Assaf v Skalkos

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CARRUTHERS AJ

CLD18374/93 JOSEPH ASSAF & ANOR v THEODORE SKALKOS & ANOR EX TEMPORE JUDGMENT - On admissibility of evidence; see p 1352 of transcript.

1 HIS HONOUR: It is necessary for me to rule upon the tender by the defendants of a report prepared in February 1999 by Dr Margaret Craig-Lees of the School of Marketing at the University of New South Wales who, for present purposes, could conveniently be described as an expert in marketing. She was retained, I imagine, some time in 1998 to prepare a report which went to the question of justification. To that end she was provided with certain materials by the solicitors for the defendants and she made investigations of her own. 2 Despite the lengthy interlocutory proceedings in this matter, it was not until about 17 or 18 November, which was well into this trial, that those representing the plaintiffs became aware of the existence of this report. This might be thought to be unfortunate, although I make no criticism of anyone in that regard because no application was ever made for an order that experts' reports be exchanged. In any event, Dr Craig-Lees was called by the defendants on 18 November this year to give evidence. Shortly after she embarked upon her evidence objection was taken to certain aspects of the evidence. 3 There was some debate in the absence of the jury on 18 November and then much more detailed debate in the absence of the jury on the morning of 19 November. At that stage Mr Littlemore QC for the defendants stated that he had not presently formed an intention to tender Dr Craig-Lees' report (T911). One of the areas of discussion was the fact that the report was based upon material which had not found its way into evidence. Mr Littlemore proposed that when the Court resumed in the presence of the jury, he would put certain specific assumptions to Dr Craig-Lees, consistent with the evidence, and adduce her opinions based upon that evidence with particular reference to a number of the particular jobs which were executed by the plaintiff company. 4 The evidence accordingly continued before the jury on 22 November. There were further objections taken and certain evidence was taken on the voir dire. In any event, Dr Craig-Lees' evidence was taken to the conclusion of her examination-in-chief and she was then cross-examined at some length, but I would not have thought undue length by Mr Hughes QC on behalf of the plaintiffs. 5 One of the matters that he put to Dr Craig-Lees was the submission that the assumptions upon which she relied, in one very significant aspect, did not include certain material which was to be found in her report. In other words, in expressing certain views, she was not taking into account basically the assumptions, but certain material which was not specifically in evidence but which she had taken into account in her report. To the extent that it is necessary for me to express an opinion on that, I would have thought that that was a permissible course of cross-examination, without it being said that counsel for the plaintiffs had embarked upon a cross-examination of the witness in relation to her report to the extent necessary to attract a conclusion that there had been cross-examination on the report, in the sense which is generally relied upon to attract either the tender by the other party of a report, or the other party requiring the cross-examining party to put a report in evidence. 6 However, the cross-examination constituted, as one would anticipate, a somewhat determined attack upon Dr Craig-Lees' credibility and her expertise and the validity of a number of her significant conclusions. The attack, if I may use that expression without sounding offensive, was directed in many instances to specific extracts from the report. In some instances extracts were read to the witness from the report. She was cross-examined about material in certain respects upon which she relied in expressing her opinions in the report. Apart from numerous direct references to her report, there were a number of questions which implicitly referred to the content of the report, together with information which the witness did or did not have prior to compiling the report. 7 I think it may fairly be said, in summary, that the cross-examination ranged widely over the report. I have concluded that, in the generally understood way in which this phrase is understood, the witness was cross-examined on her report. I cannot respectfully agree that the cross-examination could fairly be described as restricted to a relatively small number of discrete areas so far as the report was concerned. 8 In re-examination by Mr Littlemore there was a brief reference to the report. No application was made by counsel for the defendants, prior to the witness being excused, for the report to be admitted into evidence. However, it should be noted that during one of the numerous debates arising out of objections to certain parts of the cross-examination, Mr Littlemore said (at transcript 1000 on 23 November):

"It now transpires that without any question whatsoever our learned friend Mr Hughes has cross-examined that report into evidence, and it shall be tendered. So the case is altered. Whereas at the time I took that objection we had no intention of relying on that report, the fact is now that my friend has cross-examined it into evidence. So we shall have, upon the tender and the receipt into evidence of the report, two bodies of evidence from Dr Craig-Lees; that which we offered in chief, which is offered on the basis of her assuming certain evidence had been given and which has gone into evidence, and we shall also be able to, we respectfully submit, rely on the report, albeit a report that was under attack last week which my learned friend has now chosen to cross-examine into evidence." 9 This statement attracted no response from Mr Hughes, although I would not be prepared to say that a lack of response could be interpreted as an assent to that proposition. Nevertheless, the plaintiffs were put on notice by Mr Littlemore that he would be seeking to tender the report. However, that did not happen until the end of the whole of the oral evidence tendered by the defendants. During the course of tendering a number of documents Mr Littlemore tendered the report, and objection has been taken to it. I have heard detailed argument on that and reference has been made to a number of the authorities. 10 One question which particularly arises is whether, allowing for the wide-ranging cross-examination on the report, it is now too late for it to be tendered. 11 Reference was made to the judgment of Harris J in Hatziparadissis v GFC (Manufacturing) Pty Limited. (1978) VR 181. That case is authority for the proposition, certainly in Victoria, that: "The right of the party calling the witness to require the cross-examiner of a witness to tender in evidence a document used by the witness to refresh his memory (where cross-examination upon it has extended beyond matters referred to by the witness to refresh his memory) is available only during the course of the cross-examination."

