(2) Evidence of a person so tendered is not admissible if:
(a) it appears to the court's satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been adduced at the hearing of the proceeding."
21 The process of examination under the Evidence on Commission Act is distinct from the process of giving evidence in the proceeding in which the order for examination is made under s 6(1). It is true that s 8 refers to "a person's evidence taken in an examination" ("evidence" there including a document produced at the examination and answers made to any written interrogatories presented at the examination: see s 5). But, as s 8 itself makes clear, such "evidence" will not be "evidence in the proceeding" in which the order for examination was made unless a party to the proceeding tenders it in the proceeding. Furthermore, the person's "evidence taken in an examination", if tendered by a party, is "not admissible" in the circumstances referred to in s 8(2).
22 The provisions of the Evidence on Commission Act emphasise the separateness of the examination from the proceeding in the court in which it is ordered that the examination occur. An examination of the kind the Act contemplates is a "private proceeding" which is not accessible to the public (Magnusson v ACT Health Community Care Service [2001] ACTSC 3 at [9]) so that one of the fundamental features of the proceedings of a court is absent. The provisions of the Evidence on Commission Act also emphasise the separateness of the product of the examination from the body of evidence in that proceeding. That product "does not per se become evidence in the case": Fisher v CHT Ltd [1965] 1 WLR 1093 at 1095 per Edmund Davies J. In Australian Securities and Investments Commission v Rich [2004] NSWSC 467; (2004) 49 ACSR 578, Austin J referred (at [15]) to the need for "a separate tender" of the product of an examination, having regard to s 8. The question of the admissibility of that product will fall to be considered at that point, the expectation being that the person conducting the examination may not be closely concerned with that question: British American Tobacco Australia Services Ltd v Eubanks [2004] NSWCA 158; (2004) 60 NSWLR 483 per Spigelman CJ at [71] to [75].
23 These concepts of separateness stand in stark contrast to the approach taken in the Evidence (Audio and Audio Visual Links) Act and its recognition that a proceeding is conducted by the court in a courtroom or other place of which the remote location of the person giving evidence in a way the Act allows is deemed to be part.
24 In a case such as the present arising under s 63 of the Evidence Act, the "attendance" referred to in clause 4(1)(e) of the dictionary (being, of its very nature, attendance "to give evidence") is attendance by way of physical presence in the courtroom or other place in which the relevant proceeding is being conducted, with that courtroom or other place understood as encompassing any remote location deemed by the Evidence (Audio and Audio Visual Links) Act to be included in it. A person for the time being in a foreign country, although not physically present in the place where the court is sitting, may be relevantly in "attendance" by means of a link of the kind with which the Evidence (Audio and Audio Visual Links) Act is concerned. A person examined pursuant to the Evidence on Commission Act, on the other hand, is never in "attendance" to give evidence in a New South Wales court. The product of the person's examination may (or, indeed, may not) be tendered by a party as evidence in the relevant proceeding in the New South Wales court. But it is the party's tender of the product, not the examination that brings the product into existence, that causes evidence to be before the court.
25 It follows that when the extent of the "steps" taken by a party to "secure" a person's "attendance" is under consideration for the purposes of clause 4(1)(e), attention will be directed only to steps which, if taken, will or might cause the person to be physically present in the courtroom or other place in which the court is sitting or to attend at a location from which an audio or audio visual link can be established. Steps that will or might cause the person to be in a place for the purpose of being examined pursuant to the Evidence on Commission Act are not relevant to the inquiry; nor are steps that will or might cause a record of such an examination to be available for tender by a party to the proceedings. The inquiry is concerned with steps to secure a person's physical presence, not steps to secure statements from the person with a view to tendering them.
26 Against this background, I return to the steps actually taken by the defendant to secure Hiroyuki Narui's attendance (see paragraph [8] above). The steps are, in essence, requests made on two occasions that Hiroyuki Narui attend to give evidence, to which he replied (on the second occasion only) that he has "no intention of doing so in the future, either in person or by video link".
27 The plaintiffs say that the steps thus taken by the defendant do not constitute "all reasonable" steps. They point, in particular, to the fact that the defendant has not sought to take advantage of the Evidence on Commission Act; however, for the reasons discussed, I do not consider that to be relevant to the inquiry. The plaintiffs also point out that the request, in each letter, was that Hiroyuki Narui travel to Australia to give evidence at the trial and that nothing was said about his participating by video link from Japan. In that respect, it is submitted, the "steps" taken failed to extend to an important method of attendance distinct from physical presence in the courtroom.
