was made by the defendant during trial for leave to adduce evidence of prior
Source
Original judgment source is linked above.
Catchwords
EVIDENCE – ADMISSIBILITY – WITNESSES – RE-ESTABLISHINGCREDIBILITY AND REBUTTAL EVIDENCE – GENERALLY –where an applicationwas made by the defendant during trial for leave to adduce evidence of priorconsistent statements of the defendant– where the evidence sought to beadduced was of a barrister and solicitor who acted for the defendant in previousproceedings– where the defendant contends the evidence sought to beadduced is admissible under s 101 of the EvidenceAct 1977 (Qld) – where even if the proposed evidence is ruledadmissible the court is obliged to assess its weight under s 102 of theEvidence Act 1977 (Qld) – where it is accepted by both parties thatduring cross-examination the plaintiffs’ counsel challenged the evidenceofthe defendant on the basis that her account was a late invention orreconstruction – where the plaintiffs contend the proposedevidence doesnot rationally repulse the asserted attack as the prior statement is itself the
product of the same pressure or motive
to falsify – whether following
cross-examination the defendant can now adduce evidence to answer the challenge
of late invention
or reconstruction – whether having regard to the time
and circumstances of the earlier evidence, such evidence rationally answers
the
attack
Evidence Act 1977 (Qld), ss 101, 102
Aon Risk
Services Australia Limited v Australian National University (2009) 239 CLR
175
Lambourne v Marrable [2023] QSC 219
(2023) 17 QR 198
McKerlie v Western
Australia (No 2) [2006] WASCA 274
Nominal Defendant v Clements
[1960] HCA 39
(1960) 104 CLR 476
R v Dalton [2020] QCA 13
(2020) 3 QR 273
Sanrus Pty Ltd
v Monto Coal 2 Pty Ltd (No 2) [2019] QSC 162
Judgment (22 paragraphs)
[1]
[1] This is an application made, on the ninth day of a 10 day trial, for the defendant to have leave to adduce evidence of prior consistent statements of the defendant. The evidence sought to be adduced is of a barrister and a solicitor who acted for the defendant. The evidence is said to be admissible as a prior consistent statement under the common law exception to the rule against self-corroboration.
"101 Witness's previous statement, if proved, to be evidence of facts stated
[3]
(a) a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section 17, 18 or 19; or
(b) a previous statement made by a person called as aforesaid is proved for the purpose of rebutting a suggestion that the person's evidence has been fabricated;
[4]
that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.
[5]
[3] The defendant maintains that once the statement is admitted, it is therefore admitted as proof of the truth of its contents. That is correct, although under s 102 of the Act, in estimating the weight which needs to be attached to the statement rendered admissible under that part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including whether or not the maker of the statement had any incentive to conceal or misrepresent the facts.
[4] The parties broadly agree about the authorities to be considered, and I have particularly had regard to Nominal Defendant v Clements[1960] HCA 39; (1960) 104 CLR 476, which both parties referred to.
[5] The defendant particularly relies upon the statement of Chief Justice Dixon at 479, that:
[6]
"If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction."
[7]
[6] The plaintiffs submit there are, effectively, three elements to the decision in Clements. The first is that the account by the witness is attacked as a recent invention, and senior counsel for the plaintiffs quite properly accepts that that was done, so I do not need to say anything more about that issue. Second, that it is necessary to look at the contents of the proposed evidence that is now sought to be adduced, and to recognise that it must be of like effect and go to the account challenged. Third, that the court must consider the time and circumstances in which the earlier account was given in order to see whether it rationally answers the attack.
[7] The defendant identifies in the cross-examination of the defendant which took place on day 6, between pages 68 and 72 and, subsequently on that same day, between pages 75 and 76, which included a number of suggestions, set out by the defendant at paragraphs 5 and 7 of their submissions - and which I do not repeat in full - but which included a suggestion by plaintiffs' counsel that there was no previous reference to the defendant taking documents home over the weekend and reading them, and that that version did not appear anywhere until the defendant was personally sued in this proceeding.
[8] On the occasions that the line of attack was pursued with the defendant, it was explored that she had not put her version into a document whereby she had recounted the earlier version. Although, on numerous occasions it was suggested to her that nowhere in any documents had she told her counsel about taking the documents home on the weekend, the thrust of the attack was, I accept, intended to illicit negative evidence that the witness did not speak before at a time when it would have been natural to speak about the subject matter, being the taking home of documents over the weekend to read them. As I say, it can be safely accepted that the witness was challenged in the way described in Clements' case, as accepted by the plaintiffs' counsel.
