Klewer v. Walton [2003] NSWCA 308

Court of Appeal (NSW)|2003-10-14|Before: Meagher JA, Hodgson JA, Santow J

CITATION : Klewer v. Walton [2003] NSWCA 308 HEARING DATE(S) : 14 October 2003 JUDGMENT DATE : 14 October 2003

JUDGMENT OF : Meagher JA at 1; Hodgson JA at 2 DECISION : Application for leave to appeal dismised with costs.

CATCHWORDS : PROCEDURE - Adjournments - Unrepresented litigant involved in other proceedings - Request for adjournment in late communication to other party - No communication to or appearance in court - Adjournment refused. - EVIDENCE - Hearsay - Previous written statement by witness called by party - Leave to cross-examine sought and refused - Whether an error vitiating decision. LEGISLATION CITED : Evidence Act 1995 ss.38, 43, 45, 60, 106, 192 PARTIES : Lucy Klewer - claimant Ian Walton - opponent FILE NUMBER(S) : CA 41127/02 COUNSEL : No appearance for claimant Mr. P. See for opponent SOLICITORS : The claimant is self-represented Hannigans, Casino for opponent

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC10266/02 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41127/02 SC 10266/02

MEAGHER JA HODGSON JA

Tuesday 14 October 2003 KLEWER V. WALTON Judgment 1 MEAGHER JA: The Court has made its decision. I will ask Hodgson JA to give the first judgment. 2 HODGSON JA: There was listed for hearing before the Court this morning an application for leave to appeal from a decision of Master Harrison delivered on 6 September 2002. When the matter was called, there was no appearance by the claimant, who is unrepresented. 3 However, Mr See of counsel for the opponent told us that his solicitor had received a facsimile message from the claimant dated 12 October 2003, which the solicitor had seen for the first time in his in-tray this morning. This facsimile concerned another case. However, at the bottom there appeared a PS in handwriting to the effect that, in relation to the matter in the Court of Appeal listed for hearing on 14 October, the claimant requested that there be consent to a five-week adjournment. The claimant in this note said she had university exams on 18 November, and that 4, 11 and 25 November were suitable. It requested a response by facsimile by "tomorrow pm". The message concluded to the effect that the claimant was still in the District Court Sydney all week. The solicitor having seen this message only this morning had not yet responded to it. 4 Mr See told the Court that his instructions were to oppose any adjournment. The opponent was ready to proceed in the matter. He indicated that the opponent relied on the written response which was with the Court papers. 5 The proceedings in this Court arise out of the claimant's private prosecution brought against the opponent for assault and other offences, which was heard by a local magistrate, Mr O'Keefe, on 10 December 2001. On that day, the magistrate dismissed this prosecution. 6 The claimant appealed to the Supreme Court of New South Wales under s.104 of the Justices Act, claiming that the magistrate had made an error of law in refusing her leave to cross-examine a witness she had called in the case, namely one Sergeant Levey. However, as recorded by Master Harrison in paragraph 5 of her judgment, the claimant indicated that while she wanted the dismissal of the prosecution quashed, she did not want the matter remitted to the magistrate. 7 In the Draft Notice of Appeal provided by the claimant with the Court papers, she seeks orders setting aside Master Harrison's orders and setting aside the decision and orders of the magistrate, but does not seek the remission of the matter for a further hearing by a magistrate. 8 The claimant was sixteen days late in filing the application for leave to appeal. Registrar Schell refused an extension of time and dismissed the application. That decision was reviewed by Santow J on 28 May 2003, and on that date Santow J made orders setting aside the orders of Registrar Schell and extending the time for filing this application, stating that he could not conclude that the application was futile and doomed to failure. 9 The claimant has filed a summary of her argument dated 13 June 2003, and the opponent has filed a written response dated 22 July 2003. 10 In my opinion, the appropriate course is for the Court to deal with the application for leave to appeal in the absence of the claimant. In reaching that opinion, I would have regard to the following factors. 11 The matter was listed for hearing today, and there was no communication by the claimant to the opponent that an adjournment would be sought until the facsimile dated 12 October, that is last Sunday. Even if that facsimile had been brought to the attention of the solicitor yesterday, plainly preparations would have been concluded for the hearing today and substantial costs already incurred. There was no communication by the claimant to this Court by letter or otherwise, explaining her inability to attend. 12 I would comment in relation to this, that while I would recognise a difficulty faced by an unrepresented litigant who has proceedings in different courts on the same day, a person in that situation, if an adjournment is to be sought in one proceeding, should notify the other party well in advance of the date set for hearing and should in some appropriate way make an application to the court for an adjournment. The normal way to do this would be to seek a short adjournment in the other case, that is to be excused for a short period, and to appear in the Court to apply in person for an adjournment. If for some reason that is impossible, then at the very least a letter should be sent to the Court requesting the adjournment and giving the reasons, with a copy being given to the other party to the case. It is plainly quite inappropriate to seek an adjournment in the manner that has been done in this case, without any communication to the Court. 13 This matter has already involved a number of appearances in this Court with costs being incurred by the opponent. The claimant apparently does not in any event seek a new hearing of her prosecution, so the application is of little if any utility. 14 Finally, on the reasons for deciding to hear and dispose of the case today, the issues are in my opinion adequately canvassed in the decision of Master Harrison, the judgment of Santow J, and the written outlines of argument to which I have referred. 15 The point which the claimant wishes to argue on appeal arises in this way. In support of her case that she had been assaulted by the opponent, who was the headmaster of a school attended by the claimant's son, the claimant called a policeman, Sergeant Levey. Sergeant Levey had made a written statement dated 24 April 2001 in relation to a proposed prosecution of the claimant, paragraph 8 of which was as follows: 8. I later made a telephone call to Mr Ian Walton at John Paul College Coffs Harbour. I made inquiries with Mr Walton in relation to the incident involving the young person Robert Klewer. Mr Walton also informed me of an incident between staff at the College and Mrs Lucy Klewer. (That she had to be physically removed from the Office area due to her yelling abuse at staff and using foul language which could be heard all around the school). 16 In the transcript of Sergeant Levey's oral evidence the following appears: Q. Can you give us the conversation? A. I phoned Mr Walton in relation to the matter of the boys, and there was also conversation about the behaviour of Mrs Klewer in the office, and that she had to be ejected from the office due to her swearing and her yelling out, which could be heard right across the school.

