Evidence - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - Waiver of privilege - Party as witness refreshing memory from proof of evidence - Call for production for inspection - Whether use for the purpose of refreshing memory is inconsistent with maintenance of privilege.

Mather and Deegan v Morgan [1971] Tas R 192; Attorney-General v Maurice [1986] HCA 80; (1986) 161 CLR 475; Mann v Carnell [1999] HCA 66; (1999) 168 ALR 86; Mancorp Pty Ltd v Baulderstone Pty Ltd (t/as Baulderstone Hornibrook) (1991) 57 SASR 87; MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 61 FCR 236; Trade Practices Commission v TNT Management (1984) 56 ALR 647, considered.

Roos & Anor v Roberts Ltd, 4 October 1993, distinguished.

Payne v Laver Pty Ltd & Others [2000] TASSC 38, followed.

Judgment Number: [2004] TASSC 39

TASMANIAN SEAFOODS PTY LTD v MALCOLM CLIVE McQUEEN

1 During the course of the cross-examination of the first defendant, counsel for the plaintiff asked whether the witness had refreshed his memory from the proof of evidence prepared for the purpose of the hearing. The witness confirmed that he had used his proof of evidence, whereupon counsel called for its production. The defendant's counsel objected on the basis of solicitor/client privilege, and after argument I determined that the defendant was not required to produce the document. Because the matter involved consideration of the Evidence Act 2001, and many of the existing Tasmanian authorities depended on its predecessor, the Evidence Act 1910 ("the Act"), I decided to publish the reasons for ruling at a later date.

2 The question giving rise to the seeking of production concerned the date on which a particular cheque was paid. The exchange giving rise to the call for production and its making, as recorded in the transcript, was:

"MR McELWAINE: (Resuming) Mr Ayliffe put, at page 188 of the transcript, that in July 1994, on 19 July 1994, the cheque for forty six thousand two hundred and seventy dollars was paid late. Do you remember him putting that? ... Yes, I do.

And that was not the case, was it? ... No, we weren't a hundred percent sure which cheque it was.

Well not a hundred percent sure; I suggest to you specifically instructed Mr Ayliffe that that was the case, that that particular cheque was paid late? ... Yes, but we realised that it might not have been that cheque.

Well if you realised it might not have been that cheque, why did you permit him to put something that was false? ... Because there was a cheque that was late that year.

All right. Which cheque was late in 1994? ... We're not a hundred percent sure, we just know there was a cheque that Al held up, and then I had a conversation with him and the cheque arrived a day or two later.

Have you refreshed your memory before getting in the witness box from any proof of evidence prepared for your in this case? ... I don't know what you mean by that.

Well, before Mr Ayliffe asked you questions yesterday, or Friday actually, did you have prepared for you, what we call "a proof of evidence" or a "statement of evidence"? ... Yes.

You did? ... - evidence? ... I'm not sure where you're going, I'm -

No, don't worry about where I'm going, did you look at the statement? ... I am worried about where you're going.

Did you look at the statement before you gave your evidence? ... Is that the statement that Bill gave me before the Court starts, the questions he'd be asking, is that the statement you're talking about?

Prior to Friday when is the last time you looked at it? ... Probably the day the Court started.

And you refreshed your memory from that document before giving evidence, didn't you? ... I don't remember, I don't remember.

Well for what purpose did you look at it? ... Obviously to get a rough idea of where we were going.

I call for the production of that document, your Honour.

MR AYLIFFE: No, I'll absolutely oppose that, your Honour."

