Drabsch v Switzerland General Insurance Co Ltd

There has been controversy over the admissibility of a number of questions asked of a witness this morning in re-examination and also over leave granted by me to Mr Drabsch to have Mr Shand of Queen's Counsel ask two further questions in cross examination after the re-examination of the witness.

In cross examination Mr Shand showed the witness a document which contained a schedule of events proposed to take place on 15 July 1991. He then asked the following questions and received the following answers: "That was in a series of actions which you were scheduled to take part in, wasn't it? A. Yes. Q. Did you? A. No, not personally. Q. Well, did you know that you were intended to take part in them before they happened? A. No. Q. You weren't told? A. No. Q. Were you present when those actions took place? A. I was there when it happened in the head office area, yes. Q. Did you know why it was happening? A. Not specifically, no." Subsequently, the following transpired in the cross examination: "Q. Did you not indicate to this Court on your oath at the time you saw these things happening you didn't know why they were happening? A. I would like to revise that if that's the case. Q. Did you not swear that only a few minutes ago? A. I'd like to revise that answer if that's -- Q. First answer my question. Did you? A. Yes, I did. Q. That's what you swore, isn't it? HIS HONOUR: Is the answer yes? THE WITNESS: Yes. SHAND: Q. And you knew it was false when you gave the answer, didn't you? A. Yes."

In re-examination, Mr Hollo of counsel sought to ask the witness what was in his mind when he gave the answer he subsequently admitted was false, what the revision was that he subsequently wanted to make and why he admitted that the previous answer was false. These questions were objected to. I allowed those questions and indicated I should give my reasons, which I now do.

Re-examination is now governed by s 39 of the Evidence Act 1995 which provides: "39 On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross examination; and (b) other questions may not be put to the witness unless the court gives leave." 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".

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] 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).

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.

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.

I came to the conclusion that, the credit of Mr Lepparde, having been compromised by answers that he gave to Mr Shand in cross examination, the questions that I allowed in re-examination this morning fell within the broader principle set out above and ought be allowed. They were proper questions tending to re-establish the witness’ credit within the general principle in the cases referred to. I did not admit them simply by reference to an apparent lack of clarity or ambiguity, although, in coming to my decision, I did advert to the fact that some lack of clarity may have arisen from the use of the singular pronoun “it” in the question leading to the impugned answer, whereas the antecedents of that preposition, in the questions and answers immediately before and immediately after the impugned question, appeared to be plural antecedents. I also adverted to the fact that the witness had attempted, when cross-examined, to say that he sought to revise his earlier answer. Mr Shand quite properly had not allowed him to do so, as such revision was not an answer to the questions Mr Shand had chosen to ask. Nonetheless, the answer was not struck from the record, there being no application to do so, and stood as part of the cross examination, from which judgment had to be made as to whether or not the re-examination sought arose.

For those reasons I did allow in re-examination the questions referred to. Because of the vexed nature of the question of the antecedent to the preposition “it”, I thought it proper, after the witness had given his answer in re-examination, to allow Mr Shand to ask two further questions in cross examination on that subject matter only, in the exercise of my discretion and as a matter of ensuring fairness to both the opposing parties in relation to this matter. …oOo…