Lowe v Lang

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 30 MARCH 2000 1082/96 MICHAEL CAMPBELL LOWE v BARRY A LANG & 1 ORS JUDGMENT - See transcript page 746 HIS HONOUR: 1 There has been an application by Mr Deakin, of Queen's Counsel for the defendants, for a direction appropriate to ensure that specified documents are produced to the defendants for the purposes of the proceedings pursuant to s 34(1) of the Evidence Act 1995 ("the Evidence Act"). The matter arises in this way. Documents from the file of Mr Brad Stuart, solicitor, a witness in the proceedings, have been delivered to the Court as on subpoena during the course of his evidence in the witness box pursuant to a direction under s 36 of the Evidence Act. Mr Stuart had sworn two affidavits which have been read in the proceedings. The proceedings are being conducted under a regime in which the evidence in chief of all witnesses has been required to be given by affidavit, as is now customary in trials in this Division. There has been only very limited examination in chief of any witness, and that in every case by leave. 2 The documents concerned were contained in an envelope marked MFI 10. I had earlier ruled that privilege in relation to the documents we are here concerned with existed and had not been given up and refused inspection of the documents: Lowe v Lang [2000] NSWSC 302; Lowe v Lang [2000] NSWSC 307. However, during Mr Stuart's cross examination, he was asked whether he had used any of the documents in MFI 10 for the purpose of giving oral evidence in Court at the trial. He answered that he had used a limited number of documents for that purpose, being certain work in progress records. His answers relating to the rest of the documents, in my view, led to the conclusion that he had not used any other of the documents to try to revive his memory for the purpose of giving oral evidence. However, he identified a large number of the documents as being documents which he used to try to revive his memory about the facts before and for the purpose of swearing his affidavits. 3 Upon the present application being made, he was asked certain further questions by Mr P T Taylor, of counsel for the plaintiff, in chief upon the application. These included questions as to his use of one of the documents he had identified as being used, namely, an advice by counsel procured not by him, but by the plaintiff's present solicitors in the proceedings for the purposes of the proceedings. He said that he had used that document to try to revive his recollection only in part, and he identified the parts as the last two lines on page 1; the last paragraph on page 2, with the exclusion of the last sentence; and a paragraph at the foot of page 10. Upon reading the document, as I have had the benefit of doing, being invited so to do by counsel for the purpose of determining this application, the logic of the selection of these parts appears to be that they are the only parts of the document which related to Mr Stuart or to knowledge which he had. He no doubt looked through the document to identify those parts, but specifically denies using any other part of the document to attempt to revive his memory. 4 Section 34 is contained in Part 2.1, "Witnesses", of Chapter 2, "Adducing Evidence", of the Evidence Act. It is one of four sections in that Part that deal with consequences in relation to documents of attempts to revive memory by their use. Those are ss 32 to 35 (inclusive) which provide as follows: "32 Attempts to revive memory in court (1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.

(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:

(a) whether the witness will be able to recall the fact or opinion adequately without using the document ; and

(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or (ii) was, at such a time, found by the witness to be accurate.

(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.

(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

33 Evidence given by police officers (1) Despite section 32, in any criminal proceeding , a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.

(2) Evidence may not be so given unless: (a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and (b) the police officer signed the statement when it was made; and (c) a copy of the statement had been given to the person charged or to his or her lawyer a reasonable time before the hearing of the evidence for the prosecution.

(3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.

34 Attempts to revive memory out of court (1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.

(2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.

35 Effect of calling for production of documents (1) A party is not to be required to tender a document only because the party, whether under this Act or otherwise: (a) called for the document to be produced to the party; or (b) inspected it when it was so produced.

(2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it." 5 Whilst Mr Taylor objects to the production of any of the documents, his submissions are really concentrated upon the portion of the advice which the witness says he did not use to revive memory. He says two things. Principally, he says that s 34 does not apply to a use to revive memory before making an affidavit, albeit the affidavit is later used in evidence. He concedes that the work in progress documents which the witness says he used to revive memory before coming to court to give oral evidence are in a different category. Secondly, he says that the law that should be applied to privileged documents in this context is the common law and not any regime of privilege created by the relevant provisions of the Act as to the adducing of evidence. 6 As to the first of these propositions, he relies principally upon the recent decision of the High Court of Australia in Northern Territory v GPAO (1999) 73 ALJR 470, and in particular on paragraph [16] in the joint judgment of Gleeson CJ and Gummow J, as follows: "[16] The Evidence Act applies to proceedings in the Family Court, as a court created by the Parliament which is not the Supreme Court of a Territory. This is the effect of s 4(1) of the Evidence Act and the definition in the Dictionary of 'federal court'. However, the Evidence Act is concerned with the adducing of evidence (Ch 2), the admissibility of evidence (Ch 3), proof (Ch 4) and certain ancillary matters (Ch 5). It does not deal with the obligations of a party to whom an order in the nature of a subpoena is addressed to produce documents to the court in question. Nor does the Evidence Act deal with the grant of leave by the court to inspect or otherwise make use of documents which have been produced in answe to a subpoena."

