Hamilton v State of New South Wales (No 8) [2015] NSWSC 84

Supreme Court New South Wales

Medium Neutral Citation: Hamilton v State of New South Wales (No 8) [2015] NSWSC 84 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 am not satisfied that s 135 has been engaged; I will permit Mr Steirn to proceed as he proposes Catchwords: EVIDENCE – admissibility – cross-examination of a previous representation of other persons – whether opinion of witness regarding previous representation is probative Legislation Cited: Evidence Act 1995 (NSW), ss 44, 135 Cases Cited: Queen's Case (1820) 2 Broderick & Bingham 286 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. Mr Steirn SC is cross‑examining Mr Lally, the ambulance paramedic who rendered assistance to Mr Hamilton shortly after the incident with which this case is concerned. Mr Steirn wishes to show Mr Lally part of Exhibit B which is a contemporaneous CCTV recording of the incident involving arresting police officers and Mr Hamilton. The ambulance was called because Mr Hamilton suffered injury in that incident. There is a significant issue about the nature of that injury and any justification for it. 2. Mr Steirn wishes to show the video and ask the witness some questions which might require him to express opinions. I have been given a general outline of the nature of the questions. Mr Bodor QC objects to this process. 3. 3 It seems to me that under the provisions of s 44 Evidence Act 1995 (NSW), counsel is entitled to cross‑examine a witness about previous representations made by persons other than the witness, provided, in the circumstances of this case, evidence of the representation has been admitted. Under s 44(3) before that can be done, it is necessary that the document be produced to the witness and if the document is a tape recording, which this is not, the witness must be provided with the means of listening to it. However, subsection (3) does not apply because the evidence has been admitted and the former rules in the Queen's Case, re-enacted by s 44 are not engaged. It seems to me as I am bound by the rules of evidence in the hearing of this case, the course that Mr Steirn wishes to follow is authorised by the provisions of s 44(1) and (2) unless I am satisfied that a discretion to exclude evidence has been engaged. 4. Mr Bodor did not put his argument quite that way but some of what he said to me I think invoked the idea that the probative value of the course proposed is likely to be substantially outweighed by unfair prejudice to his client. It seems to me it is rare that s 135 comes into play in a civil trial by judge alone given that any palpable misuse of evidentiary material will be obvious on the face of my reasons and easily remedied. 5. Accordingly, although I have doubts about the utility of the exercise that I have expressed during the course of argument, it is a permissible course. I am not satisfied that s 135 has been engaged; I will permit Mr Steirn to proceed as he proposes.