Edit: Our statistics show that this post continues to be accessed in far higher numbers than I would have thought when I wrote it. There’s obviously interest in how this rule will be applied in the future.

Below I wrote, “Whether the statement then becomes evidence of the truth of its contents or merely clarification of the evidence given then becomes the issue.” Since then, having read Papakosmas v R and associated cases, I incline to the view that once admitted the evidence can be used for all sorts of purposes, not just to assess credit, subject to directions the trial judge gives.

I’ve heard it said that, “under the new Evidence Act 2008 the rule in Walker v Walker is dead.”

As a way of summarising a fairly obscure piece of evidentiary trial procedure, that’s fine. But if practitioners don’t recognise that there are situations when the tender of a document can be forced other than when its production is called for in cross-examination, there might be some red faces in the new year.

Maybe it would be more accurate to say, “The rule in Walker v Walker is dead, but the rule in Hatziparadissis continues to apply”.

Walker v Walker

In 1937, the High Court decided an appeal originating in the Magistrates’ Court of an application for maintenance by a deserted wife. The ruling of the Court was that a document called for and inspected by opposing counsel during the running of the case became admissible evidence that the magistrate was entitled to rely on for the truth of its contents.

Though it’s been accepted as the entrenched position at law, some have railed against the rule in Walker v Walker as being an unfair inhibition on disclosure. If a party were aware of the existence of a document prior to hearing and sought its production from a party through normal pre-hearing disclosure, they would be under no obligation to tender it at trial no matter how relevant or probative it might be. Why then, if a party only becomes aware of the existence of a document whilst cross-examining a witness, should the cross-examiner be prevented from looking at the document for fear of their opponent forcing its tender?

(The other traditional argument, that the forced tender represents a departure from the rigid rules surrounding the proving of documents, wouldn’t have much force now. The Evidence Act 2008 abolishes the archaic system of rules contained in the Evidence Act 1958 and allows courts to use common sense when considering issues of accuracy and provenance of documents, particularly in civil proceedings).

The rule in Walker v Walker is rarely invoked, and has never seriously been challenged at criminal appellate level in Victoria. Even so, the Evidence Act 2008 (perhaps as much for consistency across UEA jurisdictions as anything else) contains s 35, which reads:

35. Effect of calling for production of documents

(1) A party is not to be required to tender a document only because the party, whether under this Act or otherwise-

(a) called for the document to be produced to the party; or

(b) inspected it when it was so produced.

(2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.

The explanatory memorandum in relation to this section reads:

Section 35 provides that a party who calls for another party’s document is not automatically required to tender it. Similarly, the party who produces the document is not automatically entitled to tender it if the calling party does not tender it.

This clause abolishes the rule in Walker v Walker. Under that rule, the party called on to produce a document may require the party who called for and inspected the document to then tender the document. This means that a document that may otherwise be inadmissible could be admitted under this rule. This clause removes the automatic right of either party to tender a document or require the other party to tender a document.

The clause does not, however, preclude the tendering and admission of such a document if it is otherwise relevant and admissible.

R v Harrison

In R v Harrison (1967) VR 72, at the conclusion of an incest trial an accused argued that he had already entered a plea of guilty to the offence the jury had found him guilty of, and had been acquitted of the charge he believed he was contesting. To sort out the confusion, the trial judge recalled the police informant to give evidence and admitted into evidence the original police brief which was marked by him with the charges that guilty pleas had been entered to.

The Court of Appeal ruled that this should not have occurred: “the defence did not call for the documents, did not inspect them or make any use of them, or cross-examine the witness in respect of their contents.”

Hatziparridissis v GFC

In the civil case of Hatziparadissis v G F C (Manufacturing) Pty Ltd [1978] VR 181, a psychiatrist was cross-examined at length. He was questioned about notes he had referred to in order to assist his memory in evidence-in-chief, but was also asked questions by the cross-examiner about portions of the documents which he had not referred to.

After the psychiatrist had left the witness box, the party calling him made application that the notes must then be tendered. Although Harris J refused the application, it was on the basis that the witness had already left the witness box (citing the English decision of Senat v Senat (1965) All ER 505 and other sources). Had the application been made during – or at the conclusion – of the witness’s evidence, all indications are the Court’s ruling would have gone the other way.

The precedent that a party could force the tender of a statement cross-examined on – not called for and inspected, as in Walker’s case – was established.

