PARTIES: J BOAG & SON BREWING LTD ACN 009 573 899

Evidence - Course of evidence and addresses - Cross-examination - Other cases - Identification, inspection and tendering of document.

Senat v Senat [1965] P 172; Hatziparadissis v GFC (Manufacturing) Pty Ltd [1978] VicRp 17; [1978] VR 181, followed.

Judgment Number: [2001] TASSC 16

J BOAG & SON BREWING LTD v BRIDON INVESTMENTS PTY LTD & ANOR

1 Counsel for the plaintiff seeks an order that a particular document in the possession of counsel for the defendants be identified, either by reference to date or title, so that he can call for its inspection and possible tender at the conclusion of his opponent's cross-examination. Counsel for the defendants declined to so identify the document and contended that he was neither required to show it for inspection, nor to tender it.

2 The question arose during the cross-examination of a witness for the plaintiff. The witness had been asked as to whether he had provided a particular valuation of a property, the sale of which is central to this action. The cross-examiner asked in relation to a letter which had become an exhibit:

"Did you provide an updated value? ... Well, I don't think I did."

3 The questioning continued in the following terms:

"I see. I suggest to you that you did. You published a press release in which listed the seven hotels for sale, gave license fees per annum, and gave a price range. Did you not? ... .I can't recall - if you refresh my memory.

I'm not going to refresh your memory. I want you to give me the evidence. ... Well, I can't recall as to whether I gave an updated value on the hotel at exactly that time frame, or not.

I put it to you that it was given before the 3rd of June that year ... Well, I can't recall.

In the form which I've mentioned - as a press release. ... .I can't recall.

I put to you that you advertised that the price was raised for the seven hotels from 1.2 million to 2 million ... Well, that's just a - it's general marketing to say we've got -

Did you do that, or did you not? ... Well, if that's the press release - yes, I did.

HIS HONOUR: No. Don't answer that, that way. Counsel is not going to identify any document to you so don't make an assumption that there is such a press release. So when you say if it's there, it must be, doesn't mean it's there.

Then followed a series of exchanges as to the issue of the relationship between licence fees and the price of a hotel before the cross-examiner continued:

"WITNESS: There was a press release, but I cannot recall what was in it.

MR WELD: (Resuming) I see. I put to you, the Beach Hotel had the lowest license fee of all the hotels referred to in that press release? ... Well, that's irrelevant."

Then followed a further exchange, after which the cross-examiner continued. The Court interrupted with the following observation:

"HIS HONOUR: I am sorry, that's not the way you question, is it? If you are using a document, or using an exhibit, you say 'In such and such document, you did such and such'. You are not doing that way, as I understand it. You are saying 'Is it not the case, that in such and such day, you wrote to Mr - what was his name - Paul Watsford, from such and such a term'. Having you got to get him to adopt that he agrees that he did. And having got the affirmation, then say 'Do you adhere to it'. Now, you're jumping the middle question by saying 'So, you adhere to it'."

4 Counsel's reply was inaccurate, as the following exchange with the Court illustrates:

"MR WELD: I asked him whether that was what was in the letter, and he agreed.

5 Counsel had not asked whether the witness agreed to having written the letter in the terms put by counsel.

6 I have set out the foregoing in order to show firstly why I required access to the transcript before giving a ruling on the present objection or application and, secondly, to show the context in which the document giving rise to the application was used.

7 The Court continued with the statement which might have affected the way in which counsel made use of the next document which is the subject of this ruling:

"HIS HONOUR: Well, just bear in mind, that if you are cross examining by reference to prior statements, which are not already in evidence, you have got to get the witness to adopt or affirm that, that statement is made."

"MR WELD: (Resuming) Very well. Could you look at this -

HIS HONOUR: I am not saying you have to show it to him -

MR WELD: (Resuming) - I am happy to show it to him, your Honour. ... Yes, that is my document.

Do you adhere to the statements about the Beach Hotel in that document? ... Yes.