3 The proof of evidence had not been used by the defendant's counsel in the leading of his evidence and accordingly his opponent was not entitled to call for its production in this way (Stroud v Stroud [1963] 3 All ER 539; cf Senat v Senat [1965] P 172; Walker v Walker [1937] HCA 44; (1937) 57 CLR 630). The question here was stated by the Full Court in Mather and Deegan v Morgan [1971] Tas R 192 in the terms appearing in the joint judgment of Burbury CJ and Neasey J at 195:

"The question as we see it is whether the use of the document by the witness to refresh his memory in this way entitles cross-examining counsel to inspect it and make the same use of it as if the witness has looked at it in the witness box. In the case of a document of this kind it may qualify as a previous statement made by the witness for the purposes of s 99 of the Evidence Act 1910, or it may be a statement of the witness which ought to be made available to the defence by the prosecution in accordance with the rule of practice in criminal cases approved in Mahadeo v The Queen [1936] 2 All ER 813. But we are concerned with the question of entitlement to inspection of the document characterized as a document used to refresh the witness's memory."

4 The historic position was as stated by Wigmore on Evidence, 3 ed, Vol III, par762:

"On a general principle that has in view the risk of imposition and false aids, against which the opponent is entitled to the means of protection, the writing must be shown to him on request. Furthermore, as by this opportunity of inspection the opponent is guarded against imposition clearly apparent, so by cross-examination based on the paper he may further detect circumstances not appearing on the surface, and may expose all that detracts from the weight of testimony."

"It is always usual and very reasonable, when a witness speaks from memorandums, that the counsel should have an opportunity of looking at those memorandums, when he is cross-examining that witness."

"The rule should apply, moreover, to a memorandum consulted for refreshment before trial and not brought by the witness into court; for, though there is no objection to a memory being thus stimulated, yet the risk of imposition and the need of safeguard is just as great. It is simple and feasible enough for the Court to require that the paper be sent for and exhibited before the end of the trial."

Professor McCormick, Handbook on the Law of Evidence, 1954 (US) (cited in Mather v Morgan (supra) at 197 - 198:

"The first safeguard is the power of control by the trial judge. It is a preliminary question for his decision whether the memorandum actually does refresh and from the nature of the memorandum and the witness' testimony he may find that it does not. Moreover, as in the case of leading questions, he may decline to permit the use of the aid to memory, where he regards the danger of undue suggestion as outweighing the probable value, in the exercise of his discretion to control the manner of the examination. The second safeguard is the rule which entitles the adverse party, when the witness seeks to resort to the memorandum, to inspect the memorandum so that he may object to its use if ground appears, and to have the memorandum available for his reference in cross-examining the witness. With the memorandum before him, the cross-examiner has a good opportunity to test the credibility of the witness' claim that his memory has been revived, and to search out any discrepancies between the writing and the testimony. This right to inspection has usually been limited to writings used by the witness on the stand, but the reasons seem equally applicable to writings used by the witness to refresh his memory before he testifies. Doubtless the courts have thought that to require inspection of such papers may unduly encourage prying into the opponent's file, but the public interest in the full disclosure of the source of a witness's testimony seems a weightier consideration, and there are decisions taking this view."

5 However, in the United States and Canada, differing views were taken of the proposition (Goldman v United States [1942] USSC 85; (1941) 316 US 129; State of New Jersey v Hunt (1958) 138 AR 2d 1; R v Lepine (1962) 39 WWR 253; R v Kerenko, Cohen and Stewart 49 DLR (2d) 760; R v Lewis (1969) 3 CCC 235). In England, many reported cases concerned the use by a witness of a document whilst in the witness box (Gregory v Tavernor (1833) 6 Car & P 281; Palmer v McLear and McGrath (1858) 1 Sw & Tr 149). In Australia, the question was considered in differing ways. Mack J in King v Bryant (No 2) [1956] St R Qd 570, appears to have adopted with approval a statement appearing in Law of Evidence, Starkie, 4 ed, 184 that:

"Where the memory of the witness has been refreshed previous to trial it is not necessary that the writing by means of which this was done should be produced at the trial. The omission to produce it would of course afford matter for observation. Where the witness has no distinct recollection of a fact independently of the writing the writing itself must be produced"

and in Collaton v Correll [1926] SASR 87, Napier J determined, consistent with portion of one of the statements appearing in Starkie, that non-production of the document when called for was a matter going to weight only. In the latter case, Napier J considered whether the expression "refresh memory" involved use before or at trial, stating at 204:

"The perusal of the document may stimulate the memory, and thus enable the witness to recollect the matter to which he deposes. This is a process of memory. On the other hand, the perusal of the document may not enable the witness to recollect the fact, but it may enable him to vouch for its accuracy.

