FEDERAL COURT OF AUSTRALIA

Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941

EVIDENCE – application to question a witness called on subpoena ad test as though cross-examining him under s 38(1)(a), 38(1)(b) and/or 38(1)(c) of the Evidence Act – meaning of ‘unfavourable’ in s 38(1)(a) – permitted scope of questioning as though cross-examining under s 38(1)(c) where there has been a prior inconsistent statement made by the witness.

Held:  in the exercise of the Court’s discretion leave should be granted under s 38(1)(c) on the facts of the case.

Evidence Act 1995 (Cth) ss 38(1),  38(3), 192(2)

Workplace Relations Act 1996 (Cth) ss 170NC, 298S and 298SC

R v Le (2002) 54 NSWLR 474 cited

R v Souleyman (1996) 40 NSWLR 712 not followed

R v Lozano, unreported, NSWCCA, 10 June 1997

R v Glasby (2000) 115 A Crim R 465

R v Taylor [2003] NSWCCA 194

Klewer v Walton [2003] NSWCA 308 cited

Adam v The Queen (2001) 207 CLR 96 referred to

HADGKISS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS

NSD 1259 OF 2005

GRAHAM J

24 JULY 2006

SYDNEY

THE COURT ORDERS THAT:

1.         Leave be granted to the applicant to question Glenn David Suter as though the applicant were cross-examining him in accordance with s 38(1)(c) of the Evidence Act 1995 (Cth).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant has called, on subpoena ad test, a witness, Glenn David Suter.  Midway through his examination in chief, an application has been made by the applicant to question him as though the applicant were cross-examining him about certain matters.  Quite naturally, no application has been made, at this stage, to question him about matters relevant only to his credibility (see s 38(3) of the Evidence Act 1995 (Cth)).  The occasion for such an application would not arise until a witness was being questioned as though the party who called him was, with the leave of the Court, cross-examining him under s 38(1) of the Evidence Act.

2                     I am satisfied that the applicant has given notice ‘at the earliest opportunity’ of his intention to seek leave under s 38(1).  Until he had committed himself to evidence of some importance it would have been premature for a s 38 application to have been made.  The matters on which and the extent to which Mr Suter is likely to be questioned by the respondents would not militate against a grant of leave, if an entitlement were otherwise established.

3                     Insofar as the matters to be taken into account under s 192(2) of the Evidence Act are relevant, none of them, in my view, would militate against a grant of leave in the present case.  Counsel for the respondents has suggested that there would be no utility and that there would be prejudice to his clients but I do not accept that this would be the case. 

4                     If anything, the matters to be taken into account under section 192(2) would, on balance, favour a grant of leave if, of course, an entitlement were otherwise established.

5                     Section 38(1) of the Evidence Act provides as follows:

‘38(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.’

6                     The applicant has indicated that his application is brought under each of subparagraphs (a), (b) and (c) of s 38(1).

7                     If, in the exercise of its discretion, the Court grants leave under one of the subparagraphs, that leave will not extend to all of the subparagraphs. 

8                     The right to question ‘as though … cross-examining’ is limited by the word ‘about’.  Questioning may, however, be directed to establishing the probability of the factual state of affairs, covered by the relevant subparagraph, contended for by the party conducting the questioning or the improbability of the witness’s evidence on those subjects (per Heydon JA in R v Le (2002) 54 NSWLR 474 at [55]-[67]).

9                     In the case of s 38(1)(a), that about which the questioning may so proceed is ‘evidence given by the witness that is unfavourable to the party’ who called the witness.  In R v Souleyman (1996) 40 NSWLR 712 at 715 Smart J held that, where the evidence of a witness did not, in significant respects, come up to a prior statement, his evidence was unfavourable.  I must say that I have some difficulty with the proposition that one can characterise evidence given as unfavourable if, to do so, one has to go beyond the pleadings and the evidence itself.  I do not think that ‘unfavourable’ should be construed, as suggested by Smart J, as simply ‘not favourable’.  (see also R v Lozano, unreported, NSWCCA, 10 June 1997 per Hunt CJ at CL, R v Glasby (2000) 115 A Crim R 465 at [59] and R v Taylor [2003] NSWCCA 194 at [74]).  As I see it, for evidence to be characterised as ‘unfavourable’ it would have to detract from the case of the party calling the witness.  I would prefer the approach taken by Hodgson JA with which Meagher JA agreed, in  Klewer v Walton [2003] NSWCA 308 at [20] (and [30]) where his Honour expressed the view that evidence which was simply ‘neutral’ did not come within the word ‘unfavourable’ as used in s 38(1)(a).  In Adam v The Queen (2001) 207 CLR 96 at [27] Gleeson CJ, McHugh, Kirby and Hayne JJ seem to me to be suggesting that for evidence to be characterised as unfavourable, it must have an unhelpful quality about it, as opposed to a neutral quality.