[9] I will return to the second element shortly, because I think it also goes to the question of whether if I am disposed to allow the evidence in, I should allow it in full or in part, but I turn to dealing with the third element, regarding the time and circumstances when the earlier statement was made and whether it rationally answers the attack. In relation to that, the plaintiffs submit I should have regard to what was said by Justice Windeyer in case at 495:
[8]
"Furthermore, the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify."
[9]
[10] Some context is required in relation to this element.
[11] When the Federal Court proceedings were on foot in 2020, it appears the defendant was given advice by senior and junior counsel as to her prospects of defending a proceeding brought by Dr Kitchen in the Federal Court, which sought to impugn the defendant's decision to exercise her statutory power to refer Dr Kitchen to a Professional Services Review (PSR) committee. The Federal Court proceeding alleged that the defendant had failed to take into account the submissions which the first plaintiff, Dr Kitchen, had made. As a consequence of some disclosure which was made in October 2020, the defendant sought and obtained advice from senior and junior counsel regarding her prospects. Without unduly attempting to summarise that advice, I think it can fairly be accepted that the advice which is in evidence now before me in the proceedings, is that counsel considered that the defendant's prospects of defending the Federal Court proceedings were poor, primarily arising out of an email exchange which has been referred to throughout these proceedings as the "17 minute emails". That is a shorthand reference to the fact that an email was disclosed demonstrating that Dr Kitchen's submissions had been received by the PSR and was sent in conjunction with a summary of those submissions by an email to the defendant on 6 November 2018, and 17 minutes later the defendant emailed back - amongst other things - saying that she was going to refer the matter to a committee.
[12] Counsel concluded in that context that, effectively, the 17 minute period was insufficient for her to have properly considered the submissions and, indeed, was probably insufficient for her to have properly even considered the summary of it, which had been sent to her. Counsel concluded their advice by raising the issue as to whether the defendant might have seen the submissions at an earlier time, and if so, evidence of that ought to be provided to them.
[13] In the trial before me, the defendant gave evidence which I, again, only briefly refer to, that she, in fact, had received a printed copy of the submissions after they arrived at the PSR. In accordance with usual practice, submissions were printed and given to her. Her evidence included that she had read some of the submissions in her office and otherwise read them over the course of the following weekend at home from the printed version which she had taken with her.
[10]
"...does not necessarily have its ordinary meaning - the exception is concerned with an allegation of any fabrication subsequent to the events in question but before the trial (Wentworth v Rogers (No 10)(1987) 8 NSWLR 398, 401). Because the exception allows proof of the previous self-serving statement of a witness, great care must be called for in applying it. Not only must the trial Judge be satisfied that the account of the witness in testimony is being attacked is an ex post facto fabrication:
[11]
'...but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack.'
[21] His Honour went on at [81] of that decision to describe that, in that case:
[14]
"...The pressure or motive for the appellant to falsify his account was exactly the same the day following the events as it was two years later..."
[15]
[22] Something similar was said by our own Court of Appeal in R v Dalton,[2] at [203] where the court considered:
[16]
"...that the adjective 'recent' is a misnomer and that the doctrine is concerned with any suggested fabrication or invention after the relevant events occurred but before the trial..."
[17]
[23] In my view, this is quite a difficult balance between weighing the alleged motive to falsify, which the plaintiffs assert existed in November 2020 at the meeting with counsel, against the otherwise seemingly admissible evidence which rationally tends to answer the attack. On balance, I am satisfied that the provisions of s 101 of the Act do apply here.
[24] The defendant was challenged directly that she did not raise this version until she was personally sued in this proceeding. The evidence that she told her barrister, words to that effect, in 2020 is admissible under s 101 of the Act.
[25] That does not of course mean that the court is bound to accept that evidence. I have referred already to s 102 of the Act, which makes it clear that the court is still obliged to consider the weight of a statement, "rendered admissible as evidence by this part". The section further provides that, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including, the question of whether or not the maker of the statement or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.
