Federal Court of Australia

Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 1) [2020] FCA 1670

REASONS FOR RULING

BROMWICH J:

1    These are ex tempore reasons for a ruling on evidence for the trial that is to commence on 1 March 2021.

2    Senior counsel for the first accused, The Country Care Group Pty Ltd, and senior counsel for the second accused, Mr Robert Hogan, object to references in numerous witness statements to conversations that are reproduced in those statements prefaced with “words to the following effect” or “words to the effect”. The basis for the objection is that it is said that it is not permissible for a witness to give other than direct speech of what was actually said. It is argued that the preface of the words objected to departs from that requirement. In support of this argument, four witness statements containing the practice objected to are directly referred to, but it was common ground that this would be representative of the same objection being made in other statements containing the same preface, and that this ruling would apply to all such evidence. Three of the witness statements concern evidence about what those witnesses heard Mr Hogan say at a conference in May 2014 at the Novatel at St Kilda in Melbourne, being the statements of Philip Riska dated 1 February 2017, of Brooke Aiken dated 7 February 2017 and of Andrew Cuddihy dated 16 May 2017. Reference is made as well to a less precise statement as to what was said to have been conveyed by Mr Hogan on more than one occasion, as set out in a statement of Julianne Brennan dated 26 October 2016. It is argued that there is a danger of unfair prejudice if evidence is given of anything other than the witnesses’ recollection of what was actually said in direct speech. The unfair prejudice is said to lie in any suggestion that the witnesses were giving other than a verbatim recollection of what was said.

3    The prosecution maintains that this evidence in this form is admissible, noting that no authority has been cited to the contrary. The prosecution points out that in relation to the three accounts of what had been said by three different witnesses at the same conference, it could not be said with certainty that these were three different versions of the same utterances by Mr Hogan, as opposed to three different utterances. The prosecution submits that this evidence, in the way in which it is set out in the statements. is a recollection of those individuals and does not purport to be necessarily a verbatim account of what was said. The prosecution submits that there is no issue of unfair prejudice arising from evidence being given as to what it is asserted had been said by Mr Hogan in this way. The prosecution also made clear that while the evidence as adduced is going to conduct on the part of Mr Hogan (and through him, the conduct of Country Care), it is also relied upon as to not just the words that were used but also the manner in which they were said, and went to issues of intent, knowledge, belief and motivation. Senior counsel for Country Care and for Mr Hogan enlarge their objection to encompass that aspect of the use of this evidence as well.

4    In response to a suggestion by the prosecution that the evidence would probably not be led using the form “words to the effect”, but that such a form might be used in the event that the witnesses or any of them struggled to give a verbatim account of what they recalled being said, senior counsel for Mr Hogan said that the first approach of not leading evidence by reference to “words to the effect” was unobjectionable, but the backup approach of seeking the effect of what had been said remained objectionable. The prosecution does not accept that adducing evidence by reference to the effect of what was said is inadmissible.

5    In Commonwealth of Australia v Riley (1984) 5 FCR 8, an extradition case, the Full Court (Smithers, Sheppard and Wilcox JJ) observed at page 34:

The rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed.

6    In the almost four decades since Riley was decided, the practice of direct speech recorded in affidavits and in witness statements being prefaced by “words to the effect” has become ubiquitous, rather than no form of direct speech generally being attempted.

7    In R v Wright (1985) 19 A Crim R 17, a decision of the Queensland Court of Criminal Appeal (Mathews, MacPherson and Vasta JJ), a police surgeon in Victoria who examined the accused shortly after her arrest had a conversation with her. The surgeon said that she could not recall all of the precise words said by the accused, but was permitted to give evidence which included direct recollection of what had actually been said and two alternative versions of part of what had been said pertinent to the shooting of the deceased, being “he was shot before me” and “he was shot before my eyes”, not being able to say which was said. No error was found in this approach. The Queensland Court of Criminal Appeal observed at page 19:

There is no doubt that a witness may properly give in evidence the effect or purport or substance of what was said to [them] even though unable to recollect the precise verbiage used. The present case is stronger than many instances of its kind because Dr Jappie was able to identify precise words that, with one or more slight verbal differences, conveyed the effect or impression of what was said. Each of those versions was identical in effect.

