Federal Court of Australia

Australian Building and Construction Commissioner v Albert (No 2) [2021] FCA 799

ORDERS

THE COURT ORDERS THAT:

1.    The objection taken by the respondents during re-examination of Darren Steen Andrew on 4 March 2021 to questions in respect of and the tender of a File Note, being Annexure “DA12” to the affidavit of Darren Steen Andrew affirmed 25 February 2021, be overruled.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    At the hearing on 4 March 2021, during the re-examination of the applicant’s witness, Mr Darren Andrew, an objection was taken by the respondents’ Counsel to the course of the re-examination. Specifically, the respondent objected to Mr Andrew being taken to a file note made by him dated 24 July 2018 (File Note), which File Note can be found at Annexure “DA12” to the affidavit of Darren Steen Andrew affirmed 25 February 2021. The objection occurred as follows:

MR SHARIFF: At page 128, commencing at line 44, you were asked a question that had a premise in it that at about 10 pm, they – being the union officials – still had not been shown any of the documentations, and they repeated their request for all of the documentation and the engineering drawings and things like that. It was put to you:

Do you recall that or not?---We made available the information we had at the site on the office work packs.

Now, when you were referring to “site” there, what were you meaning in that answer, having regard to the two sites you’ve spoken about?---The main office.

All right. That was – you were then asked – just so we’re clear on the timing, at this point in time, 10 pm, it was put to you that they had not been shown the work pack for the engineering drawings. You say – it was put to you:

Do you know or not know?---Don’t know about the time. I can’t confirm the time.

Do you recall giving that answer?---Yes.

If you still have that – if you could please go to the second volume, just before I take you to a page, you will recall you were asked some questions about events that occurred at the project main office. Do you recall that?---Yes.

And do you recall, then, you were asked some questions about events on the Bridge 21 site, do you recall that?---Yes.

Your evidence, as I understand it, is that you didn’t get to the Bridge 21 site until about 11:30 pm?---Yes. Just after.

Yes. So there were two locations at which – just so I understand your evidence – at which you had interactions with the union officials. One at the project main office, and one at the Bridge 21 site?---Yes.

All right. What you said to my learned friend in the answer was you weren’t sure of the time at which the work packs were made available at the project site office?---Yes.

Could I ask you to please look at page 1012 to 1014 of the trial book. Just take your time to please - - -

HER HONOUR: So 1012 she wants?

MR SHARIFF: It’s 1014. Take your time, please, to look at that document?---Can I mark on this?

No. That’s the - - -

HER HONOUR: I’m sorry. What was that?

MR SHARIFF: The witness is asking whether he can mark on it. We can supply the witness a copy - - -

MR DOWLING: We object to the witness being taken to this note.

(Transcript p 178, l 29 – p 179, l 38).

2    The applicant contended that the purpose of taking Mr Andrew to the File Note was to ask him to identify the File Note as being one made by him in the hours after events that occurred in the late evening and early morning of 23 to 24 July 2018 – events which were relevant to the issues for determination in the substantive proceeding. In summary, the applicant proposed to:

(a)    have Mr Andrew read and identify the File Note;

(b)    ask Mr Andrew questions in re-examination which would be answered by reference to matters contained in the File Note;

(c)    tender the File Note as part of Mr Andrew’s evidence pursuant to s 108(1) of the Evidence Act 1995 (Cth) (Evidence Act), or alternatively, pursuant to s 108(3) of the Evidence Act; and

(d)    if necessary, seek to revive Mr Andrew’s memory from the File Note and to read out relevant passages of the File Note pursuant to s 32 (1) and s 32 (3) of the Evidence Act.

3    The applicant further submitted that its proposal with respect to the File Note ought be allowed because:

(1)    It was permissible re-examination under s 39 of the Evidence Act.

(2)    Assuming that Mr Andrew identified the File Note, the course proposed by the applicant was permissible re-examination under s 108(1) of the Evidence Act going to the credibility of Mr Andrew’s evidence. The File Note could be tendered on that basis.

(3)    If it is necessary, which the applicant submitted it was not, then, in the alternative to s 108(1) of the Evidence Act, leave ought be granted for the re-examination to continue and for the File Note to be tendered under s 108(3) of the Act, as it was a prior consistent statement and it had been suggested during cross-examination, and presumably would be suggested in closing submissions either directly or by implication, that Mr Andrew’s evidence had been re-constructed, was the result of suggestions, or had been fabricated.

(4)    In the alternative, an application for leave under s 32(1) of the Evidence Act ought be granted because the cross-examination of Mr Andrew on particular topics showed that he was now unable to recall certain facts, and the File Note was a contemporaneous note of the type contemplated by s 32 of the Act from which he is permitted to revive his memory.