[26] So even taking into account the admissibility under s 101, nothing in this ruling deals with the weight to be attached to that evidence. That is particularly so, of course in circumstances where, on the defendant's case, it seems to be that the first time that any assertion was made that the documents had been printed and read was in that conversation with counsel and legal representatives more than two years after the relevant time when the submission ought to have been considered. The evidence in this sense is not different to any other evidence in these proceedings. The fact that it may be admissible does not mean that the court is bound to accept it. Indeed, even admitted facts do not trespass on the court's ability to assess the weight to be afforded to those facts.
[3] See the decision of Martin SJA, who concluded as much in respect of admitted facts and documents in the case of Lambourne v Marrable[2023] QSC 219; (2023) 17 QR 198 at [215].
[5]Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
Parties
Applicant/Plaintiff:
Kitchen
Respondent/Defendant:
Quinlivan
Cases Cited (3)
(2009) 239 CLR 175
(1960) 104 CLR 476
(1987) 8 NSWLR 398
Clements'
[14] Before me, the defendant's evidence included that when she saw counsel's advice of 3 November 2020 as to her prospects of defending the proceeding brought by Dr Kitchen in the Federal Court, she made an attempt to obtain evidence as to when the documents had, in fact, been printed and provided to her, and she satisfied herself, she said (by means which are unnecessary for me to go into in this application), that those records were not available to her any longer.
[15] Before me, she said that she advised her barristers in a teleconference that she had taken the printed version of the submissions home with her and had read them over the weekend, but that she had no access to the printing records to establish that. As a consequence of that and other matters she refers to in paragraph 96 of her affidavit, she agreed to compromise the Federal Court proceedings.
[16] It was, then, in that brief context that I have summarised, that it was put to her that she had not previously raised her version that she had taken the documents home on the weekend and read them in either the Federal Court proceedings or elsewhere before her evidence in this proceeding. The plaintiffs submit that the proposed evidence does not fulfill the third criteria, being that it does not rationally repulse the asserted attack on the defendant's evidence.
[17] That is said, primarily, to arise because the alleged consistent statements were not made at the time of the 2018 submissions, or the receipt of them, but were made some two years later in November 2020 when the defendant was under "pressure" or had a "motive to falsify" in the way in which that terminology was used by Justice Windeyer in Clements' case.
[18] Here, the plaintiffs submit that the defendant was possessed of that motive to falsify in November 2020, which was the same as that which existed when she swore her affidavit in this proceeding in 2024 and when she gave her oral evidence before me in 2025. I take it, for the purpose of that submission, that, effectively, the motive to falsify was a motive to uphold her decision to refer Dr Kitchen to a PSR committee and to have done so validly.
[19] Put another way, it is that she knew in November 2020 that her counsel had told her that there was poor prospects - or words to that effect - of defending her 2018 decision, and that to defend that decision, she had a motive to say that she had printed and read the submissions over the course of the weekend, and that same motive exists now, although for different reasons because she is now repelling a proceeding against her personally for misfeasance in public office. As such, the plaintiffs submit that this alleged statement made in November 2020 to her legal team was not made contemporaneously with the event in the way described in Clements' case, nor was it made sufficiently early to be inconsistent with a suggestion that the account is a late invention or a reconstruction.
[20] That sort of matter was considered by the Western Australian Court of Appeal in McKerlie v Western Australia (No 2),[1] where Roberts-Smith JA with whom the President and Pullin JA agreed, stated at [76], that the question of what is "recent" in terms of a recent invention:
[27] Suffice to say the question of weight still remains one for the court. Nevertheless, I turn to the criteria of the evidence of like effect referred to as the second criteria by the plaintiffs' counsel, and I need to say something about this, particularly in the context of the extensive submissions that were made about the case management principles which ought to apply in the circumstances of this case.
[28] It can be accepted that the proceeding has been the subject of case management orders since June 2023 when the court ordered that all of the evidence proposed to be called at the trial by the subject of affidavit, be served on the other party, and those affidavits would be the evidence-in-chief at the trial.
[29] I do take into account the statement of Justice Bond, as his Honour then was, in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 2),[4] which I summarise briefly with the greatest respect to his Honour's more lengthy and thorough analysis at [12] to [15], that the purpose of case management orders is to facilitate the just and expeditious resolution of the real issues in the proceedings with a view to allowing the trial to proceed more efficiently. The plaintiffs contend that, if the late evidence is allowed in, it will arguably lead to a range of further significant investigations which need to be carried out and which necessarily might lead to the matter being adjourned for some months.
