Barram v State of New South Wales [2017] NSWDC 246

District Court New South Wales

Medium Neutral Citation: Barram v State of New South Wales [2017] NSWDC 246 Hearing dates: 2, 5 – 7 June 2017 Date of orders: 07 June 2017 Decision date: 07 June 2017 Jurisdiction: Civil Before: Neilson DCJ Decision: Application to tender evidence is rejected Catchwords: CIVIL – PROCEDURE – Application to adduce admission evidence – Rejected under discretion of s 135 of Evidence Act 1995 – To allow evidence could cause necessity to request to waive legal professional privilege and would cause undue waste of time, lengthening the proceedings Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Gregory Barram (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Mr R Maher (Plaintiff) Mr M Gollan (Defendant)

Solicitors: MPB Lawyers (Plaintiff) McCabes Lawyers (Defendant) File Number(s): 2016/226288 Publication restriction: Nil

Judgment 1. HIS HONOUR: This is an application by the defendant to adduce as an admission the third paragraph of a letter directed by the plaintiff's solicitors to the prosecutor of the criminal proceedings that were launched by the police against the plaintiff, that give rise to the current proceedings. The paragraph in question is this: "The police entered our client's house without the permission of the occupier, however there was a person there that allow [sic] the police entry to our client's house." The plaintiff's solicitor objects to the tender on the basis that such were never his instructions and that there had been a "mistyping" in the letter and there had been the omission of the word "not". 1. The defendant presses the tender by referring to subsequent correspondence. There was a letter from the plaintiff's solicitors to the Patrol Commander of the Tweed Heads LAC, sent on 2 May 2016. The first four paragraphs contain assertions which have been the subject of argument before me and it would seem that the description given by the plaintiff's solicitor in the first four paragraphs of what happened in the criminal proceedings in the Local Court at Tweed Heads is highly contentious. However, the letter goes on to request ten particulars. The first question was this, "Who authorised the arresting Police to enter the private dwelling of our client?" The answer supplied by the Commander of the Tweed/Byron Local Area Command was this: "On 4 February 2016, police responded to a call for police assistance and attended Mr Barram's residence. Police spoke to a male, who indicated he resided at the premises, and he invited police in and led them to Mr Barram's bedroom." The second question asked by the plaintiff's solicitor in his letter of 2 May 2016, was this, "On what basis did the arresting officers form the opinion that they were lawfully entitled to enter our client's home?" The answer supplied by the Commander, was this: "Police were granted entry by the male occupant, who resided at the location with Mr Barram." 1. The particulars supplied by the Local Area Commander, were the subject of the comments made by the plaintiff's solicitor in a letter on 4 July 2016. The sub-paragraph numbered 2 in the third paragraph of the letter says this: "Whilst we concede that police spoke to an adult male person at or near the subject residence, prior to entering that dwelling, but permission to enter that dwelling was not forthcoming from that person. As mentioned above, we are in possession of evidence to support this assertion. We challenge you to nominate the identity of that person and supply the direct evidence, in first person form; of the conversation that person alleged [sic] used that permitted the police to enter the dwelling. It might be noted that there is nothing in the comprehensive Court Statements provided by the two arresting Constables wherein they were authorised to enter that private dwelling." That paragraph read together with the third paragraph of the letter of 8 April 2016 which the defendant seeks to tender as an admission clearly indicate that the plaintiff's position was that there was some male person associated with him who was at or near the plaintiff's dwelling house who spoke to the police but the intelligence supplied by this unidentified male was that the police could not enter the house and that the plaintiff himself had, "evidence to support this assertion." Nevertheless Mr Boys, the plaintiff's solicitor, maintains his objection to the tender on the basis that his instructions always have been that there was no such person. Initially I indicated to learned counsel for the defendant that I would reject the tender pursuant to my discretion under s 135 of the Evidence Act 1995 on the basis of pars (b) and (c) of that section. 1. Having read the letters from the plaintiff's solicitor of 8 April 2016, 2 May 2016, and 4 July 2016 I have come to the view that I should maintain the position I put to learned counsel for the defendant, that the tender of the paragraph sought to be tendered should be rejected because the correspondence itself is misleading and confusing, and to resolve the issue would require Mr Boys to give oral evidence in these proceedings and might require him to seek instructions to waive legal professional privilege in order to give his client's oral instructions and perhaps written instructions to the Court. 2. In forming that view I take the following matters into account. I have quoted the sub-paragraph numbered two from the third paragraph of the letter of the plaintiff's solicitor of 4 July 2016. It avers inter alia that there was, "Nothing in the comprehensive court statements provided by the two arresting constables wherein they were authorised to enter that private dwelling." However MFI 6, a statement of Senior Constable Steven Twindley of 23 February 2016, in par 5 says inter alia: "Senior Constable Attard and I attended 16 Captains Way, Banora Point and a male answered the door. I asked him if he was Gregory. He told me Greg was asleep and he was the roommate. The male invited us in and showed us where Gregory's bedroom was." Likewise MFI 7, a statement made by Senior Constable Anthony Attard on 29 February 2016, says in par 4 this: "A short time later Senior Constable Twindley and I [attended] 16 Captains Way, Banora Point and a male person allowed us into the home and he showed us where Gregory Barram's room was." The assertion in the plaintiff's solicitor's letter of 4 July 2016 which I have most recently quoted is untenable. Likewise much of the preamble to the letter of 2 May 2016 to which I have referred earlier is highly contentious and is quite inconsistent with the analysis of the proceedings in the Local Court as explained to me by Mr Gollan, a very experienced counsel who I am confident will make no attempt to mislead me whatever. In other words, most of the correspondence that I have read is highly contentious and not factual. 1. In the circumstances, I believe that to admit the paragraph in question would cause undue waste of time and unnecessarily lengthen these proceedings. The tender is accordingly rejected.