28 Having regard to what the defendant actually asked (that being the "step" that it took), there is literal force in this submission. But it is clear that the request - confined, as it was, to physical presence at court in Sydney - produced a clear reply that there would be neither physical attendance nor participation by video link. Once Hiroyuki Narui had thus made known his response to the unasked question whether he would give evidence by video link, the actual making of a request for that form of participation ceased to be a step that the defendant might reasonably be required or expected to take. The unsolicited statement of attitude to video link participation caused an explicit request for that form of participation no longer to be included among "all reasonable steps". There was no point in asking Hiroyuki Narui to do that which he had already said he would not do.
29 The plaintiffs then say that, given the importance of the evidence in question, greater effort should have been expended than the mere making of two written requests. Apart from steps centred on the Evidence on Commission Act (which, for the reasons already discussed, are irrelevant), however, they do not suggest the form that the greater effort could or should have taken. It is not suggested on either side that a Japanese citizen, resident in Japan and for the time being in Japan is compellable by subpoena: see, for example, Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545; Aetna Pacific Securities Ltd v Hong Kong Bank of Australia Ltd (unreported, NSWSC, Giles J, 29 April 1993), Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 and Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV [2007] FCAFC 43; (2007) 157 FCR 558. It is also relevant to note that Japan is not a signatory to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.
30 Given the extremely limited avenues available to a litigant in this court who seeks to secure the attendance, as a witness, of a citizen of Japan who is resident in Japan and for the time being physically in Japan, my conclusion is that the defendant must be regarded as having taken, in relation to Hiroyuki Narui, "all reasonable steps . . . to secure his . . . attendance, but without success". Clause 4(1)(e) of the dictionary therefore produces the result that Hiroyuki Narui is, in terms of s 63(1), "not available to give evidence about" the existence of any of the facts that it can reasonably be supposed that he intended to assert by his previous representations recorded in documents to which the defendant's s 67 notice relates. Section 63(2)(b) accordingly negates the operation of the hearsay rule in relation to the several documents identified in the s 67 notice that contain those previous representations. That being so, the hearsay rule does not operate to preclude the adducing of evidence of those previous representations by tender of the several documents. This result is dictated by the statute. It does not proceed from the exercise of any discretion or value judgment by the court.
31 I would add, by way of postscript in relation to this aspect, that the availability under Japanese law of a letter of request process outlined in an affidavit and report of Mr Muto, a Japanese lawyer, filed by the defendant does not change the conclusion stated. The process is highly discretionary. The most that can be obtained is a set of answers to a set of questions submitted in advance. The answers would be obtained through the asking of the pre-ordained questions in court by a Japanese judge, with no real scope to ask additional questions and with the examinee entitled to refuse to answer questions that might tend to incriminate him or damage his reputation or that of a family member (such refusal must be considered a real possibility in this case where, it appears, Hiroyuki Narui has, at different times, made inconsistent statements). Of particular significance, however, is the fact that the culmination of the process is a document setting out oral representations of the person which, in our context, are themselves of a hearsay quality and therefore not admissible without resort yet again to some exception to the hearsay rule. Importantly, the product of the process is not itself evidence, so that physical participation by the person in the process is not "attendance" which puts the person into a position to give evidence to this court.
32 The conclusion reached in relation to s 63 and clause 4(1)(e) makes it unnecessary to consider the defendant's alternative submission based on
s 64 of the Evidence Act and the proposition that Hiroyuki Narui is "available to give evidence about [the] asserted fact".
33 It is, however, necessary to address the plaintiffs' submission that the probative value of the evidence in question - that is, evidence of the previous representations made by Hiroyuki Narui - is, in terms of s 135(a), "substantially outweighed by the danger that the evidence might . . . be unfairly prejudicial to" the plaintiffs, so that the court has a discretion to exclude under that section. The plaintiffs say that that discretion is available and should be exercised so as to exclude the evidence.
34 The plaintiffs characterise the evidence in question as "hotly contested" and "of great significance to the case (subject to weight)". So much may be accepted. Apart from a possible need they may have to seek to tender further documents, the plaintiffs put forward only one matter as a basis for a finding that the s 135(a) condition precedent is satisfied. They refer to the fact that they will be unable to cross-examine Hiroyuki Narui. A long list of matters on which they would wish to cross-examine him is set out in their submissions. The plaintiffs say that it is "one of the fundamental precepts of adversarial litigation that a party is entitled to test in cross-examination factual assertions made in testimonial evidence, whether its form be oral or by way of affidavit".