4    The respondents’ overall position was that, having regard to the way in which the applicant had explained its proposed course, such a course was not permissible, unless the Court granted leave pursuant to s 32 of the Evidence Act, as the course proposed by the applicant involved impermissibly leading the witness in contravention of s 37(1) of the Evidence Act.

5    On 5 March 2021, I made orders requiring the parties to exchange written submissions with respect to this objection and related issues. These submissions were further articulated by way of oral argument before me on 22 March 2021.

6    Before turning to issues raised by the present objection I note by way of background that in Australian Building and Construction Commissioner v Albert [2021] FCA 168 (interlocutory judgment) I ruled that evidence in the File Note and equivalent evidence of other witnesses was admissible as evidence in chief. I also note that, notwithstanding this ruling, the applicant chose not to press that evidence as evidence in chief.

Consideration

7    Part 2.1 Division 4 of the Evidence Act deals with examination in chief and re-examination. In particular, s 39 of the Evidence Act provides:

Limits on re-examination

On re-examination

(a)     a witness may be questioned about matters arising out of evidence given by the witness in cross-examination;

 (b)    other questions may not be put to the witness unless the court gives leave.

8    The ambit of s 39 was discussed by Hamilton J in Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765 at [4]-[5], as follows:

4    … It seems to have been the intention of the legislation to repeat the common law as to re-examination: see the Report of the Australian Law Reform Commission on Evidence, ALRC 26, Vol 1, pars 628-9; Odgers' Uniform Evidence Law (3rd ed, 1998) [39.3]. The section seeks to achieve this end by employing the expression "matters arising out of evidence given by the witness in cross examination".

5     Authorities have made plain that the re-examiner is not limited solely to eliciting clarifications or giving explanations where there is an ambiguity, but is allowed:

“... wherever an answer in cross examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it.”

9    These observations of Hamilton J were more recently adopted by Wilson J in Cao & Trong (No 2) [2021] FamCA 369 at [12]-[21], as follows:

17.    The Court of Appeal of New South Wales in Wentworth v Rogers (No. 10) made observations about the common law rule of evidence relating to re-examination. It was held as follows by the Court of Appeal –

It is well established that it is proper in re-examination to elicit from the witness facts which explain away or qualify facts which have been elicited in cross-examination which are prejudicial to the witness' credit or from which prejudicial inferences could be drawn: R v Phair [1986] 1 Qd R 136 at 137; Wojcic v Incorporated Nominal Defendant [1969] VicRp 40; [1969] VR 323 at 326. The rule marches in tandem with the related principle that when a witness has been cross-examined as to part of a written or oral statement made by him, examining counsel becomes entitled to prove in re-examination such other parts of the statement as are necessary to explain or qualify it; Meredith v Innes [1930] NSWStRp 84; (1930) 31 SR (NSW) 104 at 112; 48 WN 5 at 6-7.

 18.    The Evidence Act commenced operation in 1995.

19.    In Drabsch v Switzerland General Insurance Co Ltd Hamilton J made observations about re-examination. It is as well to record them. His Honour said the following –

5.    Authorities have made plain that the re-examiner is not limited solely to eliciting clarifications or giving explanations where there is an ambiguity, but is allowed:

“... wherever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it:”

    Cross on Evidence (Aust ed, 1996) par 17,605; Wojcic v Incorporated Nominal Defendant [1969] VicRp 40; [1969] VR 323 at 326; Wentworth v Rogers [No 10] (1987) 8 NSWLR 389 at 409; and see 6 Wigmore on Evidence (Chadbourn Rev) s1896. It has been specifically decided by the Full Court in South Australia that these matters extend to subjective considerations going to the mental state of the witness at the time of answer: Reg v Lavery (No 2) (1979) 20 SASR 430 at 435 and 451, Reg v Szach (1980) 23 SASR 504 at 511-9; 566-70; 587-8. In the Evidence Act 1995 this broad approach is in my view adopted by the wording of s 39(1) and confirmed by s 108(1).

6.    There have been various statements in the past as to limitations upon re-examination. It has been stated that the re-examiner may not cross-examine his own witness: Phipson on Evidence (14th ed, 1990) par 12-28. This is no doubt true if it means that, having obtained an answer from a proper question in re-examination, the re-examiner attempts, particularly if by leading questions, to deflect the witness from that answer or get him to modify it. It is also sometimes said that in re-examination one cannot get the witness to alter or reverse an answer, or a clear answer, given in cross-examination, but I can find no authority for a proposition in those terms.

