Turco v HP Mercantile Pty Ltd; Marinelli v HP Mercantile Pty Ltd; Turco v HP Mercantile Pty Ltd (No 2) [2009] NSWCA 209 (20 July 2009)

Last Updated: 24 July 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Turco v HP Mercantile Pty Ltd; Marinelli v HP Mercantile Pty Ltd; Turco v HP Mercantile Pty Ltd (No 2) [2009] NSWCA 209


FILE NUMBER(S):
40348/08
40349/08
40350/08

HEARING DATE(S):
20 July 2009

JUDGMENT DATE:
20 July 2009

EX TEMPORE DATE:
20 July 2009

PARTIES:
Mario TURCO (applicant/appellant (CA 40348/08))
Dominic MARINELLI (applicant/appellant (CA 40349/08))
Victor TURCO (applicant/appellant (CA 40350/08))
HP MERCANTILE PTY LTD (097 362 877) (respondent (all three matters))

JUDGMENT OF:
Giles JA Hodgson JA Campbell JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 5593/02, DC 4413/02, DC 5594/02

LOWER COURT JUDICIAL OFFICER:
Rolfe DCJ

LOWER COURT DATE OF DECISION:
14, 21 July 2008


COUNSEL:
M NEIL QC/ F F F SALAMA (Applicants/Appellants)
R F MARGO SC (Respondent)

SOLICITORS:
Galic & Co Lawyers (Applicants/Appellants)
Versace McKenzie Lawyers (Respondent)

CATCHWORDS:
APPEAL – Admission of fresh evidence – Whether requirement of credibility satisfied – Whether requirement of probability of different result satisfied.
EVIDENCE – Privilege against self-incrimination – Objection taken – Witness does not willingly give evidence – Whether the court should direct the witness to give evidence – Interests of justice.

LEGISLATION CITED:
Evidence Act 1995 s 128

CATEGORY:
Principal judgment

CASES CITED:
R v Collison [2003] NSWCCA 212

TEXTS CITED:


DECISION:
(1) Application to rely on fresh evidence dismissed.
(2) Appeal and application for leave to appeal in each matter dismissed with costs.
(3) In each matter, order that the applicant/appellant be jointly and severally liable for the costs of the appeals and applications.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40348/08

CA 40349/08

CA 40350/08

DC 559302

DC 4413/02

DC 5594/02

GILES JA

HODGSON JA

CAMPBELL JA

20 JULY 2009

Mario TURCO v HP MERCANTILE PTY LIMITED (ACN 097 362 877);
Dominic MARINELLI v HP MERCANTILE PTY LIMITED;
Victor TURCO v HP MERCANTILE PTY LIMITED (No 2)

Judgment

1 HODGSON JA: In the course of the hearing of this appeal and its attendant application to lead fresh evidence, a witness, Mr Purcell, was called to give oral evidence. After a few questions, the witness indicated that he objected to answering a question on the ground that his answer may tend to incriminate him.

2 The position under s 128 of the Evidence Act 1995 was then explained to the witness by the presiding judge, Justice Giles. The witness indicated that he did not propose willingly to give the evidence without being required to do so; so the question arose whether the Court should require the witness to give the evidence, pursuant to s 128(4) of the Evidence Act. That question resolved into a question whether this Court was satisfied that the interests of justice required that the witness give the evidence.

3 In my view, the interests of justice do not require that the witness give the evidence; and in order to explain why I have reached that view, it is necessary to say what is involved in the appeal, which I will now set out to do.

4 The appeal is brought from a decision of Rolfe DCJ. On 14 July 2008, he gave reasons for judgment in three proceedings, in each of which the respondent (HP) had sued one of the appellants (Mr V Turco, Mr M Turco and Mr Marinelli) for debt, finding in favour of HP in each case.

5 On 21 July, in each case the primary judge gave judgment for specified sums of money plus interest at the prescribed rate from and including 22 July 2008; and on 3 September 2008, the primary judge ordered the appellants jointly and severally to pay HP’s costs of all three proceedings on an indemnity basis up to and including 2 March 2008, and thereafter on the ordinary basis.

6 The claims in each case were based on loans made to the appellants by Tumut River Orchard Management Limited (TROM) in connection with agricultural projects promoted by TROM. HP’s claim involved the following steps.

7 Step one: loans in respect of two of the projects (called the Coonabarabran and Queensland projects) were assigned to a company later called Core Finance Pty Limited (Core) on 28 June 1996, with notice of the assignment being given to each appellant on or about 1 September 1997.

8 Step two: loans in respect of the other relevant project (called the Treetop project) were assigned to Symsung Pty Limited (Symsung) on 28 June 1997, with notice of the assignment being given to each appellant on or about 1 September 1997.

9 Step three: the loans were assigned by Core and Symsung respectively to Merilbah Investments Pty Limited (Merilbah) on 15 March 2000, with notice of the assignment being sent to each appellant on that date.