35 Inability to cross-examine, as relevant to the s 135(a) discretion (or the like s 136(a) discretion), is something that it has been necessary to consider in earlier rulings on evidence in these proceedings: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 654; Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 49. Inability to cross-examine on representations of a person contained in a document does not of itself make the evidence in the document unfairly prejudicial, although the matter can be relevant to a decision on the question whether the s 135(a) "danger" exists: see, for example, Ordukaya v Hicks [2000] NSWCA 180; Bakerland Pty Ltd v Coleridge [2002] NSWCA 30; (2002) 12 ANZ Ins Cas 61-521 at [55].
36 The general message from the decided cases - particularly from the judgment of McHugh J in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [97] - is that the natural and ordinary operation of provisions of the Evidence Act cannot, without more, provide a basis for exercise of the s 135(a) discretion. As McHugh J said, the discretion is to be exercised "on a case by case basis because of considerations peculiar to the evidence in the particular case".
37 The hearsay statements of Hiroyuki Narui go mainly to the question of when he first learned that no development approval had been issued for the Kings Forest Stage 1 land, although they are concerned also with some other matters, including the state of his knowledge of what could lawfully be done on the land. A valid pretext for the tender of the hearsay statements is provided by the fact that the plaintiffs have already been successful in their attempts to introduce into evidence the document dated 19 December 2002 embodying a statement of Hiroyuki Narui prepared by Hickey Lawyers, the then solicitors for the present defendant, for use in proceedings in this court between the defendant and one Harrison: see Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070. A significant element of the content of that statement goes to the time at which Hiroyuki Narui became aware that no development approval had been issued. Tender by the defendant of the previous representations with which I am presently concerned will thus potentially throw further light on a matter emerging from a document already put into evidence by the plaintiffs.
38 The defendant submits and I accept that, in the context just described, the tender of the particular previous representations by the defendant will not occasion prejudice to the plaintiffs of such a quality or magnitude as to make the s 135(a) discretion exercisable. Rather, a form of balance will have been achieved by the presence in the evidence of apparently different and inconsistent statements made by the particular person about a particular matter. Neither side will be able to cross-examine that person. That inability will not rebound to the detriment or prejudice of one party to the exclusion of the other. Each party has had success in introducing into evidence previous representations of Hiroyuki Narui. It follows, particularly in the light of his absence, that he is not cast in any partisan role. Each party will be in a position where it cannot challenge or test the maker of the apparently inconsistent statements with a view to having him disown the version less favourable to that party's case and reaffirm the more favourable version. Neither will suffer any prejudice in that respect that is not also suffered by the other. Any prejudice to the plaintiffs because of inability to cross-examine is neutralised by the like prejudice suffered by the defendant.
39 In that context, it is, to my mind, insufficient for s 135(a) purposes for the plaintiffs to point to a long list of matters on which they would wish to cross-examine when the existence within the body of evidence of Hiroyuki Narui's statement in the Harrison proceedings may well be regarded as productive of a similar desire on the part of the defendant.
40 I am not satisfied that any good reason has been shown for thinking that the s 135(a) discretion is exercisable or ought to be exercised.
41 It remains to deal with the intention of the defendant to adduce evidence of previous representations of Shuhei Takahashi. These are contained in letters of 31 October 2003 and 20 January 2004 from Shuhei Takahashi to David Monaghan of Hickeys and Reg van Rij of Leda: see items 2 and 3 in the list quoted at paragraph [2] above. It appears (and I assume, for present purposes) that Shuhei Takahashi was, at material times, a Japanese lawyer in private practice in Japan who represented Hiroyuki Narui and other Narui interests.
42 No evidence has been given that could lead to the conclusion that Shiuhei Takahashi is not "available to give evidence" as referred to in s 63(1). I say this because there is nothing whatsoever before the court to show that the defendant has made of Shuhei Takahashi even a simple request that he attend to give evidence. In addition, there is no evidence going to the question of "undue expense or undue delay" raised by s 64(1) of the Evidence Act. It follows that there is no basis on which the court could conclude that either s 63 or s 64 operates to make admissible the letters containing the previous representations of Shuhei Takahashi. Nor can the findings about the unavailability of Hiroyuki Narui be of assistance to the defendant in relation to the letters written by Shuhei Takahashi. It is true that those letters contain statements by Shuhei Takahashi about things that, according to him, were said by Hiroyuki Narui, but s 63(2)(b) extends only to first-hand hearsay in a document: S Odgers, "Uniform Evidence Law" 8th edition (2009), p 233 fn 139.
43 The defendant contends, however, that the content of the Shuhei Takahashi letters is saved from the exclusionary operation of the hearsay rule by s 81(2) of the Evidence Act:
"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."
