Bestel v Magee (Ruling)
[2025] VCC 197
•5 March 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-23-05475
| ANTOINE BESTEL | Plaintiff |
| v | |
| ROBERT MAGEE | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2025 | |
DATE OF RULING: | 5 March 2023 | |
CASE MAY BE CITED AS: | Bestel v Magee (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 197 | |
RULING
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Subject:TRANSPORT ACCIDENT
Catchwords: Jury trial – admissibility of statements - whether witness statement can be tendered - whether prejudice to the plaintiff by admission of statement
Legislation Cited: Evidence Act 2008 (Vic)
Ruling: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Mr S Smith | Arnold Thomas & Becker |
| For the Defendant | Mr P Jens KC with Ms A Bannon | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1On the third day of trial, the defendant sought to tender a statement of Mr Craig Smith dated 28 February 2017. This was purportedly done pursuant to ss64(3) of the Evidence Act. Objection to the tender was taken on three bases. First, that Mr Smith had never given evidence about the representations contained in the statement of 28 February 2017. Second, that pursuant to s56, the evidence was not relevant as it could not rationally affect the assessment of the probability of the existence of a fact in issue. And thirdly, that if the evidence could not be excluded on those two bases, then pursuant to s135, the Court should exclude the evidence under its general discretion on the basis that its probative value is substantially outweighed by the fact that the evidence would be unfairly prejudicial to the plaintiff or misleading or confusing.
2Before detailing the submission, it is necessary to say something about the background of the matter.
3The plaintiff was a pedestrian who was struck by a truck driven by Mr Magee on 16 February 2017. Mr Craig Smith was a passenger in the truck. The circumstances of the accident are in contest between the parties. About two weeks after the incident, both Mr Magee and Mr Smith attended the police station and made statements. Those statements are dated 28 February 2017. Later, on 28 December 2018, Mr Magee made a further statement.
4All statements appeared in the Court Books of the parties at the commencement of the trial.
5After the plaintiff’s case had closed, the defendant opened its case and then called Mr Magee. Mr Magee gave evidence-in-chief and was then cross-examined. During the course of cross-examination, senior counsel for the plaintiff took Mr Magee to his 28 February 2017 statement and pointed out some inconsistencies with his evidence-in-chief.[1] The statement was not tendered. Further, senior counsel for the plaintiff referred to the second statement of 28 December 2018 and suggested to Mr Magee that it also contained inconsistencies with the evidence given during his evidence-in-chief.[2] That statement was also not tendered. At the conclusion of his cross-examination, Mr Magee was re-examined. At that point, senior counsel for the defendant sought to have both statements tendered, pursuant to s64(3) of the Evidence Act. As the matter was being heard with the jury, the issue was not ventilated further and it was agreed that argument could be conducted after Mr Magee gave evidence. At that point, senior counsel for the defendant indicated that he would similarly seek to have the evidence contained in the statement made by Mr Smith on 28 February 2017 tendered on the same basis.
[1] Transcript (“T”) 242-243
[2] T 226
6The parties agreed to proceed with argument on the admissibility of all statements after both witnesses had given evidence. Mr Magee’s re-examination was then concluded. Mr Smith was then called. At the conclusion of his evidence-in-chief, senior counsel for the defendant put Mr Smith’s statement of 28 February 2017 to him and asked him whether it was true and correct. He responded that it was.
7At the conclusion of his evidence-in-chief, he was then cross-examined. He was not taken by senior counsel for the plaintiff to his statement of 28 February 2017. After his re-examination was concluded, Mr Smith was excused from Court.
8The defendant then renewed its application for the tender of the statements of Mr Magee dated 28 February 2017 and 28 December 2018 and the statement of Mr Smith dated 28 February 2017. At that point, the plaintiff conceded that the statements of Mr Magee could be tendered.
9As a result, the only issue in dispute was whether the statement of Mr Smith of 28 February 2017 should be tendered. I ruled that it could be. I did so for the following reasons.
10Section 64 is in the following terms:
(3) “If the person who made the representation has been or is to be 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.
(4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.”[3]
[3]Evidence Act 2008, ss64(3) and (4)
Analysis
11First, it is quite clear that Mr Smith was given his statement and asked whether it was true and correct, to which he responded that it was. While it is true that he was not taken line by line through it, this does not detract from the fact that he was given the statement, confirmed that it was his and stated that it was true and correct. Given he was not cross-examined about what that meant, it can be inferred that his answer has its natural meaning that the statement and the representations contained therein were true and correct. As such, those representations which he set out in the statement of what he saw, heard or otherwise perceived satisfies ss64(3)(b) and ss(4).
12Second, as to the issue of relevance, the representations go to the central point in the case, which is what Mr Smith saw, heard or otherwise perceived about the incident involving the truck and the plaintiff. His evidence can clearly rationally bear on the facts in issue in this case.
13Third, as to whether there is unfair prejudice to the plaintiff by the admission of the statement, I accept that there is some degree of prejudice associated with the fact that a prior consistent statement is being tendered, is in written form and works to bolster Mr Smith’s evidence. However, the plaintiff had opportunity to cross-examine Mr Smith on the circumstances of the event and also the statement, given that he had had clear notice that the defendant was intending to tender the statement at the conclusion of evidence-in-chief. He chose not to do that.
14For these reasons, I admitted the statement into evidence as an exhibit.
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