Mukherjee v WorkCover Authority of New South Wales [2008] NSWIRComm 53

Industrial Court of New South Wales

CITATION: Mukherjee v WorkCover Authority of New South Wales [2008] NSWIRComm 53 This decision has been amended. Please see the end of the judgment for a list of the amendments.

GOPAL MUKHERJEE Appellant PARTIES: WORKCOVER AUTHORITY OF NEW SOUTH WALES Respondent

FILE NUMBER(S): IRC 1437 of 2007

CORAM: Schmidt J; Boland J; Backman J

Appeal - Application for leave to appeal and appeal - application of section 65 of the Evidence Act 1995 - whether statements made by critical witness who was not available for cross examination were properly admitted - unavailability of witness - whether prosecutor established witness' unavailability - failure to bring witness before Court pursuant to a bench warrant - failure to take other reasonable steps - prosecutor did not establish all reasonable steps taken to secure attendance or to compel witness to give evidence - appeal upheld CATCHWORDS: Evidence - requirements of section 65 of the Evidence Act 1995 - whether witness satisfied the test of unavailability

Evidence Act 1995 - s 65 LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998

Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 R v Alchin [2006] ACTSC 53 R v Suteski (2002) 56 NSWLR 182 CASES CITED: R v Taber & Styman [2005] NSWSC 1035 Registrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported, BC9101644) Sneza Suteski (2002) 128 A Crim R 275 C v Registrar Court of Appeal (Court of Appeal, 10 May 1996, unreported BC9601681)