7.    Whilst modern authority rejects the proposition that re-examination is limited to clarifications and explanations of ambiguities, it may be that it is correct that, where the question in re-examination is put upon the basis of making a necessary clarification or explanation, and it appears to the Court that there is no lack of clarity or ambiguity, then the question may be rejected, particularly if the result of allowing it may well be that the Judge would feel obliged in his or her discretion to allow considerable further cross-examination as a result of the answers: see Hadid v Australis Media Ltd SCNSW Sperling J 5 November 1996 unreported; Shipp v Cameron (No 2) SCNSW Einstein J 13 October 1997 unreported.

20.    The decision of Kenny J in International Relief and Development Inc v Ladu was more concerned with fairness considerations of permitting counsel to have leave to confer with a witness prior to re-examination, a matter quite different to the issue for my consideration on this application.

21.    From the authorities surveyed above, the most expansive examination on the issue of re-examination under s 39 of the Evidence Act was given by Hamilton J. Of course, as a matter of doctrine of precedent I am not bound to follow or apply that decision. However I take his Honour’s exposition of principle to be scholarly and that I should apply it.

10    I also note the following helpful passage from S Odgers, Uniform Evidence Law (16th edition, Lawbook Co, 2021) in respect of s 39:

39.240    This provision is limited to questioning of the witness who has been cross-examined. It does not permit other evidence to be adduced – whether from other witnesses or in the form of documentary evidence. However, it is suggested that this provision should not be regarded as codifying the law relating to re-examination. Under the common law, cross-examination of a witness may permit the party who called the witness to call other witnesses to qualify or explain matters that have emerged in cross-examination. Similarly, documentary evidence (which is otherwise inadmissible) may be admitted into evidence on the same basis. Section 45 (3) has been held to apply in these circumstances. It is also possible that such other evidence may be admissible under Ch 3 of the Act. Even if that is not correct, however, the common law in this area should be regarded as continuing to operate (pursuant to s 8 of the Commonwealth Act…)

11    It follows that, while s 39 refers only to questions concerning matters arising out of evidence given by the witness in cross-examination, the common law position is broader and has not been entirely excluded by the enactment of s 39. So, as Odgers writes, documentary evidence which might otherwise be inadmissible but concerns matters arising out of evidence given by the witness in cross-examination may be admitted during re-examination: see for example R v Clune [1975] VR 723; [1975] VicRp 72; Wojcic v Incorporated Nominal Defendant [1969] VR 323; [1969] VicRp 40; Wentworth v Rogers (No 10) (1987) 8 NSWLR 398; and R v Koani (No 2) [2016] QCA 289.

12    To the extent that Mr Andrew gave evidence during cross-examination that he was not sure of such matters as chronological times at which certain events took place, the delivery of material to Construction, Forestry, Maritime, Mining and Energy Union (union) officials, or where people were standing at relevant times, it was prima facie open to Counsel for the applicant during re-examination to put to Mr Andrew evidence (including evidence which would otherwise be inadmissible) relevant to explaining or qualifying Mr Andrew’s earlier evidence given in cross-examination. This would, in my view, extend to admission of the File Note, notwithstanding that it was not pressed by the applicant during examination in chief of Mr Andrew.

13    However, as the respondents have correctly submitted, there is interplay between provisions of the Evidence Act (I note consideration of this issue in the context of re-examination by Rothman J in R v Spiteri-Ahern; R v Barber; R v Zraika (No 4) [2017] NSWSC 1278 and R v Spiteri-Ahern; R v Barber; R v Zraika (No 5) [2017] NSWSC 1279). It follows, for example, that although during re-examination questions can be asked or evidence adduced in respect of matters arising out of cross-examination:

    leading questions cannot be put to a witness in re-examination without leave of the Court: s 37;

    credibility evidence cannot be led in re-examination unless the provisions of s 108 are satisfied;

    a document cannot be used to try and revive memory of a witness about a fact or opinion unless the Court grants leave: s 32(1) and

    a witness may not read aloud as part of his or her evidence a document which he or she has used to try to revive memory, unless the Court grants leave: s 32(3).

14    Each of these provisions were the subject of submissions by the parties, referable to the objection by the respondents. I will examine these provisions in turn.

Section 37 of the Evidence Act

15    Section 37 of the Evidence Act relevantly provides:

Leading questions

(1)     A leading question must not be put to a witness in examination in chief or in re-examination unless:

(a)     the court gives leave; or

…

Note: Leading question is defined in the Dictionary.

16    “Leading question” is defined in the Dictionary as meaning:

… a question asked of a witness that--

 (a)     directly or indirectly suggests a particular answer to the question, or

(b)     assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.

