R v Waldron

JUDGMENT on APPLICATION BY THE ACCUSED TO EXCLUDE EVIDENCE of A witness

Introduction

1. The accused was arraigned on 5 February 2024 on an Indictment containing 10 Counts. Counts 1 to 7 concern allegations that the accused received payments alleged to be made corruptly pursuant to s249B (1) of the Crimes Act 1900 (NSW). Counts 8 to 10 concern allegations that the accused aided and abetted Keith Hunter to corruptly receive payments pursuant to s249B(1) and s249F(1) of the Crimes Act 1900 (NSW). Both the accused and Mr Hunter were at all material times employed by CBA in senior positions in technology and operations and IT engineering. The payments are said to arise as a reward to them for facilitating a third-party supplier of software, Service Mesh Inc. ("SMI"), to enter into supply contracts with CBA.
2. SMI was based in the USA. It started supplying software services to CBA in 2009 and in 2011 it signed a Master Service Agreement with CBA. The principal shareholder was Mr Pulier who it is alleged developed a close working relationship with the accused.
3. In October 2013, SMI entered into an equity purchase agreement ("EPA") with Computer Sciences Corporation ("CSC"), with a first payment of US $93m. The EPA provided that, during an earnout period between 1 January 2013 and 31 January 2014, if SMI achieved revenue exceeding US$20mil CSC would pay SMI's shareholders an additional "earnout payment" equal to approximately ten times that additional revenue.
4. The Crown alleges that contracts entered into between CBA and SMI in December 2013 (TDs 19-21) and January 2014 (TDs 17, 22-29) were facilitated by the accused and Mr Hunter to enable SMI to increase its revenue during the earnout period above US$20 million dollars, to the benefit of SMI shareholders who received an earnout payment of over US$98 million, the largest payment going to Mr Pulier. The Crown case is that Pulier made payments in 2014 via a Mr Goldstein, or a corporation registered by him (ACE Inc.), to both the accused and Mr Hunter as a reward for their ensuring the contracts with CBA were made within the earnout period; that the 10 payments subject of the Counts on the Indictment were received without the knowledge of CBA and were received corruptly by the accused (in respect of Counts 1 to 7); and that the accused aided and abetted Hunter to receive the payments corruptly (Counts 8 to 10).
5. On 17 December 2014 the accused was interviewed by investigators employed by the CBA, Messrs Keaney and Murphy. Ms Kate Brown was at the time employed by CBA within Group Services Legal and she attended the meeting and took contemporaneous notes of what was said during the meeting. Ms Brown was called as a witness in the Crown case on 1 March 2024. She gave evidence that she had a recollection that the meeting took place but did not have a specific recollection of what was said. After the meeting she had arranged for her contemporaneous notes to be typed up and she had checked them word for word to ensure the typed document was an accurate reflection of her handwritten notes.
6. The Crown made an application pursuant to s32 of the Evidence Act 1995 (NSW) ("the EA") that Ms Brown be given leave to refer to her handwritten notes. Leave was granted on the basis that her evidence in chief would be taken on the voir dire. The handwritten notes were marked as Exhibit A1 on the voir dire and the typed transcript thereof were marked as Exhibit A2 on the voir dire. A transcript of the notes taken by the investigator Mr Murphy during the interview later became Exhibit B on the voir dire.

The accused's application

1. The accused applies to exclude the evidence of Ms Brown from the trial essentially on the basis that the evidence is hearsay evidence, that it cannot be admitted for a non-hearsay purpose and further that it cannot be admitted as an exception to the hearsay rule under the EA and therefore Ms Brown's evidence concerning what was said at the meeting on 17 December 2014 based on her notes taken at that meeting is inadmissible. On 4 March 2024 I refused the accused's application. My reasons for so ordering are set out below.