R v Vella

In R v Vella, at a criminal trial a security guard named Yeoman was cross-examined at length about events he claimed to have seen. Segments of the statement he had made the day after the incident were read to him by counsel. On the appeal, Bongiorno JA summarised the cross-examination [at 26]:

26 Prior to commencing cross-examination of Yeoman on his statement defence counsel at the applicant’s trial elicited from him that he had read the statement prior to giving evidence and obtained his assent to the proposition that that reading had served to refresh his memory of the events described in it. Counsel did not explore the extent to which he had done so or any other matters going to his use of the document. However, later in the cross-examination Yeoman qualified his evidence that he had read the whole statement by saying that he had skipped at least one section of it and later still said that in looking at the statement that day “. . . the main things I looked at were times, refreshing my memory on the times, the dates and that sort of stuff.” The cross-examiner did not challenge these qualifications, being apparently content to rely upon the general assent he had elicited from the witness at the beginning of his cross-examination.

27 Counsel’s cross-examination of Yeoman covered almost the whole of his statement. It was a cross-examination which put at risk the compulsory tender of that statement once Yeoman qualified his earlier evidence as to his reading of it. To protect the statement from the risk of compulsory tender, cross-examining counsel had to confine his questions to those parts of the document which Yeoman had used to refresh his memory. By not ascertaining, with appropriate precision, the extent of Yeoman’s use of the statement the cross-examiner ventured into dangerous territory. If he did cross examine beyond the areas of the document which Yeoman had used to refresh his memory it became relevant and admissible at the option of the prosecutor, subject to the trial judge’s discretion, within the principles expounded in Senat and Harrison and other authorities dealing with this topic.

The common law referred to overlaps with the provisions at s 36 of the Evidence Act 1958. That provision is being repealed with the introduction of the new Evidence Act. The Court of Appeal found s 36 was not the basis of the admissibility of the parts of a statement not used to refresh memory; the common law rule was.

29 Section 36 of the Evidence Act 1958 is a provision relating to the use that can be made of a witness’s prior out-of-court statement by a cross-examiner particularly for the purpose of contradicting the witness by that statement and, by virtue of the proviso to the section, by the Court itself. Its purpose was to remove a number of inconvenient consequences of the former common law rule derived from The Queen’s Case. The exercise undertaken by the prosecutor in this case was not, in truth, concerned with s. 36 at all. He was invoking the common law rule derived from Gregory v Tavernor[17] referred to by the Full Court in R v Harrison and by Sir Jocelyn Simon in Senat v Senat.

The Court of Appeal concluded:

39 The effect of these cases and, in particular, the High Court cases of Walker and Barnes, is that, at least where a document is compulsorily tendered because it has been called for and inspected, the probative value of the material in that document must be dealt with by the Court as a matter of fact and such weight must be given to it as the circumstances warrant. It is “evidence in the case.” It is difficult to distinguish this situation from the situation in which a document is compulsorily tendered not because it has been called for but because a cross-examiner has cross examined on it outside those matters in it which have been used to refresh the witness’s memory. Doubtless, in many cases, such a document will do no more than confirm the evidence of the witness being cross-examined with respect to some or all of that evidence. If that is what it does the proper use of it would be to bolster the witness’s credit in a permissible way.

Being a recent decision of the Court of Appeal, it’s likely that R v Vella is the most accurate statement of the existing common law in Victoria on this issue.

Section 45

Section 45 of the Evidence Act 2008 refers to the admissibility of documents used in cross-examination:

45. Production of documents

(1) This section applies if a party is cross-examining or has cross-examined a witness about-

(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or

(b) a previous representation alleged to have been made by another person that is recorded in a document.

(2) If the court so orders or if another party so requires, the party must produce-

(a) the document; or

(b) such evidence of the contents of the document as is available to the party-

to the court or to that other party.

(3) The court may-

(a) examine a document or evidence that has been so produced; and

(b) give directions as to its use; and

(c) admit it even if it has not been tendered by a party.

(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.

(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

Sub-s (5) states that mere production does not give rise to the obligation to tender. In this sense it’s not different to the existing law on cross-examination on an inadmissible document. Arguably, the ability to force tender would still arise where cross-examination on the document occurs, and it has not been used to refresh memory.

In my view, this interpretation is consistent with the underlying rationale of the rule in Hatziparadissis, which was to allow a trier of fact the opportunity to review the material on which cross-examination was based. It’s not hard to structure questions in a cross-examination (either deliberately or inadvertently) that create a misleading impression of the contents of a document. While such matters can be dealt with by re-examination, it seems a practical and fair approach to allow the Court to inspect the document and use it to place the questions and answers given in their correct context. Whether the statement then becomes evidence of the truth of its contents or merely clarification of the evidence given then becomes the issue.

In states where the UEA has been in operation for some time, the removal of Walker v Walker has not affected the consideration given to Hatziparadissis: Assof v Skalkos [1999] NSWSC 1334.