v Lang[33], a case involving recent invention and the ability to use s 108(3) of the ENULA to tender evidence of a prior consistent statement, namely “a previous representation that is consistent with evidence given by the witness.”[34] Hamilton J referred back to his earlier observations in Drabsch.
I pause here to note that counsel’s reliance on s 108(3)(b) was misplaced. This is because the credibility rule does not apply to evidence adduced in re-examination of a witness.[35] However, the normal principles regarding re-examination, reflected in s 39, still apply. In other words, the fact that a witness’ credibility has been challenged during cross-examination (as is invariably the case) does not result in s 108(3) having any relevant role to play.
On 17 June 2020 counsel for the plaintiff provided further submissions[36], responding to those two points made in the defendant’s supplementary submissions of 11 June, and also arguing why leave should not be granted under s 39(b). Amongst other things counsel contended that:
(a)the evidence which the defendant now seeks to lead, primarily that contained in MFI D13, arose out of Mr Wyvill SC’s statements in open court on 8 May 2020, not as a result of his cross-examination. Further, during cross-examination, Mr Wyvill was careful not to cross-examine the defendant on other potential sources of cash that may not have been banked or otherwise recorded, but rather focused on what was disclosed by reference to the bank accounts and other documents discovered by the defendant.
(b)it would be grossly unfair to the plaintiff if leave were given at that late stage of the proceedings, noting s 192(2)(b) of the ENULA;
(c)s 108(3) of the ENULA is not engaged as the evidence sought to be adduced was not evidence of a prior consistent statement; and
(d)even if the re-examination did fall within the scope of s 39(a), it should be excluded under s 135. Counsel referred to [22] of ASIC.
It became evident that more precision was required as to exactly what evidence Mr Qadir was wishing to give during re-examination. Accordingly, I ordered him to make and file an affidavit containing the evidence which he wished to give and I indicated that a certificate would be issued under s 128 in relation to that affidavit. Affidavit #2 was filed on 22 June.
At the hearing on 30 June I ruled that I would permit re-examination on the matters contained in paragraphs [7] to [12] of the affidavit together with associated annexures, namely the defendant’s further evidence about particular entries in the bank statements,[37] but not on the matters contained in paragraphs [2] to [6] and the associated annexure, namely Annexure 2MNQ1. Following that ruling paragraphs [7] – [12] and the relevant annexures were admitted into evidence and marked as an exhibit (Ex D17). Accordingly, these reasons concern the matters contained in paragraphs [2] to [6] and the associated annexure, namely Annexure 2MNQ1, which, as I have said, contains some but not all of the photographs and annotations contained in MFI D13.
Observations
A small number of photographs on 10 pages (MFI P26) were disclosed well before trial. However, the 64 pages containing photographs of another 64 vehicles together with detailed annotations regarding each of those vehicles (MFI D13) were not produced until 20 May, when the defendant was still in cross-examination.
Assuming that those photographs were genuine and were of vehicles which the defendant in fact had, and disposed of, prior to 2017, I would infer that the photographs were taken prior to 2017. I would also infer that the defendant would have been in possession of some of the information contained in the annotations prior to 2017. I also infer that he made the annotations and prepared the documents comprising MFI D13 some time between the commencement of the trial on 5 May, and 20 May 2020. The annotations would either have been based upon documents, not disclosed and possibly no longer in existence or easily retrievable,[38] or upon the defendant’s attempted recollection and or reconstruction of that information in May 2020, more than three years after the relevant transactions.
Whatever the case, the information, if considered relevant, could and should have been obtained and disclosed well before trial, together with documents that formed the basis of that information. It is not new information. It is that information, rather than the photographs themselves, which would have been relevant. Had the information been provided earlier it would likely have been the subject of inspection and investigation by the plaintiff’s lawyers, further or different cross-examination, and perhaps the calling of contradictory evidence.
The question concerning Mr Qadir’s earnings and capacity to pay the $300,000 has always been an important question. The importance and relevance of that question is demonstrated by the fact that Mr Qadir specifically dealt with this issue in his affidavit. As I have said paragraphs [39] – [43] of his affidavit (Ex D11) referred to four sources of cash: as a taxi driver operator; from his business NoLimit Panel And Paint – selling parts of wrecked cars and selling low value repaired cars; the $48,000 received by his father in 2012 and paid to him over the next four years; and cash which he had previously sent to the Philippines. He could have attempted to provide more detail about those receipts of cash, and to quantify the amounts of money involved, but he did not (apart from the $48,000 he received from his father between 2012 and 2016). Nor did he seek to do this when he gave his evidence in chief.
