Supreme Court New South Wales Medium Neutral Citation: Hamilton v State of New South Wales (No 9) [2015] NSWSC 85 Hearing dates: 4 – 8 August 2014; 9 – 17 February 2015 Date of orders: 17 February 2015 Decision date: 17 February 2015 Jurisdiction: Common Law Before: Campbell J Decision: I modify the order I made under s 136 Evidence Act 1995 (NSW) in relation to Exhibit F in respect of the notebook entries. I rule that they are admissible for all purposes in accordance with the provisions of s 64 of the said Act. Catchwords: EVIDENCE – admissibility – hearsay evidence – exceptions – civil proceedings where maker is available Legislation Cited: Evidence Act 1995 (NSW) 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. Acting Sergeant Mildenhall is giving evidence about the events giving rise to this case. He is the police officer whose conduct is principally in question in the case. I received the police brief of evidence relating to the Local Court prosecution of the plaintiff as Exhibit F in the plaintiff's case as evidence of material that the police had available at the time they initiated the prosecution against Mr Hamilton. Malicious prosecution is one of the torts the plaintiff relies upon and that material is relevant to the element referred to as "reasonable and probable cause". 2. At the request of Mr Steirn of senior counsel who tendered the material, I made an order limiting the use that could be made of the evidence under s 136 Evidence Act 1995 (NSW). Effectively, I restricted the use of the material to merely original evidence of what was available to the police officer and not as evidence of the truth of the representations contained in the various documents making up the brief. I made that order for the purpose of excluding the operation of s 60 Evidence Act. 3. Now that Acting Sergeant Mildenhall is in the witness box, Mr Bodor of Queen's Counsel has asked him questions about the representations in the notebook which forms part of Exhibit F for the purpose of him, applying to me, to modify my ruling under s 136 so as to allow the contemporaneous notes in the notebook to stand as evidence for all purposes. Those notes are relevant not only to the various elements of malicious prosecution but also to the extent to which they contain previous representations made by Acting Sergeant Mildenhall setting out his version of what happened. 4. I accept that the notebook entries are out of court representations and therefore prima facie caught by the hearsay rule. However, s 64 creates an exception to the hearsay rule in respect of previous representations made by a witness who is available and called to give evidence. Subsection (3) of s 64 says: 64 Exception: civil proceedings if maker available … (3) If the person who made the representation has been or is called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made. 1. Both paragraphs of subs (3) are relevant for present purposes because the entries in the notebook extend not only to representations made by Acting Sergeant Mildenhall but also to representations that he heard being made by, amongst other persons, Mr Hamilton. Normally such a document cannot be tendered without leave before the conclusion of examination‑in‑chief. I apprehend we are not at that point yet. 2. However, it seems convenient to deal with the matter now for the purpose of preserving the chronology of the narrative and to the extent to which leave is necessary, bearing in mind the document is already in evidence albeit for a limited purpose. I would grant leave having regard to the various factors contained in s 192 of the Evidence Act. It is not necessary in the circumstances of the present case to spell them out. 3. For these reasons I overrule Mr Steirn's objection and I modify the order I made under s 136 of the Act in relation to Exhibit F in respect of the notebook entries. I rule that they are admissible for all purposes in accordance with the provisions of s 64. ********** 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: 25 February 2015