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.