Supreme Court New South Wales Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 11) [2013] NSWSC 956 Hearing dates: 17 July 2013 Decision date: 17 July 2013 Jurisdiction: Common Law Before: Davies J Decision: Evidentiary rulings as provided in the reasons for judgment Catchwords: EVIDENCE - admissibility - police report of motor vehicle accident - whether admissible as a business record - whether charges of negligent driving and failing to provide particulars are criminal proceedings - whether report admissible as prior inconsistent statement Legislation Cited: Evidence Act 1995 Category: Interlocutory applications Parties: Mathew Chaina (First Plaintiff) and ors Presbyterian Church (NSW) Property Trust (First Defendant) and ors Representation: Counsel: In person (Plaintiffs) R Stitt QC, G L Turner & H Stitt (Defendants) Solicitors: In person (Plaintiffs) Curwoods Lawyers (Defendants) File Number(s): 2002/69354 Judgment 1Application is made to tender MFI 55 which is the COPS report of the accident involving Mr Chaina in Ashfield on 16 April 2001. 2Mr Chaina was cross-examined about this accident and gave evidence that he was involved in the accident and that he telephoned his nephew, who was also his lawyer, Danny Arraj, to come to the accident scene, the chief purpose for which was to provide him with some legal assistance because Mr Chaina did not at the time have a driver's licence and he was concerned about being prosecuted. 3Although the document is a business record, the likelihood is that it is not admissible pursuant to s 69 of the Evidence Act 1995 because sub-s 3 provides that the exception to the hearsay rule does not apply if the representation in the document was, inter alia, made in connection with an investigation relating or leading to a criminal proceeding. 4The dictionary definition of "criminal proceeding" means a prosecution for an offence, but there is a specific exclusion for an offence that is a prescribed taxation offence. 5The evidence appears to be that Mr Chaina was or might have been charged with negligent driving and/or failing to give particulars after an accident. It is difficult to see why those offences, and particularly the offence of negligent driving, would not fall within the definition of criminal proceeding. Although one might at first blush think that traffic offences are to be contrasted with criminal offences, the specific exclusion of taxation offences suggests that traffic offences are included in the definaition of "criminal proceeding" on the basis of the construction maxim expressio unius, est exclusio alterius. 6The other basis upon which the material is sought to be tendered is under s 43 of the Evidence Act 1995, that is, that the witness has made a prior inconsistent statement. The inconsistency is said to be between the material which is contained in the document sought to be tendered and evidence that the witness had earlier given in the proceedings. 7The material in the document sought to be tendered discloses that Mr Arraj is supposed to have arrived at the accident scene in a red Saab bearing number plates xxxxxx, agreed by Mr Arraj to have been his car, and said, "I am his lawyer, let's sort this out". He is then supposed to have handed to the other driver a business card with the name "Arraj Lawyers, Level 9, 28 Margaret Street, Sydney, 2000, Principal Danny Arraj". Mr Arraj agrees that he did have a business card containing that information. 8In his earlier evidence, Mr Arraj principally said that he had no recollection of the events. However, he was asked at one point this question: Q. And I am suggesting to you that you interceded on your Uncle George's behalf with the other driver? His answer to that question was, "No". At a later point, he was asked this: Q. This accident and your involvement in it, do you say that it didn't happen? His answer was: I am saying that my involvement did not happen. 9It seems to me that those two statements in particular are inconsistent with the statements that appear in the document sought to be tendered and satisfy the prior inconsistency test set out in s 43 of the Act. On that basis, I consider that the document is admissible. ********** 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. Decision last updated: 18 July 2013