Stankowski v Commonwealth [2003] NSWSC 1022

Reported Decision : 142 A Crim R 90

New South Wales Supreme Court

CITATION : Stankowski v Commonwealth [2003] NSWSC 1022 HEARING DATE(S) : 2/10/03 JUDGMENT DATE : 2 October 2003

JUDGMENT OF : O'Keefe J DECISION : Leave to cross examine refused.

CATCHWORDS : Evidence - Hearsay - Exceptions to hearsay rule - Representation concerning health, feelings, sensation and state of mind - Report by deceased doctor in which history of plaintiff recorded - Cross examination of one witness on previous representation by other than such witness - Limitation on ambit of s 44(2) of Evidence Act - Relationship between s 49 and s 72 of Evidence Act LEGISLATION CITED : Evidence Act 1995: ss 41, 42, 43, 44(1), 44(2), 69, 72, 135 CASES CITED : Regina v Serratore (1999) 48 NSWLR 101 PARTIES : Steven Stankowski v Commonwealth of Australia FILE NUMBER(S) : SC 021240/95 COUNSEL : Plaintiff: Mr A G Melick SC with Dr Kathy Sant Defendant: Mr R J Burbidge QC with Mr G T Johnson SOLICITORS : Plaintiff: James Taylor & Co, Solicitors Defendant: Australian Government Solicitor

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

O'Keefe J

2 October 2003

021240/95 STEVEN STANKOWSKI v COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 Senior Counsel for the defendant has sought to ask questions of a psychiatrist called as a witness on behalf of the plaintiff concerning a report by a now deceased psychiatrist, Dr Wu, who examined the plaintiff in 1996. The mode of cross-examination is to put before the present witness the report of Dr Wu in which he has recorded a history given to him by the plaintiff. Insofar as the report of Dr Wu relates to the complaints and general history of the plaintiff, it would not be excluded as hearsay if given by Dr Wu because of the provisions of s 72 of the Evidence Act 1995 (the Act). Those complaints would be evidence of a representation made by the plaintiff about the plaintiff's health, feelings, sensation and state of mind. 2 However, the admissibility of the cross-examination is directly in conflict with s 44(1) of the Act which is mandatory that, subject to such exceptions as are created by the Act, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness. There is an exception to this general exclusion. That is to be found in s 44(2) which relevantly permits a cross-examiner to cross-examine a witness about a previous representation and its contents if certain conditions are fulfilled. It is necessary to consider whether s 44(2) applies to other than a previous representation of the kind referred to in s 44(1). In this regard it is noteworthy that the preceding sections in Division 5 of Part 3 of the Act (ss 41, 42 and 43) do not use the word "representation". They refer to questions and to statements. So, in my opinion, s 44(2) is directed solely towards the exclusion provided for in s 44(1). 3 The two conditions to which I have adverted are alternatives. The first is that the evidence of the representation has been admitted. That is not the situation here. The second, however, is germane to the present application and objection. It is that: "The court is satisfied that it will be admitted." 4 Senior counsel for the defendant has indicated that he proposes to tender at least the representations in Dr Wu's report, indeed he indicated that he may tender the totality of the report. However, the other consideration for admissibility is whether or not Dr Wu's report would be admissible and, if admissible, would, after the exercise of any relevant discretions, be admitted. 5 Section 69 of the Act provides an exception to the hearsay rule in respect of business records. The breadth of the definition in s 69(1) is, in my opinion, sufficient to embrace Dr Wu's report. It is a document prepared by him in and for the purposes of his practice and records questioning and an examination of the plaintiff carried out by him. 6 However, the exception to the hearsay rule in respect of business records does not apply if the representation was prepared or obtained for the purposes of conducting, or for or in contemplation of, or in connection with an Australian legal proceeding (s 69(3)(a)). 7 In my opinion the purpose of the document has to be determined, not by reference to the intention of the plaintiff, rather it has to be determined by reference to the intention of the maker of the document in which the representation appears, that is, Dr Wu. As I understand the situation from the evidence to date, Dr Wu was retained by the solicitors for the plaintiff. He gave the instructions to Dr Wu to examine the plaintiff. The report by Dr Wu is, as I understand it, a report to those solicitors. Accordingly, as a matter of fair inference, the report was prepared by Dr Wu and obtained by the solicitors for the purposes of the present action. Thus s 69(3) operates to exclude the exception to the hearsay rule provided for in s 69(2). 8 That being so, it seems to me that if objection is taken, then subject to s 72, the evidence would be inadmissible, since the provisions of s 44(2)(b) would not be satisfied. However, as the decision in Regina v Serratore (1999) 48 NSWLR 101 indicates, s 72 has a wide area of application. It is an exception to the hearsay rule that is additional to that provided for in s 69. It refers to evidence of a representation that is apt to cover oral evidence as well as written evidence. However, when s 72 is read with s 69(3), then in my opinion s 69(3) operates in respect of the business record in which the representation is made, and operates to exclude such record. 9 In these circumstances, I do not think that the representations in Dr Wu's report which repeat or record his version in summary form of what the plaintiff told him would be admissible. 10 The argument that was advanced on behalf of the plaintiff, however, went beyond the question of technical admissibility and called in aid s 135 of the Act. Since the material which is now sought to be used by the defendant may be regarded by the defendant as significant, and against the contingency that the view that I have taken in relation to the admissibility of the document should not be correct, I think it appropriate that I deal with the argument based on s 135.