The submissions on behalf of the accused

1. The accused's application took into account a consideration of ss 32, 59, 60, 81 and 82 of the EA which are set out below. Counsel submitted that s32 of the EA is a machinery provision only, by which a witness may be given leave to revive his or her memory by using a document, and with leave of the court may read aloud as part of his or her evidence so much of the document as relates to that fact or opinion.
2. Notwithstanding that leave under s32 may have been granted, it was submitted that the evidence in this case should be excluded as hearsay evidence. Counsel submitted that there were two cases against his principal proposition namely CSR Ltd & Anor v Amaca Pty Ltd (2016) 62 VR 359 [2016] VSCA 320 and Australian Building and Construction Commissioner v O'Connor (No 3) [2018] FCA 43, both of which could be distinguished. In support of this principal proposition counsel relied on R v Woods [2023] NSWSC 1163, a decision of Yehia J.
3. CSR Ltd & Anor v Amaca Pty Ltd concerned contribution proceedings brought by the appellant in respect of its liability arising from the exposure of a number of workers to asbestos thermal insulation products manufactured by it. At trial, findings had been made that a number of claimants had been exposed to asbestos fibre, based on inferences drawn from their employment and exposure histories which the claimants had provided to medical practitioners. The claimants were deceased and the medical practitioners no longer had any independent recollection of their consultations with the claimants. The trial Judge ruled the histories as recorded in the notes of the medical consultations were admissible pursuant to s63(2)(a) of the Evidence Act 2008 (Vic) and leave was given for those histories to be read into evidence under s32(3) of the Act.
4. The Court of Appeal reviewed the position at common law and held that s32 was not a separate ground of admissibility of evidence. The section did not distinguish between permitting a witness to a prior statement for the purposes of giving evidence as a recorded memory as distinct from a refreshed memory and held that the evidence given by each medical practitioner of the histories was not hearsay evidence of those histories. The evidence was therefore admissible pursuant to s63(2)(a) of the Evidence Act 2008 (VIC) to prove the facts stated to the medical practitioner by each claimant.
5. ABCC v O'Connor concerned alleged contraventions by the defendant of provisions of the Fair Work Act 2019 (Cth) ("FWA"). Relevantly, the judgment of Besanko J dealt with a witness who during his evidence in a complex trial had been shown a document on which he identified his signature, not the event described therein. His Honour gave leave under s32 for the relevant part of the document to be read by the witness and held that the evidence was admissible as an exception to the hearsay rule pursuant to s64 of the EA. His Honour applied CSR Ltd & Anor v Amaca Pty Ltd and referred to [81], [83], [85] and [86] of that decision. His Honour held the memory of the witness in the document he identified contained his direct knowledge of the facts. His refreshed memory was held not to be hearsay and was held to be admissible as it was not subject to the hearsay rule. His Honour went on, at [99] to hold that if he was wrong and the evidence was hearsay, the evidence would be admissible under s64(3) of the EA because the witness was "called to give evidence" in the same way as the doctors in CSR Ltd were "giving evidence" within s63(2)(a).
6. In R v Woods Yehia J was considering whether evidence given by a witness who had read from statements previously made by him to police should be subject to a warning to the jury pursuant to s165(2) of the EA. Although the witness was allowed by consent to refer to his statements pursuant to s32 EA he remained unable to recall the events in question. Her Honour, who was presiding over a criminal trial in which a number of co-accused were charged with murder, distinguished CSR Ltd v Amaca Pty Ltd on the basis that the Court's consideration of s32 EA was done in the context of civil proceedings, the subject evidence was contained in expert reports by way of histories taken from the claimants which had been recorded contemporaneously and the subject evidence had been held to be first hand hearsay.
7. The accused here relied on Yehia J's finding, at [43], that s32 was a machinery provision and was not concerned with the admissibility of evidence. The evidence in that case was adduced by the Crown for a hearsay purpose namely to prove the truth of the facts asserted, however no objection had been taken on behalf of the accused. Her Honour was not persuaded that the procedure pursuant to s32(3) transformed the essential nature of the evidence from hearsay representations into non-hearsay representations for the purpose of a s165 warning and went on to grant the application to give such a warning to the jury.
8. Counsel referred to the exception in s60 EA namely that the hearsay rule does not apply to evidence of a previous representation admitted for a purpose other than proof of an asserted fact. However s60(3) provides that the section does not apply in a criminal proceeding to evidence of an admission. Here, the Crown was relying on the evidence of statements of the accused contained in the notes as admissions within the broad definition in the EA, namely as statements adverse to the interests of the accused in the outcome of the proceedings. Counsel submitted that the evidence was relied on not for a non-hearsay purpose, namely for example that Ms Brown attended the interview on 17 December 2014, but was relied on by the Crown for a hearsay purpose and did not come within an exception to the hearsay rule and therefore was not admissible.

