Land and Environment Court of New South Wales CITATION : Morrison v Defence Maritime Services Pty Ltd [2007] NSWLEC 290 50049 of 2005 PROSECUTOR: Anthony Morrison DEFENDANT: Defence Maritime Services Pty Ltd 50048 of 2005 PROSECUTOR: PARTIES : Anthony Morrison DEFENDANT: Allen Coates 50014 of 2006 PROSECUTOR: Anthony Morrison DEFENDANT: Danny Mahon FILE NUMBER(S) : 50048-49 of 2005; 50014 of 2006 CORAM: Biscoe J KEY ISSUES: Evidence :- Criminal proceedings - s 137 Evidence Act - refusal to admit evidence adduced by prosecutor if its probative value is outweighted by danger of unfair prejudice to defendant. LEGISLATION CITED: Evidence Act 1995 s 69, s 137 DATES OF HEARING: 21 February 2007 EX TEMPORE JUDGMENT DATE : 21 February 2007 PROSECUTOR: Mr A Hill, barrister SOLICITORS Dibbs Abbott Stillman FIRST AND SECOND DEFENDANTS LEGAL REPRESENTATIVES: Mr G Grogin, barrister SOLICITORS Ebsworth & Ebsworth THIRD DEFENDANT: Mr D A McLure, barrister SOLICITORS Norton White JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 21 February 2007 50049 of 2005 ANTHONY MORRISON v DEFENCE MARITIME SERVICES 50048 of 2005 MORRISON v ALLEN COATES 50014 of 2005 MORRISON v DANNY MAHON EX TEMPORE JUDGMENT 1 HIS HONOUR: These three prosecutions alleging water pollution in Sydney Harbour are brought against the owner, master and chief engineer of a ship. The defendants object to the tender by the prosecution of two expert reports by a Mr Trevor Cosh which are annexed to the expert report of Peter Burge of January 2006, which in turn is annexed to Mr Burge's affidavit of 31 January 2006 read in the prosecution's case. 2 The prosecutor seeks to tender the two Cosh reports on the basis that they are admissible as business records under s 69 of the Evidence Act. They were obtained by the prosecution from documents which the prosecution subpoenaed from the owner of the vessel. 3 The defendants variously submitted as follows. 4 First, it was submitted that the documents were not business records within s 69 of the Evidence Act. This submission was made on behalf of the owner and the master but not the chief engineer. 5 Secondly, it was submitted that Mr Cosh has not undertaken to be bound by the expert witness code of conduct as required by the old rules of the Supreme Court of New South Wales which are incorporated into the rules of this Court in proceedings of this type. 6 Thirdly, it was said that Mr Burge agreed with some of the opinions expressed by Mr Cosh, which made it the equivalent of a joint report where only one of the persons making the joint report is called to give evidence and the other is not. 7 Fourthly, it was submitted on behalf of the chief engineer that the opinions expressed by Mr Cosh are not admissible under s 69 because they contravene the opinion rule in s 76. It was pointed out that s 69 only provides that business records are exceptions to the hearsay rule. 8 Finally, it was submitted that if Cosh reports are otherwise admissible then they should be precluded under s 137 of the Evidence Act. 9 I propose to proceed directly to the s 137 issue and will, for the purposes of dealing with that issue, assume, without deciding, that the reports are otherwise admissible. 10 Section 137 provides: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 11 Section 137 may be contrasted with s 135(a) which provides: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party. 12 Two points of distinction between ss 137 and 135(a) may be noted. First, under s 137 it is mandatory for the court to refuse to admit the evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Secondly, the test under s 137 is simply "outweighed", whereas under s 135 the test is "substantially outweighed". 13 The defendants submitted, and I accept, that matters bearing on the probative value of the Cosh reports include that it is not on oath; there is no undertaking by Mr Cosh to be bound by the expert witness code of conduct; it contains a lot of hearsay information; and in the second report Mr Cosh said that his first report should be disregarded. 14 The prosecutor submitted, and I accept, that it is also relevant to probative value that the first Cosh report recorded that Mr Cosh did on some six occasions between 22 October and 15 November 2002 attend the subject vessel. The incident the subject of these proceedings occurred during that period and that there were in attendance a number of employees of the owner including the chief engineer. 15 The defendants submitted, essentially, that there is unfair prejudice because Mr Cosh is not available for cross-examination. I have been taken to a number of aspects of the Cosh report which satisfy me that in the normal course the defendants would wish to cross-examine Mr Cosh. I conclude that there is a substantial danger that the defendants will be unfairly prejudiced if denied that opportunity. 16 In Galvin v R (2006) 161 A Crim R 449, Howie J, with whom McClellan CJ at CL and Latham J agreed, said at [40]: The fact that the defence could not cross-examine MW was an important consideration but not necessarily a decisive one. However, as was pointed out in R v Suteski (2002) 56 NSWLR 82 at [127], each case has to be determined on its own particular facts depending upon the probative value of the evidence and its prejudicial effect. Suteski was a very different case to the present. In the present case the fact that the defence could not cross-examine MW might have had more significance when considering some part of his evidence than it would when considering some other part of it... 17 The prosecutor did not so much argue that there was no prejudice but, rather, argued that the prejudice was not unfair because of, or could be ameliorated through, the request provisions of the Evidence Act to be found in s 167 read with s 166. Section 167 permitted the defendants to make a reasonable request to the prosecutor to call Mr Cosh as a witness. It was said by the prosecutor that the affidavit of Mr Burge to which the Cosh reports are annexed was sworn in January 2006 and was served about a year ago, and therefore the defendants have been aware of the prosecution's intention to tender the Cosh reports and could have made such a request. It was also suggested by the prosecutor that there being a question as to whether these proceedings will finish in the time allotted to them, that a direction could be made that the defendants request that he be made available. 18 I respectfully agree with the observations made in R v Cook [2004] NSWCCA 52 at [38] that the balancing exercise under s 137 is more accurately described as the exercise of "judgment" than "discretion." In Papakosmas v The Queen (1999) 196 CLR 297 at [93], McHugh J referred to some then recent decisions which suggested that the term "unfair prejudice" may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as a result of admitting evidence under the provisions of the Evidence Act. His Honour concluded that it was unnecessary to express a concluded opinion on the correctness of those decisions, although he was inclined to think that the learned judges in those cases had been too much influenced by the common law attitude to hearsay evidence, had not given sufficient weight to the change that the Act had brought about in making hearsay evidence admissible to prove facts in issue, and had not given sufficient weight to the traditional meaning of "prejudice" in a context of rejecting evidence for discretionary reasons. 19 In Ringrow Pty Limited v BP Australia Limited [2003] FCA 933, an issue arose as to the admissibility of a valuer's report containing expert opinion where the maker of the opinion was not called to give evidence and the valuation was tendered as a business record under s 69 of the Evidence Act. Hely J held that s 69 was to be construed broadly and that the report could be regarded as a business record. However, his Honour rejected the tender under s 135. A factor which strongly influenced his Honour, after noting that the probative value of the reports in that case was slight, was the inability to cross-examine. 20 In my opinion, having regard to the various factors to which I have referred, the probative value of the Cosh reports is outweighed by the danger of unfair prejudice to the defendants. Accordingly, pursuant to s 137, I refuse to admit the Cosh reports. 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.