Australian Automotive Repairers* Association (Political Action Committee) Inc v NRMA Insuranc [2004] FCA 369 (25 March 2004)

Last Updated: 8 April 2004

FEDERAL COURT OF AUSTRALIA

Australian Automotive Repairers’ Association (Political Action

Committee) Inc v NRMA Insurance Limited (No 4) [2004] FCA 369

PRACTICE AND PROCEDURE – allegation that persons in courtroom attempted to coach witnesses as to answers to be given in witness box – leave granted to have witnesses recalled for further cross-examination as to whether they perceived any attempt to coach them, and, if so, were influenced in the testimony they gave – after further cross-examination concluded (witnesses stating that they did not observe any attempt to coach them), application for leave to file and read affidavits by persons who say they saw attempts to coach – whether affidavits should be allowed to be filed and read – collateral issue as to credit – cross-examination as to credit.


Evidence Act 1995 (Cth) ss 102, 106



















AUSTRALIAN AUTOMOTIVE REPAIRERS’ ASSOCIATION (POLITICAL ACTION COMMITTEE) INC v NRMA INSURANCE LIMITED (ACN 000 016 722)

N 953 OF 2002

LINDGREN J
25 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 953 OF 2002

BETWEEN:	AUSTRALIAN AUTOMOTIVE REPAIRERS’ ASSOCIATION (POLITICAL ACTION COMMITTEE) INC APPLICANT
AND:	NRMA INSURANCE LIMITED (ACN 000 016 722) RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	25 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to file and read six affidavits be refused.























Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 953 OF 2002

BETWEEN:	AUSTRALIAN AUTOMOTIVE REPAIRERS’ ASSOCIATION (POLITICAL ACTION COMMITTEE) INC APPLICANT
AND:	NRMA INSURANCE LIMITED (ACN 000 016 722) RESPONDENT

JUDGE:	LINDGREN J
DATE:	25 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT (No 4)
(Alleged attempt to ‘coach’ witnesses)

1 The final day of the evidence in this matter was 6 February 2004. When the matter was before me on 24 February 2004 for other purposes, I said:

"Since the hearing of this matter an officer of the court informed me that during the hearing a person in the court room was seen to mouth an answer to a question to a witness who was giving evidence at the time. The claim identified the particular question and answer. Obviously this allegation is a very serious one. On the other hand, the person against whom the allegation has been made has not been heard on the matter and I can imagine some things, apart from a flat denial, that might be said which would place a different complexion on what occurred. I have carefully read the transcript and am completely satisfied that the particular answer will have no effect whatever on the result of the case.

In the circumstances I intend to proceed to judgment in the usual way. I have mentioned the matter only because I felt I should do so. I do not require submissions on the matter from the parties. I wanted to inform both sides what has happened. You are informed and as I have said I have read, very carefully, the relevant part of the transcript and have no difficulty myself in assuring the parties that the particular answer has no effect whatever on the result of the case."

(I will use the verb ‘coach’ to mean ‘suggest to a witness an answer he or she should give’). I did not myself see or hear anyone in the courtroom attempting to coach any witness during the hearing.

2 Immediately after I made the statement set out above, Mr Levet, counsel for the applicant, said that following the conclusion of the hearing on 6 February, certain members of the applicant had also made to him an allegation of attempted coaching. Mr Levet further said that while he had been cross-examining, an allegation of attempted coaching was made to junior counsel assisting him, and that junior counsel had informed him of the allegation.

3 After some discussion on 24 February 2004 Mr Levet applied to have two of the respondent’s witnesses, namely, Messrs Pemberton and Pittas, recalled for cross-examination as to whether they had been coached while testifying. Mr Levet said that his objective was to attack the reliability of their testimony, that is, to attack their credit.

4 That application was opposed by Mr Douglas QC, who appeared for the respondent. A particular ground on which Mr Douglas relied was that Mr Levet had not seen fit to raise the matter during, or following, the hearing on 6 February, and had done so on 24 February only after I had made the statement set out above. Mr Levet responded that he had not been willing, without careful thought, to make so serious an allegation during the running of the case, without the opportunity of reflection and checking. He said, however, that once I had raised the matter, he felt he should do so.