The Crown's submissions

1. The Crown submitted that both Ms Brown and Mr Murphy, an investigator employed by CBA present at the meeting whose notes became Exhibit B on the voir dire, took notes which had a high degree of correlation which increased the veracity of each given their contemporaneity.
2. The Crown conceded that s32 EA was a machinery provision but submitted leave should be granted given that Ms Brown was a senior and experienced lawyer who took contemporaneous notes during the course of the interview and that her evidence had explained the questions asked and the answers given by the accused during the interview in an inherently logical connection. The Crown relied on CSR Ltd v Amaca Ltd at [79] to submit that the evidence given by Ms Brown by reading from her notes was not hearsay evidence, and not within the rubric of any exception to the hearsay evidence rule pursuant to s59 EA.
3. The Crown submitted that the responses given by the accused to questions asked of him were not relied upon to prove the existence of a fact in issue. Rather his responses were false and or misleading. As the Crown was not seeking to prove the truth of those statements they were not hearsay and s60 had no application. Rather the evidence could be received for a non-hearsay purpose. The Crown submitted that the decision of Yehia J in R v Woods could be distinguished given that matter concerned whether a warning should be given to the jury pursuant to s165 EA, and leave had been given to the witness to read from his police statements by consent.
4. The Crown submitted that in the event that it was held that the evidence was hearsay evidence, it was admissible pursuant to s81 EA as an admission as it was within the definition of an "admission" under the Evidence Act as a statement against interest. Further, Ms Brown was a person who saw, heard or otherwise perceived the admissions being made by the accused pursuant to s82 EA.

Submissions in reply on behalf of the accused

1. Counsel for the accused submitted that the notes of Ms Brown were out-of-court representations and therefore did not come within s82 EA and thus the hearsay evidence could not come within the exception in s81 EA. It was submitted that the EA contained a broad definition of what an admission was and an implied assertion arose that the accused in his interview gave answers that were correct or otherwise not a lie. It was further submitted that application of s64 therefore excluded the evidence as hearsay.
2. It was submitted that the Crown's reliance on the reliability of the notes of the interview were relevant to leave but not to admissibility and that s60 did not allow admissibility of the hearsay unless the notes fell within an exception to the hearsay rule.