Q. Now this, about Mrs Klewer being ejected from the office, are you talking about the office at the school, is that the case? A. Yes.

INFORMANT: Q. Can you describe "eject" - the way you described what you now say "ejection", those words you used - that Mr Walton used at the time, what were the actual words? A: The words - at no time did Mr Walton say that he touched you or used any force on you.

Q. I'm asking what words he used in that conversation? A. That conversation was in March of this year, the exact words he used I can't recall, however at no stage did he say to me that he touched you or used any force on you.

INFORMANT: Okay. Your Worship, if he can't recall can I seek to show him the statement to refresh his memory?

INFORMANT: Q. Paragraph 8? A. Yes.

Q. Can you tell the Court what words he used? A. No, that, that paragraph there is a, a sentence in brackets, which -doesn't use any first person.

O'CONNOR: Object. INFORMANT: It, it relates to- BENCH: Well he can only refresh his memory from that, and you're asking him to say what Mr Walton said.

INFORMANT: That's right. BENCH: And, that's - he's now refreshed his memory, he's had a look at it and he can read - ask him again.

Q. Now that you've looked at that statement do you recall what Mr Walton said to you? A. No your Worship, it's still the same. They're along the lines of that she had to be ejected from the office due to her behaviour, and at no time do I recall him saying that he had to touch her or use any force on her. 17 The magistrate had previously refused an application by the claimant to cross-examine Sergeant Levey, and after that evidence repeated that the claimant could not cross-examine him. 18 The claimant's submission is that there was an inconsistency between Sergeant Levey's oral evidence and his previous statement, that this enlivened s.38(1)(c) of the Evidence Act 1995, and that the magistrate was then required to consider the matters set out in s.192 of the Evidence Act in order to exercise a discretion. The claimant's submission is that the magistrate's failure to do so was an error of law which vitiated his decision to dismiss the prosecution. 19 Section 38 of the Evidence Act is in the following terms: 38. 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. (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. 20 It does not appear to be submitted that paragraphs (a) or (b) of s.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 Levey's evidence was other than neutral, and in my opinion there was no basis for suggesting that Sergeant Levey was not making a genuine attempt to give evidence. 21 In relation to paragraph (c), there is no explicit or logical inconsistency between Sergeant Levey's oral evidence and his prior statement. The prior statement, referring to an incident "between staff and Mrs Klewer" and stating that "she had to be physically removed", does not indicate that this physical removal was by Mr Walton, the opponent. 22 The question then is whether there is any implicit or what might be called substantial inconsistency, falling short though of logical or explicit inconsistency. In my opinion, inconsistency of that latter kind may be sufficient to enliven s.38(1)(c). However, in circumstances where the prior statement did not purport to set out exact words and where the present statement was to the effect that Mr Walton said the claimant had to be "ejected", I think the better view is that there was not such inconsistency as to engage s.38(1)(c), or to require consideration of the discretionary factors set out in s.192. In my opinion, there is no difference of substance between "ejected" and "physically removed"; and as I have said, in any event the previous statement did not indicate or even suggest that any physical removal was by Mr Walton himself. 23 I would add that consideration of s.43, 45, 60 and 106 of the Evidence Act suggest that, even if that view were wrong, an appeal could not in any event succeed. Those sections are in the following terms: 43. Prior inconsistent statements of witnesses (1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not: (a) complete particulars of the statement have been given to the witness, or (b) a document containing a record of the statement has been shown to the witness. (2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner: (a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and (b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence. (3) For the purpose of adducing evidence of the statement, a party may re-open the party's case.

