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. That section provides that: "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, or (b) misleading or confusing, or (c) cause or result in undue waste of time." 11 One of the issues which is posed for the jury's determination in the present case is whether or not the plaintiff suffers from nightmares associated with his experiences at and in the aftermath of the sinking of HMAS Voyager by HMAS Melbourne, and whether or not he has suffered from intrusive thoughts related to such events. The examination of that issue will undoubtedly take time, but such examination, being directly related to issues that the jury must consider, cannot in my view be said to be a waste of time, let alone an undue waste of time. So s 135(c) has no application to the present case. 12 The matter is complicated by the fact that there is a jury. Were the matter being determined by a judge alone, the situation would be that the tribunal of fact would be well able to make appropriate judgments or assessments as to the weight to be given to the history included in Dr Wu's report, and to assess its probative value. However, with a jury unused to assessing facts in the way that a judge is accustomed to do, I am concerned that the material in Dr Wu's report could be either misleading or confusing; misleading because it is Dr Wu's interpretation of what was said by the plaintiff. Furthermore, the circumstances in which the history was taken, what, if any, questions were asked, the precise answers given by the plaintiff, et cetera, cannot now be known, and there is a real prospect that a jury could turn into hard fact what is, at best, the interpretation by a psychiatrist of what he was told by the plaintiff over the course of an interview, the length of which is not revealed in the evidence. 13 That of itself in my view could give rise to prejudice. However, s 135 is not concerned with the mere fact of prejudice. It is concerned with a calculus that involves a comparison of the probative value of the evidence on the one hand, and whether it is substantially outweighed by the danger that the evidence might be unfairly prejudicial on the other. A number of matters need to be considered. 14 The first is that it is not the fact of unfair prejudice, but the danger of such unfair prejudice to which s 135 directs attention. Secondly, it is unfair prejudice which the court is required to consider. Whether prejudice is ordinary or unfair depends upon a whole host of circumstances. One critical circumstance in the present case is that Dr Wu is dead. The most that will ever be seen will be a written statement, unable to be tested, unable to be expanded upon. In those circumstances I am of the opinion that whilst the material undoubtedly has probative value, such probative value will be substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff, or might be misleading or confusing. 15 So if I am in error in relation to the conclusions to which I have come as to the primary admissibility of the material, I would nonetheless reject it pursuant to the provisions of s 135. ********** Last Modified: 11/10/2003 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.