10 Step four: the loans were assigned by Merilbah to HP on 31 August 2001, with notice of the assignment being sent to each appellant on that date.

11 At the trial before the primary judge, which lasted several days, only two issues were contested. Firstly, whether there was an assignment or agreement to assign to Merilbah prior to 31 August 2001, that issue concerning step three of the steps I have identified. Secondly, if so, whether the assignment of the Treetop loans by TROM to Symsung was only partial, that issue concerning step two identified earlier. The primary judge resolved both those issues in favour of HP, and there is no challenge to this.

12 The appellants appeal on the basis that there is fresh evidence to show that steps one and two set out above did not occur, that if such evidence had been available these steps would have been put in issue, and that the fresh evidence is sufficient to justify a new trial going to this issue.

13 At the trial, Mr Purcell gave evidence concerning steps one and two in an affidavit dated 17 November 2003. He said that he was managing director of TROM from 1988 to 1999 (par 2). The affidavit exhibited a copy of a written offer of sale of loans from TROM to Core dated 28 June 1996 (par 124) which was signed by Mr Purcell, warranting that he had been duly authorised to make the offer. The affidavit asserted that on 28 June 1996, Mr Purcell attended a meeting of directors of Core, of which he was a director, where it was resolved to accept the offer (par 125) and that Mr Purcell accepted the offer and executed and delivered a promissory note from Core for the price (par 125). The affidavit exhibited a copy of minutes of the directors’ meeting showing attendance of Mr Purcell, his brother, a Mr Doolan and a Mr Forsyth.

14 Mr Purcell’s affidavit also exhibited a copy of a written offer of sale of loan from TROM to Symsung dated 28 June 1997 (par 135). It asserted that on 30 June 1997, Mr Purcell orally accepted this offer on behalf of Symsung and executed and delivered a cheque from Symsung for the purchase price (par 136). It asserted that Mr Purcell attended a meeting of directors of Symsung on 5 July 1997 where the board ratified acceptance of the offer (par 138). A copy of minutes of that meeting was annexed (par 139), showing attendance by Mr Purcell and his brother.

15 The evidence now sought to be relied on is to the effect of evidence given by Mr Purcell on 3 April 2009, under the protection of privilege, before a deputy registrar of the Federal Court of Australia, in connection with the liquidation of TROM. The oral evidence now sought to be led before this Court is in effect evidence verifying that evidence before the deputy registrar.

16 Mr Purcell in his evidence before the deputy registrar said that the offer to Core was signed by himself and Mr Forsyth shortly after 30 June 1996 (p 13 of the transcript); that Core paid the purchase price of about $5 million before the end of June 1996, but this was honoured because of payment of a similar amount by TROM to Core (p 14 of the transcript); that there was no meeting of directors of Core on 28 June 1996; that to the best of his recollection there was no such meeting early in the 1997 financial year; that no resolution was ever passed by Core to accept TROM’s offer; and that Core never said it accepted the offer (p 16 of the transcript).

17 Mr Purcell also said on this occasion that the purchase price from Symsung was paid on the same basis as that from Core (pp 34-35 of the transcript); that there was no meeting of directors of Symsung on 5 July 1997; and that neither he nor anyone else accepted the offer from TROM on behalf of Symsung (p 37 of the transcript).

18 The question ultimately to be determined by this Court, both in relation to the application to introduce fresh evidence and in relation to determination of the appeal, is whether the evidence produced to this Court satisfies the requirements for fresh evidence in such a way as to justify allowance of the appeal and the ordering of a new trial.

19 Broadly, there are three requirements laid down in relation to the reception of fresh evidence and justification of the ordering of a new trial on that basis. Firstly, that the evidence was not reasonably available at the original trial; secondly, that the evidence is credible; and thirdly, that there should be a sufficient probability that the evidence would produce a different result if there was a new trial. In my opinion, the fresh evidence that has been offered by the appellants, even if supplemented by oral evidence by Mr Purcell to the same effect, could not satisfy the second and third requirements that I have set out.

20 On the question whether the evidence is credible, it is significant that Mr Purcell was found by the primary judge to have been dishonest in numerous independent respects and to have strong financial and other motives to give other than disinterested evidence, none of which findings have been challenged on this appeal. An important finding made by the primary judge in relation to Mr Purcell was that he had forged a signature of Mr Chapman of HP on a letter dated 1 July 2004 (judgment par 38), so that Mr Purcell’s evidence at Black 134 that Mr Chapman signed the letter in front of him must have been deliberately false.