Very well. Thank you. This is a letter shortly after that, Mr Blacklow, I suggest. Did you write that letter? ... Yes.

Do you adhere to the statements in that about the Beach Hotel? ... Yes.

What was the value of which you were speaking? ... I was talking about that the asking price was fine.

Right. What was the asking price? ... Well I can't recall offhand. But if you're referring to the last sentence which says, 'Security value will be around one point two million', that is not the purchase price. Security value is the bricks and mortar content only.

I appreciate. I'm asking you what was the asking price? You're an estate agent who would have all these asking prices at your finger tips wouldn't you? ... Oh, agreed, yes, but not five years down the track.

I see. Well perhaps that's not our fault. Can I have that back please.

MR O'FARRELL: Your Honour, I'd ask for that document to be marked in such a way that it can be identified. I've got the date of the previous document and I think we can probably dig out the press release but the date of that letter wasn't given. The document has been put in the witness' hands and as I understand it I'm entitled to call for those documents at the end of the cross-examination.

MR WELD: Yes, certainly. Do you wish to call for it?"

8 Counsel declined to either produce the document or identify it.

9 It is unclear from the form of questioning whether the cross-examiner was attempting to use the document as a method to refresh memory or as a method of confronting the witness with material which might point to either an inconsistent statement, or to present a new matter to the witness. However, the import is to be determined by reference to the eventual use.

10 The following principles govern the use of a document and the right of an opponent to inspect, cause the use of the document to tender, or to make use of it himself or herself:

1 Where during examination-in-chief a document is used to refresh memory, it must be produced in order that the opponent may have the benefit of cross-examination.

2 If produced, the opponent has the right to inspect those parts only which refer to the subject matter of the case and to cross-examine thereon.

3 Rules governing the use of a document to refresh memory must be distinguished from the more general rule that where a party calls for and inspects a document held by the other party he is bound to put it into evidence if so required. As was said in Senat v Senat [1965] P 172 at 177:

"Where a document is used to refresh a witnesses' memory, cross-examining counsel may inspect the document in order to check it, without making it evidence. Moreover he may cross-examine upon it without making it evidence provided that his cross-examination does not go further than the parts which are used for refreshing the memory of the witness. But if a party calls for and inspects a document held by the other party, he is bound to put it in evidence if he is required to do so."

4 If the cross-examiner, after putting a paper in the witness's hand, merely questions him as to its general nature or identity, this does not make it evidence and his adversary has no right to see the document, though if he does, he may be required to put it in evidence.

5 If the paper he used to refresh memory, or questions, are put by examining counsel as to its handwriting or content, inspection may be demanded by the opposing counsel, though it cannot be read through or commented on until actually put in by the cross-examiner.

6 If a party calls for and inspects a document held by his adversary, he is bound to put it into evidence if required to do so, provided the document was not being used to refresh the memory of one of the adversary's witnesses.

7 Different principles apply in the case where the cross-examiner makes use of the document to show the existence of a prior inconsistent statement. A witness can be asked whether he made the statement and be cross-examined on the general nature of the contents without being shown the document. In such a case, the opponent of the cross-examiner cannot tender it. The cross-examiner is not obliged to put it into evidence even if he shows it to the witness but he must do so if he wishes to use the document as a contradictory statement.

8 There are differences in approach between jurisdictions as to whether certain rights are conferred to cross-examiners (see Hatziparadissis v GFC (Manufacturing) Pty Ltd [1978] VicRp 17; [1978] VR 181; Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647; R v McGregor [1984] 1 Qd R 256.

11 In this case, counsel for the defendants had put a document to the witness and asked him to identify it by reference to the identification of the writing. He asked the witness whether he adhered to his statement appearing in the letter and asked him specifically about what the witness has said in the document about a price or value referred to in the letter.

