Radisich v Molina & Ors
[2009] FMCA 1121
•4 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RADISICH v MOLINA & ORS | [2009] FMCA 1121 |
| EVIDENCE – Witness – application to cross-examine own witness under s.38 of the Evidence Act 1995 (Cth) – purpose of s.38 – evidence unfavourable to the party calling the witness – meaning of “unfavourable” – whether evidence neutral or inconsistent – discretionary considerations under ss.38(6) and 192(2) of the Evidence Act 1995 (Cth). INDUSTRIAL LAW – Civil penalty proceedings. WORDS AND PHRASES – “unfavourable”. |
| Building and Construction Industry Improvement Act 2005 (Cth) s.59(5)(c) Evidence Act 1995 (Cth), ss.38(1)(a), (b) & (c), 38(6), 135, 192(2) Workplace Relations Act 1996 (Cth), ss.167, 789(1)(a), 790(1)(a)(i) |
| Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 Glasby (2000) 115 A Crim R465; [2000] NSWCCA 83 Hadgkiss v CFMEU (2006) 152 FCR 560; [2006] FCA 941 Klewer v Walton [2003] NSWCA 308 Lewis v Nortex Pty Ltd (In Liq) [2002] NSWSC 237 R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 R v Le [2001] NSWSC 174 R v Lozano (unreported, New South Wales Court of Criminal Appeal, 10 June 1997) R v Parker [2003] NSWCCA 12 R v Souleyman (1996) 40 NSWLR 712 R v Taylor [2003] NSWCCA 194 Velevski (No 2) (1997) 93 A Crim R 420 |
| JD Heydon, Cross on Evidence (7th Australian Edn), (Chatswood: Lexis Nexis Butterworths, 2004) |
| Applicant: | JEFFREY JOSEPH RADISICH |
| First Respondent: | WALTER VINICIO MOLINA |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS |
| Third Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| File Number: | PEG 125 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 4 November 2009 |
| Date of Last Submission: | 4 November 2009 |
| Delivered at: | Perth |
| Delivered on: | 4 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr R L Hooker |
| Solicitors for the Applicant: | Lavan Legal |
| Counsel for the First Respondent: | Mr G MacLean |
| Solicitors for the First Respondent: | Gavin MacLean |
| Counsel for the Second and Third Respondents: | Mr J Nicholas |
| Solicitors for the Second and Third Respondents: | Construction Forestry Mining and Energy Union |
ORDERS
Leave is granted to the applicant to cross-examine Bradley Stephen Douthie pursuant to s.38 of the Evidence Act1995 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 125 of 2009
| JEFFREY JOSEPH RADISICH |
Applicant
And
| WALTER VINICIO MOLINA |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS |
Second Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Third Respondent
REASONS FOR JUDGMENT
(Ex tempore revised from the Transcript)
The application
After lunch yesterday, which was the first day of this hearing, the applicant called its fourth and final witness, Bradley Stephen Douthie. Mr Douthie had been giving oral evidence-in-chief for about
20 minutes when the applicant made an application to cross-examine him. That application was made under s.38 of the Evidence Act 1995 (Cth)[1] and the Court had the benefit of submissions on the application yesterday afternoon and this morning, from the applicant and each of the respondents.
Section 38 of the Evidence Act
[1] “Evidence Act”.
Section 38 of the Evidence Act provides as follows:
Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross‑examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party; or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c) whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross‑examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.
Note: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.
(4) Questioning under this section is to take place before the other parties cross‑examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7) A party is subject to the same liability to be cross‑examined under this section as any other witness if:
(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and
(b) the party is a witness in the proceeding.
The grounds of the application under s.38 of the Evidence Act
The application was made relying upon s.38(1)(a) and (b), but not (c), of the Evidence Act, supported by reference to discretionary considerations in ss.38(6) and 192(2) of the Evidence Act. In essence, the applicant says that the evidence given by Mr Douthie is:
a)unfavourable to the applicant; and
b)not given making a genuine attempt to give evidence about which he may reasonably be supposed to have knowledge.