17    The respondents submitted, in summary:

    In this case, the applicant expressly identified that it proposed to have Mr Andrew shown the File Note, read the document and then answer questions about what happened. The process envisaged by the applicant involved it suggesting the answers to various questions to Mr Andrew by reference to the document.

    The practice of having a witness adopt a previous statement as part of their evidence, as permitted by s 37(3), only applied to examination in chief. That is not a technique which is permissible in re-examination.

    In this case, the making of the File Note by Mr Andrew was not of itself relevant to a fact in issue. This can be contrasted with a case concerning whether the sending of communications, whether by email or otherwise, might be relevant to a question in issue. In those circumstances, it is permissible to ask a witness in re-examination whether those documents were issued by them and questions about why various matters were included in those documents. Here, the making of the File Note was not relevant to any aspect of the cause of action.

    The applicant proposed to take the witness to the File Note for the purposes of assisting him to give his evidence about various matters on which he was cross-examined, including the question of timing when (if at all) work packs were made available at the project office site, and matters including:

(a)    whether Mr Andrew had a conversation with Mr Albert (or other union officials) in which union officials sought engineering documents and/or evacuation plans;

(b)    whether, at the time the officials walked to the 500 tonne crane, no exclusion zone had been set up;

(c)    a third, additional folder requested by Mr Albert;

(d)    where Mr Andrew and Mr Vorgais stood during the lift; and

(e)    whether union members were on the ramp blocking safe movement of jinkers to lift position.

    Whilst it was possible for the applicant to canvas these matters in re-examination, it was not permissible for the applicant to do that by reference to some other document which suggested the answers to those questions. To permit that would be to permit the applicant to impermissibly suggest the answers to the questions being asked.

18    The applicant submitted, in summary, that no authority was cited by the respondents in support of the proposition that taking the witness to the File Note and asking questions of the witness would amount to the asking of leading questions, and that this proposition was inconsistent with such provisions as s 32(1) of the Evidence Act.

19    As matters presently stand, if the questions put, and proposed to be put, by Counsel for the applicant to Mr Andrew, were leading questions, the Court has not granted leave pursuant to s 37(1)(a) of the Evidence Act. However, I am not satisfied that the course proposed by the applicant in respect of taking Mr Andrew to the File Note would necessarily involve Counsel for the applicant putting leading questions to the witness within the meaning of s 37 of the Evidence Act. For reasons which I will come to shortly referable to s 32 of the Evidence Act, it was open to Counsel for the applicant during re-examination to refer to evidence Mr Andrew had given during cross-examination, take Mr Andrew to the File Note, ask him to read it for the purpose of reviving his memory, and then ask whether he wished to say anything further by way of qualification or clarification of his evidence. I note in particular that the File Note was a document created by Mr Andrew himself.

20    I also do not accept that having a witness adopt a previous statement as part of their evidence, as permitted by s 37(3), only applies to examination in chief, and is not permitted during re-examination. As the applicant submitted, in Ku-ring-gai Council v John David Chia (No 8) [2018] NSWLEC 170 the prosecutor sought to take a witness to part of a copy of the transcript of a recorded interview the witness had undertaken with a private investigator retained by the prosecutor. Counsel for the defence objected on the basis that the prosecutor was attempting to adduce evidence to re-establish the credit of a witness, that s 108 of the Evidence Act should be applied instead of s 32, and further that the evidence fell from the mouth of a person who was being interviewed with the witness. I note that Robson J granted leave for the evidence to be put to the witness.

21    In my view the respondents’ objection is not sustained pursuant to s 37 of the Evidence Act.

Section 108 of the Evidence Act

22    Section 108 of the Evidence Act provides:

Exception: re-establishing credibility

(1)     The credibility rule does not apply to evidence adduced in re-examination of a witness.

(3)     The credibility rule does not apply to evidence of a prior consistent statement of a witness if:

(a)     evidence of a prior inconsistent statement of the witness has been admitted; or

(b)     it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion;

and the court gives leave to adduce the evidence of the prior consistent statement.

23    In my view s 108(1) is not limited by s 108(3). The plain reading of s 108 is that its two subsections are standalone provisions. Support for this observation can be found in comments of Gaudron J in HG v R (1999) 197 CLR 414; [1999] HCA 2 at [72], where her Honour clearly distinguished the operation of s 108(1) and s 108(3) of the Evidence Act.

24    The credibility rule is that referred to in s 102 of the Evidence Act, namely

Credibility evidence about a witness is not admissible.

