Rules of evidence

Rules of Evidence

Proctor & Proctor [2016] FCCA 613 (23 March 2016)

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/613.html?stem=0&synonyms=0&query=family%20law%20act

Application of the rules of evidence

61. These are proceedings conducted both under Part VII and Part VIII or VIIIAB of the  Family Law Act 1975 . Thus, the application of the rules of evidence, both common law rules and as codified in the Evidence Act 1995 (Cth), must be considered.
62. In civil proceedings the applicable standard of proof is the civil standard and thus in arriving at any finding of fact the Court must be satisfied on the balance of probabilities^[29] and subject to the “Briginshaw v Briginshaw test”.^[30] That is a matter of some significance in light of that opined by Dixon J in Briginshaw v Briginshaw,^[31] namely:
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    …but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer…. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

63. The application of the Briginshaw v Briginshaw test requires that the Court, in determining satisfaction on the balance of probabilities, have regard to, “…the nature of the cause of action…the…subject-matter of the proceeding…and the gravity of the matters alleged”.^[32] One might also have regard to the consequence of the finding to be made and the nature and quality of the evidence led and its reliability or probative value.
64. To the extent that the proceedings are conducted under Part VIII or VIIIAB of the Act there is no issue as to the application of the rules of evidence.
65. To the extent that the proceedings are conducted under Part VII then the application of the rules of evidence is subject to section 69ZT of the  Family Law Act 1975 .
66. Section 69ZT(1) provides:
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    (1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:

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    (a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;

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Note: Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.

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(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

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(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

67. It is important to observe that section 69ZT(1) of the Act does not cause the non-application of all rules of evidence.^[33] The section provides that certain portions of the Evidence Act 1995^[34] do not apply. The remaining portions of the Evidence Act 1995 and a body of common law rules of evidence are not affected.
68. The application of the rules of evidence rendered non-applicable by section 69ZT(1) of the Act can be revived if the Court determines that some or all of those rules should apply to some or all of the issues in dispute. For this to occur the Court must be satisfied that there are “exceptional” circumstances.^[35] Neither the parties or the Independent Children’s Lawyer made application for the rules of evidence rendered inapplicable by section 69ZT(1) to be revived and they have not been.
69. At the commencement of the trial and at several points during the trial the Court did make clear to the parties and the Independent Children’s Lawyer that:
    1. Other than those portions of the Evidence Act 1995 rendered inoperative by section 69ZT(1) of the Act that the remainder of the rules of evidence, both common law and codified, would be applied;
    2. All rules of evidence would be applied to any evidence relevant to the financial controversy between the parties; and
    100. Section 69ZT(2) of the Act would be applied with the effect that evidence that was admitted solely as a consequence of section 69ZT(1) of the Act, (being evidence that would not otherwise be admissible) would be afforded little or no weight.
70. Issues of admissibility and weight are separate. Admissibility is determined by the rules of evidence and as legislatively directed. Issues of weight follow admission. That evidence is admitted, whether by application of legislative non-application of the rules of evidence or not, is preliminary to and separate from the weight to be afforded to that evidence.
71. Section 69ZT(2) recognises the separateness of admissibility and weight and provides:
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    The court may give such weight (if any)

    [emphasis added]

    as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

72. It is to be noted that section 69ZV of the Act includes a similar provision to section 69ZT(2) of the Act in that the Court may, by sub-section (3), “…give such weight (if any) as it thinks fit to evidence admitted…” regarding representations made by a child.
73. The weight to be given to evidence admitted solely as a consequence of section 69ZT(1) of the Act is eloquently addressed by Coleman J in Maluka & Maluka^[36]:
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    As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for section 69ZT(1) is, in the Court’s view, likely to be mischievous, and not just for one party

    .

    ^[37]

74. Also in Maluka & Maluka^[38], Coleman J opined:
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    Perhaps for present purposes the short and simple answer is that particularly in the context of determining disputed issues of fact or belief with respect to domestic or family violence or apprehension thereof it would appear unsafe to afford inadmissible evidence^[39] any significant weight in the exercise of the Court’s fact-finding functions.