The substantive application
The substantive application is for declaratory relief and the imposition of pecuniary penalties for alleged contravention of ss.789(1)(a) and 790(1)(a)(i) of the Workplace Relations Act 1996 (Cth)[2] brought by the applicant, a workplace inspector under s.167 of the WR Act against:
[2] “WR Act”.
a)Walter Vinicio Molina:
i)a member of:
A. the second respondent, the Construction, Forestry, Mining and Energy Union of Workers – the state registered union;[3] and
B. the third respondent, the Construction, Forestry, Mining and Energy Union – the federally registered union;[4] and
ii)an employed organiser with the CFMEU;
b)the CFMEUW; and
c)the CFMEU.
[3] “CFMEUW”.
[4] “CFMEU”.
Sections 789(1)(a) and 790(1)(a)(i) of the WR Act provide as follows:
Section 789(1)(a)
Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person:
(a) to become, or not become, an officer or member of an industrial association; …
Section 790(1)(a)(i)
False or misleading statements about membership
(1) A person must not make a false or misleading representation about:
(a) another person's obligation:
(i) to be, or become, an officer or member of an industrial association; …
The allegations in the application relate to persons working for a commercial fencing contractor, Southern Wire, on the Coles-Myer distribution centre construction site on Horrie Miller Drive, near Perth Airport,[5] in or about March 2008, and their interaction with Mr Molina. The material facts alleged by the application, which are relevant to
[5] “Site”.
Mr Douthie’s evidence, appear at paragraphs 10 to 13 of the Statement of Claim, in the following terms:
10.On 19 March 2008 at approximately 10.30am the first Respondent approached the following Southern Wire Workers in the crib hut on the Site:
10.1Andrew Bella
10.2Bradley Douthie
10.3Greg Sodkin
10.4Ali Reza Bolouri
11.The First Respondent was at that time, and at all material times, wearing a shirt and jacket each of which bore logos of the Third Respondent.
12.The First Respondent introduced himself to the Southern Wire Workers referred to in paragraph 10(a)-(d) above and asked them if they were “in the union”.
12.1Some of the Southern Wire workers replied to the First Respondent that they weren’t.
12.2The First Respondent then said “Well, we’ve got to sort this out”.
12.3Mr Bella then said “Well, there’s not much to sort out – we’ve told you we don’t want to join the union, we’re quite happy”.
12.4The First Respondent then repeated to the Southern Wire Workers then present that “You have to join the union otherwise you can’t work on this site”.
12.5The First Respondent then referred to certain claimed benefits for the Southern Wire workers in joining “the union” and then said “Well, we gotta sort this stuff out before you go back to work”;
12.6Mr Bella then said “Well, legally you can’t stop us from working and you can’t make us join the union”;
12.7The First Respondent replied “Well, you are right there but you can’t work on this site until we sort it out”.
13.From approximately 10.45am on 19 March 2008:
13.1The First Respondent telephoned Benjamin Sivewright from the crib hut on the Site using a telephone registered in the name of “CFMEU Construction Division”.
13.2A telephone conversation commenced with the First Respondent saying to Mr Sivewright, “Its Vinnie again from the CFMEU. I’ve got your guys in my office. This has been going on for weeks and weeks this issue. They’re still not members of the union. There’s a safety issue on site, one of the guys has holes in his boots. I can’t let them back on site until they’re members of the union.”;
13.3Mr Sivewright replied to the First Respondent, “We can get the boots rectified very quickly. I can get him off site immediately and get him back there with new boots, but I’d like the other guys to go back to work straight away.”
13.4The First Respondent then said on the telephone to Mr Sivewright, “They’re not members of the union, you’re missing the point. I’d like a union team out here immediately to continue this job. I don’t want your sub-contractors on site that aren’t members of the union. The guys aren’t fucking going back to work until they’re members of the fucking union, mate. Do you understand that?”
13.5During the telephone conversation, the First Respondent addressed Mr Sivewright in an aggressive tone.
The alleged contraventions and the material facts, the basis of the alleged contraventions, are denied by each of Mr Molina, the CFMEUW and the CFMEU.
Mr Douthie’s evidence
Mr Douthie’s evidence-in-chief in relation to relevant events has thus far been as follows:
a)he was in the crib room with three other persons who were working for Southern Wire on the Site at about 11 o’clock on a day in March 2008 (he is unsure of the precise date), when approached by Mr Molina;
b)Mr Molina asked Mr Douthie and the other three Southern Wire workers whether they were part of the union, and they all said “no”;
c)Mr Molina said that this would be a problem and said that he wanted to contact or speak to the Southern Wire supervisor;
d)the Southern Wire workers’ supervisor, Mr Ben Sivewright, was then called on a mobile phone; and
e)more was said, but Mr Douthie does not recall the detail.