Legal Principles regarding Re-examination
Section 39 of the ENULA provides that:
39 Limits on re-examination
On re-examination:
(a)a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and
(b)other questions may not be put to the witness unless the court gives leave.
Section 39(a) reflects the common law principles concerning re-examination on matters arising out of cross-examination.[39]
The common law position is encapsulated in the following passage in Cross on Evidence, which has remained the same since the 1996 edition. At [17605]:
The purpose of re-examination is not merely to remove ambiguities and uncertainties, 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.[40]
[emphasis mine]
That passage is virtually identical to the summary of the principles by the Full Court of Western Australia in Connell v R (No. 6) at 209-210 which in turn was based upon observations in R v Lavery (No. 2), R v Chambers, R v Pullman and R v Szach. The passage has been subsequently quoted or cited, apparently with approval, by numerous judges and scholars.[41]
In Hadid, Sperling J referred to the passage in [17605] of Cross on Evidence and said:
One principle is that re-examination is confined to matters arising out of the cross-examination. In my experience, that phraseology is used not merely to indicate that the topic must have been mentioned in cross-examination but that the matter arises out of cross-examination in a special way. The phrase is used in effect as a label for the commonly understood principles which delineate the ambit of legitimate re-examination.[42]
Sperling J then quoted the passage in [17605] of Cross on Evidence and turned to consider whether s 39(a) of the ENULA should be construed differently to the common law position. His Honour rejected a contention that s 39 should be construed as giving to the party calling a witness the right to adduce in re-examination additional evidence where the answers given in cross-examination do not constitute the whole truth. That contention was drawn from a comment made in the Australian Law Reform Commission’s Report, number 26, where it was said that as a matter of principle, re-examination is permissible in every case where the answers or account given in cross-examination would, if left unexplained or uncompleted, not constitute the whole truth. His Honour said:
This passage cannot be taken literally and without qualification. Otherwise, any amount of evidence could be given in re-examination on any topic raised in cross-examination and not exhaustively expounded. …
Having regard to the common usage of the expression “arising out of cross-examination” to which I have referred, I read the phrase “arising out of evidence given by the witness in cross-examination”, as it appears in s 39, as doing no more and no less than incorporating the principles of the common law in relation to re-examination.[43]
Like [17605] of Cross on Evidence, Sperling J’s observations in Hadid have subsequently been quoted and applied in numerous authorities.[44]
In ASIC v Rich, at [18] – [19], Austin J said:
18 The defendants also relied on the statement by Cross on Evidence at [17610] that "the most important rule is that the re-examination must be confined to matters arising out of the cross-examination, and new matter may only be introduced with the leave of the judge" (emphasis supplied). They referred to several cases in which the point is made that re-examination is permitted to explain or qualify facts elicited in cross-examination: R v Singleton [1986] 2 Qd R 535, 537 per Macrossan J; Wentworth v Rogers (No. 10) (1987) 8 NSWLR 398, 409 per Glass JA. They submitted (…) that if the matter in question was in evidence before the witness was cross-examined, it is not a matter "arising out of the evidence given by the witness in cross-examination". I agree.
Application to the present case
19 The statute requires the court to consider whether the question in re-examination is about a matter "arising out of the evidence given by the witness in cross-examination". If, in cross-examination, the witness merely confirms or repeats a matter addressed in his evidence in chief, or in the evidence of another witness for the same party, without materially adding to it, and in re-examination counsel seeks to clarify or amplify or challenge that matter, the statutory language does not apply. That is, the question is about a matter arising, originally, out of the witness's evidence in chief or previous evidence, rather than evidence given in cross-examination (…). Therefore the question in re-examination should not be allowed.
Accordingly, the position is still that, subject to various qualifications and limitations, a witness can be re-examined:
(a)to remove ambiguities and uncertainties that have emerged as a result of answers given by the witness in cross-examination; or
(b)where “an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts … 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.”[45]
However the re-examination must be about matters arising out of the cross-examination. That is:
(a)The matters must arise from the evidence given in answers to questions, as distinct from the questions themselves. Questions are not evidence.