21 It has been put by Mr Neil QC for the appellants that Mr Purcell’s evidence given before the deputy registrar and proposed to be given before this Court should be considered credible, because he is now coming clean and admitting wrong things that he had done in the past. The difficulty with that submission is that Mr Purcell at the trial in this case gave evidence concerning steps three and four of the steps I indicated above, and that evidence was not accepted by the primary judge for reasons including findings such as those I have indicated above. In my opinion, no reasonable basis has been shown for considering the evidence now sought to be led by Mr Purcell in relation to steps one and two as being more credible than that dealt with by the primary judge, and made the subject of findings that are not challenged in this appeal, and thus must be accepted by this Court in these proceedings.

22 The deficiency in relation to the credibility of evidence is in my opinion exacerbated by the circumstance that there is no evidence from any of the other persons involved in the transactions, that is, Mr Purcell’s brother, Mr Doolan and Mr Forsyth, and no evidence of any attempt to contact these persons or to obtain evidence from them. There is some material in Mr Purcell’s evidence before the deputy registrar suggesting that Mr Purcell’s brother may be too ill to give evidence; but that evidence suffers the same credibility problem as other evidence from Mr Purcell. It in no way explains why there has been no attempt, it would seem, from the appellant’s solicitors to find out whether these persons could give evidence on the matter, and whether they were able to offer that evidence to the court.

23 It is to be taken into account that this application seeks to overturn the result of a quite lengthy and expensive trial before the District Court, and the only significant evidence offered in support of that is evidence from a witness who, on findings of the trial judge not challenged on appeal, is not a credible witness.

24 The other requirement which in my opinion is not satisfied, and would not be satisfied even if Mr Purcell gave the evidence which is sought, is the requirement of a sufficient probability of a different result. Even if the evidence offered by Mr Purcell were accepted in a new trial, that evidence would not exclude other ways in which the assignments from TROM to Core and Symsung could have become effective.

25 There was no suggestion that the relevant documents (the offers, the minutes, the payment documents) were not produced on or shortly after the dates they bear, or that notices of the assignments were not given as previously asserted. In companies of this nature, decisions can be made by directors without formal meetings, by relatively informal communications between them. Even that possibility has not been excluded by the evidence proposed by the appellants. The absence of an explicit oral communication of acceptance would not in my view necessarily exclude the existence of an assignment, in circumstances where it seems a cheque for the price of the assignment did in fact pass from the assignee to TROM, albeit it seems in exchange for a cheque going the other way. There are of course other ways in which TROM could have become bound, and perhaps one would not expect every possibility to be excluded; but in my opinion, in order to justify setting aside the result of a trial such as this, an applicant would need to go further than was gone in this case to show a probability of a different result.

26 For those reasons, in my opinion it is not shown to be in the interests of justice to direct Mr Purcell to answer the questions because, in my view, mere confirmation of the evidence given before the registrar would not advance the appellant’s case.

27 GILES JA: I agree with Justice Hodgson, save that in my opinion it is sufficient for refusal to require that Mr Purcell give the evidence in question that it would not be credible evidence, and so would not be admitted in the appeal.

28 While the circumstances are not identical, they are in principle similar to those in R v Collison [2003] NSWCCA 212. There the trial judge declined to direct that the accused’s accomplice give evidence on the ground that the interests of justice did not so require, because the accomplice’s exculpatory evidence that neither of them were at the crime scene would be unreliable. This was upheld on appeal. Here Mr Purcell said one thing at the trial and it is sought that he give evidence that what he there said was false. But there is no corroborative evidence of others involved in the relevant events, or objective evidence in support of the changed account, and the evidence to be led from Mr Purcell would have no greater weight than the evidence he gave at the trial. It would not command great attention as the evidence of a person found by the trial judge to have engaged in forgery and giving false evidence in connection with the forgery.

29 The ultimate use of the evidence reflects back, then, on whether or not the interests of justice require that Mr Purcell give the evidence, and in the circumstances I do not think that they do.

30 CAMPBELL JA: I agree with Justice Giles that the fact that the evidence would not be credible would be a sufficient basis for it not being received in the appeal, but agree with Justice Hodgson that the additional requirement that the evidence must be such that there must be a high degree of probability that there would be a different verdict is also not made out. Thus I would concur in declining to direct the answer.

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31 HODGSON JA: Following delivery of reasons on the question of whether Mr Purcell should be directed to answer the question to which he had objected, Mr Neil has formally relied on his written and other submissions, and asked that the evidence should be admitted as fresh evidence and the appeal allowed. In my opinion, the judgment already given justifies orders now that the application to rely on fresh evidence be dismissed and that the appeal and application for leave to appeal both be dismissed with costs. I would propose that the Court make those orders.

32 GILES JA: I agree.

33 CAMPBELL JA: I agree.

[The Court ordered:

(1) Application to rely on fresh evidence dismissed.

(2) Appeal and application for leave to appeal in each matter dismissed with costs.

(3) In each matter, order that the applicant/appellant be jointly and severally liable for the costs of the appeals and applications.]

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LAST UPDATED:
23 July 2009