Subsequently, Mr Douthie was interviewed by an inspector with the Australian Building and Construction Commission.[6] A statement was prepared from a transcript of that interview, being a record of interview,[7] seemingly with the intention that the statement subsequently be signed by Mr Douthie. However, Mr Douthie subsequently chose not to sign the statement. In recent weeks, and perhaps last week or the week before, Mr Douthie has re-read the ROI and, although he has no independent recollection of the events described therein and about which he was interviewed, he swore that he knows that he was telling the truth in the ROI.
[6] “ABCC”.
[7] “ROI”.
The ROI
The ROI, dated 3 April 2008, has been produced without objection for the purposes of the application under s.38 of the Evidence Act. So, too, a short, four paragraph statement also dated 3 April 2008, which essentially attests to:
a)the fact of the ROI;
b)an awareness on Mr Douthie’s part that the ROI may be transcribed and attached to the short, signed statement at a later time; and
c)Mr Douthie being able to be provided with a transcript or audio copy of the ROI at a later time.
The short statement was signed by Mr Douthie, seemingly on 3 April 2008 if the statement is taken at face value.
The applicant relies on paragraphs 49 to 54 of the ROI as being relevant material in relation to which it seeks to cross-examine
Mr Douthie. Paragraphs 49 to 54 read as follows:
49.MR WOLSONCROFT: Can you recall what he said to you with regards to joining a union on that day?
50.MR DOUTHIE: When I was there, he asked if we were with the union. We all said, “No”, and then he told us that we had to join or we weren't allowed to work on-site.
51.MR WOLSONCROFT: Can you recall the exact words that he used?
52.MR DOUTHIE: Yeah, that’s it, that’s it: “You guys need to join or you can’t work on this site”.
53.MR WOLSONCROFT: Right.
54.MR DOUTHIE: And we said, “Well, we don’t need to actually join. It’s our choice”, and he goes, “No, no, you have to join to work on this site”, and then I was just saying, “Well, you contradicted yourself there, mate. Like, you can’t make us join, but you are saying you need to join to stay on the site”, and then after I said that, he goes, “Yeah, they’re holes in your boots, mate”, and I said “Yeah”. He goes, “Well, you can’t work with these boots”, so I just stood up then and said, “Well, I’ll go and buy some more”, and went off and bought some boots and that, and that’s it, yeah.
The distinction between the oral evidence-in-chief in this hearing and the ROI appears to be that, in the ROI, Mr Douthie has asserted that he was told on the day in question by a union official, who is not identified in the ROI, that he had to join “the union” to work on the Site.
The purpose of s.38 of the Evidence Act
The purpose said to underlie s.38 of the Evidence Act has been said to be to enable a “truer picture” to be presented to a court.[8] It seeks to ensure that, in an appropriate case, a court has capacity:
…not [to] be denied evidence as to any relevant issue and not to be denied the opportunity for that evidence to be appropriately tested. [9]
[8] R v Parker [2003] NSWCCA 12 at para.83, per Ipp J (“Parker”).
[9] R v Le [2001] NSWSC 174 at para.15 per McClelland J (“Le”).
The purpose can also be seen as to not necessarily require a witness to be found to be hostile or adverse before allowing that witness to be cross-examined by a party calling the witness.[10] The underlying purpose is to be considered when determining the outcome of this application.
[10] R v Lozano (unreported, New South Wales Court of Criminal Appeal, 10 June 1997) (“Lozano”); JD Heydon, Cross on Evidence (7th Australian Edn), (Chatswood: Lexis Nexis Butterworths, 2004), para.17-405 (“Cross on Evidence”); Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 430 per Wilcox, O’Connor and Sackville JJ (“Colonial Mutual Life Assurance”).
Evidence unfavourable to the party
Unsurprisingly, the Evidence Act does not define “unfavourable”.