Production of documents (1) This section applies if a party is cross-examining or has cross-examined a witness about: (a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document, or (b) a previous representation alleged to have been made by another person that is recorded in a document. (2) If the court so orders or if another party so requires, the party must produce: (a) the document, or (b) such evidence of the contents of the document as is available to the party, to the court or to that other party. (3) The court may: (a) examine a document or evidence that has been so produced, and (b) give directions as to its use, and (c) admit it even if it has not been tendered by a party. (4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3. (5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

Exception: evidence relevant for a non-hearsay purpose The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.

Exception: rebutting denials by other evidence The credibility rule does not apply to evidence that tends to prove that a witness: (a) is biased or has a motive for being untruthful, or (b) has been convicted of an offence, including an offence against the law of a foreign country, or (c) has made a prior inconsistent statement, or (d) is, or was, unable to be aware of matters to which his or her evidence relates, or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth, if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence. 24 Cross-examination of Sergeant Levey pursuant to leave under s 38 could conceivably have had either of two consequences, which might possibly have been favourable to the claimant's case before the magistrate. One possibility is that Sergeant Levey might have accepted as being true the substance of what was in his statement, giving rise to some evidence of an admission by Mr Walton to the effect that physical force had been used by someone on the claimant. That would have possibly been of some assistance to her case, in that Mr Walton's oral evidence subsequently given suggested that there had been no physical force applied by anyone. 25 The other possible consequence would be that Sergeant Levey simply adhered to his oral evidence, as he did when shown the statement and asked whether he recalled what Mr. Walton said. That may then have satisfied the requirements of s.43, leading to the application of s.45 of the Evidence Act. However, s.45(4) would still make the document not admissible unless it was admissible under Chapter 3. Under Chapter 3 of the Evidence Act, s.106 may have made it admissible as going to Sergeant Levey's credibility; and then, if and only if it was admitted on that basis, s.60 would have had the effect of making it admissible as hearsay evidence of a statement by Mr Walton. Again, that could have been taken as evidence of a relevant admission. 26 Looking at those two alternatives, in my opinion there is no reasonable possibility that Sergeant Levey would have departed from his oral evidence and embraced in an unqualified way what was in the statement. He did not do so when shown the statement, and in my opinion there was no reasonable possibility that full cross-examination on the statement would have had any different effect. 27 As regards the second possibility, in my opinion in a criminal prosecution it would be wrong to give effect to hearsay evidence pursuant to s.60 of the Evidence Act, when that evidence could be admitted only initially as going to the credibility of a witness who gave no other relevant evidence, as was the case with Sergeant Levey. 28 For those reasons, in my opinion, even if there had been an inconsistency, which I do not think there was, there would have been no reasonable possibility of a different result before the magistrate. 29 For those reasons, in my opinion the appeal has no prospect of success, and in my opinion the application for leave to appeal should be dismissed with costs. 30 MEAGHER JA: I agree. In particular, I am of the view that a statement that Mrs Klewer had to be ejected from the office cannot possibly be said to be inconsistent with the statement that she had to be physically removed from the office. 31 I agree with the orders proposed by my brother. Therefore the order of the Court is the application for leave to appeal is dismissed with costs. **********

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