44 The relevant admission is an admission against the defendant and is contained in Hiroyuki Narui's statement of 19 December 2002 in the Harrison proceedings already tendered by the plaintiffs and admitted into evidence: see paragraph [37] above. The admission is that Hiroyuki Narui first learned in January 2001 that there was no valid development approval for the Stage 1 land.
45 The relevant content of Shuhei Takahashi's letters of 31 October 2003 and 20 January 2004 consists of a suggestion or request as to the wording of a written statement to be made by Hiroyuki Narui. Under a heading "No 28 - Change the statement for the whole paragraph to be replaced with the following", each letter sets out a passage couched in the first person. It thus apparently quotes words that Hiroyuki Narui wished to see adopted, by way of substitution, in a first hand account of relevant events to be made by him.
46 The defendant contends that the statements in the passage thus set out in the Shuhei Takahashi letters of 31 October 2003 and 20 January 2004 were, in terms of s 81(2)(a), made "in relation to" the admission contained in Hiroyuki Narui's statement of 19 December 2002 and that, while obviously not made "at the time the admission was made", they were made "shortly . . . after that time". The defendant further contends that it is, in terms of s 81(2)(b), "reasonably necessary" to refer to the statements in the letters of 31 October 2003 and 20 January 2004 "in order to understand the admission" in the statement of 19 December 2002.
47 I deal first with the question of timing posed by s 81(2)(a). It is, as I have said, obvious that statements made in 31 October 2003 and 20 January 2004 were not made at the time a statement of 19 December 2002 was made. The question is therefore whether they were made "shortly . . . after" that time. The defendant submits that the question (particularly as to the import of "shortly") is to be addressed in context and that it is relevant to have regard to the fact that Hiroyuki Narui was located in another country, that he travelled only rarely to Australia, that he spoke only Japanese, that he had to communicate through an interpreter and that his communications were relayed through intermediaries such as lawyers.
48 The meaning of "shortly . . . after" is to be understood in the light of the purpose s 81(2) is intended to serve. It is an adjunct to s 81(1) which puts evidence of an admission beyond the operation of the hearsay rule. Section 81(2) recognises that some other hearsay statement may serve to give essential added content to an admission, in that the other statement is necessary to a proper understanding of the admission. But s 81(2) also recognises that the other statement will be of explanatory or clarifying value only if intimately associated with the admission. The need to exclude the intervention of self-serving after-thought, re-construction or alteration is recognised by the words "made . . . at the time the admission was made, or shortly before or after that time".
49 The plaintiffs refer in their submissions to the explanation of s 81(2) given by the Australian Law Reform Commission in its Interim Report No 26, "Evidence" (1985) and reproduced at page 348 of Odgers, "Uniform Evidence Law" (above):
"A party may make a series of assertions of fact, some against interest at trial, some in his interest, some neutral. Only the former assertions would fall into the proposed definition of 'admission'. Existing law, nevertheless, permits the self-serving portions of a statement to be admitted as evidence. It is not proposed to recommend any changes to the law. An assertion against interest should be considered in context - to assess its probative value it is necessary to consider assertions which qualify or modify it. Fairness to the party requires that his statements not be taken out of context."
50 It is thus made clear that s 81(2) is not intended to modify the common law position. That being so, the plaintiffs say, the words "made . . . at the time the admission was made, or shortly before or shortly after it was made" are concerned to delineate what is, in common law terms, a single "occasion". They refer, in that connection, to observations on the common law position by Ipp J in Middleton v The Queen (1998) 19 WAR 179. In that case, there was admitted into evidence, upon tender by the prosecution, a video interview conducted at a police station almost six hours after the relevant event. The defence then sought to tender a statement made by the accused to police very soon after the event. The trial judge rejected that tender. On appeal, Ipp J said (at 189):
"The main argument advanced on appeal in support of the proposition that the evidence of the first interview was admissible as to the truth of its contents was that it formed part of the video interview. If that were to be correct, once the prosecution had tendered the video interview (as it did), it would be open to the defence to adduce evidence of the first interview (ie on the basis that what was said in both interviews formed one whole statement). We were not referred to any authority which holds that the mixed statement exception applies to statements made on different occasions. As far back as The Queen's Case (1820) 2 Brod & B 284, 297-298; 129 ER 976, at 981, it was said by Abbott LCJ that if any portion of a conversation in which a party to the suit was admitted in evidence against that party, the party concerned must be given 'the benefit of the entire residue of what he said on the same occasion . ' (my emphasis). In Smith v Blandy (1825) Ry & Mood 257; 171 ER 1013 Lord Denman referred to the fact that '[t]he whole of what a party says at the same time, must be given in evidence.... ' (my emphasis).