When you are preparing witnesses for trial — expert and lay witnesses, party and non-party witnesses alike — you should bear in mind that the other side’s barrister can call for all documents which the witness has used to refresh their memory, whether or not they are privileged. Even the client’s proof of evidence, a privileged document drawn up by his or her solicitor, and in some ways the centrepiece of the privileged file, may be called for, if the client used it in preparation for trial. Even — GET THIS! — a barrister’s opinion in the matter (as in Grundy v Lewis  FCA 1537), if the client witness has read over it by way of preparation for trial. The fact of the existence of a proof of evidence is not, of course, enough for it to be called for (Justice Refshauge said ‘If [the witness] had read it to check it was accurate, to see that it was complete, to add additional material of instruction to her lawyer or to excise inaccuracies or irrelevancies, that would not justify its production following a call.’). It must have been used by the witness to refresh his or her memory for the purposes of giving evidence in court (or of being cross-examined, in the case of evidence given on affidavit). All this is the clear message from Spalding v Radio Canberra Pty Ltd  ACTSC 26, a defamation case. Radio Canberra’s barrister was cross-examining the plaintiff. It went like this:
‘Q: Has there been in the course of preparing for your evidence in this case a statement of any kind prepared for you? A: Yes.
Q: And was that done in consultation with you? A: Yes.
Q: And is that a document to which you’ve had access? A: Yes.
Q: And was the purpose that you had in reading that document from time to time to prepare for your evidence in court? A: Yes, it was.
Q: And was it also something that you looked at in order to refresh your recollection for the puprose of giving evidence in court? A: Yes.
I call for that document, your Honour.’
The moral is not necessarily the one which Dr Desiatnik said is the obvious one in his text Legal Professional Privilege in Australia (‘Ensure that the only documents your witnesses refresh their memory from for the purposes of giving their evidence are those which you propose to tender to the Court.’) Because I think that lawyers are too often blinkered by an obsession to keep privileged documents hidden, I prefer:
‘Only let your witness prepare for giving evidence by reading a document you don’t want the other side to see if the benefits of doing so outweigh the disadvantage of the other side seeing it.’
If the witness could not give her evidence as effectively without looking at the document, then it would be dumb not to let her look at it just because some relatively small advantage might be obtained in the relatively unlikely event that the other side’s barrister is skilful enough to think of cross-examining like the one in this case did, and then calling for the document, appreciating on the run what it is about the document that make you want the other side not to see it, and then exploiting it.
It is important to understand that it is fundamental to our system of trials, at least in theory, that witnesses give oral evidence in court of their own experiences, unaided by documents. That is, no hearsay, and only real recollection. That is the ideal, and the starting point. Even in cases where there is not too much lying going on, the judge will usually have to make decisions about who to believe based on how good their memory of an event is. To give evidence which is really, or mainly, a recitation of documents, even where those documents represent a snapshot of the witness’s own recollection of their own experiences at a particular point which was closer to the events being recounted undermines that ideal. The theory is that if that is how the evidence has to be given, then the cross-examiner should be able to inspect the document for clues which might confirm or cast doubt on the testimony. When was it drafted? By whom? Does it quiver with the kind of incandescant idignation which might be expected? Or does it smack of manufacture?
Justice Refshauge questioned the statement in Cross on Evidence that ‘the mere reference to documents used out of court to revive memory does not entail waiver’. The following propositions emerge from the judgment:
- the call for the document is not governed by the uniform Evidence Acts (one of which is enacted in Victoria, waiting to commence) because it is in the nature of an interlocutory application;
- in a tribunal very like VCAT (the Administrative Appeals Tribunal), the principles have been applied;
- if the witness read the document in the hope that it would refresh his memory, the document must still be produced if it is called for, even if the document proved useless in refreshing the witness’s memory;
- the other side’s barrister, once he or she has finished with it, need not show it to the judge, or put it in evidence;
- the whole document may not automatically be produced: so, for example, in the case of a proof of evidence which also records instructions in relation to settlement aspirations, that part can be excised;
- the cross-examiner is not entitled as of right to production upon calling for it; there is a discretion to be exercised, especially in relation to privileged documents, and according to Justice Debelle in Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87, (i) the longer ago the events recounted at trial happened, and (ii) the sooner before giving evidence the document was used to revive memory, the more likely the call for production will succed.
- Evidence paper, part 5 (reviving memory)
- Evidence paper, part 3 (hearsay introduction)
- Inferences arising from failure to call a witness for fear of what they would say
- The legal system has failed to absorb research into the frailty of human memory
- Jones v Dunkel inferences in disciplinary hearings not bound by the rules of evidence