If the process of stimulating memory is sought to be applied while the witness is giving evidence, it stands to reason that the document must be made available for the purposes of cross-examination; and, of course, it cannot be used unless it fulfils the necessary conditions. But there is no rule that a witness, before he comes into Court, may not stimulate his recollection in any way he can. If any document is used for that purpose it is usual and reasonable that it should be produced in Court and made available for the purposes of cross-examination (Taylor on Evidence, 11th ed, p 965, par 1413). The use of any document for this purpose goes to the weight of the evidence, and, if the document is not produced, it might well justify grave suspicion of the evidence; but it does not preclude the witness from testifying to his recollection of the facts. The evidence was therefore admissible."

6 In Mather (supra), Burbury CJ and Neasey J, having reviewed the authorities referred to above, stated as their conclusion, at 206 - 207:

"In our view the decisions which clearly establish the right of cross-examining counsel to inspect a document used in the witness box by a witness to refresh his memory justify the conclusion that he should be given the opportunity to exercise the same right in relation to a document used by the witness to refresh his memory before he comes into court. The rationale of the decision is that in the interests of justice cross-examining counsel should be able to check the source of the witness's memory stimulus, and test the reliability of the witness's oral testimony by reference to it.

In our opinion it is not possible to lay down a hard and fast rule that the document must always be produced. For example, the document may not be in the control of the witness (as it is when he uses it in the witness box). It may have been destroyed or become unavailable since it was used to refresh memory. Upon the assumption, which we make for present purposes, that a document used to refresh memory out of court may be any document (not being confined to a contemporaneous record made by the witness) it may contain matter which it would not be fair to let cross-examining counsel see. It may for instance be part of the brief of the opposing side.

However, we are satisfied that this court should affirm the general rule to be that in the absence of any good reason to the contrary the document should be produced on the cross-examiner's demand. This is a procedural rule and not one going to admissibility, because the evidence is admissible whether the document is produced or not, in contrast to the situation where the witness has no independent recollection apart from the document. If there is a legitimate reason for its non-production, therefore, that fact can only according to circumstances affect the weight of the testimony. If the court hearing the matter takes the view that the document should be produced, we are of opinion that it is within the court's inherent jurisdiction to direct that cross-examining counsel be permitted to inspect it, since this is a direction to a witness for the purpose of enforcing a rule of practice."

However, in Mather, the court was dealing with a "criminal prosecution" and, as observed by their Honours at 207 - 208:

"In these very common cases of police officers refreshing memory from documents before giving evidence, there should in our opinion be no reason in the common run of cases why the documents should not be produced. When a police officer is making out a report or similar document, ordinarily he will know whether he is likely to have to refresh his memory therefrom at a later date before giving evidence in court, and it should not be difficult for him to keep such parts of his report free of material which might provide genuine cause for a refusal to produce the document - eg, a mention of an informer's name or the like - cf R v Salter (1938) 34 Tas LR 16."

7 An order for production might more readily be made in criminal proceedings, especially with a prosecution witness, because of the requirement that the prosecution make available to the defence, all relevant proofs or statements of its witnesses before trial. In Mather at 208, the court asserted that the relevant document was one within the ambit of the Evidence Act 1910, s40A. It stated as a restriction on the future use of a document once produced, that the party:

"... was entitled to inspect it and cross-examine on it if he chose, without being bound to put it in as part of his evidence, unless he cross-examined on parts of it other than those which related to the oral evidence given by the witness ...".