(b)It is not sufficient that the matter was mentioned in cross-examination. The matter must arise “out of cross-examination in a special way”.[46]
(c)The matters arising must have been “facts elicited in cross-examination”.[47]
(d)A matter does not “arise out of cross-examination” if “the witness merely confirms or repeats a matter addressed in his evidence in chief … without materially adding to it.”[48] In that situation, “the question is about a matter arising, originally, out of the witness’s evidence in chief or previous evidence, rather than evidence given in cross-examination.”[49] It follows that that evidence could have been dealt with during the witness’s evidence in chief.[50]
(e)Re-examination is not allowed if its sole purpose is to elicit information which could and should have been elicited in examination in chief.[51] The witness would have been “able to present” a “complete account of the truth” in his or her evidence in chief.[52]
(f)Re-examination is not permitted in relation to a matter raised in cross-examination simply on the basis that “the whole of the facts relating to the matter had not been given in the answers adduced in cross-examination.”[53] It is not sufficient that “the answers given in cross-examination do not constitute the whole truth.”[54]
(g)It is not sufficient if “the witness has given a direct denial of what was suggested to him, or has given an amplified answer which does not … raise any question of the answer being misconstrued or misapplied in some way adversely to his credit but for the evidence now sought to be tendered.”[55]
(h)Accordingly it is not sufficient if the cross-examiner is simply complying with Browne v Dunn or other obligations of procedural fairness such as putting to the witness that he or she has lied in the course of giving particular evidence.
(i)If there is no lack of clarity or ambiguity, the question may be rejected, particularly if the result of allowing it may be that the judge would feel obliged to allow considerable further cross-examination as a result of the answers.[56]
(j)With certain exceptions such as the rebuttal of allegations of recent invention, re-examination cannot be used just to restore a witness’ credit. The answer must also represent a distortion or incomplete account of the truth as the witness was able to present it.[57]
Cross on Evidence proceeds to summarise other limitations upon re-examination:
(a)At [17605], following the passage quoted in [33] above:
Leading questions may not be put, any more than they may be put in chief;[58] previous consistent statements can only be put to the witness if rendered admissible by the terms of the cross-examination, or as statements in documents made admissible in civil proceedings by statute, or to refresh memory.[59]
(b)And at [17610]
The most important rule is that the re-examination must be confined to matters arising out of the cross-examination, and new matter may only be introduced with the leave of the judge. Thus in Prince v Samo[60] … [a witness for the plaintiff] was asked in cross-examination whether the plaintiff had not said, in the course of his evidence in … previous proceedings, that he had repeatedly been insolvent. It was held that he could not be asked in re-examination about other portions of the plaintiff's earlier evidence which had no connection with the statement concerning his insolvency. The rule is sound in principle because it prevents the admission of inadmissible evidence in re-examination, under the guise of dealing with points emerging from the cross-examination, and any hardship that the rule may occasion can be mitigated by the judge.
The passage quoted in [41](a) above is of relevance to counsel’s submissions concerning the use of re-examination in order to enhance or restore a witness’ credit by leading evidence of prior consistent statements. However, in the present case no prior statement was produced. The only “statement” produced was MFI D13, which was not created prior to early May 2020.
Consideration and Conclusions
The “matters” which are said to arise “out of evidence given by the [defendant] in cross-examination”[61] are “certain matters which relate to the first defendant’s ability to pay the plaintiff with available funds.”[62]
As counsel for the plaintiff pointed out:
(a)the defendant gave evidence about those matters in his affidavit, and could have supplemented that evidence in a further affidavit and or during his evidence in chief; and
(b)it is likely that the defendant made the forensic decision not to give that additional evidence in chief, concerned that it might incriminate him in other proceedings.
Moreover, the defendant only produced the photographs and created the documents contained in MFI D13 and Annexure 2MNQ1, after senior counsel for the plaintiff indicated on 8 May that he would be requiring further disclosure of the defendant’s records that related to the defendant’s capacity to pay the money as he had alleged. It was not created in response to cross-examination.
