Here’s something you don’t often read in High Court transcripts:
HER HONOUR: Come into the witness box please, Mrs Smith. Do you wish to take an oath or an affirmation?
MRS SMITH: An oath.
DEBRA KIM SMITH, sworn:
HER HONOUR: Have a seat please, Mrs Smith, and pour yourself a glass of water if you would like one.
THE WITNESS: Thank you.
Debra Smith was testifying before Gordon J as part of litigation about the validity of former Senator Bob Day’s election last year. The final case’s hearing will be held in the second week of February before the full High Court (with Susan Kiefel as Chief Justice and James Edelman newly on the bench.) This week’s hearing is a preliminary one to resolve some factual disputes, the result of an order made by French CJ in November:
10. If the parties have been unable to agree by 22 December 2016 a statement of all the facts and documents which are relevant to the reference, the hearing and determination of the facts will be heard by a single Justice at a date to be fixed with a view to a referral to the Full Court thereafter.
The parties agreed on most issues, but not all of them. According to a ruling by Gordon J last week:
Notwithstanding that agreement, Ms McEwen sought, and continues to seek, additional findings of fact. The additional facts are directed to three separate issues: Mr Day’s interest in the lease with the Commonwealth (“Issue 1”), Mr Day’s statement and declaration in nominating for the Senate in 2016 (“Issue 2”) and distortion of the vote (“Issue 3”).
At Monday’s hearing, two witnesses, Debra and her husband John, both acquaintances of Senator Day and his building company, testified on the first issue and were cross-examined by Day’s counsel.
Witness evidence before the High Court, while unusual, is not unprecedented. The most recent instance I’ve found was in 2005, when a deputy registrar of the Federal Court was sworn in so that she could be cross-examined by a lay litigant on an affidavit she swore that was part of the evidence before Kirby J. There were at least ten other instances of sworn evidence before the Court in the preceding years, including a bail application before Gaudron J in 2001 where Michelle Gordon herself (in her pre-bench days) cross-examined an expert witness, successfully resisting bail. (Kirby J later granted bail to one of the applicants, but Gordon did not participate in that hearing.) But there does not seem to have been sworn evidence under the French Court, prompting special arrangements in Melbourne described by Gordon J last week:
The Court has arranged on the eighth floor of this building for each party to have an allocated work room and you are to speak to Deputy Registrar Musolino if you wish to access that room. Three, it is a trial and I expect counsel and the Court to robe. Four, for the sake of the sanity of the transcript people and for me to stay in their good books I am going to ask that you all speak from the central lectern in this court room rather than from your chairs.
Monday’s transcript shows that other ad hoc adjustments were needed on the day, including moving a bin and persuading Jeremy Kirk SC not to mumble.
As examinations go, Monday’s ones were subject to a fair number of objections, including sixteen from Day’s counsel, such as the following:
Yes. Could you just read to yourself, please, paragraph 12 which begins “In an email to Senator Ronaldson”. Just to be clear, had you ever had a discussion with Mr Day along the lines of what he is outlining to Senator Ronaldson in that paragraph?—No.
MR BELL: I object.
HER HONOUR: There is a fine line between examination and cross-examination. A lot of this seems to be tendered towards cross-examination but Dr Bell has not objected so I have let it go. What is the objection, Dr Bell?
MR BELL: It is a very diffuse question – have you ever had a conversation along the lines of what is in this letter?
HER HONOUR: The reason why I say it is you have asked and Mrs Smith has answered that she has never had a conversation about a range of things which have been particular either with Mr Day, Mr Rasera or anyone else. So why are we doing this?
MR KIRK: Overkill.
HER HONOUR: Well, I do not like overkill.
MR KIRK: Yes, I understand, your Honour.
Although no-one mentioned it, Gordon J was applying the Evidence Act 1995 (Cth), which governs litigation in federal courts, including the High Court. [EDIT: see comments.] Its provisions bar leading (yes or no) questions by the party who called the witness without the court’s permission, as well as ‘misleading or confusing‘ ones from anyone. Last week, Gordon J made a more consequential ruling barring Day from belatedly calling expert evidence about senate voting, citing contemporary case management rules:
Experience of those issues, and their consequences, has led to changes over the last few years in the way modern litigation deals with experts as witnesses. Those changes include that no expert was to be retained without notice being given to the other parties of the name and qualifications of the proposed expert, the proposed questions and the proposed list of materials. That process of notification to, and reply, by the other parties to the proceeding has avoided, or at the very least substantially reduced, complaints and cross-examination about relevant expertise, the form of the questions and the materials referred to and relied upon by the expert. Indeed, in some instances, that process of notification and reply has avoided the need for an expert to be called on some or all of the issues in dispute.
She also criticised the expert himself, for including a section in his report titled ‘findings and conclusions’. ‘Experts do not make findings. Courts do’, she explained, somewhat cryptically.
For expert evidence scholars, Gordon J’s remark about experts and findings cited Heydon JA’s much-cited Makita judgment, specifically a paragraph where he describes ‘a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.’ The remainder of the paragraph consists of quotes from a Scottish decision pointing out that judges are not obliged to accept expert opinions. I cannot see how any of that supports a blanket statement that experts cannot make findings of their own.
