Supreme Court New South Wales Medium Neutral Citation: Zraika v Walsh [2014] NSWSC 892 Hearing dates: 23 June 2014 Decision date: 23 June 2014 Jurisdiction: Common Law Before: Campbell J Decision: Admit the Statement of Mr Bernard into Evidence Catchwords: EVIDENCE - admissibility - hearsay evidence - exceptions - maker available - where maker no longer has recollection of event but has provided an earlier statement EVIDENCE - admissibility - judicial discretion to exclude or limit the use of evidence - application to exclude evidence where prejudice outweighs probative value Legislation Cited: Evidence Act 1995 (NSW), s 64 Cases Cited: Graham v The Queen (1998) 195 CLR 606 Category: Interlocutory applications Parties: Sharif Zraika by his tutor Hamila Zraika (plaintiff); Rebecca Jane Walsh (first defendant); Joseph Bernard Walsh (second defendant); Roads & Maritime Services (third defendant); Bankstown City Council (fourth defendant); Ali Zraika (fifth defendant) Representation: Counsel: D Higgs SC with T Boyd (plaintiff); K P Rewell SC (First and second defendant); M Fordham SC with H Chiu (third defendant); R S Sheldon SC with P M Knowles (fourth defendant); G Smith (fifth defendant) Solicitors: Kheir Lawyers (plaintiff); McInnes Wilson Lawyers (first, second and fifth defendants) Hicksons Lawyers (third defendant); Mills Oakley, Lawyers (fourth defendant); File Number(s): 2011/52630 ex tempore Judgment 1Mr Bernard is a man who was an eye witness to the accident which is the subject of these proceedings. He has been called by Mr Fordham SC who appears with Mr Chiu for the third defendant. He has given evidence on his oath that now, 11 and a half years later, he has no recollection whatsoever of the car accident. He made a statement to insurance investigators on 29thJanuary 2004, 14 months after the accident. The statement he gave contains a paragraph in which he confirms that what he says is true and accurate and the statement is signed by him. 2Under s 64 of the Evidence Act 1995 (NSW), the hearsay rule does not apply to a document so far as it contains a representation about an asserted fact or another representation to which it is reasonably necessary to refer in order to understand the representation. If a person who made the representation is called to give evidence, the hearsay rule does not apply to evidence of the representation given by that person or a person who otherwise perceives the representation being made. 3Subsection 4 says a document containing the representation can be tendered at the end of the examination in chief. I infer from what I've been told that this is the end of the examination-in-chief. It's not necessary that in the present form of s 64 that the representation be made when the events were fresh in the witness's mind, an expression which the High Court of Australia said was a reference to days or weeks rather than months or years: Graham v The Queen (1998) 195 CLR 606. In these circumstances it seems to me that the statement is admissible. 4The other matters which Mr Higgs SC, who appears with Mr Boyd for the plaintiff, referred to, and other counsel adopt his objection, in relation to the circumstances in which it was made and the like, are questions which go to weight I think rather than admissibility. 5Mr Higgs also asked me to exercise my discretion to exclude the statement on the basis that its probative value is outweighed by its prospects of creating unfair prejudice. 6It seems to me that in deciding that question I should bear in mind that this is a judge alone trial and I will be required to expose the reasoning process by which I arrive at my decision in due course, so any improper use I may make of this statement will be obvious on the face of my reasons. More importantly I bear in mind that the reason why this hearing is being held 12 years after the event, more or less, is because it was necessary for the plaintiff to obtain an extension of time to bring them. The necessary orders were made by Rothman J on the basis that the plaintiff, as it were, co-operate with the first defendant in relation to the joinder of the third and fourth defendants. 7Bearing those things in mind with the circumstance that it is the third defendant who is seeking to introduce this statement into evidence, the proper way to exercise my discretion is to say that its probative value outweighs any possible prejudicial effect and I decline to exercise my discretion to exclude it. ********** 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: 02 July 2014