10                  I do not regard the evidence to date of Mr Suter in his examination in chief to relevantly be ‘unfavourable’ in this sense.

11                  In the case of s 38(1)(b) the submission of the applicant is firstly that Mr Suter may reasonably be supposed to have knowledge of conversation additional to that in respect of which he has given evidence and, secondly, that he has not, in his examination in chief, been making a genuine attempt to give evidence of such additional conversation.

12                  In his case on the voir dire in support of his application for leave under s 38(1)(b), the applicant has tendered recordings of two interviews of Mr Suter conducted by two inspectors from the Department of Employment and Workplace Relations conducted on 11 March 2004 and 22 March 2004.  Typed transcripts have also been provided.  These do suggest that Mr Suter may have had knowledge of conversations additional to that in respect of which he has thus far given evidence in his examination in chief.  However, those interviews took place over two years ago.  The second issue is the genuineness of Mr Suter’s attempt to give evidence of all of the relevant conversations about which he has been questioned thus far. 

13                  My impression is that Mr Suter was not being disingenuous when he indicated that he had exhausted his recollection.

14                  This impression was re-enforced by some evidence of Mr Suter gave on the voir dire in relation to the applicant’s current application.  In relation to his two interviews with the inspectors Mr Suter said at transcript page 313.9:

‘We had a conversation about the matters we discussed – the matters that we started to discuss within the union office.  The matters that we had a conversation was I think there was a couple of union issues involved in it by them too, a couple of  - there was – if I can go back to before lunch [referring to Mr Suter’s evidence in examination in chief earlier in the day on 20 July 2006] there was also another issue which I remembered that was discussed in the union meeting with Mick Lane …’

15                  Mr Suter gave me the impression that another matter had come back to his mind and he was prepared to give evidence of his further recollection when the appropriate time for him to do so arose.

16                  This brings me to s 38(1)(c).  In determining whether leave should be granted under this paragraph, the issue is whether Mr Suter had, at an earlier point in time than his examination in chief, made a prior inconsistent statement, that is, whether he had made a previous representation that was inconsistent with the evidence given by him in his examination in chief.  In this context a representation may be oral or in writing or implied (see s 3 of the Evidence Act and the definitions of ‘prior inconsistent statement’, ‘previous representation’ and ‘representation’ contained in the dictionary to the Act).

17                  The applicant submits that a statement prepared by one of the inspectors for Mr Suter was such an inconsistent statement within the meaning of s 38(1)(c) of the Evidence Act.  That statement, which became Exhibit AA1 on the voir dire, was prepared by the relevant inspector using, so it was said, the records of Mr Suter’s two interviews on 11 March and 22 March 2004 to do so.  In cross-examination by counsel for the respondents the inspector conceded that there were unexplained inconsistencies between the records of interview and the draft statement.  In addition he conceded that there was a continuation of the interview on 11 March 2004 which lasted for about 35 minutes and for which neither a sound recording nor a written transcript has been tendered.  By reference to the transcripts of the morning interview of 11 March 2004, which lasted for a total of almost two hours, and the transcript of the 22 March 2004 interview it would appear that the afternoon interview dealt with the events of possibly Thursday 19 and, more probably, Friday 20 February 2004, some of which appear to have been addressed in the draft statement.  On 19 May 2004 the inspector is said to have presented the statement which he had prepared to Mr Suter.  He asked him to take the statement away, to read it overnight and ensure that the information in it was accurate.  He was invited to make any changes to it that he wished and to take out anything that was wrong.  He was advised that the inspector wished to meet with him again the following day to enable any amendments which Mr Suter may wish to suggest to be made.

18                  On the following day i.e. 20 May 2004, the inspector met with Mr Suter again.  Mr Suter is said to have indicated that he had read the statement and that he had made a couple of minor amendments.  The inspector said that he took the statement from Mr Suter and went through it with him where the amendments had been made.  It would seem that consideration was given to places where Mr Suter had suggested that amendment was appropriate and also places where the inspector had, when preparing the statement in the first place, left matters open which needed to be completed.  Amendments had been made in red, blue and black ink.  The inspector claimed the red ink alterations as his and attributed the blue ink to Mr Suter.  He was uncertain as to the black ink alterations, but said they could have been made by him.  His explanation of the different ink colours and their timing, in terms of incorporation in the document, and his inability to satisfactorily explain his diary notes about his meetings with Mr Suter all leave me with very real doubts as to what occurred on 19 and 20 May 2004. 