"There is a further point which, in my opinion supports the conclusion, and it is one which was relied upon by Mr Meldrum. If the rule is invoked at that point of time, the situation is that the witness is still under cross-examination. Although the cross-examiner has been forced to put the document in, it does not mean that he is thereafter debarred from asking further questions about it. He is then in a position to continue to cross-examine about it with a view to explaining the additional parts in it, or reducing the impact of them or dealing with them in some way which he considers to be appropriate. True enough, if the document were allowed in at a later stage, the witness could be recalled, but I consider if I allowed that course to be adopted, I would be going beyond the contents of the rule as it is to be found in the authorities and textbooks so far. I do not consider I would be justified in taking that step." 12 It is interesting to note that in a paper presented by Mr M H McHugh QC, as his Honour then was, dealing with cross-examination on documents, which is to be found in Volume 1 of the Australian Bar Review 1985, page 51, at page 60, Mr McHugh said:

"A very important decision by Harris J in the Victorian Supreme Court, which is contrary to the practice which has existed in my time at the New South Wales Bar, is authority for this proposition." 13 Mr McHugh then referred to Hatziparadissis, and continued:

"Very frequently counsel in New South Wales will say of his opponent, 'He examined on that document; he has got to tender it'. It might be two days later, or a month later or it might be in re-examination of the witness. But Harris J deals with the matter in some detail and he decides as a matter of precise decision that if you do not require the tender of the document during cross-examination you lose your right to insist on the tender." 14 Counsel have not drawn my attention to any authority in New South Wales which approves of the approach taken by Harris J in Hatziparadissis. It was the subject of consideration by the Queensland Court of Criminal Appeal (Andrews CJ, Thomas J; de Jersey J) in R v Foggo ex parte Attorney-General. [1989] 2 QdR 49. Their Honours did not accept that the principle enunciated by Harris J was an inflexible one and indeed referred to the fact that in R v McGregor [1984] 1 QdR 256 at 265. McPherson J expressed reservations about the decision in Hatziparadissis. And indeed in Foggo their Honours did not disturb a ruling by the trial judge that it was open to the Crown to tender, at any stage, a document which had been cross-examined on by counsel for the accused. It is only fair to say, however, that there was a very particular reason why in that case the Crown Prosecutor deferred the tender of the document. It was necessary for the document to be dealt with by another Crown witness who gave evidence after the cross-examination on the document had taken place. 15 So it seems to me, interesting, and in some respects persuasive, as the decision in Hatziparadissis is, it cannot be treated in this State certainly as a principle which would have required the tender of the subject report prior to the conclusion of Dr Craig-Lees' evidence. I would have thought that it would have been preferable if the matter had been dealt with while Dr Craig-Lees was still giving evidence, but that cannot be considered to be a fatal objection, and there can be no doubt that while she was in the witness box, the plaintiffs were informed of the defendants' intention to tender the report. 16 A question also must arise as to whether the cross-examination of Dr Craig-Lees has attracted the admissibility of the whole document or only part thereof. Meredith v Innes (1930) 31 SR 104. is authority for the proposition that if some part only of the statement is cross-examined upon, only that part and such other parts as are so connected with that part as are necessary to explain it, are admissible. 17 I have carefully overnight re-read the cross-examination of Dr Craig-Lees, with particular reference to the report, and endeavoured to relate the cross-examination (so far as time permitted) to the terms of the report itself, to satisfy myself whether any part or parts of the report could satisfactorily be severed off, by reason of the content of the relevant cross-examination being neither a direct nor implied reference to any part of the report. I am unable to satisfy myself that such a severance is possible. In my view the whole report should go in. I have, of course, given anxious consideration to the question of fairness to the plaintiffs, but in the context of the case as a whole, the entirety of the evidence, and the events which have happened, I am not satisfied that admitting the whole report at this stage would be unfairly prejudicial in the legal sense, to the plaintiffs, and so I propose to admit the whole report. That can be done when the jury returns.

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