8 The latter restriction was consistent with the recommendation of the English Criminal Law Revision Committee (11th Rep 1972 Draft Cl 22) that the decision in Stroud (supra) be reversed by a provision that upon the production and inspection, the document shall not, of itself, entitle the opposing party to make the document evidence in the proceedings. (See generally, Cross on Evidence, 3 ed, 9.84.)

Evidence Act 2001

9 The Act, s34, restates the principles stated by this Court in Mather (supra) in the terms:

"34 - (1) The court, on the request of a party, may give any 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."

The provision provides for no distinction between a document used in court or shortly before the hearing. It retains a discretion to prevent impermissible use for collateral matters and permits the exclusion of the evidence if the document is unreasonably withheld. However, there might remain a distinction between in-court and pre-testimony use in relation to the issue of privilege and waiver (Attorney-General v Maurice [1986] HCA 80; (1986) 161 CLR 475; Mann v Carnell [1999] HCA 66; (1999) 168 ALR 86; Mancorp Pty Ltd v Baulderstone Pty Ltd (t/as Baulderstone Hornibrook) (1991) 57 SASR 87).

10 The document called for was the proof of evidence of a party to the action. Presumably, since the Court did not inspect it, it contained many matters which would be the subject of privilege. The problem with its production for inspection is that the opposing counsel would have the opportunity to examine material not intended to be led or which included instructions or observations designed to counter the opponent's tactics or contentions. The Act, s119, relevantly provides:

"119 - Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document, whether delivered or not, that was prepared -

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding, including the proceeding before the court, or an anticipated or pending Australian or overseas proceeding, in which the client is, or may be, or was or might have been, a party."

11 The proof of evidence was that of a party. The position might be otherwise in the case of a witness not a party. (See ruling by Underwood J in Roos & Anor v Roberts Ltd, 4 October 1993.) In Mancorp (supra), Debelle J thought that privilege, once attached to a document such as a proof of evidence, might be waived once the witness had given evidence. He stated, at 94:

"The requirements of fairness apply with equal force where the document used to refresh memory out of court is a privileged document. Once the witness has given evidence, the reasons for maintaining the privileged status of the statement of his evidence become less compelling. In giving evidence, the witness is disclosing what until that time had been confidential and the subject of privilege. The protection of the confidence has less force once the confidential information has been publicly disclosed in the courtroom."

12 In relation to the proposition advanced by Franki J in Trade Practices Commission v TNT Management (1984) 56 ALR 647, that the waiver deprived a court of any discretion to prohibit inspection, Debelle J, in Mancorp, expressed the view that:

"I do not think that it should be an absolute rule that the privileged document should be produced. Although a court has no discretion as to the requirement to produce a non-privileged document, the importance of upholding the sanctity of a privileged document might in some circumstances require that the court should be able to exercise a discretion whether to require a privileged document to be produced for inspection."

13 Lindgren J in MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 61 FCR 236, stating, at 237:

"In my view, the authorities show that the interests of fairness prima facie require that legal professional privilege be treated as lost where a witness, including an expert witness, has refreshed his or her memory for the purpose of giving evidence by reading a document to which the privilege attaches ..."

did not have reason to consider whether his view applied to a document used before the giving of evidence. I do not share the view that the use out of court by a witness of a proof as a means of refreshing evidence deprives a party from claiming privilege. The proof itself might contain privileged information or material not led, but which would afford the opponent of the nature and existence of other matters subject to privilege. It might contain hearsay material, not in itself admissible, but which might reveal other matters confidential to the party. I would prefer the approach taken by Cox CJ in Payne v Laver Pty Ltd & Others [2000] TASSC 38, when he said:

"... The facts of each individual case must be looked at to see if, in the circumstances, privilege has been waived. The test is whether or not it can be said that the client's action is, having regard to any questions of fairness between the parties, inconsistent with the maintenance of the privilege ...".

14 Here no such distinction arose. The proof was that of a party to the action and inspection of the document in its entirety, as requested by counsel, was subject to the claim of privilege. For that reason, the "calling for production" was prohibited.