Tim Barr Pty Ltd v Narui Gold Cost Pty Ltd

[2008] NSWSC 637

CITATION:	Tim Barr Pty Ltd v Narui Gold Cost Pty Ltd [2008] NSWSC 637
HEARING DATE(S):	16/06/08, 17/06/08, 18/06.08, 19/06/08, 20/06/08, 23/06/08
JUDGMENT DATE :	23 June 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	23 June 2008
DECISION:	Police statement of Yuji Okabe rejected
CATCHWORDS:	EVIDENCE - admissibility - hearsay - exceptions to the hearsay rule - "interlocutory proceeding" - hearsay material tendered on voir dire inquiry into admissibility of other evidence - whether voir dire is "interlocutory proceeding" for the purposes of Evidence Act 1995, s 75
LEGISLATION CITED:	Evidence Act 1995, ss 59, 69, 75, 189
CATEGORY:	Procedural and other rulings
CASES CITED:	Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 64 FCR 55 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Brown v Commissioner of Taxation [2002] FCAFC 75; (2002) 119 FCR 269 Citibank Ltd v Chiu Yah Liu [2003] NSWSC 236 Ex parte Hamilton; Re Fagan [1966] 2 NSWR 732 R v Amo and Amuna [1963] P&NGLR 22
PARTIES:	Tim Barr Pty Limited - First Plaintiff Timothy James Barr - Second Plaintiff Narui Gold Coast Pty Limited - Defendant
FILE NUMBER(S):	SC 2762/02
COUNSEL:	Mr R G McHugh SC/Mr J E Lazarus - Plaintiffs Mr M L D Einfeld QC/Mr R E Dubler SC/Mr A C Harding - Defendant
SOLICITORS:	Corrs Chambers Westgarth - Plaintiffs Verekers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY, 23 JUNE 2008

2762/02 TIM BARR PTY LIMITED & ANOR v NARUI GOLD COAST PTY LIMITED

JUDGMENT - On admissibility of evidence (see p403)

1 I am dealing with the question of the admissibility of numerous documents said to be translations of entries made by Shigeo Narui in the Japanese language in a diary kept by him during periods relevant to these proceedings.

2 The defendant objects to the tender of these documents by the plaintiffs on the basis that they are excluded by the hearsay rule (Evidence Act 1995,

s 59) and that there is nothing to show that the business record exception in s 69 applies. There is also objection on the basis that there is nothing to show either the provenance of the documents said to be translations or the accuracy of the translations.

3 Upon the hearing of the defendant's objection, Mr McHugh SC, on behalf of the plaintiffs, sought to read an affidavit of Mr Dalzell, a solicitor employed by the plaintiffs’ solicitors, explaining how the translations had been obtained or produced. Annexed to that affidavit is part of a police statement made by Yuji Okabe. Facts in that statement are said to be relevant to the elucidation of the matters of fact concerning the translation documents that need to be resolved for the purpose of determining the defendant's objections to them.

4 Mr Einfeld QC, counsel for the defendant, objected to the police statement of Yuji Okabe annexed to Mr Dalzell's affidavit on the ground that the representations contained in it are themselves (and quite independently) excluded by the hearsay rule.

5 Mr McHugh, in seeking to deal with that objection, did not submit that the Yuji Okabe representations are not of a hearsay quality. He did, however, submit that the exception to the hearsay rule created by s 75 of the Evidence Act applies to allow Yuji Okabe’s hearsay representations to be received for the purpose of determining the questions raised by the objections to the admissibility of the translations of the Shigeo Narui diary entries.

6 Section 75 of the Evidence Act is in these terms:

“In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.”

7 The question with which I am immediately concerned is whether, in the context I have described, the hearsay statements of Yuji Okabe are in truth being tendered in an “interlocutory proceeding”.

8 The situation is one in which determination of the question whether the diary translations should be admitted has come to depend on the court making certain factual findings about those diary translations and the circumstances in which they were created. Under s 189 of the Evidence Act, therefore, the question whether the factual findings are warranted is, for the purposes of that section, a "preliminary question".

9 Section 189 is headed "voir dire". It may be accepted, I think, that the Evidence Act equates investigation of what that section calls a “preliminary question” with what the common law calls a voir dire - something described by Collins J in Ex parteHamilton; Re Fagan [1966] 2 NSWR 732 at 734 as a "trial within a trial"; or, according to a definition approved by the Full Federal Court in Brown v Commissioner of Taxation [2002] FCAFC 75; (2002) 119 FCR 269, a hearing by the judge “in the course of but apart from the main trial” in order to settle a question raised by either party concerning any fact which has to be assumed for the purposes of the trial proper.

10 The question whether an inquiry upon such a preliminary question – what s 189 itself calls variously “the hearing of a preliminary question”, “a hearing to decide a preliminary question” and “a hearing to determine a preliminary question” or what might in general terms be designated a “voir dire enquiry”, “voir dire hearing” or “voir dire examination” - is, for the purposes of s 75 of the Evidence Act, an “interlocutory proceeding” was referred to by Hamilton J in Citibank Ltd v Chiu Yah Liu [2003] NSWSC 236. His Honour said at [3]:

“I have some doubts as to whether a voir dire hearing within a trial as to the admissibility of evidence is an interlocutory proceeding within the meaning of s 75".

11 Hamilton J went on to deal with the matter before him without having to determine the question on which he thus expressed doubt.

12 However, when one remembers that s 75 is concerned with an “interlocutory proceeding” (and I emphasise that the word “proceeding” is used, so as to focus on the nature of the hearing or inquiry), there are, I think, other judicial statements showing that the doubts expressed by Hamilton J are well founded.

13 In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 64 FCR 55 at 58, Lindgren J said:

“The nature of the proceedings is to be determined not by the form of them, for example by the fact that they are brought by notice of motion in existing proceedings, but by reference to the kind of relief sought.”

14 The kind of relief sought here is a ruling on the admissibility of the diary entry translations. That ruling will be part and parcel of the on-going proceeding as a whole. It is a step in the main proceeding leading to the assembling of the body of evidence by reference to which that proceeding will ultimately be determined.

15 It is this characterisation, no doubt, that caused Mann CJ, in R v Amo and Amuna [1963] P&NGLR 22, to observe that proceedings upon a voir dire “cannot be regarded as constituting a separate collateral proceedings." That observation was quoted with apparent approval by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (at [204]) and by the Full Federal Court in Brown v Commissioner of Taxation (above, at [94]). In both those appellate decisions, there was support (although not unqualified support) for the view that evidence admitted on a voir dire is admitted for the purposes of the proceedings generally. This emphasises the nature of the voir dire as a part of those proceedings and not as some collateral or interlocutory proceeding in its own right. In Brown v Commissioner of Taxation, as I have said, the voir dire was said to occur “in the course of … the main trial”.

16 In my judgment, therefore, the enquiry on which I am presently embarked as to the facts relevant to the admissibility of the diary entry translations is not, in terms of s 75 of the Evidence Act, an “interlocutory proceeding”.

17 It follows that, to the extent that it is sought to rely on hearsay representations upon the hearing and determination of what s 189 calls the “preliminary question”, the exception to the hearsay rule created by s 75 is not available and the hearsay material will not be admitted unless it can be seen to be admissible according to some other exception.

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