I do not consider that the proposed re-examination is about a matter “arising out of the evidence given by the witness in cross-examination” as that term is properly understood.
Importantly, the defendant had already given evidence in his affidavit about his receipt of cash monies from various sources including his business NoLimit Panel and Paint. He could have provided, but did not provide, any further information about any or all of the transactions or the amounts of money involved before he completed his evidence in chief.[63]
The possibility that such additional evidence might incriminate him in other proceedings, and that he may not be given the protection of a certificate under s 128, did not exempt the defendant from his obligation to present all of the evidence upon which he would be relying in affidavit or oral form prior to cross-examination. He should not have assumed that he would have the opportunity to present that additional evidence during cross-examination, perhaps then under the protection of a s 128 certificate. Nor should he have assumed that if the cross-examiner did not give him that opportunity, he could present that evidence in re-examination. Such assumptions would be contrary to normal procedures and principles of procedural fairness which require a party to adduce all of its evidence in chief so that the contradicting party knows exactly what evidence it needs to challenge or otherwise deal with in cross-examination.
The matters referred to in paragraphs [2] – [6] and Annexure 2MNQ1 of Affidavit #2 did not arise from answers which the defendant gave in cross-examination, did not arise “in a special way”[64], and did not arise from facts elicited in cross-examination or from answers that materially added to his evidence in chief.[65]
Further, the answers identified by the defendant’s counsel as justifying re-examination were answers relating to the inadequacy of the disclosure, mere responses to puttage, and or answers that were not properly responsive to the questions. Counsel for the plaintiff did not cross-examine the defendant about the sources or quantum of the cash that the defendant had referred to in his affidavit.
Moreover, there was nothing in the answers identified by the defendant’s counsel in his submissions that was ambiguous, uncertain or misleading in a relevant sense.
Further, the defendant’s desire to support his oral evidence by tendering the documents contained in Annexure 2MNQ1 during re-examination, raises the additional concern about his inadequate disclosure. Unlike the situation which sometimes arises where a witness may tender a privileged and therefore undisclosed document, such as an earlier statement made to his or her solicitor, in order to rebut an allegation of recent invention, there is no reason why the documents contained in Annexure 2MNQ1 had not previously been disclosed.
As the Full Federal Court said in Bourke v Beneficial Finance Corporation Ltd[66]:
Generally the sanction for the failure of a party to discover documents is that the party is unable to tender those documents in evidence.
For those reasons too, the defendant should not now be able to tender those documents in evidence. Nor should he be able to give oral evidence about them. This is particularly so where he, the offending party, seeks to tender that evidence during re-examination.
Accordingly, the requirements of s 39(a) have not been met.
Section 39(b)
Section 39(b), consistent with the common law, recognises that a court may give leave for questions to be put in re-examination that might not be permitted under s 39(a). This commonly occurs where the additional questions and answers are unlikely to prejudice the cross-examining party, or where possible prejudice can be accommodated by giving the cross-examiner permission to further cross-examine the witness as a result of those answers. Indeed this occurred in a number of the cases referred to by Mr O’Brien Hartcher in his submissions.
Some of those authorities such as R v Dirani (No. 18)[67] and Lowe v Lang[68] relate to re-examination for the purpose of restoring credit, for example by adducing evidence of a prior consistent statement pursuant to s 108(3) of the ENULA. According to Odgers[69]:
Under para (b) it is implicit that questions that are not “about matters arising out of evidence given by the witness in cross-examination” may be put to the witness in re-examination if the court gives leave. To give one example, where an attack has been made on the credibility of the witness in cross-examination, evidence supporting the credibility of the witness may be elicited with the leave of the court in re-examination, even if such evidence were not properly described as evidence “arising out of evidence given by the witness in cross-examination…”
In addition to the need to protect the cross-examining party from being so prejudiced if leave is granted, s 192 of the ENULA requires the court to take into account other factors including the possibility of further delays and the need for the trial to be adjourned.
The present matter had been case managed with the usual requirements for the parties to make full disclosure and to put their evidence into affidavit form. Unfortunately the evidence was not completed within the time originally estimated by the parties and the matter had to be adjourned several times, initially to single days when the Court was available, and later because of the unavailability of one of the defendant’s witnesses due to the coronavirus pandemic in the Philippines.