In R v Souleyman[11] the essence of the Crown’s submissions in a criminal trial was that a witness had not come up to an earlier statement made by the witness. The New South Wales Supreme Court observed that the witness had recounted in substance some parts of the contents of the earlier statement.[12] The Supreme Court considered the dictionary meanings and historical context in which the word “unfavourable” had come to appear in s.38(1)(a) of the Evidence Act. The Supreme Court said as follows:
The word “unfavourable” in s 38(1)(a) does not mean “adverse”. It means “not favourable.” That construction could have wide ranging ramifications but the Court is given a discretion and would carefully examine the circumstances to see how the discretion should be exercised. A far fetched example would be if a witness said he could not remember something that happened three years ago. The discretion is important and designed to prevent any form of abuse in the administration of the more liberal test of “unfavourable”. ….Where as here, there is a prior statement and the witness in significant respects does not come up to that statement, his evidence is “not favourable” in that respect. The question of discretion then arises.[13]
[11] (1996) 40 NSWLR 712 (“Souleyman”).
[12] Souleyman at 714 per Smart J.
[13] Souleyman at 715 per Smart J.
The Court adds that those comments with respect to discretion will later be taken into account in assessing discretion, pursuant to ss.38(6) and 192 of the Evidence Act.
In Lozano the New South Wales Court of Criminal Appeal adopted the dictionary meaning of “unfavourable” as “not favourable”, as the New South Wales Supreme Court had done in Souleyman, and said not much more than that about the meaning or otherwise of “unfavourable”. In Velevski (No 2) the Souleyman definition of “unfavourable” was relied upon when the New South Wales Supreme Court said:
I am also satisfied that his evidence is unfavourable to the Crown within subs (1)(a), and this is so in that he has not come up to the statement he made on 20 June 1994. His evidence is “not favourable”, and, therefore, “unfavourable”. [14]
[14] (1997) 93 A Crim R 420 at 422 per Dunford J (“Velevski”).
The question was also adverted to in R v Kneebone,[15] where the issue was dealt with in general terms, but not in respect of a matter which arose for determination in that case, as follows:
There is much about the application of the section still to be resolved. Interestingly, as a mater of history, the notion of unfavourability was considered by Willes J in Greenough v Eccles (1859)5 CB NS 786 at 805 141 ER 315 at 323 in the context of the then newly enacted s 22 of the Common Law Procedure Act 1854 (UK), the ancestor of s 53. That decision became the seminal authority on similar statutory provisions throughout the common law world, concerning the rights of a party who had called a witness that proved “adverse”. Willes J rejected the concept of “adverse” under the section as merely amounting to “giving unfavourable evidence” and considered that “unfavourable” could be equated with giving “evidence opposed to the interests of the party who calls him”. Such a test would not extend to failing to give evidence which might have been expected and which would have assisted the calling party’s case, and is narrower than those applied in some of the decisions to which I have referred.[16]
[15] (1999) 47 NSWLR 450 and particularly at 461 and 462 per Greg James J (“Kneebone”).
[16] Kneebone at 462 per Greg James J.
In Adam v The Queen the majority of the High Court found that it was not necessary to consider whether s.38(1)(a) of the Evidence Act was met in the circumstances of that case but went on to observe that:
There appears much to be said, however, for the view that to give evidence which at best is unhelpful to the party calling it, and to do so without “making a genuine attempt to give evidence,” is to give evidence “unfavourable” to that party. [17]
[17] (2001) 207 CLR 96 at 106 per Gleeson CJ, McHugh, Kirby and Hayne JJ; [2001] HCA 57 at para.27 per Gleeson CJ, McHugh, Kirby and Hayne JJ (“Adam”).
That appears to indicate that evidence which is unhelpful might be unfavourable and is certainly likely to be so if the witness is not making a genuine attempt to give evidence. It appears, as the learned author of Cross on Evidence observes, that s.38 of the Evidence Act might well have overlapping limbs.[18]
[18] Cross on Evidence, para.17-405.
In Glasby the New South Wales Court of Criminal Appeal said that it did not think it was an occasion to enter into the debate about the precise meaning of “unfavourable” because it was crystal clear in that case that the relevant evidence was unfavourable to the Crown’s case. [19] But, in making those observations, the New South Wales Court of Criminal Appeal set out the observations as to the meaning of “unfavourable” cited in Lozano by Hunt CJ, referring, to Souleyman and adopting the meaning of “unfavourable” as “not favourable” from Souleyman’s case.
[19] 115 ACR at 465 (“Glasby”).
