Hamilton v State of New South Wales (No 10) [2015] NSWSC 114

Supreme Court New South Wales

Medium Neutral Citation: Hamilton v State of New South Wales (No 10) [2015] NSWSC 114 Hearing dates: 4 – 8 August 2014; 9 – 19 February 2015 Date of orders: 19 February 2015 Decision date: 19 February 2015 Jurisdiction: Common Law Before: Campbell J Decision: Plaintiff's counsel to have access to MFI 21 Catchwords: EVIDENCE – admissibility – privilege – client legal privilege over document created by witness – whether privilege has been waived Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Grundy v Lewis (Federal Court of Australia by Cooper J, 14 September 1998, unrep); Marsden v Amalgamated Television Services [1999] NSWSC 1155 Texts Cited: Stephen Odgers, Uniform Evidence Law (11th ed, 2014, Lawbook Co) 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 Senior Constable Liebrand on Exhibit A, the CCTV footage recorded at the time of the arrest of Mr Hamilton by police on 12 December 2009. The CCTV camera was located inside a building at Grosvenor Square in Sydney. Senior Constable Liebrand is the second police officer involved in the arrest. The first police officer, who initiated the arrest, is, the then, Senior Constable Mildenhall who gave evidence before me earlier and who has since been excused. 2. During the course of cross‑examination it emerged that Senior Constable Liebrand had been provided with a copy of the CCTV footage which he viewed and from which he prepared what he has referred to as a timeline of the events shown in the recording. This information fell out, as it were, because he was being asked in detail about events immediately before Senior Constable Mildenhall performed, what is referred to as, a leg sweep on Mr Hamilton and Mr Liebrand asked if he could refer to his timeline because he would then be better able to answer the questions. 3. Mr Steirn called for the production of the document under s 36 Evidence Act 1995 (NSW). It has been produced to the Court. Mr Bodor QC objects to access being granted to plaintiff's counsel on the ground of legal professional privilege. He states that the copy of the CCTV footage was provided by his instructing solicitors and Mr Liebrand was requested to prepare the timeline by them for the dominant purpose of use in this litigation. 4. Prima facie the document would attract client legal privilege under the provisions of s 119 Evidence Act. I gave Mr Steirn leave to examine Mr Liebrand on the voir dire and from that evidence it appears that Mr Liebrand had used the timeline, and other documents, out of court before coming to court to refresh his memory for the purpose of giving evidence. Mr Bodor did not cross‑examine on the voir dire. 5. Mr Steirn requests that I direct that he be allowed to inspect the document under the provisions of s 34 Evidence Act and submits that the provisions of the Act, in effect, mirror the common law in that the use of a document by a witness to refresh the witness's memory involves a waiver of the privilege when the witness is called by the party to give evidence. Mr Bodor joins issue on that submission. 6. Stephen Odgers, Uniform Evidence Law (11th ed, 2014, Lawbook Co) draws attention to the provisions of s 122(6) of the Act, which is in the following terms: 122 Loss of client legal privilege: consent and related matters ………. (6) This division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers). 1. I take the opening words of the concluding clause "to try to revive the witness' memory" as picking up the situation covered by s 34. In his commentary on the section Mr Odgers says: In general terms, this provision results in the loss of one or other of the privileges created by ss 118 - 120 where the client (under s 118‑119) or party (under s 120), waives the privilege, either expressly or impliedly [Footnotes omitted]. 1. Dealing in particular with subs (6), the learned author states, pithily: Privilege does not apply to a document that a witness has used to try and revive his or her memory under s 32 or that a police officer has read or been led through under s 33 [Footnotes omitted]. 1. In my judgment Mr Odgers states it too narrowly. It is clear that subs (6) covers three categories, the first is, "used to try and revive memory", the second is, "used as mentioned in s 32 - reviving memory in court", and the third is, s 33, "evidence by police officers". But I am of the view that his general statement is correct as the references to authority in his footnotes makes clear. In particular, he cites Grundy v Lewis (Federal Court of Australia by Cooper J, 14 September 1998, unrep), as follows: Where, for the purpose of giving evidence of fact, the witness has referred to the document prior to giving evidence to try to revive the witness's memory of the fact. Cooper J continued: The sub-section does not apply generally to all documents to which recourse is had for the purpose of litigation or for the framing of the case advanced. 1. It is also clear that whether or not the attempt to revive the memory was successful is irrelevant: Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1155 at [14]. 2. I am of the view that Mr Steirn's argument is to be preferred and I rule that any privilege of the defendant in respect of MFI 25 has been lost by the use made of it by the witness to prepare himself to give evidence. I will grant access. 3. My formal order is the plaintiff's counsel to have access to MFI 21. I hand it down for that purpose.