COMMONWEALTH OF AUSTRALIA v McLEAN [1997] NSWCA 77

COMMONWEALTH OF AUSTRALIA v McLEAN SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 13 January 1997

[1997] NSWCA 77

Handley JA. This Court in its reserved judgment of 31 December, reserved liberty to either party to apply under SCR, pt 51, r 16 (5) for ancillary orders in relation to the conduct of the second trial. Mr Joseph SC on behalf of the plaintiff, has invoked this liberty to apply and I have heard extensive argument today as to the directions which ought to be given under that subrule for the use of evidence at the first trial in the second trial.

The second trial is due to commence on Thursday 16 January, before Studdert J, and under existing arrangements, with a jury. Mr Joseph seeks an order under r 16 (5) (c) that the testimony of Mr and Mrs McLean in chiefat the first trial may be read from the transcript without that evidence having to be adduced again. I will make that order.

It follows that Mr and Mrs McLean can be cross-examined afresh during the second trial without their evidence in cross-examination and reexamination during the first trial being before the jury under the orders which I will make. However, in view of the plaintiff's state of health, I reserve liberty to him to apply to the trial judge for an order that the whole of the plaintiff's evidence at the first trial be read from the transcript instead of the plaintiff being examined again, should the trial Judge be satisfied that the plaintiff's medical condition does not enable him to give or continue to give oral evidence at his second trial. It is not intended by these orders to restrict the cross-examination of the plaintiff and his wife.

The next witness who was called for the plaintiff in the first trial was a Mr Ryan. The Commonwealth wishes to cross-examine Mr Ryan on matters which were not raised during the first trial. During the first trial there was no challenge to Mr Ryan's credit and both parties relied on different parts of his evidence in their final addresses. In those circumstances I propose to direct that the whole of the evidence given by Mr Ryan at the first trial may be read from the transcript of his evidence but that the Commonwealth shall be entitled to further cross-examine Mr Ryan without any restrictions imposed by these orders. I direct that the plaintiff's solicitors take the appropriate steps to arrange for Mr Ryan to be available to give evidence at the second trial on condition the reasonable and normal costs of procuring his attendance in Sydney and meeting his expenses while here for the purposesof the second trial be met by the Commonwealth in the first instance. I was informed without objection that Mr Ryan is living in Victoria.