If leave was given, I would have required the defendant to provide full discovery including the identification of all documents that have been but are no longer in his possession and what became of them. This would include receipts and invoices for cars, parts, paint and other materials, and formal documents such as registration certificates and stamp duty payments. The plaintiff would then have to be given the opportunity to make her own enquiries about each of those transactions, particularly those that occurred at a relevant time, such as the time of each deposit into or withdrawal from the defendant’s bank accounts, shortly before or during the period when the defendant says he agreed to pay the $300,000 and the times when he made the alleged cash payments to her.
Clearly, that would have been a massive and expensive task and would have resulted in considerable delay before the hearing could proceed. Even then, much of that material would have been difficult or impossible to locate and obtain at this late stage.
Needless to say, I did not consider that leave should be granted for the defendant to adduce this additional evidence, even if I was to give counsel for the plaintiff a further opportunity to cross-examine on it. As I have said, the evidence is not new and could and should have been included in the defendant’s affidavit or led in chief if it was thought important. It attempts to prove, very late in the defendant’s case, that the defendant made substantial profits from his business, based solely on the defendant’s assertions contained in the photographs and annotations on the documents in Annexure 2MNQ1 and MFI D13. Had this evidence been disclosed earlier, the plaintiff would have been entitled to seek further discovery of documents in relation to those important matters and to carry out further enquiries about those transactions.
I therefore refused leave for the evidence referred to in paragraphs [2] – [6] of Affidavit #2 to be adduced.
Section 135
Even if I was wrong to conclude that the proposed re-examination did not arise out of cross-examination within the meaning of s 39(a), I would have refused to admit that evidence under s 135 of the ENULA.
Section 135 provides:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Section 135 requires consideration of the probative value of the evidence, and requires that the probative value is substantially outweighed by the danger the evidence might have one or more of the consequences stated in paragraphs (a), (b) and (c). At its highest, the evidence would show that the defendant would have received approximately $120,000 in cash, after costs of purchasing and repairing the vehicles, between November 2010 and the end of May 2017.[70] Even if that evidence was accepted, without challenge by the plaintiff’s counsel and without reservation on account of the lack of supporting documentation, its probative value would be very low. In the scheme of things, all that it would show is that he may have had a little more money available to him than was disclosed in his bank records. But it still would have been significantly less than the $300,000 which he was to pay to the plaintiff by 17 May 2017.[71]
On the other hand, if that evidence was admitted, there would be a substantial danger its admission would cause unfair prejudice to the plaintiff, would be misleading or confusing, and would cause or result in undue waste of time. Its probative value would have been substantially outweighed by those dangers.
Austin J referred to s 135 in ASIC, when considering re-examination and s 39. At [22] his Honour said:
This decision [to exclude the documents] makes it unnecessary to address the arguments I heard on s 135 of the Evidence Act. It is appropriate to note, however, my view that it would have been unfair to the defendants to allow the evidence under objection in re-examination, after they had concluded their cross-examination based on a forensic strategy very different from the strategy they would have been likely to adopt if that evidence had been given in chief.
As counsel for the plaintiff pointed out, that was in circumstances where evidence could have been led in evidence in chief but was not. The circumstances are similar here in that sense, but the prejudice is compounded here because it was evidence the plaintiff was entitled to have through discovery, but did not have as a result of deficient discovery by the defendant. Cross-examination may well have been approached substantially differently had that evidence been available. The evidence is therefore unfairly prejudicial to the plaintiff, and a further opportunity to cross-examine would not cure such prejudice.
As I have already pointed out when considering s 39(b), attempts would have to be made to ameliorate the prejudice to the plaintiff by adjourning the case and making further orders, for example for further and better discovery. Court resources would again be taken up with the presentation of this evidence, and likely applications for further cross-examination on the matters raised by the new evidence. This is also in circumstances where the delay would be a result of the defendant having failed to discover the documents he now seeks to tender.
The case management principles set out in AON Risk Services Australia td v Australian National University[72] are particularly relevant here. That decision recognises the fact that timeliness, cost-effectiveness, and efficiency are essential to the just resolution of civil proceedings. Amongst other things the Court stated that:
It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
Certificate under s 128
Following my ruling refusing the re-examination it is not necessary for me to consider whether or not I would have issued a certificate under s 128. At first blush it seems odd that having so strenuously fought to adduce this further evidence in re-examination the defendant would then object to giving that evidence on the ground that it might tend to prove that he has committed an offence.
