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. The next witness who was called at the first trial was Dr Kerr, who lives in Tasmania. The plaintiff seeks an order that the evidence-in-chief of Dr Kerr at the first trial may be read from the transcript of his evidence instead of being adduced orally. This order will be made. Mr Joseph also seeks leave for the plaintiff to read part or parts of the cross-examination of Dr Kerr at the first trial from his transcript. That order will be made subject to this liberty being availed of during 2 UNREPORTED JUDGMENTS Dr Kerr's evidence-in-chief at the new trial, prior to the commencement of his cross-examination. It is not intended by this order to allow the evidence of Dr Kerr given on the voir dire at the first trial to be read except by consent, to the jury in the second trial. The Commonwealth wishes to further cross-examine Dr Kerr on matters which were not before the jury in the first trial and on that basis, I direct that the appropriate arrangements for the attendance of Dr Kerr at the second trial be made by the solicitors for the plaintiff but that the reasonable and normal costs of procuring Dr Kerr's attendance in Sydney and meeting his expenses while here for the purposes of the second trial, be met by the Commonwealth in the first instance. The next witness called at the trial by the plaintiff was Dr Wiedmann. I direct that the plaintiff be at liberty at the second trial to read the transcript of his evidence-in-chief at the first trial without taking that evidence again orally, but I give no such direction in regard to his evidence in cross-examination or re-examination. The next witness called by the plaintiff at the trial was Dr Tattersall. In my view the whole of his evidence at the former trial should be available to be read by the plaintiff from the transcript of that evidence without Dr Tattersall being called again and I would make the same orders in respect of the evidence given by Mr Atkins and Mr Grove, who gave evidence relating to aspects of the plaintiff's claim for past and future economic loss. The orders in respect of Mr Tattersall, Mr Atkins and Mr Grove are without prejudice to any application which maybe made by either party, to the trial judge for any of these witnesses to be called again to give further evidence. I direct that all exhibits which were in evidence and before the jury in the first trial should be treated as exhibits in evidence before the jury at the new trial, other than exhibit Z, being a letter from the Defence Forces Retirement Board to the plaintiff in March/April 1995 containing an extract from a report of Dr Briggs; and exhibit 4 being that part of DSM-IV dealing with post traumatic stress disorder. I further direct that the plaintiff is to be at liberty to read to the jury at the new trial from the transcript of the evidence of Dr Shand in cross-examination at the first trial, provided that any such material is read to the jury prior to the commencement of Dr Shand's cross-examination, and providing Dr Shand is called as a witness in the second trial. I dispense with formal proof of the transcript of the first trial for the purposes of any of the above orders including the orders in respect of the transcript of Dr Shand's cross-examination. These orders are without prejudice to the right of either party to tender additional documentary evidence. The orders giving liberty to the plaintiff to read the testimony of any witness at the first trial from the transcript of that testimony, are not intended to commit the plaintiff to such a course. Moreover the orders are not intended to preclude the parties from agreeing on an edited version of the transcript of any evidence being read to the jury rather than the whole of the relevant transcript of that witness. Mr Joseph applied for further orders under r 16 (5) in relation to rulings given by Sperling J in the first trial which were not held by this Court to be erroneous. These rulings are those covered by grounds 10, 11 and 12 of the Notice of Appeal filed by the Commonwealth. Mr Joseph later withdrew his application in respect of the documents covered by ground 10 and the document covered by ground 11 URJ COMMONWEALTH OF AUSTRALIA v McLEAN (Handley JA) 3 (xii) (f). There was no need for a direction as to the documents covered by ground 12 because the Judge had ruled that they were business records but exercised his discretion to reject them in whole or in part under s 135 of the Evidence Act. I would not wish to encourage counsel for the Commonwealth to seek to reargue the rulings in ground 11. However, these rulings were challenged in the appeal to this Court, but because of the urgency of giving judgment, and because in our view a new trial was inevitable, the Court did not deal with these issues. In the circumstances, I am not prepared to exercise the Court's powers under r 16 (5) to bind the Commonwealth to any of these rulings. It seems to me that it would be unfair and possibly erroneous for me to make any such orders. In any event those rulings could cease to berelevant or even persuasive if the Commonwealth called the maker of the relevant record or if the jury were dispensed with. I am also concerned that the conduct of the new trial might warrant reconsideration of these rulings on grounds which did not suggest error by Sperling J. In all the circumstances I do not think it either just or convenient to bind the Commonwealth to any of the relevant rulings covered by ground 11 of the Notice of Appeal. However, as I said, I would expect that the judge presiding at the new trial will, as a matter of comity, treat the rulings given by Sperling J as persuasive and would only depart from them for proper and cogent reasons. An order under s 160 par (c) of the Common Law Procedure Act, the predecessor of r 16 (5), was made in Sherman v Nymboida Collieries 62 SR 657 at 772. The order which was concurred in by Herron and Sugerman JJ provided that it 'is made subject to all just exceptions'. It seems to me that it is appropriate that this order be subject to a similar qualification lest for some reason or other evidence which was admitted or not objected to at the first trial should now appear to the Judge who will preside at the new trial to have been inadmissible on some proper ground. The orders therefore will contain a qualification in that form. In view of the imminence of the new trial and the fact that I am giving extensive directions about the evidence at that trial which would ordinarily be given by the trial judge or a registrar, for the convenience of the parties and to save time and expense, I direct that the plaintiff is to be at liberty toissue subpoenas directed to Mr Ryan, Dr Kerr, and Dr Wiedmann for their attendance to give oral evidence at the new trial in Sydney and such subpoenas may be signed pursuant to this order by a Registrar of the Common Law Division. The subpoenas will be subject to the usual conditions for the tender of accommodation and travelling expenses in such cases. I direct that the Registrar of the Court of Appeal make available the unmarked copies of the appeal books of the Court of Appeal to the Common Law Division for use by the trial judge or as he might direct. It is the intention of my orders and reasons, if that has not already been sufficiently expressed, that Mr Ryan, Dr Kerr and Dr Wiedmann be available for cross-examination if any of their evidence at the first trial is to be read from the transcript of that evidence. The costs of the proceedings today are to be costs in the new trial. Orders accordingly.