75. The weight to be attached to evidence that is admitted purely as a consequence of section 69ZT(1) of the Act, particularly when regard is had to the Briginshaw v Briginshaw test and the above comments, must be very little if any. That weight would be determined by reference to not only the above but also:
    1. The availability of evidence in admissible form (and admissible without reliance upon section 69ZT(1) of the Act);
    2. The application of the rules of evidence which continue to apply and which I will briefly consider. In particular, it is important to note that Division 12A does not exclude Part 3.11of the Evidence Act 1995 dealing with discretionary and mandatory exclusions nor does it exclude a number of important common law rules of evidence.

Exclusion of evidence

76. Section 135 of the Evidence Act 1995 provides as general discretion to exclude evidence in the following terms:
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    The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

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    (a) be unfairly prejudicial to a party; or

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(b) be misleading or confusing; or

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(c) cause or result in undue waste of time.

77. Section 135 of the Evidence Act 1995 is relevant both as to the admission of evidence and the weight to be attached to evidence that is admitted especially when this has occurred as a consequence of the operation of section 69ZT(1) of the Act. The same factors which would be considered by the Court in determining to exclude evidence would be relevant to a consideration of weight. This is especially so when the evidence is unfairly prejudicial to a party.
78. Mr Proctor’s evidence is littered with assertion and opinion. Mr Proctor’s case is aptly addressed by a phrase commonly used by the late JR Knibbs as being “long on allegation, short on proof”.
79. Both Mr and Ms Proctor have raised allegations of violence perpetrated by the other. In Mr Proctor’s case this has largely been through the use of phrases such as “…she was very abusive and violent”. Such non-specific allegations are unfairly prejudicial. They are vague and largely meaningless. They are highly subjective opinions or conclusions. They cannot be challenged or explored in any satisfactory way during cross-examination. They cannot be responded to by Ms Proctor. They do not afford due process to Ms Proctor.
80. To the extent that such evidence is before the Court it cannot be afforded any weight.

Limitation of evidence

81. Section 136 of the Evidence Act 1995 provides a general discretion to limit use of evidence in the following terms:
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    The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

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    (a) be unfairly prejudicial to a party; or

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(b) be misleading or confusing.

82. Again, this provision is relevant both to imposing limits on the use of evidence and in determining the weight, if any, to be applied to evidence.
83. For similar reasons to those discussed above, relating to section 136 of the Evidence Act 1995, I am satisfied that the guidance provided by this provision would obviate against any weight being given to evidence that is admitted as a consequence of section 69ZT(1) of the  Family Law Act 1975  which is unfairly prejudicial to a party.
84. This would especially apply to evidence that lacks specificity. Such evidence denies due process to a party who cannot challenge or answer the allegation or have due process by being forewarned of and knowing the case they are to answer or that of which they are accused.
85. I am concerned that much of the material relied upon by Mr Proctor (and, to a lesser extent Ms Proctor), falls into categories of:
    1. Allegation unsupported by evidence;
    2. Opinion or conclusion without such material as was taken into account in forming such opinions or conclusions being led in evidence;
    100. Hearsay;
    4. Unsworn testimony or Statutory Declarations by persons who are not called to give evidence;
    5. Documents annexed to material or tendered but without any connection or nexus established between the document and any fact in issue.
86. Material within the above categories is unfairly prejudicial. It cannot be tested and, on occasions, cannot be established as relevant.^[40] Such evidence is, as discussed, incapable of challenge or response.
87. Whenever such issues arise in the evidence (which I will attempt to identify specifically but which would be clear from any consideration of Mr Proctor’s material) I propose to refuse to admit the evidence as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing.
88. Alternatively, the material can be viewed as admitted pursuant to Division 12A but accorded absolutely no weight (and with the same consequence it will not be relied upon in arriving at any finding of fact or drawing any inference). The probative value of such evidence is so slight that on either of the above bases it could not be relied upon as its value would be entirely outweighed by its prejudice or potential to cause injustice.
89. No adjournment of proceedings has been sought by Mr Proctor to remedy the evidential defects of Mr Proctor’s case and notwithstanding that the approach which I propose to adopt and have so adopted was made clear prior to the evidence commencing.

