Cross examination on a document & tendering

Lee v Chai [2013] QSC 136

 

JUDGE: Peter Lyons J
 ORDER: 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1. Judgment for the Defendant on the Plaintiff’s claim

2. The Plaintiff pay the Defendant’s costs of and incidental to the claim:a.     on the standard basis until and including 24 May 2009;

b.     on the indemnity basis from 25 May 2009

 

2. Judgment in the sum of $110,000 together with interest in the sum of $101,221.10, a sum of $211,221.10, on the Defendant’s Counterclaim against the Defendants by Counterclaim.

 

3. The Defendants by Counterclaim pay the Plaintiff by Counterclaim’s costs of and incidental to the Counterclaim on the indemnity basis.

 

4. Caveat number 707065799 in respect of the property described as Lot 104 on SP100001 County of Stanley, Parish of South Brisbane, Title Reference 50291020 being Unit 108, 242–260 Vulture Street, South Brisbane in the State of Queensland be removed.

 

5. Upon the receipt by the Defendant of the amount owing under paragraph 3 above, the Defendant do all such things and execute all such documents as are reasonably required by the Plaintiff to transfer title in and the registration of the Porsche motor vehicle the subject of these proceedings to the Plaintiff or his nominee.

 

6. Subject to paragraph 6, the Defendants by Counterclaim be enjoined from dealing with the Porsche motor vehicle the subject of these proceedings until the receipt by the Defendant of the amounts owing under these orders or further order.

 

CATCHWORDS:  EVIDENCE – WITNESSES – CROSS-EXAMINATION – AS TO CREDIT – ON FORMER STATEMENTS – TENDERING OR CALLING EVIDENCE AS TO FORMER INCONSISTENT STATEMENT – where witness was cross– examined on a prior affidavit – where it was sought to tender the prior affidavit in re–examination – whether the prior affidavit was admissible as evidence where property was purchased in the name of the defendant – where the plaintiff provided the purchase money for the property – where the plaintiff and the defendant were in a sexual relationship – where there was evidence the plaintiff intended the property to be a gift – whether the presumption of a resulting trust was rebutted where property was purchased in the name of the defendant – where the plaintiff provided the purchase money for the property – where the plaintiff and the defendant were in a sexual relationship – whether the relationship gave rise to a presumption of undue influence where property was purchased in the name of the defendant – where the plaintiff provided the purchase money for the property – where the plaintiff suffered from a personality disorder – where the plaintiff suffered from cognitive dysfunction – where the plaintiff suffered from alcohol dependence – where his condition did not have any serious impact on the plaintiff’s ability to make a judgment as to his own best interests – whether the plaintiff was at a special disadvantage where property was purchased in the name of the defendant – where the plaintiff provided the purchase money for the property – where the plaintiff suffered from a personality disorder – where the plaintiff suffered from cognitive dysfunction – where the plaintiff suffered from alcohol dependence – where medical evidence was that a person without medical training would have been aware of the presence of a “grandiose and entitled affect” – whether the defendant had knowledge of any special disadvantage of the plaintiff.

 

Tender of affidavit of Ms Samaratunga

 

[97] Ms Samaratunga swore an affidavit dated 15 May 2009[103]. However, her evidence in chief was given orally, and not by means of this affidavit. In the course of cross-examination, her attention was drawn to the fact that in the affidavit, she made a number of statements relating to the occasion on which she first met Ms Chai, which were inconsistent with her oral evidence. In re-examination, Mr Bell QC who appeared for Mr Lee, sought to tender the affidavit. An objection was taken, which was not ruled on at the time, on the basis that the parties would make subsequent submissions in relation to it.

[98] In support of the tender, reference was made to a passage from a text on evidence[104], which deals with s 19 of the Evidence Act 1977 (Qld); and to a number of cases.

[99] Section 19 is the current Queensland provision which modifies the operation of the rule in Queen’s Case[105]. That case is usually accepted as authority for the proposition that a witness can not be cross-examined about the contents of a document unless the document is both shown to the witness, and put in evidence by the cross-examiner as part of the cross-examiner’s case[106]. Section 19 provides that a witness may be cross-examined as to a previous statement made in writing by the witness, without the witness being shown the writing. Such cross-examination does not have the consequence that the cross-examiner must tender the document[107]. However, the document may be tendered in re-examination.

[100] One of the cases relied upon in support of the tender is Meredith v Innes[108]. A deposition had been taken from a person who had been seriously injured in a motor vehicle collision. Subsequently that person sued the owner of a motor vehicle involved in the collision for damages. He was cross-examined about some of the statements made to the magistrate, and recorded in the deposition. In re-examination, the deposition was successfully tendered. On appeal, the admission of the whole of the document was held to be erroneous. The right to tender was limited to the parts which had been the subject of cross-examination, together with other parts of the document which might explain or qualify what was already before the court[109]. The decision was applied in Wentworth v Rogers (No 10)[110], another authority referred to in support of the tender.

[101] Reliance was also placed, in support of the tender, on R v McGregor[111]. There, a witness had used a document to refresh his memory in relation to a telephone number. The cross-examiner inspected the document, and cross-examined on other parts of it. It was held that this made the whole of the document admissible. The decision reflects a qualification of the rule that, if a party calls for and inspects a document held by the other party, the inspecting party is bound to put the document in evidence, if required to do so[112]. The qualification is that it does not apply, if the document has been used by a witness to refresh the witness’s memory; unless cross-examination on the document extends beyond those parts used by the witness for that purpose. Since Ms Samaratunga’s affidavit was not a document called for by the cross-examiner, and no question of Ms Samaratunga’s having used the document to refresh her memory arose, neither the rule nor the case is of present relevance.

[102] R v Foggo ex parte Attorney-General[113] was also relied upon in support of the tender. However, that case dealt only with the question of the time at which a party might require a cross-examiner to tender a document. It assumed that the right to require the tender had arisen. Reliance was also placed on Attorney-General for the State of Queensland v Colin Lovitt QC[114]. This case contains a discussion of the law relating to the obligation to tender documents used to refresh a witness’s memory, and which has been used in cross-examination. It is of no assistance.

[103] In my view, Mr Bell QC was entitled to tender only that part of Ms Samaratunga’s affidavit which was the subject of cross-examination. Accordingly, I propose to admit only paragraph 7 of the affidavit.

 

 

David Cormack – Brisbane Barrister.

 

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