Actually, I strongly suspect Gordon J was referring to the quotes of that Scottish decision. Especially this: “Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court”.
I assume her point is that making “findings” is one of the “functions of the jury or Judge”. An expert’s role is to give evidence which may assist the Court in making findings.
My guess is that the expert was not really intending to usurp the court’s role, so Gordon J might have been slightly ungenerous to pick on him for using the word “findings”. But perhaps that needs to be viewed in light of her broader dissatisfaction with the way that McEwen or her lawyers seem to have handled this aspect of the case.
Jeremy. I don’t mean to be disrespectful, but describing leading questions as “yes or no” questions is perhaps quite misleading (and naive), and appears to disregard your audience. Leading questions come in many shapes and sizes; and many, many questions can be answered by “yes” or “no” that are not, in fact, leading questions. Just two examples might suffice. Questions that suggest an answer, “Is your name Bob”, will not be “leading” if there is no dispute that the witness’s name is, in fact Bob. Secondly, after a witness has given evidence of a fact, to ask a leading question about that fact does not fall foul of the prohibition; “Why did you asssault Dave?” will not be caught by the prohibition if the witness has previously given evidence that he/she did assault Dave. There is also a fine line between direct questions, and leading questions, but that’s a whole different story …
No disrepect taken! I think, though, that ‘yes or no’ is a pretty good short-hand (especially for lay audiences.) The full definition is in the UEL’s dictionary:
Para (a) includes all yes or no questions (as well as other questions presenting a binary choice), including ‘Is your name Bob?’ But the latter question and similar ones are always allowed under s37(1)(b) of the UEL, and matters that aren’t in dispute are also allowed under para (d). Para (b) of the UEL definition always strikes me as a subset of para (a)’s ‘indirectly’ language, but it does have the carve-outs for undisputed facts and previously answered facts that you mentioned (while para (a) doesn’t.) As well (I hadn’t noticed this before) para (c) means that the rule only operates when an objection is made (or one of the parties lacks a lawyer.)
“persuading Jeremy Kirk SC not to mumble.”
Having moved jurisdictions (ah, countries), I was really, really surprised to discover California still uses live stenographers for court recordings. And said stenographers have no hesitation in interrupting counsel mid-sentence for clarification. Often very bluntly, or in an irritated manner. Unsurprisingly, it’s exceedingly offputting.
Having only practiced in Australia in courts with recorded transcripts, I’m a bit curious as to whether stenographers in Australia were (are? do any courts/ tribunals stile them?) also prone to interrupting in the same manner.
In my experience (in NSW), we sometimes use in-court stenographers (all of ours are alive LOL!), and sometimes it is recorded and later transcribed. The in-court stenos have no problem interupting a witness to either slow them down, or to seek clarification.
The request for Kirk to stop mumbling came from Gordon J herself and was seemingly because she couldn’t hear him. On the odd occasions I’ve been in the High Court or watched one of the videos, I haven’t noticed a transcriber interrupting the proceedings.
There are some relevant differences between most transcriptions of High Court proceedings and transcriptions of trials. The former are not especially crucial and are simply a (very useful) public service; the latter are often important during ongoing proceedings (so that counsel can review and respond to gaps in the evidence, etc during the litigation) and are crucial as an official record for later appellate review. So, it makes sense for transcribers to interrupt in trials, but not appellate proceedings. That implies that the transcribers may also have been more willing to interrupt in Monday’s evidence.
Jeremy, the Evidence Act did not apply: ss 364 and 381 of the Commonwealth Electoral Act 1918 (Cth). Although one could assume that its principles would be observed as appropriate.
Thanks for that pointer!
But the position is a little ambiguous, I think. Section 4 of the Evidence Act 1995 (Cth) says that the Act applies ‘to applies to all proceedings in a federal court’ and ‘federal court’ is defined to mean ‘(a) the High Court; or (b) any other court created by the Parliament (other than the Supreme Court of a Territory); and includes a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.’ On my reading, para (a) of this definition means that the Evidence Act applies in the High Court (and, under (b), if it makes a difference, the Court of Disputed Returns), whether or not the particular proceeding is one where the law of evidence applies.
The relevant question is what effect s364 of the Commonwealth Electoral Act has. It says: “The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.” (something the section controversially terms ‘real justice’.) The HCA in Sue v Hill said that s364 ‘do[es] not exonerate the Court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness’.
I am sure that s364 removes the operation of much, if not all, of Chapter 3 of the EA (the rules of admissibility) from the Court of Disputed Returns, as those are ‘laws of evidence’ par excellence. But I wonder if the same is true of Chapter 2 (on means of evidence) or Chapter 4 (proof)? Interestingly, Gordon J’s recent judgment in Re Day [2017] HCA 2 cites the Briginshaw principle but not s140 of the Evidence Act – I can’t see how Briginshaw is a ‘substantive’ rule of law, but s140 isn’t.
(I say all this without researching the cases on the interaction of provisions like s364 with the uniform evidence law – I imagine there are some.)