Admission of business records and reliance thereupon

90. In this case reliance is placed upon a number of business records being documents from the Police, Department of Family and Community Services, doctors, hospitals, schools, banks and others.
91. The admission of the record is not, by and of itself, proof of the contents of the record.
92. Section 69 of the Evidence Act 1995 permits, as an exception to the hearsay rule, the admission of business records.^[41] This is, in accordance with subsection (2), on the following basis:
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    (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

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    (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

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(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

93. Whilst the contents of the document is not proven by the record having been made, the comments of the New South Wales Law Reform Commission in its Report, Evidence (Business Records) makes clear that “… the fact that the statements were to be used by the business provided a strong incentive for accuracy”.^[42]
94. I accept that each of the authors of the records which have been admitted as business records (without objection), is independent of the parties, objective and has accurately recorded that which has come to their knowledge whether through direct observation or through perception.
95. To the extent that opinions are offered within any of the documents admitted (particularly as regards Police records and who have observed the interaction of the parties and of the parties with these children) I am assisted and guided by the comments of French CJ, Heydon and Bell JJ in their joint Judgment in Lithgow City Council v Jackson^[43] such that the words “saw, heard or otherwise perceived” should include “to observe by one of the five senses of sight, hearing, smell, taste or touch” (as discussed in Stephen Odgers Uniform Evidence Law 10^thedition at page 307) and further that:
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    The party adducing the evidence does not have to satisfy the Court that the person who made the representation had personal knowledge of the asserted fact. It will be enough that he or she “might reasonably be supposed” to have had such knowledge…

96. In Rickard Constructions Pty Ltd v Rickard Hails Merreti Pty Ltd^[44] McDougal J stated at [19]:
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    In this context I think the words “or might reasonably be supposed to have had personal knowledge” indicate that the court is allowed to draw inferences not just from the form of the document but from the nature of the information contained in it…there is no need to identify the person who made the representation in the business record, the person with the pre-requisite knowledge [Lee v Minister for Immigration and Multicultural Affairs] 2002 [FCA 303 per Hely J at 22]; Australian Securities Investment Commission v Ridge [2005] NSWSC 417; [2005] 216 ALR 320 per Austin J at 197; Guest v Federal Commissioner of Taxation [207] FCA 193 per Heerey J at 25-31; Forbes Engineering (Asia) Pty Ltd v Forbes (no 4) [2009] FCA675 Collier J at 104.

97. I am satisfied that I can, should and will accept as accurate the contents of each of the documents that have been tendered as Exhibits and admitted as business records pursuant to section 69 of the Evidence Act 1995, particularly when that which is recorded within the document is a direct observation of the maker of the record.
98. I propose to place significant weight upon records that are a recording of direct observation by the note maker rather than opinion or recording what others have told the note maker. When records of that nature are produced and corroborative of the evidence of a party I will take the records as significant corroboration. When the records are at odds with the evidence of a party I, prefer the evidence contained within the records.

Browne & Dunn

99. Mr Proctor’s case is very much typified by an absence of information. It is also plagued by the absence of information that is available and would be relevant but is not called (which will be dealt with separately by reference to Jones & Dunkel^[45] issues).
100. Mr Proctor’s evidence is largely absent comment upon or response by him to the evidence of Ms Proctor.
101. Mr Proctor did not cross-examine Ms Proctor regarding the majority of her evidence and especially serious allegations or issues of significance raised in her evidence.
102. I am conscious that Mr Proctor is self-represented. However, he is a clearly intelligent and articulate man. The specific importance of cross-examination on important areas of controversy was raised with Mr Proctor on a number of occasions and including in the discharge of the Court’s Re F Litigant in Person Guidelines^[46] obligations prior to the trial commencing.
103. Mr Proctor did not substantially refer to or challenge any evidence regarding events demonstrative of family violence as led in Ms Proctor’s case.
104. In light of the above one is reminded of the comments of Lord Herschell in Browne & Dunn:^[47]
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     … I cannot help saying that there seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, the circumstances which it is suggested to indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit… I have always understood that if you intend to impeach a witness you are abound, whilst he is in the box, to give him an opportunity of making explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

105. The allegations of violence and the specific particulars of each allegation as raised in Ms Proctor’s evidence were not canvassed with Ms Proctor at all in either Mr Proctor’s Affidavit^[48]evidence or by cross-examination.
106. To the above end I am particularly appreciative of the comments of Wells J in Reid v Kerr^[49] which I consider the most apt and appropriate description of the difficulty that arises in this case and in the interpretation and application of the rule in Browne & Dunn as follows:
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     …a judge… is entitled to have presented to him… issues of fact that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne & Dunn has not been observed, have not been brought into direct opposition, and serenely past one another like two trains in the night.