In R v Taylor,[20] again, it was not necessary for the New South Wales Court of Criminal Appeal to ultimately deal with the question of what was meant by “unfavourable” in s.38(1)(a) of the Evidence Act. Bell J observed that the New South Wales Court of Criminal Appeal had accepted the correctness of the Souleyman analysis in a number of cases, which were then set out.[21]
[20] [2003] NSWCCA 194 (“Taylor”).
[21] Taylor at para.74 per Bell J.
The New South Wales Supreme Court’s Equity Division has also dealt with the problem but, again, in circumstances where it was not strictly necessary to do so and in circumstances of inconsistency between an account given by a person and their subsequent refusal to recount that account.
In Lewis v Nortex Pty Ltd (In Liq)[22] the Supreme Court had before it an application for an order that a liquidator call a witness at the trial of the relevant proceedings. The factual material on which that application was made was that Mr Lamb, a director of the plaintiff, had deposed in an affidavit proposed to be used at the hearing as to certain statements made by a Mr Potter concerning Mr Lewis in respect of missing stock, and that Mr Lewis had said words to the effect that “Lamb took the stock.” Mr Lamb went on to say that Mr Potter confirmed his statement in his presence on other occasions and it seemed, however, that Mr Potter’s recollection of the events was less and different from
Mr Lamb’s recollection.[23] The Supreme Court did not have to deal with a s.38 Evidence Act application, but observed that s.38 of the Evidence Act did provide a wider avenue for dealing with issues associated with unfavourable evidence.[24] The Supreme Court then referred to the full ambit of the concept of unfavourable evidence under s.38 of the Evidence Act not yet having been explored, referred to the decisions in Colonial Mutual Life Assurance and Kneebone,[25] and then said as follows:
Whilst I do not bind any future exercise of my discretion, it seems to me highly likely that the plaintiff, if it chose itself to call Mr Potter, would be able to either from the outset of his evidence or shortly thereafter to examine him as if cross-examining him at least if he denied making or failed to concede the statement deposed to by Mr Lamb in his affidavit.[26]
[22] [2002] NSWSC 237 (“Nortex”).
[23] Nortex at para.3 per Hamilton J.
[24] Nortex at para.8 per Hamilton J.
[25] Nortex at para.8 per Hamilton J.
[26] Nortex at para.8 per Hamilton J.
In Colonial Mutual Life Assurance, the Full Court of the Federal Court of Australia observed as follows:
Section 38 was intended to abrogate the pre-existing law relating to “hostile” witnesses. Australian Law Reform Commission Evidence Report No. 26, Vol 1, paragraph 625. The courts have given effect to this intention by adopting a broad construction of section 38. For example, the word “unfavourable” in section 38(1)(a) has not been construed as meaning “adverse” but merely “not favourable”.[27]
Reference is then made to Souleyman and Lozano.
[27] Colonial Mutual Life Assurance at 430 per Wilcox, O’Connor and Sackville JJ.
The Full Court of the Federal Court then goes on to give an example of where evidence might be considered favourable in the context of that case, which was a bankruptcy case, where the bankrupt denied purchasing two State Bank cheques. The Full Court of the Federal Court observed that:
If the bankrupt, in the course of his evidence-in-chief, had persisted in his apparently far-fetched account that his 14 year old daughter had provided the cash for one of the bank cheques, there is little doubt that such evidence would have to be regarded as unfavourable. This would have opened the way to an application for leave to cross-examine under s 38(1)(a) of the Evidence Act.[28]
[28] Colonial Mutual Life Assurance at 430 per Wilcox, O’Connor and Sackville JJ.
Again, however, in Colonial Mutual Life Assurance, the observations made by the Full Court of the Federal Court were not strictly necessary because it did not have before it an application under s.38(1)(a) of the Evidence Act.
In Hadgkiss v CFMEU,[29] the Federal Court said as follows:
In the case of s 38(1)(a), that about which the questioning may so proceed is “evidence given by the witness that is unfavourable to the party” who called that witness. In R v Souleyman … Smart J held that where the evidence or witness did not, in significant respects, come up to a prior statement, his evidence was unfavourable. I must say that I have some difficulty with the proposition that one can characterise evidence given as unfavourable if, to do so, one has to go beyond the pleadings and the evidence itself. I do not think that “unfavourable” should be construed as suggested by Smart J as simply “not favourable”.[30]
[29] (2006) 152 FCR 560; [2006] FCA 491 (“Hadgkiss”).
[30] Hadgkiss FCR at 562 per Graham J, FCA at para.9 per Graham J.