12 The original position stated in The Queen's Case [1820] EngR 563; (1820) Brod & Bing 284; 129 ER 976, was where a witness admits the document to be his or hers that counsel could not be questioned until the whole letter was read into evidence by cross-examining counsel. This had the effect of destroying effective cross-examination and various devices were used to circumvent the risk. In this case, the document was used to demonstrate inconsistencies in the various evaluations made by or on behalf of the witness as to the value of property. That course attracts the operation of the Evidence Act 1910, ss98 and 99 which relevantly state:

"98 - (1) Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.

(2) The same course may be taken with a witness upon his examination in chief, if the judge is of opinion that the witness is hostile to the party by whom he was called and permits the question.

99 - (1) A witness under cross-examination, or a witness whom the judge, under the provisions of section 98, has permitted to be examined by the party who called him as to previous statements inconsistent with his present testimony, may be questioned as to -

(a) a previous statement made or supposed to have been made by him in writing or reduced into writing; or

(b) evidence given or supposed to have been given by him before any justice -

without such writing or the deposition of such witness being shown to him.

(2) If it is intended to contradict such witness by such writing or deposition, his attention must, before such contradictory proof can be given, be called to those parts of the writing or deposition which are to be used for the purpose of so contradicting him.

(3) The judge may, at any time during the trial, require the writing or deposition to be produced for his inspection, and may thereupon make use of it for the purposes of the trial as he thinks fit."

13 However, as the present Justice McHugh pointed out in a paper, Cross Examination on Documents (1985) 1 Australian Bar Review 51 at 60:

"I must say that in over 20 years of practice I have never seen any judge take advantage of that provision to the various methods and implications relating to cross-examination on documents."

One such proposition arises from a decision of R v Jack (1894) 15 LR NSW 196 in which McHugh J states, at 53:

"... even a party to a cause cannot have an identified document put in his hand and then be asked if he adheres to his testimony, unless the cross-examiner undertakes to put the document in evidence."

McHugh J points out that the authority was doubted by Samuels J in Maddison v Goldrick [1976] 1 NSWLR 651, but that whilst the author believed the decision in Jack to be wrong, it appeared to remain as the leading authority, at least in New South Wales.

14 A further proposition is that once the witness admits the inconsistency, the document is not admissible unless he is a party or the maker of the writing (Alchim v Commissioner for Railways (1935) 35 SR(NSW) 498). In this case, the letter was used to draw from the witness agreement that at an unstated time he had expressed an opinion as to the value of a property which differed from a valuation assessed at a different time. But it is impossible to discern from the cross-examination the time at which the opinion was expressed and thus whether or not the statement was inconsistent, or simply a reflection of change in the market.

15 However, if the cross-examiner directly or indirectly gets any of the contents of a document to the tribunal of fact, he can be required to tender the documents (Oakes v Gaudron unreported, New South Wales, 23 May 1963). In his article, McHugh J confessed that he knew of no reported authority on the point. In this case, some part of the contents of the document have been placed before the tribunal and, as such, the cross-examiner can be required to tender it (Senat v Senat (supra)). The opponent can only require its tender during the course of cross-examination (Hatziparadissis v GFC (Manufacturing) (supra)).

16 In this case, the cross-examiner did not comply with the requirements of the Evidence Act, s98, by sufficiently identifying the document to identify the occasion. It follows that the question and answer ought be disallowed unless the document is sufficiently identified. The document is that of a witness and presumably has been discovered in accordance with the Rules of Court. Counsel for the defendant ought identify the document so as to permit his opponent to require the tendering of the document before the conclusion of cross-examination. If he declines, then the evidence obtained by its use will have no import since the occasion cannot be identified.

(1) Counsel for the defendant is invited to identify the document before the conclusion of cross-examination.

(2) Counsel for the plaintiff is entitled to require the tendering of the document without identification having been made.

(3) If counsel for the defendant declines to identify the document, the answers given by the witness obtained by use of the document will have no import since the occasion or circumstances of its making have not been sufficiently identified as required by the Evidence Act, s98.

(4) The Court will consider the exercise of power afforded by the Evidence Act, s99(3) upon the application of either party.