A witness is only entitled to a certificate under s 128 if the Court has determined that there were “reasonable grounds for the objection”.[73] At my request counsel for both parties provided helpful submissions about this topic.
As I have already noted,[74] the general assumption is that a certificate will not be granted to a witness who is a party in relation to the witness’ evidence in chief, because such a person cannot be compelled to give that evidence.[75] As Hodgson JA pointed out in Song v Ying (with Giles and Basten JJA agreeing) a witness who is a party is only compellable when asked questions by another party, usually by way of cross-examination, or by the judge. The witness has no right to object in the sense contemplated by s 128.[76]
Consequently the ability to object to answering a question on the basis of self-incrimination usually only arises during cross-examination. Even then, a witness may not have reasonable grounds for an objection if he or she has already waived the right to object, for example where the witness has already given evidence about that matter in chief. In Ewin v Vergara (No. 2)[77], Bromberg J said:
[18] [C]onsiderations which inform the common law principle of waiver are relevant to s 128 and may be taken into account in the Court’s determination of whether there are reasonable grounds for the objection pursuant to s 128(2) of the Act. A number of authorities support that approach: see WorkCover Authority (NSW) v Tsougranis at [40] (Haylen J); Versace v Monte [2001] FCA 1572 at [7], [12] (Tamberlin J); Odgers S, Uniform Evidence Law (10th ed, Thomson Reuters, 2012) at [1.3.13030].
…
[25] In my view, the giving of evidence-in-chief or the giving of evidence without objection in cross-examination by a privilege holder on subject matters in respect of which objections are later sought to be taken under s 128(1) of the Act, is clearly conduct inconsistent with the maintenance of the privilege. In that circumstance there is direct inconsistency with the maintenance of the privilege. Considerations of fairness as between the conduct of the privilege holder and the maintenance of the privilege demonstrate the inconsistency. It would be manifestly unfair for a privilege holder to voluntarily give evidence in support of his or her position in circumstances where the privilege holder could then, in reliance on the privilege, decline to allow that evidence to be tested through cross-examination.
In the present matter I have already issued a certificate in relation to some of the answers given by the defendant during cross-examination, and declined to issue a certificate in relation to others. As no issue has arisen concerning my decisions relating to answers given during cross-examination, I can now move on to discuss principles relevant to the applicability of s 128 to questions sought to be asked of a party during re-examination.
In principle, the position appears the same for re-examination as it would be if the defendant had sought to adduce the evidence in chief under cover of a s 128 certificate. There was nothing to compel him to adduce that evidence. I probably would have determined that, even if the defendant did object to giving this further evidence in re-examination, there were not reasonable grounds for his objection. Section 128(3) would not have been engaged and a certificate would not have been given.
Mr O’Brien-Hartcher pointed out that although the primary focus of the relevant passages at [111] of Cornwall and of Hodgson JA’s discussion at [25] – [31] of Song v Ying was examination in chief, Hodgson JA went on to conclude that a certificate may be issued under s 128 where a question is asked in re-examination touching on evidence for which a certificate was given in cross-examination.[78] His Honour quoted approvingly from Ollis v Melissari,[79] where Campbell J pointed out that fundamental procedural unfairness might sometimes occur if a certificate was not granted for re-examination on a particular topic in relation to evidence that the witness had been compelled to give during cross-examination under protection of a certificate. Campbell J said:
[6] In the present case, objection has already been taken by the witness to evidence being given on those topics. The re-examination, assuming for the moment that it is proper re-examination, will be confined to those topics which have been opened up by the evidence which has been given by the witness under cover of the s 128 certificate. It seems to me that the objection of the witness to giving evidence on the topic extends also to the giving of evidence on the topic, even in re-examination in response to questions from his own counsel. It is not necessary to go through the artificial procedure of counsel asking the questions, and the witness objecting to the question asked by his own counsel.