The Federal Court then refers to a number of New South Wales Court of Criminal Appeal judgments, which this Court has already mentioned this afternoon, and then proceeds as follows:
As I see it, for evidence to be characterised as unfavourable, it would have to detract from the case of the party calling the witness. I would prefer the approach taken by Hodgson JA with which Meagher JA agreed, in Klewer v Walton [2003] NSWCA 308 at [20] and [30], where his Honour expressed the view that evidence which was simply “neutral” did not come within the word “unfavourable”, as used in s 38(1)(a). In Adam v The Queen (2001) 207 CLR 96 at [27], Gleeson CJ and McHugh, Kirby and Hayne JJ seem to me to be suggesting that for evidence to be characterised as unfavourable, it must have an unhelpful quality about it as opposed to a neutral quality.[31]
[31] Hadgkiss FCR at 562 per Graham J, FCA at para.9 per Graham J.
The Court notes that Colonial Mutual Life Assurance was not cited in Hadgkiss. Given that that is a judgment of Full Court of the Federal Court, it must be considered by this Court, although as previously indicated, there was no application under s.38(1)(a) of the Evidence Act, and it was not a case in which the Court specifically approved Souleyman, but rather cited it without disapproval.
Before leaving Hadgkiss, it should be noted that in relation to this application, Hadgkiss is relevantly factually distinguishable in one significant respect. And that is that in Hadgkiss’ case, the Court found that it was not satisfied that the witness said words to the effect that every word in the relevant statement was true.[32] On the evidence, that is not something that the Court can say in this case of Mr Douthie’s evidence. His unchallenged evidence is that his record of interview was an account which was truthful.
[32] Hadgkiss FCR at 564 per Graham J; FCA at para.25 per Graham J.
In Klewer v Walton,[33] the case was not a case about s.38(1)(a) of the Evidence Act, but about an inconsistent prior statement, and the application made at first instance was not made under s.38(1)(a), but s.38(1)(c), of the Evidence Act, and was refused.[34] The prior statement concerned written notes of a police sergeant concerning an assault. Of that, the leading judgment in the New South Wales Court of Appeal said:
It does not appear to be submitted that paragraphs (a) or (b) of section 38(1) have any application and in any event, in my opinion they do not. In my opinion it could not be said that in any substantial sense Sergeant Levy’s evidence was other than neutral and in my opinion, there was no basis for suggesting that Sergeant Levy was not making a genuine attempt to give evidence.[35]
The factual characterisation of the relevant statement in that regard was that it was nothing “other than neutral”.
[33] [2003] NSWCA 308 (“Klewer”).
[34] Klewer at para.18 per Hodgson JA.
[35] Klewer at para.20 per Hodgson JA. At para.30 Meagher JA simply agreed with the judgment of Hodgson JA and observed that there was no way that the particular statement could be said to be inconsistent with the prior account.
Consideration
It is fair to observe that the boundaries of s.38(1)(a) of the Evidence Act have not yet been completely mapped.[36] Where the issue has, however, been considered by the courts it is fair to observe that the predominant view is that “unfavourable” in s.38(1)(a) of the Evidence Act means “not favourable”.[37] In each case whether the evidence is unfavourable is a matter of fact for assessment by the court hearing the case.
[36] Kneebone, Glasby and Adam.
[37] Souleyman, Lozano, Taylor, Velevski, Nortex and Colonial Mutual Life Assurance.
The respondents quite properly placed some emphasis on the Federal Court’s judgment in Hadgkiss. A number of matters can be noted about Hadgkiss. Firstly, the Federal Court did not reject the “not favourable” formulation as an appropriate construction of “unfavourable”. It said that it did not mean “simply” “not favourable”. Secondly, evidence would have to detract from a case for the party calling the witness in order for it to be unfavourable. Thirdly, and with great respect, what is said about Klewer is not strictly accurate, as:
a)Klewer was not a case about, or in which, an application under s.38(1)(a) of the Evidence Act was made; and
b)there was no real expression of view as to the meaning of “unfavourable” or its construction in Klewer, simply a finding that evidence which was neutral was not unfavourable (a proposition with which this Court would not cavil in any event).
Fourthly, following the view in Klewer, the Federal Court found in Hadgkiss that evidence which was “simply neutral” would not come within the word “unfavourable”. Fifthly, in Adam, it was said that it was suggested, and it was not put any higher than that, that that evidence must have an unhelpful quality.
