Kini v Aiafi [2006] WSSC 41 (17 July 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Electoral Act 1963

AND:

IN THE MATTER: of the Territorial Constituency of Faleata-i-Sisifo Election Petition

BETWEEN

ULU VAOMALO ULU KINI
of Toamua, a candidate for election.
Petitioner

AND

LEALAILEPULE RIMONI AIAFI
of Vaitele, a candidate for election.
First Respondent

AND

THE ELECTORAL COMMISSIONER of Apia.
Second Respondent

Coram: Chief Justice Sapolu
Justice Slicer
Judge Nelson

Counsel: Mr G Latu for the Petitioner
Mr R S To'ailoa and Ms R Papalii for First Respondent
Ms P Chang and Mr A Lesa for Second Respondent

Hearing: 11 July 2006
Ruling Given at Trial: 11 July 2006
Reasons for Ruling: 17 July 2006

RULING

Counsel for the first respondent (during the course of his cross-examination of the petitioner’s witness Amu Kepeli Su’a sought leave to file the affidavit of an intended witness. He did so at that stage presumably to comply with the requirements of the rule in Browne v Dunn (1893) 6 R 67 (HL), the principles of which have been comprehensively stated by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, and apply in both criminal and civil proceedings alike (R v Birks (1990) 19 NSWLR 677). In order to explain our reasons in refusing to grant leave, it is first necessary to understand what was the purpose of counsel in attempting to tender the affidavit and call the witness.

The affidavit sought to be tendered relevantly states:

"2. I recall that on or about 28 April 2006 I was in the First Respondent’s vehicle together with Amu Sua.

3. ON the said date, the said Amu Sua had told Lealailepule and I that he was forced to make the allegations against Lealailepule. He also stated that it was Faasau Tunumafono who told the Petitioner about the false incident concerning beer. This was after the said Tunumafono, who was/is a taxi driver for the Petitioner was fired by the Petitioner. According to Amu, after the said Tunumafono was fired he went back to the Petitioner to apologise and to appease him further, he told him about the said incident.
   
4. HE further stated that on 24 March 2006 he had intended to go to Lealailepule’s house to borrow some money from him for his faalavelavae but the other three guys he was with followed him there. The said Amu had also stated that the only reason why he asks Lealailepule for money is because he always helps him out and because he knew he was not an elector."
   

Amu Kapeli Su’a had given evidence adverse to the respondent. He had made an affidavit on 5 May 2006. Counsel was intending and later permitted to cross-examine the witness who was said to have made a prior inconsistent statement. That cross-examination was to the effect that:

(1) the witness made that prior inconsistent statement to Mr To'ailoa who was both the solicitor for the respondent and counsel asking the question at trial.

(2) Proof of inconsistency would be provided by the respondent in the course of the trial.

At the time of the attempted tender the affidavit could only have one or both of two permitted uses, namely credit and prior inconsistency.

The Evidence Ordinance, ss11, 12 and 17, relevantly provides:

"11. Proof of contradictory statements of witness – Every witness under cross-examination, and every witness on his examination in chief (if the Court, being of opinion that the witness is hostile, permits the question), may in any proceeding, civil or criminal, be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and, if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.

12. Cross-examination as to previous statements in writing – (1) a witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject-matter of the proceedings without such writing being shown to him; but if it is intended to contradict such witness by the writing his attention must, before such contradictory proof can be given, be called to those parts of the writing that are to be used for the purpose of so contradicting him.

(2) The court may at any time during the trial require the writing to be produced for its inspection, and may thereupon make such use of it for the purposes of the trial as it thinks fit.

...

17. Cross-examination as to credit – In any proceeding the Court may limit in any manner and to any extent which it thinks fit the cross-examination of any witness as to credit, and shall refuse to permit any such cross-examination which is needlessly offensive or injurious to the witness, having regard to the nature or gravity of the imputations made against him, to the importance of his evidence, and to the effect of such imputation upon his credibility."

The affidavit did not come within any of those provisions at the time of the proposed tender. It went to only the collateral issue of credit. Answers given by a witness to questions put in cross-examination must be taken for better or worse and cannot be contradicted by other evidence (Attorney-General v Hitchcok [1847] EngR 616; (1847) 1 Exch 91; see also S v Sinkankanka 1963 (2) SA 531, R v Cox [1972] Qd R 366; generally Cross on Evidence, 5th Australian Ed 17580). The rule has been comprehensively stated by the High Court of Australia in Piddington v Bennett and Wood Pty ltd [1940] HCA 2; (1940) 63 CLR 533. A good example of the application of the need for finality is provided by Harris v Tippett (1811) 2 Camp 637 where the defendant’s witness was asked in cross-examination whether he had attempted to dissuade one of the plaintiff’s witnesses from attending the trial. He rejected this suggestion and it was held that the plaintiff could not recall his witness to contradict him. Here the respondent had attempted to tender the evidence before the question had been put to the witness.

Even if the respondent had attempted to tender the affidavit or call the witness after the close of the petitioner’s case, it would still have been rejected as collateral evidence. Even accepting that there is a wide basis for any exercise of discretion, there remains a distinction between cross-examination as to the issue and cross-examination as to credit (see Cross, supra, 17600).

Had counsel relied upon the prior making of an inconsistent statement the result would have been the same. The affidavit did not contain a previous statement ‘made by him (italics the witness) in writing or reduced into writing relative to the subject matter of the proceedings’ within the meaning of the Ordinance, s11. Indeed, we later permitted counsel, Mr To'ailoa, to cross-examine the witness about the account said to have been provided to him in his office in relation to this matter. But that was a different occasion than the one described in the affidavit. The witness denied certain specifics put to him by counsel, who, short of retiring as counsel and becoming a witness, could not refute the answer. Thus the Ordinance, s11, had no application. As to the matters appearing in the respondent’s affidavit, we will consider that matter separately if it arises during the course of the trial.

We are conscious that this Court is afforded wide discretionary powers by the Electoral Act, s115, but nevertheless exercised our discretion to exclude the evidence.

It is for those reasons that we did not receive the affidavit.

Chief Justice Sapolu
Justice Slicer
Judge Nelson