[7] I am strongly influenced in reaching this conclusion by the evident policy behind s 128. Part of that policy is that a way should be provided in which the claiming of a privilege against self-incrimination does not prevent a court hearing a civil case from obtaining relevant evidence, while at the same time to the extent the New South Wales Parliament has power to do so, not prejudicing in a subsequent criminal trial, the person who gives such evidence. That policy would be carried through only imperfectly if a s 128 certificate were not available concerning evidence given in re-examination. Further it would be a fundamental unfairness if a witness were encouraged by the giving of a s 128 certificate, to give evidence in relation to which he had a right to remain silent, and for the topic so opened up not to be able to be clarified by legitimate re-examination, if the cross-examination on that topic left a misleading or incomplete impression. I decline to believe that it was the intention of parliament to bring about a situation which caused that sort of fundamental procedural unfairness.
In the present matter, given that I had already indicated that I would issue a certificate in respect of evidence which may tend to prove that the defendant has committed offences or faces civil liabilities relating to tax or revenue matters, there is therefore authority that a certificate could have been issued to cover answers in re-examination which also go to that issue. However, the evidence which the defendant sought to adduce in re-examination was not directed to explaining why he had not filed tax returns or disclosed income that he should have. Rather, it related to his means to pay the plaintiff the $300,000, in respect of which it appears there has been a waiver of the kind discussed in Ewin v Vergara (No. 2). If that is the case, then there is no certificate which could be “extended” to cover the subject matter in re-examination.
If there were other matters which arose in re-examination which are not already the subject of a certificate, the authorities would suggest that such new matters could not be the subject of a s 128 certificate. This is because in re-examination, the necessary compulsion required for there to be an ‘objection’ pursuant to s 128 does not exist in such circumstances.[80]
Further, the evidence which counsel wished to adduce in re-examination was not of the kind noted by Campbell J such as would have avoided some kind of procedural unfairness created by the questions and answers during cross-examination.
Accordingly, even if I had permitted the proposed re-examination, I would not have considered there to be reasonable grounds for the defendant to object to giving that evidence unless he was granted a certificate.
----------------------------
[1] See “First Defendant’s Outline of Submissions on Re-examination” dated 28 May 2020 at [9].
[2] I shall refer to this as “Affidavit #2”.
[3] I had previously indicated that I would issue a s 128 certificate in relation to some of the answers that he gave during cross-examination. When I ordered the defendant to prepare and file the affidavit which became Affidavit #2 I indicated that it too would be the subject of a s 128 certificate.
[4] Amended Statement of Claim [19A] pleaded that settlement was to occur 14 days after the date of the contract.
[5] Amended Defence [19A] and [20.10]. 28 April 2018 was the date when the defendant says he paid the last instalment due to the plaintiff.
[6] [39] – [43].
[7] Transcript of proceedings (Transcript) at pp 338-9.
[8] Transcript at p 345.2. Also, see Cornwall v The Queen (2007) 231 CLR 260 (Cornwall) at [111] and Song v Ying [2010] NSWCA 237 (Song v Ying) per Hodgson JA (Giles and Basten JJA agreeing).
[9] Transcript at pp 354-373.
[10] Transcript at pp 373-432.
[11] Neither of those documents were marked for identification until 1 June.
[12] Transcript at pp 348.9-385.
[13] Transcript at p 446.
[14] I indicated that I was aware of some authority to the effect that this was not permissible because the witness was not compellable to answer questions asked of him by his own counsel.
[15] First Defendant’s Outline of Submissions on Re-examination dated 28 May 2020 at [9].
[16] First Defendant’s Outline of Submissions on Re-examination dated 28 May 2020 at [10] – [17].
[17] Transcript at p 446.
[18] Transcript at p 449.
[19] Transcript at p 464.
[20] Transcript at p 465.
[21] Transcript at p 450.
[22] Transcript at p 458.
[23] Transcript at p 464.
[24] Transcript at p 467.
[25] Transcript at p 472.
[26] Plaintiff’s Outline of Submissions on Re-examination dated 29 May 2020.
[27] [2005] NSWSC 1015 (ASIC v Rich), Austin J. Much of this was based on the passage in Cross on Evidence quoted in [33] below.
[28] First Defendant’s Supplementary Outline of Submissions on Re-examination dated 11 June 2020.
[29] Hadid v Australis Media Ltd (unreported, NSWSC, Sperling J, 5 November 1996) (Hadid). See discussion in [36] below.