5 Mr Levet also indicated that he would or might seek to read affidavits from some members of his client as to what they saw or heard take place in the courtroom.

6 I granted Mr Levet’s application to have the two witnesses recalled for the purpose of their being cross-examined as to any coaching of which they were aware while in the witness box.

7 Messrs Pemberton and Pittas have both been cross-examined further this morning. They have both denied that they saw or heard anyone seeking to coach them. I note, in passing, that there is nothing inherently improbable in a witness, whose attention is focused on the cross-examiner, failing to observe someone in the courtroom attempting to coach him or her (just as there is nothing inherently improbable in the Judge, who is concentrating on the cross-examiner and the witness, failing to observe an attempt to coach).

8 Mr Levet now seeks to file and read six affidavits sworn by members of his client association. I have not read them but Mr Levet has indicated their nature and purpose. Apparently they would:

• show that two persons were seen and/or heard by the deponents attempting to coach Mr Pembroke or Mr Pittas or both of them;
• in some instances, identify by reference to the transcript, the relevant question/s and answer/s;
• in those instances, demonstrate that the answer/s given was/were the same as the answer/s suggested.

9 Mr Douglas QC opposes Mr Levet’s application, and states that if the affidavits were read, he would wish to cross-examine the deponents and may wish to lead responsive evidence from the alleged ‘coaches’. I presume that Mr Levet would, in turn, wish to cross-examine those persons.

10 There are two preliminary matters to be noted. The first is that these reasons relate only to this proceeding and to Mr Levet’s application to file and read the affidavits. The second is that in what follows, I do not make or suggest any finding against (or for) the allegations made by the member of the Court staff or by the deponents of the six affidavits.

11 In my view, for two reasons, the affidavits should not be allowed to be filed and read.

12 First, the affidavits go only to the conduct of persons attempting to coach, as distinct from the state of mind and the reliability of the testimony of the witnesses. Attempts to coach, without more, are irrelevant to the credit of a witness. Mr Levet says that he would rely upon evidence of instances of the witnesses giving answers ("yes" or "no") in conformity with the attempted coaching. But the fact that some instances can be identified, by reference to the transcript, of Mr Pemberton or Mr Pittas giving an answer the same as that which a person in the courtroom attempted to suggest to him, does not demonstrate that he was in fact aware of the suggestion, let alone influenced by it. The position might be different if it were established that he was bent on a course of giving certain answers and departed from it and embarked upon a course of answering in accordance with responses suggested to him. But it is not put that this is such a case.

13 Mr Levet seems to accept that he would not be able to lay the foundation for an inference which should prevail over the sworn denials of Messrs Pemberton and Pittas. He suggested, nonetheless, that attempted coaching should itself reduce the weight I should give to the testimony of those two witnesses. I disagree.

14 Secondly, generally speaking, collateral attacks on credit do not provide a proper basis for the admissibility of evidence: see the ‘credibility rule’ now found in s 102 of the Evidence Act 1995 (Cth), which provides:

‘Evidence that is relevant only to a witness’s credibility is not admissible.’

15 Section 103 and 106 provide for certain exceptions to the credibility rule. Subsection 103(1) provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value. It is s 106 that has potential relevance to Mr Levet’s application to file and read the six affidavits. That section provides, relevantly, as follows:

‘The credibility rule does not apply to evidence that tends to prove that a witness ... (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth; if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence.’

The affidavit evidence proposed would not tend to prove that Mr Pemberton or Mr Pittas had ‘knowingly or recklessly made a false representation ...’ at any time when giving evidence, either originally or this morning.

16 Having in fact cross-examined Messrs Pemberton and Pittas as to the collateral issue of their credit, Mr Levet is bound to accept their answers as final, in the sense that he is not entitled to adduce evidence contradicting their denials; see Heydon, Cross on Evidence (6^th Austn ed, 2000) at [17580]–[17595] and authorities there cited.

17 For the above reasons, I decline to allow the six affidavits to be filed and read.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 8 April 2004

Counsel for the applicant:	Mr B Levet
Solicitor for the applicant:	Mr P R Glover
Counsel for the respondent:	Mr F M Douglas QC and Mr S T White
Solicitor for the respondent:	Blake Dawson Waldron
Date of Hearing:	25 March 2004
Date of Judgment:	25 March 2004