Hamilton v State of New South Wales (No 12) [2015] NSWSC 116

Supreme Court New South Wales

Medium Neutral Citation: Hamilton v State of New South Wales (No 12) [2015] NSWSC 116 Hearing dates: 4 – 8 August 2014; 9 – 20 February 2015 Date of orders: 20 February 2015 Decision date: 20 February 2015 Jurisdiction: Common Law Before: Campbell J Decision: I will use Mr Siddequee's statement of 4 January 2010 forming part of Exhibit F under s 60 of the Evidence Act 1995. Catchwords: EVIDENCE – admissibility – hearsay evidence – civil proceedings if maker available – whether document made by witness tendered after witness has given evidence is admissible

EVIDENCE – admissibility – judicial discretion to exclude evidence – probative value Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Osborne Metal Industries v Bullock (No 1) [2011] NSWSC 636 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. Contained in Exhibit F (the police brief in the Local Court) there is a statement of Mr Siddiquee, the taxi driver who gave evidence before me earlier in this trial. At the conclusion of his evidence-in-chief he identified a handwritten statement in Senior Constable Mildenhall's notebook as being a statement made by him on 4 January 2010 about these matters. After the cross‑examination of Senior Constable Mildenhall, Mr Bodor QC applied to vary the order I had made under s 136 Evidence Act 1995 (NSW) limiting the use that could be made of statements in the police brief to enable Mr Siddiquee's statement to be used as evidence for all purposes in accordance with the provisions of s 60 of the Act. The application invokes s 64 of the Act. 2. Mr Steirn SC relies upon the decision of McDougall J in Osborne Metal Industries v Bullock (No 1) [2011] NSWSC 636 to argue that s 64 does not apply to a case where the witness has been and gone. His Honour also said that if he was wrong in his interpretation of s 64(3) he would have excluded the document in that case under s 135. 3. Osborne Metal was a case where a witness had been sorely tested in cross‑examination about whether he had made a relevant complaint to his lawyers promptly or whether his evidence about it was a recent invention. After the witness had gone and without any offer to recall him, an email which may have established that he did make a prompt complaint to his lawyers was uncovered. His Honour declined to admit it, as I have said. 4. It seems to me that when one looks at subs 64(3) and (4) together, subs (3) contemplates a situation where the tender of a document containing the previous representation might occur, either after the witness has left the witness box and been excused from further attendance or before the witness is called. Moreover, the section extends to admission of a previous representation made, not only through the representor, if I may put it that way, who is called as a witness in the case but also through another person who saw, heard or otherwise perceived, the representor make the representation. 5. On the face of it, looking at its syntax, the section contemplates the tender of a document covered by it, either before or after the witness has given evidence. That meaning is reinforced by the idea that the document or other representation may be introduced through the evidence of another witness. To the extent that subs (4) tends to suggest otherwise, it cannot be taken to cover s 64(3)(b). Accordingly, it cannot cover the field. Its main purpose, I think, is that in the situation which it expressly covers, it imposes a filter of leave so that the Court can control the process of the introduction of a document prepared out oto preserve fairness between the parties. 6. Therefore, prima facie, I think that Mr Bodor's application is good and should be acceded to, subject to the provisions of s 135 and, in substance, Mr Steirn's argument relates to considerations of forensic unfairness. I am not persuaded that that argument has been made good. Mr Siddiquee's statement has been in existence since 4 January 2010. It was served as part of the brief in the Local Court. All counsel have been briefed with that statement and, indeed, it has been tendered as part of Exhibit F, albeit for a limited purpose, in the plaintiff's case. 7. Mr Siddequee has given evidence, and although he has not been cross‑examined to suggest that the evidence he gave was a recent invention (rather, cross‑examination was to the effect his evidence was not true) it seems to me that there is no unfairness of any kind in receiving the evidence for all purposes. Doubtless, had it been tendered at the conclusion of his evidence, no objection could have been taken to that course and nor, with respect, has Mr Steirn been able to point to any difference in the course that he would have followed if the statement had been in evidence before his cross examination. 8. In the circumstances, I am not persuaded that s 135 is engaged. I will add, however, obviously in considering the statement as part of the whole of the evidence led in this case, it will behove me to read it in the light of Mr Siddequee's oral testimony, including the cross‑examination of him. 9. I will use Mr Siddequee's statement of 4 January 2010 forming part of Exhibit F under s 60 of the Evidence Act 1995.