Hamilton v State of New South Wales (No 5) [2015] NSWSC 55

Supreme Court New South Wales

Medium Neutral Citation: Hamilton v State of New South Wales (No 5) [2015] NSWSC 55 Hearing dates: 4 – 8 August 2014; 9 – 10 February 2015 Date of orders: 10 February 2015 Decision date: 10 February 2015 Jurisdiction: Common Law Before: Campbell J Decision: I reject the tender. I return MFI 12 to Mr Steirn Catchwords: EVIDENCE – admissibility – admissions – vicarious admissions – statements by non-party police officer whose conduct subject of police tort claim Category: Procedural and other rulings Parties: Thomas David Hamilton (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: C Steirn SC with D Morgan (Plaintiff) P Bodor QC with SA Woods(Defendant)

Solicitors: Garling Lawyers (Plaintiff) Makinson & d'Apice Lawyers (Defendant) File Number(s): 2012/185616

REVISED EXTEMPORE Judgment 1. I am ruling on admissions following my earlier ruling that the statements made by Mr Mildenhall, to the extent to which they may be adverse to the interests of the defendant in the outcome of these proceedings, are admissions. I have been dealing with the individual admissions. At p 59 of the transcript of 19 August 2010 there is this question and answer: "Q. Would you look at these two photographs? Would you agree that those two photographs show the initial fluid motion of you forcing him into the wall with his head? A. Yeah." 1. Mr Woods of counsel, who is taking the objections on behalf of the defendant, has permitted Mr Steirn SC who appears with Mr Morgan for the plaintiff, to hand up two photographs which Mr Steirn says are the photographs shown to the witness at the time that question was asked and that answer given. They ultimately became Exhibit 6 in the Local Court and I have marked them as MFI 18. 2. 3 I think it is fair to say that the photographs, as Mr Woods submits, are blurry and what is depicted in them is at best indistinct. There is force in Mr Steirn's argument that in the flow of the cross‑examination, the matters put might have been perceived to have had greater significance then than now appears from the transcript. However, as I remarked in the course of argument the feel of the cross‑examination cannot be recreated before me especially in circumstances, where, quite properly I am being asked to consider individual passages from the cross‑examination, and not the evidence as a whole, to determine whether those individual passages are capable of being admissions. 3. 4 I am not suggesting that it would be any easier to recreate the feel of the cross‑examination if Mr Steirn tendered the whole transcript, that phenomenon is well known in courts of appeal where you proceed on the basis of the paper that the feel of the trial, the live action that will often influence a court sitting as a trial court, as I have said, just cannot be recreated in another court. 4. I reject this tender of this admission. There is difficulty in me understanding from the simple question and answer asked what is meant by initial fluid movement to be derived from a still photograph or a print out of a still from a CCTV recording and in any event I note that the admission is only in terms as to what the indistinct image shows and at this point not as to what happened, unlike a matter raised in discussion with Mr Woods about the passage at p 56, lines 1 to 15. 5. I reject the tender. I return MFI 18 to Mr Steirn.