In submissions, it was also suggested that a relevant test might be whether or not there was significant inconsistency between the evidence which had been given by a party and the evidence to which the Court might otherwise be taken. It is not in the Court’s view, necessary for the purposes of s.38(1)(a) of the Evidence Act for there to be inconsistency. Firstly, because that is the role in respect of prior inconsistent statements that is given to s.38(1)(c) of the Evidence Act. Secondly, because evidence can be unfavourable without being inconsistent, as well as being unfavourable and inconsistent, and the question of consistency is one which is not necessarily always in issue, but it is enough, in the Court’s view, if a witness does not come up to proof or does not come up to a prior statement.[38] In the Court’s view that is consistent with the purpose behind the enactment of s.38 of the Evidence Act as outlined above.
[38] Velevski.
In relation to the evidence, and as indicated earlier, Mr Douthie does not remember what he said in the record of interview about the events of 19 March 2008, but says that whatever he said was true. Is that evidence unfavourable to the applicant? In the Court’s view, it is unfavourable because:
a)there was an expectation that Mr Douthie would have given evidence of the use of words by Mr Molina to the effect that:
You need to join the union or you can’t work on this site;
b)by not giving the evidence referred to above, he had not come up to the statement made in the ROI in that regard;
c)the evidence given is of significantly less assistance to the applicant in proving its case of intent to coerce and the making of false and misleading statements than the evidence which might have been expected to have been given where the latter:
i)goes to matters in issue; and
ii)is corroborative or not directly inconsistent with what has been said by others, and in this case most notably Mr Bella,
and as such detracts from the applicant’s case;
d)is not simply neutral, because it is not just a case of, “I don’t remember” but, “I don’t remember what I said in the ROI. What I do remember is that whatever I said at that time was the truth”;
e)the evidence given is unhelpful in that it:
i)detracts from the applicant’s case;
ii)is not simply neutral, both:
(A)for the reasons outlined above; and
(B)because it leaves open the possibility that the relevant evidence which is available, and which might be tested and which might enable a truer picture of the facts to be presented to the Court, is not so presented.
The Court therefore considers that the evidence given by Mr Douthie is unfavourable to the applicant, both unfavourable on the basis of the Souleyman line of authority, but also, for the reasons set out above, unfavourable on the basis set out in Hadgkiss.
Section 38(1)(b) of the Evidence Act
The Court does not consider that Mr Douthie was not making a genuine attempt to give evidence about matters about which he may reasonably be supposed to have had knowledge. Mr Douthie has thus far struck the Court as a fairly serious young man, earnestly doing his best to answer the questions which are put to him. The mere fact that he was prepared to say that he remembered that he was telling the truth during the ROI, albeit that he could not remember what he actually said, is indication enough of his genuineness. Had he wished to be genuinely unhelpful, he might simply have said, “I don’t remember”, and left it at that.
The exercise of the discretion under s.38(6) of the Evidence Act
In relation to s.38(6)(a) of the Evidence Act, the Court’s view is that the applicant gave notice at the earliest available opportunity of its intention to seek leave to obtain a direction under s.38(1) of the Evidence Act. What was said in Hadgkiss applies here, namely, that until there is commitment to evidence of some importance, it is premature for the application to be made.[39] Suggestions from the second and third respondents in submissions that leave might have been applied for earlier do not have sufficient factual basis to sustain them.
[39] Hadgkiss FCR at 561 per Graham J; FCA at para.2 per Graham J.
In relation to s.38(6)(b) of the Evidence Act, the scope of questioning by the first to third respondents in relation to matters on which leave to cross-examine is sought, is, like the scope of matters on which leave to cross-examine is sought, likely to be circumscribed by the brevity of the issue and the circumstances, and therefore does not militate against the grant of leave. Likewise, the extent of questioning generally by the first to third respondents does not militate against the grant of leave.
The discretion under s.192 of the Evidence Act
Section 192(2) of the EvidenceAct sets out a series of matters which are to be taken into account when the Court exercises its discretion as to whether to grant leave. Each of the factors is considered hereunder.
In respect of s.192(2)(a) of the Evidence Act, the grant of leave will not shorten the hearing, but it is unlikely to lengthen the hearing and is therefore not a factor militating against the grant of leave. In any event, by appropriate directions, the Court can tailor the length of the hearing, particularly in relation to those aspects in respect of which leave has been sought.