25    “Credibility evidence” is defined in s 101A of the Evidence Act as follows:

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:

(a)     is relevant only because it affects the assessment of the credibility of the witness or person; or

 (b)     is relevant:

(i)     because it affects the assessment of the credibility of the witness or person; and

(ii)     for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

Note 1: Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.

Note 2: Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

26    The credibility rule in s 102 must, in turn, refer to credibility evidence as defined in s 101A of the Evidence Act.

27    “Credibility” for the purposes of the Evidence Act is further defined in the Dictionary to the Act as follows:

credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person’s ability to observe or remember facts and events about which the person made the representation.

credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

28    In the present case the applicant submitted, in summary:

    At the time re-examination ceased, due to the objection, the intent was to clarify Mr Andrew’s evidence as to the time at which he provided the “Work Pack” to the union officials on site.

    The File Note sought to clarify Mr Andrew’s evidence or to give an explanation as to his evidence and illuminate, not distort, his evidence as he could give it within the meaning of the principles set out in Drabsch.

    It is plain from the cross-examination of Mr Andrew that a number of propositions were put to him on the basis of a counter-narrative of events, which reflect the instructions of the respondents as to what they alleged transpired. This counter-narrative formed the basis of a number of propositions put to Mr Andrew as to the timing of events, what was asked for by the union officials and what was said by them and others, and what happened, where it happened, and what Mr Andrew said or did in response, or what he saw. Accordingly, Mr Andrew’s credibility is in issue.

    Re-examination to address Mr Andrew’s credibility was permissible in the context of these proceedings.

    The interlocutory judgment did not foreclose that the evidence also had utility as credibility evidence including in re-examination.

    The interlocutory judgment did not find that the evidence was not, and never could be, used or tendered as credibility evidence.

    The respondents do not dispute that Mr Andrew’s credibility is likely in issue and the File Note is relevant for credibility purposes.

29    The respondents submitted, in summary that there was no dispute between them and the applicant in respect of principles concerning the operation of s 39 of the Evidence Act if the schemes in ss 32 and 108 of the Evidence Act operated. The respondents submitted further that if s 108 or s 32 of the Evidence Act applied, the respondents did not say otherwise that there was a restriction created by ss 37 and 39 of the Evidence Act. However, the respondents submitted that:

    The interlocutory judgment rejected the proposition that the File Note constituted credibility evidence.

    The mere fact that the applicant voluntarily chose not to tender the File Note as part of the witnesses’ evidence in chief did not affect the outcome of the interlocutory judgment. That decision is still binding on the parties.

    It followed that, in circumstances where the Court has held that the File Note is not credibility evidence, the credibility rule and its exceptions do not apply.

30    In the interlocutory judgment I said as follows:

43.    The respondents submitted, in effect, that notwithstanding the applicant’s purported characterisation of the evidence in both categories 1 and 2 as “evidence in chief”, that evidence nonetheless bore the character of credit evidence because the only utility of that evidence was to bolster the other evidence of the witness. While I accept the proposition that a party’s characterisation of evidence as bearing a certain quality does not bind the Court in the Court’s interpretation of that evidence, I do not accept that the only utility of evidence in categories 1 and 2 was by way of credit evidence.

44.    To that extent, I reject the submission that the evidence in categories 1 and 2 was inadmissible as credibility evidence within the meaning of s 101A of the Evidence Act.

(Emphasis in original).

Section 108(1)

31    It does not appear to be disputed by the respondents that Mr Andrew’s credibility is likely in issue and that the File Note is relevant for credibility purposes. If the File Note is credibility evidence within the meaning of s 101A of the Evidence Act, then as Rothman J pointed out in R v Spiteri-Ahern (No 4):

5.    The provisions of s 108(1) of the Act are not confined to the circumstances where there has been a prior inconsistent statement adduced through a witness. The legislature has seen fit to render inapplicable the credibility rule contained in s 102 of the Act to questions in re-examination.

6.    That exemption is absolute. As a consequence, credibility evidence about a witness is admissible, if relevant, and if it arises in re-examination, or otherwise meets the test or tests compounded in s 39 of the Act.

7.    I accept, as it has been put, that the provisions of s 37 of the Act relating to leading questions continues to apply to re-examination, notwithstanding the terms of s 108(1) of the Act. Nevertheless, on the face of it, it seems that the effect of s 108(1) of the Act is to render admissible, in re-examination, evidence relevant to the credibility of the witness, even though it only effects the assessment of the credibility of the witness, if it otherwise were to meet the restrictions in s 39 of the Act.

(Emphasis added).

32    The flaw in the submissions of the applicant in this case, insofar as concerns s 108(1) of the Evidence Act, is that the File Note does not fit into the definition of “credibility evidence” in s 101A of the Act.