107. In reliance upon the above passages (and other matters such as credit and corroboration or lack thereof) I am satisfied that wherever there is conflict between the evidence of Ms Proctor and Mr Proctor, particularly but not solely confined to issues of family violence and the particulars thereof, that the evidence of Ms Proctor should be accepted.

Jones & Dunkel

108. Significant Jones & Dunkel^[50] issues arise in this case.
109. As is clear from the above discussion Mr Proctor has presented minimal evidence in his case as regards issues important to the determination of this controversy.
110. The failure by Mr Proctor to lead evidence, for example, with respect to various debts alleged by him as outstanding and due and payable, is somewhat fatal to his cause.
111. Mr Proctor did not provide any explanation as to why this evidence had not been called other than to suggest at different points in the hearing:
     1. He had made “mistakes”. Some of these were the subject of oral evidence in chief “correcting” portions of his Affidavit;
     2. That the proceedings were a form of “cultural imperialism” and that to avoid such “cultural imperialism” he would not lead evidence or respond to certain evidence or questions.^[51]I will deal with this issue separately.
112. I note and receive considerable assistance from the joint Judgment of Gibbs ACJ, Stephen, Mason and Aitken JJ in the High Court of Australia’s decision of Brandi v Mingot^[52] and as quoted with approval by Campbell J in Manly Council v Burn and Another^[53] as follows:
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     .. if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party that failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.

113. I am satisfied that these principles should apply to many aspects of Mr Proctor’s case.
114. To the extent that there is an absence of evidence regarding issues of importance I am satisfied that an inference, adverse to Mr Proctor, should be drawn.
115. As regards the absence of other relevant witnesses, (such as, for instance, those to whom Mr Proctor alleges he owes money), I am satisfied that this would not only give rise to a negative inference as to the support to be provided by their evidence to Mr Proctor’s cause but also the fact that their evidence might cause harm to Mr Proctor’s case.
116. The Jones & Dunkel inferences that arise would be sufficient and, I am satisfied, should be sufficient to cause me to reject Mr Proctor’s evidence whenever it is in conflict with that of Ms Proctor’s or the other available objective evidence introduced through business records.

Expert Evidence

117. Heydon JA’s Judgment in Makita (Australia) Pty ltd & Sprowles^[54] makes clear, to paraphrase His Honour’s reasoning, that an expert is required to identify the factual matters relied upon by them in formulating and expressing their opinion (such opinion to be based on specialised knowledge) and for those matters to be proven as fact for the opinion to attract weight and/or be relied upon.
118. Such reasoning has been reaffirmed by the High Court of Australia in Dasreef Pty Ltd v Hawchar.^[55]
119. The expert evidence that is before the Court (the Report of Ms Morgan) has involved interviews with the two adult children of the parties. One of those adult children, Mr R, has not been called. Any material within the Report regarding the interview with Mr R or relying upon that disclosed by him will be disregarded.
120. The adult child Ms P was called and has given evidence. I am not satisfied that I can accept Ms P as a witness of truth and, as a consequence, any material within the Report regarding the interview with Ms P or relying upon that disclosed by her will be disregarded or approached with real caution.
121. This is particularly relevant in the context of this case as the Report Writer prefaces her recommendations upon the position that “…it is considered more likely that Ms Proctor did physically, emotionally and psychologically abuse all four of her children….”^[56] Whilst this view would appear to have been formed from a consideration of that disclosed in interview and a consideration of material produced on subpoena it is noteworthy that:
     1. The Report Writer has proceeded to draw concluded views of the evidence, notwithstanding the denials of Ms Proctor and, as is acknowledged by the Report Writer, the material was, at the time of interviews, untested;
     2. Significant reliance is placed upon statements by persons who have not given evidence or, if they have, have not given credible evidence;
     100. Reliance upon the accuracy of statements by X is demonstrated, notwithstanding the concerns raised by the Report Writer that X was strongly influenced by his father and may have been, as alleged by Ms Proctor, “brainwashed”;
     4. No allegation of harm to the youngest child Y was raised in the evidence or by that child in interview with the Report Writer. Indeed, Y is reported as having “…said that her mother did not hit, yell or swear at her”.
122. I will discuss the Report and the Report Writer’s evidence in more detail shortly. However, substantial issues with the Report and its recommendations arise as a consequence of reliance by the Report Writer upon “facts” that have not been established by the evidence or which are at odds with the evidence before the Court and findings that will be made by the Court.