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

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.
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.
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.
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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hamilton v State of New South Wales (No 12)

Details

AGLC: Hamilton v State of New South Wales (No 12) [2015] NSWSC 116
Case: [2015] NSWSC 116
Decision Date: 20 February 2015

CaseChat Overview and Summary

In the case of Hamilton v State of New South Wales (No 12), the primary dispute involved the admissibility of hearsay evidence in civil proceedings where the maker of the document was available. The court was tasked with determining whether a document, created by a witness after they had given evidence, could be admitted as evidence. This case was heard in the Supreme Court of New South Wales.

The legal issues central to the case were whether the document, created by a witness subsequent to their testimony, was admissible as evidence, and if so, whether the court had the discretion to exclude it based on its probative value. The primary focus was on the application of the hearsay rule, particularly in circumstances where the maker of the document was available to give evidence. The court also had to consider whether the document's probative value was outweighed by the potential for unfair prejudice.

The court held that the document was admissible as it was made by the witness after they had given their evidence and the maker was available. The court recognised that the hearsay rule generally prohibits such evidence, but exceptions exist where the document is made by a witness after they have given evidence and the maker is available. The court further exercised its discretion to exclude the evidence due to the potential for unfair prejudice, outweighing the document's probative value. Consequently, the document was deemed inadmissible.

Orders