33    The File Note may be evidence ultimately relevant to the credibility of Mr Andrew. Indeed, I noted this in the interlocutory judgment at [43]. However, this does not mean that it is automatically “credibility evidence” within the meaning of s 101A of the Evidence Act, referable in turn to the credibility rule in s 102 of the Evidence Act. In particular:

    The File Note is not evidence which “is relevant only because it affects the assessment of the credibility of” Mr Andrew (or any other person), in terms of s 101A(a) of the Evidence Act. This is because, as I have already found in the interlocutory judgment, the File Note was relevant for other purposes, and was otherwise admissible as evidence in chief.

    Even if the evidence in the File Note ultimately affects the assessment of the credibility of Mr Andrew in terms of s 101A(b)(i), the File Note is not otherwise inadmissible because of a provision of Pts 3.2 to 3.6 of the Evidence Act, as required by s 101A(b)(ii) of the Act.

34    The File Note was clearly admissible as evidence in chief. The applicant simply chose not to press its admissibility, in chief.

35    Notwithstanding that Mr Andrew’s credibility may now be in issue, and the File Note may be relevant to an assessment of his credibility, in my view:

    this evidence cannot be classified as credibility evidence within the meaning of s 101A of the Evidence Act;

    the credibility rule in s 102 of the Evidence Act is therefore irrelevant; and

    the File Note is not admissible in re-examination, pursuant to s 108(1) of the Evidence Act.

Section 108(3)

36    Similarly, s 108(3) of the Evidence Act does not assist the applicant. Even accepting that the File Note is a “prior consistent statement” of Mr Andrew within the meaning of s 108(3) of the Act, as I have already explained:

    this evidence is not “credibility evidence” within the meaning of s 101A of the Evidence Act;

    such that the credibility rule in s 102 of the Evidence Act applies; but

    for which there is an exception in s 108(3) of the Evidence Act.

Conclusion

37    In my view s 108 of the Evidence Act is not engaged in respect of the File Note and questions referable to the File Note sought to be put to Mr Andrew in re-examination. The applicant cannot rely on s 108 for this purpose.

Section 32

38    In the event that the Court did not allow the File Note to be tendered under either ss 108(1) or 108(3) of the Evidence Act, the applicant sought the Court’s leave to allow Mr Andrew to refresh his memory from the File Note under s 32(1) of the Evidence Act, and that he be permitted to read from it under s 32(3) of the Evidence Act. The applicant submitted that, assuming Mr Andrew appropriately recognised the File Note and confirmed it was made when the events were “fresh in the memory”, there ought be no dispute that the File Note satisfied the requirements of s 32(2)(b) of the Evidence Act.

39    In circumstances where I have concluded that s 108 of the Evidence Act is not applicable, I now turn to examine s 32 of the Evidence Act in the present case.

40    Section 32 of the Evidence Act relevantly provides:

32 Attempts to revive memory in court

(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.

…

41    The applicant submitted that leave ought be granted for the following reasons:

    allowing leave would not unduly add to the length of the hearing, noting that Mr Andrew’s re-examination had almost been completed;

    it would not be unfair to the respondents, noting that not only have they been in possession of the document for a long time, they were presumably aware that the document could be used in this manner;

    the evidence was potentially significant, noting that it was prepared on the very morning that relevant events took place;

    the proceeding is important, noting the seriousness of the contraventions, such that all available evidence ought be brought before the court;

    the matter was adjourned to August 2021, giving the respondents ample time to make any necessary adjustments to their intended case;

    an example of where s 32 of the Evidence Act was enlivened to permit re-examination on a document is the decision of Robson J in Ku-ring-gai Council v John David Chia (No 8) [2018] NSWLEC 170;

    considering the length of the cross-examination and the passage of time, it would be unfair to the witness to judge Mr Andrew’s credibility solely upon his recall without giving him an opportunity to refer to his contemporaneous File Note; and

    if the witness’ answers were unclear, it is permissible to clarify them in re-examination

42    As to whether leave ought be granted under s 32(3) of the Evidence Act, the applicant submitted that the same considerations would apply, noting that by using the document in this way the witness would not be using the document as credibility evidence.

43    The respondents accepted that the requirements in s 32(2)(b) of the Evidence Act were met by the File Note. They submitted, however, that s 32(2)(a) of the Act could not be satisfied. This was because, in summary:

    This section requires the Court to consider whether Mr Andrew would be able to recall the fact or opinion adequately without reference to the document.

    Mr Andrew gave a detailed account of what occurred in his affidavit. In that account, there was no suggestion that he had any difficulty recalling the matters about which he wished to give evidence.