[30] [2018] NSWSC 1134.
[31] At [21], using the same language as used by Cross on Evidence, quoted in [33] below.
[32] [1999] NSWSC 765 (Drabsch).
[33] [1999] NSWSC 801 (Lowe v Lang).
[34] Dictionary ENULA.
[35] Section 108(1).
[36] Plaintiff’s Further Submissions on Re-examination dated 17 June 2020.
[37] Namely the matters referred to in [18](b) above.
[38] For example, copies of registration certificates, and invoices and receipts for parts and paint.
[39] Hadid v Australis Media Ltd (unreported, NSW SC, Sperling J, 5 November 1996) (Hadid) at p 5.9; Odgers at p 206.
[40] R v Lavery (No 2) (1979) 20 SASR 430 at 435 and 451 (CCA); see also R v Chambers (1848) 3 Cox CC 92; R v Pullman [1942] SASR 262 (CCA); R v Nation [1954] SASR 189(CCA); R v Szach (1980) 23 SASR 504(CCA); Connell v R (No 6) (1994) 12 WAR 133 at 210; BC9402133(CCA); Mackrell v Western Australia (2008) 190 A Crim R 43; [2008] WASCA 228 at [107]–[111]; R v Clune (1999) 72 SASR 420; [1999] SASC 45 at [118]–[121].
[41] These include Sperling J in Hadid (1996); Einstein J in Schipp (1997); Hamilton J in Drabsch (1999); Roach v Page (No 2) [2003] NSWSC 772 at [1]; Randall v Aristocrat Leisure Ltd [2004] NSWSC 492 at [5]; ASIC (2005) at [17]; R v AJS (2005) 12 VR 536 at 576; MacKrell v Western Australia (2008) 37 WAR 414 at [110]; International Relief and Development Inc v Ladu [2013] FCA 1216 at 14; Burns v Media Options Group Pty Ltd [2013] FMCA 79 at [471]; Bowe v State of Western Australia [2017] WASCA 166 at [22] and Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th ed, 2019) 215.
[42] Hadid at p 4.9.
[43] Hadid at p 5.
[44] These include Schipp, Drabsch, and Odgers.
[45] Cross on Evidence at [17605].
[46] Hadid at p 4.4.
[47] ASIC v Rich at [18].
[48] ASIC v Rich at [19] quoted in Odgers at p 207.
[49] ASIC v Rich at [19] quoted in Odgers at p 207.
[50] Odgers (12th) at p 207.
[51] R v AJS [2005] VSCA 288 at [50].
[52] Referring to the second qualification contained in [17605] of Cross on Evidence.
[53] Hadid quoted in Odgers at p 207, fn 264.
[54] Hadid at p 5.2.
[55] Hadid at p 6.9.
[56] Drabsch at [7].
[57] Referring to the second qualification contained in [17605] of Cross on Evidence.
[58] However, they may be allowed after a cross-examination employing leading questions to a friendly witness: Rawcliffe v R (2000) 22 WAR 490; [2000] WASCA 239;
[59] R v Harman [1985] Crim LR 326 (CA).
[60] (1838) 7 Ad & El 627 (QB).
[61] Section 39(a).
[62] First Defendant’s Outline of Submissions on Re-examination dated 28 May 2020 at [9].
[63] Cf the principles noted in [40](d) – (f) above.
[64] See [40](b) above.
[65] Cf the principles noted in [40] above.
[66] (1993) 47 FCR 264 at 278.
[67] [2018] NSWSC 1134 at [8] and [33].
[68] [1999] NSWSC 801.
[69] Stephen Odgers, Uniform Evidence Law, 14th Ed, at [EA.39.150].
[70] Annexure 2MNQ1 to Affidavit #2.
[71] The written contract required the balance of the $300,000 to be paid within 14 days of the date of the contract, namely by 17 May 2017.
[72] (2009) 239 CLR 175.
[73] Subsection 128(2).
[74] See [9] above.
[75] See for example Cornwall and Song v Ying.
[76] Song v Ying at [25] – [31].
[77] (2012) 209 FCR 288.
[78] Song v Ying at [33].
[79] [2005] NSWSC 1016.
[80] See Song v Ying at [27] – [28].
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