8    In R v Noble [2000] QCA 523; [2002] 1 Qd R 432, the Queensland Court of Appeal was dealing with a case in which a trial judge had insisted upon conversations being recounted in direct speech. There were other issues on the appeal which do not need to be referred to. Pincus JA (a former judge of this Court, with whom McMurdo P, and McKenzie J agreed) said the following:

[18]    Without giving any more detail, the point may be summarised by saying that the witness appeared to find the requirement that he translate what he was intending to say into direct speech created difficulties for him; but the judge continued to insist that he make the attempt. We were referred to no authority with respect to the correctness of the judge’s actions. The discussion in Wigmore on Evidence, Chadbourn Revision, par. 2097 includes the following:

“The general rule, universally accepted, is therefore that the substance or effect of the actual words spoken will suffice, the witness stating this substance as best [they] can from the impression left upon [their] memory. [They] may give [their] ‘understanding’ or ‘impression’ as to the net meaning of the words heard.”

The most recent reference to the point I have been able to find, as regards evidence in a criminal case, is Godinho (1911) 7 Cr.App.R. 12 at 14. There, Hamilton J. expressed himself as disapproving an old authority, which was relied on to show that a confession must be given in the accused’s very words.

[19]    In this case, both the judge and the Crown have suggested that the witness should have been “prepared” by solicitors. If the proposed witness is a person not used to translating conversations from their substance into direct speech, the process might be arduous. Further, such preparation is open to the criticism that it is a mere incitement to perjury. If a witness in truth remembers only the effect of a conversation but not the words spoken, it is a dubious compliance with the witness’s oath or affirmation if the evidence is given as if [they] remembered the words spoken. If the “preparing” lawyer trains the witness to use particular expressions, differing from those the witness has in mind, the line dividing impropriety from proper practice will perhaps be crossed.

[20]    There is, in my respectful opinion, no rule that a witness who does not claim to remember the words spoken in a conversation must attempt to give it in direct speech, manufacturing a conversation from a recollection of its effect. Of course, the ideal is that the exact words be given, but it is so unlikely that Barry could have remembered anything other than the substance of the conversations that the judge plainly erred in attempting to have him give evidence using direct speech. The erroneous idea that people can accurately recall conversations in direct speech, long after their occurrence, appears to have been encouraged by practices observed by some magistrates and police, in days gone by. That it is erroneous can be easily demonstrated, if one tries to perform this feat oneself.

9    Both Wright and Noble were quoted from and favourably commented upon by Barrett J in LMI Australasia Pty Ltd v Balderstone Hornibrook Pty Ltd [2001] NSWSC 688; 53 NSWLR 31. His Honour observed:

[8]    There is no rule of law, whether under the Evidence Act or otherwise, which makes inadmissible evidence of a conversation given in indirect speech, but there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form. The statements in the two Queensland cases to which Mr Campbell took me share a common thread of the witness’s inability to remember the precise words used. In each of the passages I have quoted there is a statement that the witness was unable to remember the precise words. Obviously if a witness can remember them, evidence should be given of the ipsissima verba.

[9]    The possibility that s 135 may be invoked where evidence of a conversation is given in indirect speech is, of course, real. However, the question under that section will be not merely be whether there is prejudice, but whether that prejudice is unfair prejudice operating against the opposing party because of a curtailment of the ability to cross-examine. I accept that not all the cross-examination opportunities available in a case of direct speech report will arise in case of an indirect speech report, but the ability to engage in meaningful cross-examination will exist nevertheless. There is also the point that the probative value of the evidence may be diminished by its form.

10    These cases were quoted more recently in R v Dubois [2018] QCA 363 by Sofronoff P (Gotterson JA and Ryan J agreeing) at [77]-[78]. The Queensland Court of Appeal reproduced and endorsed the principles stated in Noble at [18]-[20], reproduced above.

11    The burden of the authority that I have located on this topic accords with long-standing practice in both New South Wales and Victoria in the criminal courts, and in civil affidavit evidence in this Court. That is, there is no necessity to give evidence of conversations in direct speech at all. Not only is there nothing wrong with a witness not being able to give a precise verbatim account, but it has been long accepted that the substance or effect of the actual words spoken will suffice, without necessarily occasioning any unfair prejudice. With the benefit of the authority referred to above, I can see nothing wrong in evidence being adduced in the form set out in the witness statements. As LMI Australasia in particular indicates, such evidence is preferably given of an actual recollection of the words said in direct speech, but if that is not possible it is entirely permissible to do so by giving evidence of the substance or effect of the actual words spoken, with whatever weaknesses that may entail, in this case for assessment by the jury. Necessarily, evidence of the substance or effect of the words spoken may be less powerful and less probative evidence and be more susceptible to being impeached by cross-examination. I see no unfair prejudice in this evidence being adduced in this way.

12    It follows that the objection to evidence of conversations being adduced by reference to the substance or effect of what was said must be rejected.

Associate:

Dated:    18 November 2020