    In any event:

(a)    Mr Andrew gave evidence during the hearing that he did not know about the time when the work packs were provided because he was not involved in the provision of the work packs to the respondents – this is not the same as Mr Andrew being unable to remember when the work packs were provided. It followed that Mr Andrew could adequately give evidence about matters within his knowledge referable to this issue, without the need to refer to the File Note. The respondents relied on evidence of Mr Andrew at Transcript p 128, l 22; p128, ll 41-46 and p 132, ll 41-47.

(b)    In relation to questions Mr Andrew was asked concerning the conduct of the respondents after they had arrived at the Bridge 21 area between 10.30 pm and 11.00 pm, at Transcript p 132, ll 4-7, Mr Andrew made it clear that on his evidence he was not at the area at this time.

(c)    Insofar as the applicant sought to rely on an answer of Mr Andrew at Transcript p 127, ll 1-8 and p 138, ll 1-13, where Mr Andrew was asked questions about the provision of folders to union officials, and he stated “I don’t recall” in response to being asked whether Mr Albert had asked for a third additional folder, that evidence was followed by statements of Mr Andrew during cross-examination at Transcript p 138, l 17 – p 139, l 3 that he did not know what Mr Cuffe had given the union officials and the respondents would have to ask Mr Cuffe.

(d)    To the extent that the applicant indicated it proposed to use the File Note to ask Mr Andrew questions about where the respondents were standing on the ramp, during cross-examination Mr Andrew was clearly able to give evidence about where people were standing (at Transcript pp 155-158).

    In circumstances where the applicant had not identified any circumstances during cross- examination where Mr Andrew was not adequately able to give his evidence without reference to the File Note, and in circumstances where the applicant did not propose to undermine the evidence already given by Mr Andrew by having him give evidence to the effect that he could now not remember matters without his File Note, the applicant should not be permitted to have Mr Andrew consider the note.

44    In submissions in reply the applicant contended that the specific answers given by Mr Andrew during cross-examination concerning such matters as the time the work packs were provided, the conduct of the respondents, the provision of folders to union officials, the references to Mr Cuffe, and the position of respondents standing on the ramp were, inter alia, equivocal and warranted clarification.

45    Section 32 of the Evidence Act is located in Pt 2.1 Div 3 of the Act, being that part of the Act concerning general rules about giving evidence. It is not limited by reference to any particular stage of the examination of a witness or of oral evidence given by a witness during a hearing. Clearly it can apply to evidence given by a witness during re-examination.

46    Section 32(1) of the Act allows evidence to be given within the terms contemplated by the section only if the Court grants leave. In the present case, the key issue in dispute between the parties for the purposes of the application of s 32 appears to be whether Mr Andrew is able to recall facts or opinions adequately without using the File Note within the meaning of s 32(2)(a) of the Evidence Act. The respondents submitted that Mr Andrew’s evidence demonstrated that he was able to do so, and that in such circumstances the Court ought not grant leave for the applicant to allow Mr Andrew to use the File Note to try to revive his memory during re-examination.

47    I do not agree. In my view it is appropriate to grant leave to the applicant to allow Mr Andrew to use the File Note to try and revive his memory about facts on which he was questioned during cross-examination.

48    First, I am not satisfied that Mr Andrew’s answers during cross-examination were such that they could not be clarified or qualified within the meaning of s 39 of the Evidence Act, by reference to a contemporaneous file note. In particular, I note the following submissions by the applicant:

…In response to the specific matters at [14(a)] to [14(f)] however, the Applicant responds:

(a)    The witness’ evidence at T129.1-8 is clear: “we made available the information we had at the site on the – the office work pack’s I believe”. When it was put to him that the officials had not received the work packs by 10pm he responded “don’t know about the time”. It is in this context that his answers at T132.41-47 must be read because the question about timing is repeated – “at this point in time, somewhere between 10 and 10.30, they have not been provided with the work pack…?” The witness’ responses on that were “I can’t comment on that” and “I don’t know”. In context, it is clear that his response “I don’t know” does not mean “I don’t know because I was not present”, but “I don’t know because I do not recall”. It follows that his recollection may be revived under s.32. The evidence at T128.41-42 is irrelevant to this issue. At that stage the witness was not being asked about information packs, but whether a request for transport to the Bridge 21 Site was made either to him (T128.36-39) or to Mr Cuffe (T128.41). It is in response to this second question that the witness replied “I can’t answer what he heard” (T128.41-42).

