Supreme Court New South Wales Medium Neutral Citation: Houghton v Potts & Anor. [2022] NSWSC 1777 Hearing dates: 10-14 October; 7, 8 and 15 December 2022 Date of orders: 14 October 2022 Decision date: 14 October 2022 Jurisdiction: Common Law Before: Chen J Decision: The evidence, being those parts of the report objected to (pars 9.2 (dot points 2 and 3), 9.3, 9.4, 9.5, 12.2 and 12.3) are admitted. Catchwords: EVIDENCE – Practice and procedure – Whether rule in Browne v Dunn applied Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Browne v Dunn (1893) 6 R 67 Khamis v R [2010] NSWCCA 179 MWJ v The Queen (2005) 222 ALR 436; [2005] HCA 74 R v McCormack (No. 3) [2003] NSWSC 645 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Category: Procedural rulings Parties: Proceedings 2016/144762 Darren Houghton (Plaintiff) Anthony Potts (First Defendant) Julie Anne Potts (Second Defendant) Proceedings 2019/75534 Joanne Houghton (Plaintiff) Anthony Potts (First Defendant) Julie Anne Potts (Second Defendant) Representation: Proceedings 2016/144762 & 2019/75534 Counsel: Mr D Campbell SC (Plaintiffs) Mr E Anderson (Plaintiffs) Mr N Polin SC (Defendants) Solicitors: Beston McManis Lawyers (Plaintiffs) Wotton + Kearney (Defendants) File Number(s): 2016/144762 & 2019/75534 JUDGMENT 1. Amongst a range of objections taken by the plaintiffs to the report from Dr Helen Dauncey, consultant pharmacologist and toxicologist, dated 6 August 2017, the plaintiffs object to specific parts of the report that deal with, in broad terms, the physiological and cognitive effects of intoxication upon an individual with a blood alcohol content within a particular range. They argue that there has been a failure to put the substance of this evidence to the first plaintiff and, in consequence, it ought to be excluded under s 135(a) of the Evidence Act 1995 (NSW) because it would be "unfairly prejudicial". 2. There is no doubt that a failure to cross-examine a witness, in breach of the rule in Browne v Dunn (1893) 6 R 67, may result in exclusion of the evidence sought to be adduced in contradiction of the witness who had not been cross-examined on the evidence in dispute: see, by way of example, R v McCormack (No. 3) [2003] NSWSC 645 at [8]-[9]. 3. The objection so raised covers the following paragraphs of the report: paragraphs 9.2 (dot points 2 and 3), 9.3, 9.4, 9.5, 12.2 and 12.3. 4. The argument raised by the plaintiffs may be illustrated by reference to paragraph 9.4. That evidence – I am expressing it in general terms – is that the first plaintiff's level of intoxication contributed to "unclear thinking, poor judgment", amongst other matters. 5. The defendants submit, in support of the admission of the evidence, that the issue of the first plaintiff's degree of intoxication and its contribution to the events of the incident giving rise to his fall over the balcony wall on 28 December 2014 has been clearly, and importantly, fairly joined. 6. The key parts of the cross examination of the first plaintiff involved the cross examination as follows: 1. Transcript, 10 October 2022, p 29.10-15: "Q. Were you so intoxicated at this stage that you weren't really aware at the way in which you were moving? A. No, I was exact - no." 1. Transcript, 10 October 2022, p 39(3)-(10): "Q. Because the position is, Mr Houghton, is that that's not something you would normally do, is it, hold the young girl over the edge of a balcony? A. I would never do that. Q. And I want to suggest to you that the reason you did that on this particular day was because you were so intoxicated? A. I wasn't." It is important, in this passage, to emphasise what the cross examiner was putting: that the explanation for his behaviour in holding Bethany Long over the balcony wall was that he was "so intoxicated" and, further, there was a contrast to his behaviour when not. 1. Transcript, 10 October 2022, p 41(5)-(27): "Q. Excuse me, your Honour. So I think Mr Houghton, where we left it is you'd said you'd had - was it? - a few glasses of wine that night? A. I'd had - yeah, more than a few, maybe four. Q. Do you have a recollection of exactly how many, or are you just thinking back now, that is nine years after the event, as to what you'd been drinking? A. No, I - I - you know, you had a rough idea, but I wasn't counting, but I'm pretty, you know, it was around four glasses. "Q. And at or around this time, you were someone that would be described as a big drinker, weren't you? A. I wouldn't say I was a big drinker. I was a social drinker. Q. A social drinker who used to drink a lot socially? Would that be a fair‑‑ A. No. Q. ‑‑description? A. No. Q. See, I want to suggest to you it was as a result of your intoxication that you held Bethany the way you did out over this balcony wall? Do you agree or disagree with that? A. Disagree." Again, the cross examination was directed to putting the proposition that "as a result of [the first plaintiff's] intoxication" that he held Bethany Long over the balcony wall. That this was the thrust of the cross examination is evident, in my view, by the re-examination of the first plaintiff at p 42.4-21 of the transcript of 10 October 2022. In particular, at transcript p 42.18 the question commenced: Q. It was suggested to you that this happened because you were intoxicated, and you've told us what you'd had to drink on that day…". 1. The rule in Browne v Dunn is designed, fundamentally, to achieve fairness not only to a witness, but a trial between the parties: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 224; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 16-26. 2. In my view the issue has been, by the cross examination and re-examination to which reference has been made, fairly joined. The first plaintiff was clearly cross-examined to the effect that: 1. He had consumed alcohol and his judgment was impaired; and 2. An explanation for why Bethany Long came to be over the balcony wall was a consequence of the first plaintiff's consumption of alcohol. 1. Furthermore, having regard to the way the case has been conducted, including how the first plaintiff was cross-examined and his responses during cross examination and when re-examined, I consider that the first plaintiff has squarely disputed these propositions and has denied not only the version given by the witnesses called by the defendants, but also that alcohol had impaired his judgment or faculties in any way. 2. Even if my assessment of the import of the cross examination, and evidence generally, is wrong, then I retain a discretion as to how to best remedy any unfairness that arises, in order to ensure that the trial does not miscarry: Khamis v R [2010] NSWCCA 179 at [42] and [44]. The simplest solution is to permit the first plaintiff to be recalled: see s 46(1) of the Evidence Act and Khamis at [44]. This would also be the case if the plaintiffs are genuinely taken by surprise. That approach is consistent with what the High Court said in MWJ v The Queen (2005) 222 ALR 436; [2005] HCA 74 at [40]: Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. I consider this to be the position here. 1. Accordingly, for those reasons, I allow those paragraphs of the report from Dr Dauncey to which objection was taken. ********** Amendments 22 December 2022 - Format DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2022