See also per Gleeson CJ and Gaudron and Gummow JJ in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 74 ALJR 339 [17]. He says that the revival of memory before swearing affidavits is part of the interlocutory or pretrial procedures, as is the question of access to documents produced on subpoena and privilege in relation thereto, and that the Evidence Act should not apply. Furthermore, he says quite specifically that s 34 of the Evidence Act should be construed so that the words "used by a witness otherwise than while giving evidence" do not apply to attempts to revive memory before swearing affidavits. 7 I do not accept these submissions. I have drawn attention to the fact that s 34 is in the Part of the Evidence Act relating to adducing evidence from witnesses. The revival of memory of a witness for the purpose of giving evidence is, in essence, part of that process of giving evidence and is, in my view, within the purview of this provision and the ambit of the Evidence Act. The Evidence Act is somewhat curious in that it really does not deal at all with the giving of evidence in chief by affidavit or written statement rather than orally, and this in a State where written evidence in chief was common at the time the Evidence Act was enacted and is even more common now. Evidence in chief in virtually all trials in this Division, including those in the Commercial List, is given by affidavit or written witness statement. That is also an increasingly common practice, as I understand it, in trials in the Common Law Division and it also prevails to at least some extent in other courts in this State. Although the Evidence Act does not patently contemplate it, in my view there is no suggestion that this practice is contrary to the Evidence Act, and the Evidence Act, despite the lack of explicit reference, must be taken as applying to situations where the evidence in chief of witnesses is adduced in written form. In my view, the preparation of the affidavit, as in this case, or, for that matter, of a written witness statement to be tendered in Court, is an integral part of the process of giving evidence and stands in a quite different position in relation to the trial and under the Evidence Act from the process of procuring the production of documents on subpoena and their inspection. In any event, the words of s 34 are simple and direct. They refer to the use of documents by a witness otherwise than while giving evidence to try to revive memory. This man is now a witness. It seems to me that such use of documents while preparing his affidavits falls within the words of the section properly construed. 8 Mr Deakin pressed upon me strongly that common law notions of privilege have no application in this context and that, the words of the section proceeding by reference simply to "specified documents", the section does not permit any "dissection "of a document. Once any part of a document has been used as prescribed in the section, it must be produced and produced in whole. Mr Taylor pressed upon me that in the case of a privileged document, common law notions as to the loss of privilege permitted the dissection of a document proceeding as they do by reference to fairness. Fairness would require that all of the document that was material to the subject matter of revival of memory should be revealed, but that any portion of it that was totally irrelevant to that (as it would appear on Mr Stuart's evidence that substantial parts of the advice are) should not be revealed. This rule would be retained if the common law continued to apply, or should be applied by analogy even if it did not. 9 In my view, there is a simple answer to Mr Taylor's argument. In my view, common law rules of privilege play no part in carrying out the Court's function under s 34. Once the matter falls within s 34 and, therefore, within the process of adducing evidence, common law notions of privilege are excluded or superseded for the purpose of carrying out functions under the section and apply neither directly nor indirectly. However, there is another answer to Mr Deakin's submissions that a document cannot be "dissected". That answer arises out of the definition of "document" in clause 8 of the Dictionary in the Evidence Act. That is in the following terms: "8 A reference in this Act to a document includes a reference to: (a) any part of the document; or (b) any copy, reproduction or duplicate of the document or of any part of the document; or (c) any part of such a copy, reproduction or duplicate."

That means that specified documents in s 34 should be read as "specified documents or parts of documents ... used by a witness ... to try to revive his or her memory". As part only of the specified document, in this case the advice, was used, it is only the part so used that should be directed to be produced under s 34. In determining the part, the Court should ensure that all portions of the document relevant to the attempt to revive memory are included. In this case the witness referred to three portions of the document, but in creating a partial document for production I have added an additional section which, it seems to me, is incorporated by reference in one of the three parts to which the witness adverted. 10 I should say that if I am wrong in my conclusion that common law notions of privilege play no part in the process under s 34, no different result would in the present case be achieved. The common law rule of fairness, as to which see Maurice v Attorney General for the NT (191986) 161 CLR 475, dictated that the privilege should be given up and the document revealed so far as was fair, and this notion generally included the idea that all relevant parts of the document, or connected documents, should be produced, but that portions of the document or series of connected documents that were discrete and totally irrelevant should be excluded. See also the decision of Debelle J the Supreme Court of South Australia in Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87. And see the judgment of Lindgren J in MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 135 ALR 743; that was a case decided under the Evidence Act, and I have some doubts as to whether his Honour's proceeding by way of fairness is the correct course in light of what was said by the Full Court of the Federal Court in Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 and Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 as to the relevance of "fairness" to the loss of privilege under the Evidence Act. But the doctrine of fairness, if it applied, would produce the same result in this case as I have come to under the terms of s 34 simpliciter. 11 In dissecting MFI 10 yesterday, Mr Stuart placed separately in the MFI 10 envelope correspondence that was written after his affidavits were sworn and to which he manifestly did not refer for the purpose of swearing them. I shall place the original of the advice with those documents in a separate envelope within the MFI 10 envelope and seal that envelope. I shall place a copy of the portions of the memorandum of advice to which I propose to allow access among the documents as to which the witness has given evidence that he did use in an attempt to revive memory. Those documents will be MFI 13. I direct that those documents, including the edited advice, be produced to the defendants under s 34. 12 Some additional argument was put concerning whether earlier drafts of affidavits altered by the witness in hand or handwritten or typewritten suggestions for the inclusion of matters in the affidavit ought not be regarded as being within s 34 and therefore ought be excluded from the direction. However, the witness, a solicitor, obviously taking care and giving his evidence with precision, has quite clearly stated that it was only parts of the advice he used, specifying which, and he has specifically sworn that he did use all the other documents (including those that I have just described) for the purpose of attempting to revive memory. In those circumstances, in my view the course that should be followed is that they should be included among the documents the subject of the direction under s 34. …oOo…

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