In relation to s.192(2)(b) of the Evidence Act, the question of fairness was strongly argued by the first to third respondents, who argued that in particular it would be prejudicial to them to grant leave to cross-examine. The Court does not necessarily agree that it would be unfair to the first to third respondents. It needs to be borne in mind that:
a)the evidence to date is not directly inconsistent with matters adverted to in paragraphs 49 to 54 of the ROI; and
b)that each of the first to third respondents still has an entitlement to cross-examine and deploy all the weapons of cross-examination to attack the witness and his evidence when it is given.
In relation to the use of the word “contradiction” in paragraph 54 of the ROI, again that is a matter which in the Court’s view can be cross-examined on and does not favour a finding of prejudice.
Fairness is even-handed. Fairness must be accorded to both parties and given:
a)
the evidence already led, particularly from Mr Bella and
Mr Sivewright; and
b)the evidence that Mr Douthie has given that what he has said in the ROI was the truth,
it would arguably be unfair to the applicant not to grant leave to cross-examine.
Fairness also must have regard to the policy purposes behind s.38 of the Evidence Act, to which the Court has already referred, and those purposes would support the exercise of discretion in favour of, rather than against, the application. In all the circumstances, and on balance, the fairness considerations do not preclude the exercise of the discretion but favour its exercise in support of the application.
In relation to s.192(2)(c) of the Evidence Act, as to the importance of the evidence, there is no dispute that the evidence in respect to which leave is sought is both relevant and important. The Court bears in mind that:
a)Mr Douthie can give direct evidence as to what occurred, and the matters in relation to which he is to be cross-examined relate to his eye witness account of what occurred; and
b)it is manifestly relevant evidence which ought not be shut out.
Again, the Court refers to the policy considerations behind the enactment of s.38 of the Evidence Act.
Therefore, the importance of the evidence in relation to which leave is sought supports the exercise of the discretion in favour of the application.
Section 192(2)(d) of the Evidence Act refers to the nature of the proceedings. The proceedings are civil penalty proceedings. They are not criminal proceedings. In that regard, although the consequences are still serious, they are not as serious as in a criminal proceeding and although the Court should and will still be cautious, the degree of caution and extent of its exercise is likely to be somewhat less in a civil penalty proceeding than in a criminal proceeding.
The Court notes that the first respondent in submissions, which were adopted by the second and third respondents, took the view that the nature of the proceedings were such that the evidence was to be led orally, and an application, such as that which has been made, was one which effectively now sought to introduce evidence by way of witness statement. The gist of the submission was that s.38 of the Evidence Act ought not be used as a de facto way of filling every gap in the evidentiary case by the tendering of a witness statement, and the seeking of leave to cross-examine in relation to evidence relevant thereto, which the witness cannot recall. There are a number of answers to that submission:
a)the ROI is not a witness statement;
b)the ROI was prepared by a regulatory authority invested by Parliament with the power to conduct such interviews;[40]
c)the fact that proceedings are conducted orally does not prevent the tendering and reliance upon written documents in the course of the oral testimony given by witnesses; and
d)no doubt courts will be very vigilant to ensure that witness statements proper do not become stop-gaps for memory loss.
In any event, what is sought here is not based upon a witness statement.
[40] Building and Construction Industry Improvement Act 2005 (Cth), s.59(5)(c).
The nature of the proceedings does not therefore, in the Court’s view, militate against the grant of leave.
The factors under s.192(2)(e) of the Evidence Act have no particular importance in this case, save to say again that the Court can tailor orders or directions in an appropriate manner to ensure that proceedings are not protracted.
The discretion under s.135 of the Evidence Act
In relation to s.135 of the Evidence Act, the Court’s view is that those discretionary considerations do not warrant further consideration at this stage of the proceeding.
Conclusion
In conclusion, then, the Court proposes to grant leave to the applicant to cross-examine Mr Douthie in relation to the evidence unfavourable to the applicant.
That leave will be limited to evidence concerning the events of
19 March 2008 in or about the crib room on the site of the Coles-Myer distribution centre at Horrie Miller Drive near Perth Airport as referred to in paragraphs 49 to 54 of the ROI, which will now be exhibit A3, and which was previously MFI1. There will be orders accordingly.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 18 November 2009
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