19                  At the conclusion of the discussion of the form of the statement the inspector says that he said words to the effect:

‘I will now take the statement back to my motel room, make the amendments on my laptop and bring it back for you to sign.’

20                  Mr Suter is said to have responded with words to the effect:

‘I am not going to sign that statement.’ 

21                  The inspector alleges that he then said ‘Why not?’, to which Mr Suter is said to have replied ‘every word in that statement is true, however, if you want me to talk about the truth of the statement then you will have to subpoena me’.

22                  The inspector’s notes of his meeting with Mr Suter simply record:

‘Has amended his statement but will not sign it, will give evidence under subpoena.’

23                  No mention is made in the note of Mr Suter saying ‘every word in that statement is true’.

24                  The inspector indicated that the reason why he had asked Mr Suter to sign the statement was to confirm that it was a true recollection of his knowledge of the events.  The inspector considered Mr Suter’s alleged statement to have the same effect in the inspector’s eyes as Mr Suter’s signature on the document would have had.  Plainly, the words, if spoken, were of importance.

25                  I am not satisfied that Mr Suter said words to the effect ‘every word in that statement is true’. 

26                  The conduct of which evidence has been given does not demonstrate that Mr Suter adopted the statement which had been prepared for him by the inspector as one which contained representations which he acknowledged as his own.  In the circumstances, I do not consider that, even if the statement did contain representations which were inconsistent with his evidence given in his examination in chief, the statement could be said to have been made by him within the meaning of s 38(1)(c).

27                  This brings me to a consideration of the sound recordings of the interviews with Mr Suter that took place before lunch on 11 March and on 22 March 2004 and in respect of which typed transcripts have been made which, together with the compact disc containing copies of those two recorded interviews, comprise Exhibit AA2 on the current application on the voir dire.

28                  The record of Mr Suter’s interview with the inspectors before lunch on 11 March 2004 is replete with representations made by Mr Suter which are inconsistent with the evidence given by him in his examination in chief thus far.  I instance his employment status with Pro Finish Interiors Pty Limited (cf transcript p233.9), his account of a telephone conversation he says that he had with the head of Pro Finish Interiors, Mr Repas, on the evening of Monday 16 February 2004 (cf transcript p257.9-260.2), his account of a meeting said to have taken place with Mr McEwen, Mr Bowman and Mr Repas on 17 February 2004 (cf transcript p269.5-273.6), his account of a telephone conversation with the fourth respondent arranging a meeting with him on 17 February 2004 (cf transcript p274.4-275.3), his account of the attendees at the meeting with the fourth respondent (cf p276.8), his account of the duration of that meeting (cf transcript p276.7), his account of the matters discussed and the terms of the conversations at the meeting with the fourth respondent (cf transcript p275.9 – 290.1).

29                  This is undoubtedly a case where leave should be granted under s 38(1)(c) by reference to the record of Mr Suter’s two hour interview before lunch on 11 March 2004.  If it were not granted, counsel for the respondents may simply choose to leave Mr Suter’s current evidence unchallenged.  It will only be if the applicant has an opportunity to establish the state of affairs contended for by him through the questioning of Mr Suter by way of cross-examination that the inconsistencies between Mr Suter’s current evidence and the prior inconsistent representations will be resolved. 

30                  The effect that the grant of leave may have upon the duration of the hearing is irrelevant given the importance of ensuring that justice is done.  In my opinion no unfairness would be occasioned to Mr Suter or to the respondents or any of them.  This is a case where Mr Suter was called to give evidence on subpoena ad test.  There is no indication that he has made himself available for any pre-trial conferences with the applicant’s legal representatives.  When one has regard to the terms of the record of interview it is strikingly apparent that the evidence in question is important.

31                  The respondents have been on notice as to the evidence which Mr Suter might have given consistent with his record of interview.  There will be no occasion for the hearing to be adjourned by virtue of leave being granted.  The nature of the proceeding as one in which the applicant alleges contraventions of ss 170NC, 298S and 298SC of the Workplace Relations Act 1996 (Cth), as it was in January/ February 2004, render it important that the truth of the conversations to which Mr Suter was a party be fully explored.

Associate:

Dated:              24 July 2006