Determination

1. The machinery provision by which a witness may be given leave to refresh his or her memory, and with leave of the court, read aloud the document is provided for in s32 EA as follows:- (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.
2. The exclusion of hearsay evidence is relevantly contained in the following provisions of s59 EA:- (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
3. An exception to the hearsay rule namely evidence relevant for a non-hearsay purpose is provided for in s60 of the EA which provides as follows:- (1) 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 an asserted fact. (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)). (3) However, this section does not apply in a criminal proceeding to evidence of an admission.
4. A further exception is provided for in s81 in relation to admissions and related representations:- (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation - (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission.
5. An "admission" is defined in the Dictionary of the EA as:- ""Admission" means a previous representation that is: 1. made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and 2. adverse to the person's interest in the outcome of the proceeding."
6. A "previous representation" is defined as follows:- "Previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced."
7. An "admission" is not rendered inadmissible by the operation of the hearsay rule unless s82 EA applies. It provides as follows:- Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless - (a) it is given by a person who saw, heard or otherwise perceived the admission being made, or (b) it is a document in which the admission is made.
8. CSR Ltd v Amaca Ltd informs the position at common law concerning attempts to revive memory in court and the proper construction of s32 of the Evidence Act 2008 (VIC). The Court held that the section does not distinguish between giving evidence from refreshed memory and giving evidence of a recorded memory. The Court held at [80] that s32(3) is of critical importance in providing that where pursuant to leave granted the witness has used a document to try to revive his or her memory about a fact, the witness may, again with leave, read aloud as part of his or her evidence so much of the document as relates to that fact. The Court held that on the plain meaning of the provision all that is required is that the witness should have used the document "to try and revive his or her memory". The Court went on to hold that the evidence given by each medical practitioner in that case of the histories provided by the deceased claimants was not hearsay evidence of the histories - see [87]. The Court went on to say:- "When the practitioner related to the Court the facts contained in the history given by the claimant, that constituted first-hand hearsay (and not more remote hearsay) as to those facts. The evidence was therefore admissible in each case, pursuant to s 63(2)(a) of the Evidence Act, to prove the facts stated to the medical practitioner by the claimant."
9. CSR Ltd was adopted by Besanko J in ABCC v O'Connor. At [97] his Honour said:- "The fact in issue in CSR Limited was the exposure to asbestos. The recorded memory of the medical practitioner was first-hand hearsay relevant to that fact. To be admissible, the evidence had to overcome the hearsay rule which it did because the case fell within s 63(2)(a). By contrast, the recorded memory of Mr Bleasdale in a document he made contained his direct knowledge of the facts. Refreshed memory is not hearsay and I am of the opinion that if recorded memory is the same as refreshed memory for the purposes of s 32, then it is not subject to the hearsay rule. The Court of Appeal in CSR Limited said that at common law reciting recorded memory was not hearsay evidence and there is no reason to think that that position was not retained under s 32 (at [75]-[87]). The significance of that conclusion is that it led to the rejection of the argument that the medical practitioner reading the recorded memory was not giving evidence for the purpose of s 63(2)(a). The circumstances in this case do not get to that point because the evidence is not hearsay evidence in the first place. In this case, it is direct evidence of recorded memory which falls within s 32(3)."
10. So too here, the giving of evidence by Ms Brown of notes she took at the meeting based on her own document does not amount to hearsay evidence and I accept the Crown's submission that the evidence cannot be excluded as hearsay evidence pursuant to s59 EA.
11. Yehia J's decision in R v Woods may be distinguished as her Honour was not determining whether the relevant evidence in that case, which had been adduced pursuant to s32 by consent of the parties, was admissible. Rather it was accepted by the parties to be admissible and the question her Honour was determining was whether a direction should be given to the jury as to the unreliability of the evidence of that witness pursuant to s165 of the EA which is an entirely different consideration.
12. If I am wrong in this conclusion that the evidence is not hearsay evidence, then, I find to the extent, as was accepted by the parties, that the evidence contains statements made by the accused adverse to his interest in the possible outcome of these proceedings, it is therefore admissible as a previous representation or representations that were made in relation to admissions, at the time the admissions were made pursuant to s81 EA. I further find that the evidence of the admissions is being given by a person namely Ms Brown, who saw, heard or otherwise perceived the representations which may amount to admissions as defined in the EA being made by the accused at the meeting.
13. The evidence would therefore be admissible, as an exception to the hearsay rule.
14. On 4 March 2024 I therefore made the following orders:- 1. I refuse the accused's application to exclude the evidence of Ms Kate Brown. 2. I confirm the leave granted on 1 March 2024 for Ms Brown to refer to the notes taken by her during the meeting at the offices of the Commonwealth Bank of Australia on 17 December 2014, and I grant leave for her to read from those notes. 3. Her evidence in chief given on the voir dire will be evidence in the trial.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2024