[30] The plaintiffs submit that this alone is a basis to disallow the evidence. Amongst other things, for example, the deponent Ms Slack is not available to give evidence this week, a factor, as I say, which itself, the plaintiffs submit should lead to the evidence not being allowed.
[31] In circumstances where, some time ago both parties raised with me the question of submissions at least spilling into next week, the absence of Ms Slack's availability until next week is not, in my view, a weighty consideration. The plaintiffs also pressed the argument that the defendant had exercised a forensic choice not to adduce the evidence now sought to be produced earlier than after the defendant's cross-examination was completed. I am not convinced that any relevant unfairness arises out of the forensic choice argument. I am satisfied that the evidence of both counsel and solicitor of the things the defendant told them in the conference of 3 November 2020, would not have been admissible if it was sought to be adduced as evidence-in-chief by those deponents. It would have been hearsay.
[32] While the defendant has always known, it seems, that the plaintiffs' pleaded case involved an allegation that she knew that she had not taken into account the 2018 submission and that the plaintiffs' case was concentrating on the defendant's relevant state of mind, which state of mind the plaintiffs say ought to be inferred, amongst other things, by the defendant's consent to the declaration made in the Federal Court and her knowledge that she had not read and reviewed all the submissions and annexures, which is pleaded at paragraph 21(a) of the second further amended statement of claim, I also note that the plaintiffs maintain that her state of mind has always been relevant to a significant issue such as that of exemplary damages. But it still seems to me that the forensic choice argument really cannot be made good in this circumstance. That is because the defendant was at liberty to put as little or as much detail into her affidavit as she saw fit or was so advised. It was a matter for cross-examination to determine how far or what questions were put to her arising out of her evidence-in-chief, but I do not accept that she was under any obligation to disgorge every possible piece of evidence she may have had simply because it was relevant to an allegation raised in the pleading.
[33] Similarly, the defendant is criticised in respect of her conduct of the case by claiming privilege in relation to certain documents, which privilege after an application before another Judge of this court was ordered, had been waived, and certain documents were ordered to be produced.
[34] The fact is that the defendant was entitled to rely upon legal professional privilege and her reliance upon it, is a right for which she cannot be criticised. She was entitled to assert that privilege and it is not open to draw an adverse inference against her in respect of doing so. The fact that she lost that application to uphold that privilege before a Judge of this court is not to the point.
[35] The fact remains that the opening up of the alleged prior consistent statement argument arises not out of the way in which she has framed her affidavit or the privilege which she has claimed. It merely arises, as it always does, out of cross-examination.
[36] Next, the defendant is criticised because she offers no explanation for the delay in presenting her proposed evidence. In my view, that submission can be dealt with quite quickly. She was entitled to wait until the plaintiffs' cross-examination of her was complete. Cross-examination was completed on Wednesday and the application to adduce the further evidence was heard on Thursday.
[37] In my view, notwithstanding the possible consequences for the trial, there is no delay in the relevant circumstances that requires an explanation and, therefore, the Aon Risk[5] factors set out by the plaintiffs in their submissions at paragraph 27 are, in my view, really not applicable to the circumstances of this case.
[38] I therefore, go back to the issue of the criteria in relation to the second criteria, that is, the 'like effect' question. It does follow from everything that I have said above that I am generally satisfied that the evidence is of a like effect, but I am not satisfied that the whole of the evidence contained in the affidavits is, in fact, so admissible.
[39] I turn to the affidavit of Ms Slack, junior counsel for the defendant. I am satisfied that paragraphs 1 to 5 are admissible.
[40] The issues in relation to paragraph 6 are as follows. In my view, paragraph 6(a) is admissible. It goes directly to the matter about which she was challenged.
[41] I am not satisfied that the balance of paragraphs 6(b), (c), (d), (e), and indeed the file note at paragraph 7, are admissible.
[42] At paragraph 6(b), the evidence deals with a discussion about the annexures. The defendant here relies upon the transcript on day 6, page 70, starting at line 37, where the defendant was asked whether she understood that in counsels' advice they were inviting the defendant to demonstrate whether there was any evidence that she had looked at submissions and annexures, and she replied, "This was discussed at the tele-conference."