(b)     The submissions at [14(b)] confuse evidence about timeframes with evidence about events. The witness was unequivocal that he arrived at the Bridge 21 Site in time to witness certain matters; what he disputed was the time of those matters.[See, for example, T133.1-2.] When he was asked a question premised on a timeframe he did not agree with, he responded that the timeframe was wrong (see, for example, T133.36 and T133.41-43). When he asked whether events occurred at the Bridge 21 Site “at approximately 10.30” he quite properly responded that he was not at the Bridge 21 Site at 10.30pm.[See T133.4-14]. At T133.1-48, every single question that suggested a timeframe had effectively the same answer – “I was not there at that time”. But at T133.38-39 and T133.45-48, the questions do not suggest a timeframe, and it is in response to those questions that the witnesses replied “can’t recall”. The change in language is not accidental; the witness meant what he said. Section 32 therefore applies.

(c)    Similarly, the evidence at T127.1-8, T138.10-13 and T138.17-T139.3 related to different subjects. T127.1-8 deals with whether there were two or three folders of material; T138.10-13 deals with whether the witness handed over the “third folder” at 11.30pm (noting that the witness could not recall whether there was a third folder) and T138.17-T139.3 deals with whether or not the officials received the “third folder” prior to 11.30pm. The answers to the third topic do not mean that the witness’ answers to the first and second topics did not mean what they said. Again, this is an area where his recollection may be revived under s.32.

(d)    The matters at [14(d), (e) and (f)] were matters addressed in cross-examination and arise for the purpose of re-examination. It is proposed to ask Mr Andrew to clarify his evidence as to the sequence of events as to where the officials were standing at points in time and, only if he is unable to recall, then recourse may be had to the File Note. As to the repeated requests for engineering documents and evacuation plans, Mr Andrew stated he did not recall that being asked for those documents, and so the File Note is able to be relied upon as to the documents that Mr Andrew recalls that the officials did request. It is no answer that Mr Andrew recalled giving documents to Mr Cuffe; the point of the re-examination is for the witness to clarify what documents the officials asked him to provide.

(Emphasis in original, footnotes incorporated into text).

49    I am satisfied in light of these submissions that there is a very real prospect that the answers of Mr Andrew given during cross-examination were not all-inclusive, and that reference to a contemporaneous File Note could revive his memory about matters the subject of that evidence such that he could clarify that evidence.

50    Second, I note that relevant events the subject of Mr Andrew’s evidence occurred approximately three years ago. In my view it is not reasonable to assume that a witness – in this case, Mr Andrew – can necessarily give comprehensive and accurate answers about events that time distant without recourse to a contemporaneous document to assist in reviving memory. I consider it reasonable to permit Mr Andrew to refer to his File Note to clarify his evidence given during cross-examination, and be in a position to adequately recall relevant facts.

Section 32(3)

51    The applicant has also sought the leave of the Court – depending on his answers – to be permitted to read from the File Note under s 32(3) of the Evidence Act. Insofar as I am aware, there are very few authorities dealing with s 32(3) of the Act. In Hinton by his tutor Lesley Melba Hinton v Valiotis (No 7) (unreported, NSW SC, 7 March 1997) Sperling J considered an application for leave of the Court for a witness to read a document in which the witness said he had recorded questions and answers as part of a relevant conversation. His Honour observed that it was open to the Court to find that the document was relevant, and continued:

I have drawn counsel for the defendants' attention to the terms of subsection (3) of section 32 which appears to require, as a condition for its operation, not merely that the witness is unable to recall details of the matter in question without recourse to the document, but that there must be evidence before the Court which may perhaps be in general rather than particular terms that the witness has used the document to revive or to try to revive his memory.

It seems to me in these circumstances that I ought not to grant leave unless and until I am satisfied that the condition to which I have referred has been fulfilled. Accordingly I do not grant leave at this stage but what I have said may be of use in resolving what is then to occur.

52    Similarly in this case, depending on the evidence of Mr Andrew during re-examination, I would be prepared to grant leave to the applicant for Mr Andrew to read aloud the File Note in Court during his re-examination to the extent that he does so in the course of using the File Note in an attempt to revive his memory. This, however, clearly remains to be seen from the course the re-examination takes.

Conclusion

53    The respondents’ objection is overruled. I am not persuaded that the course of re-examination proposed by the applicant necessarily anticipated Counsel for the applicant putting leading questions to Mr Andrew. I am not persuaded that the relevant evidence is credibility evidence for the purposes of s 108 of the Evidence Act. However, I am satisfied that the proposed course of re-examination, including putting the File Note to Mr Andrew, arose out of evidence given by Mr Andrew in cross-examination. I grant leave to the applicant under s 32(1) of the Evidence Act for Mr Andrew to revive his memory from the File Note.

Associate:

Dated:    15 July 2021

SCHEDULE OF PARTIES