[43] I do not take that excerpt between lines 37 to 40 to be a challenge to her evidence in relation to the annexures. And whilst the cross-examination then went on to page 71, the cross-examination was confined to questions about taking documents home on the weekend. I do not consider that the way that the questions were put to her at the bottom of page 70 through to page 71 sufficiently engages an attack in relation to the annexures, and I would not allow paragraph 6(b).
[44] There was no genuine argument raised that she had been properly challenged in relation to paragraph 6(c), and I would not allow that paragraph.
[45] In the same way, in my view, she was not challenged about her evidence about usual practice at paragraph 6(d), I would not allow that paragraph. And the same in respect of 6(e).
[46] That leaves only the file note, which is referred to at paragraph 7, and the annexure of the file note. For the time being, I am not satisfied there is anything in the file note that goes to the particular area of challenge and so the file note is not admitted.
[47] In the circumstances, I will allow Ms Slack to be called. Her evidence-in-chief will be comprised of her affidavit in the remaining paragraphs that I have left as admissible.
[48] In relation to the solicitor Mr Dubé, I am not satisfied that his evidence goes to the challenge which was made to the defendant in cross-examination. While he gives certain evidence in his affidavit about the matters which he recalls from the conference, which recollection he refreshed by reference to his handwritten note, his evidence, importantly, at paragraph 5, does not go to the critical challenge that the defendant had taken printed copies of the submissions home with her on the weekend and read them.
[49] His evidence goes, in part, to the fact that she said she had read a hard copy of the submissions, but I do not think it clearly enough, at paragraph 5, goes to the question of the challenge. That issue affects, in my view, both the entirety of paragraph 5 as well as his handwritten note and, therefore, I would not allow the evidence of Mr Dubé.
[50] That leaves the further issue in relation to the affidavit of Ms Parker. Ms Parker's affidavit is in a different category. Ms Parker's proposed further affidavit produces a variety of documents, being policies and other records, from the PSR agency.
[51] I am satisfied that Ms Parker's affidavit is not to be allowed in as late evidence for a variety of reasons. Firstly, there is no good explanation - or perhaps no explanation at all - for the failure to produce them earlier. It seems to me they were likely discoverable, although I do not have to decide that in full, but they seem plainly to relate to matters raised on the pleading, and that is a significant matter.
[52] Secondly, and importantly, the documents would have been available to have been put to the defendant in cross-examination and they were not. That, again, is a significant matter.
[53] Thirdly, there are a number of objections which have been identified by the plaintiffs to Ms Parker's supplementary affidavit, and without deciding each of those objections, the objectionable nature of parts of the affidavit is a matter which influences my view not to receive that further evidence.
[54] Fourthly, the cross-examination of the defendant, I accept, might well have proceeded differently if those documents had been disclosed earlier and that cannot now be remedied.
[55] Fifth, the documents open up a line of inquiry which would likely significantly expand the scope and length of this trial in a way which cannot be justified in the circumstances. I refuse leave in relation to Ms Parker's further affidavit.
[56] I should, however, say something about that very last issue. That the late material, including the limited way in which I allow Ms Slack's affidavit, might open up a line of inquiry which would significantly expand the scope and length of this trial.
[57] I accept that the plaintiffs rely upon that issue as well, as a basis generally for refusal of Ms Slack's evidence, and I have referred to that already, and I have given that submission a significant amount of consideration.
[58] It is true that when that late evidence is allowed in, as I do propose to allow it, it is possible that the trial will now not finish in the short term. I accept that the plaintiffs may well seek, for example, further disclosure, amongst other things, going to issues such as the waiver of privilege arising out of the defendant calling evidence from its counsel, and I accept that that application for further disclosure might not well be limited simply to counsel's own documents, but might call into question the waiver of privilege over some or all of the solicitor's file.
[59] I accept that those are the kinds of matters which were dealt with by Mr Russell in his affidavit, which I am going to give leave to read and file in this application, at paragraph 20, but they are simply not matters that I can decide today.
[60] If the consequence of this ruling is that there are further applications to be made in relation to those issues, then either I will deal with that then, or if it is thought, especially in relation to privilege arguments, that it ought to be dealt with by another member of this court, then that is the consequence which will flow. But it is not necessary for me to say anything more about those consequences, other than that I have observed that they might occur and I will deal with them as a consequence of the ruling if and when it arises. In my view, those matters set out in that affidavit are not a basis, to disallow that further evidence which otherwise is admissible under the Act.