Ibrahimi v Commonwealth of Australia (No 4)

[2016] NSWSC 1411

Supreme Court

New South Wales

Medium Neutral Citation:	Ibrahimi & Ors v Commonwealth of Australia (No 4) [2016] NSWSC 1411
Hearing dates:	4 October 2016
Date of orders:	04 October 2016
Decision date:	04 October 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [10]
Catchwords:	EVIDENCE – Hearsay – Whether evidence led for a non-hearsay purpose
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Median Nazar Ibrahimi & Ors - Plaintiffs Commonwealth of Australia - Defendant
Representation:	Counsel:    M Cranitch SC and S Prince - Plaintiffs A S Bell SC, M J O’Meara and R Jedrzejczyk - Defendant   Solicitors: The People’s Solicitors - Plaintiffs Australian Government Solicitor - Defendant
File Number(s):	2013/377410
Publication restriction:	Nil

Judgment – EX TEMPORE (revised)

1. The plaintiffs in these proceedings seek to rely upon evidence of Sonja Radovanovic, an Immigration Officer employed by the Department of Immigration and Citizenship.  It is proposed that her evidence be called via video link from Perth at some stage during the course of proceedings tomorrow.

2. To the extent that Ms Radovanovic gives evidence of her observations of events which took place on the morning of 15 December 2010 the defendant raises no objection. However, a specific issue has been raised to evidence being led from her in accordance with para. 18 of her statement of 27 March 2011. 

3. In order to put the matter in context, it is necessary to set out the contents of paras. 17 and 18 of the statement of Ms Radovanovic:

"[17] The weather and sea conditions were not good on 14 December 2010 at Christmas Island.  When I attended Ethel Beach in the afternoon that day, a practice run was being done by the navy to demonstrate that passengers and crew from a SIEV would be safe.  In a conversation with customs officer, Les Jardine, and Miles Picket at Ethel Beach, I became aware that he wanted to make space on the naval ship in relation to the possible arrival of a SIEV"

[18] "Whilst at Ethel Beach that day, it didn't seem usual to me to be doing a practice run in the afternoon, so I asked the question as to why the urgency to do it today.  I was told by local Customs Officer Jardine that the reason given to them by the navy was that they were expecting another SIEV in the vicinity of CI.  My understanding is that the SIEV referred to in that conversation is the SIEV that I now refer to as SIEV 221.  This was the first time I became aware of that SIEV (emphasis added)."

4. Objection has been taken by the defendant to the bolded portion of para. 18 in which the witness recounts what she was told by Customs Officer Jardine about what he had been told by “the Navy". The defendant has objected on the basis that it is hearsay (and in fact double hearsay) and does not come within any exception to the hearsay rule. It was submitted, in particular, that the passage was not admissible to prove that Customs Officer Jardine knew of the impending arrival of another SIEV. It was further submitted that the passage was not first-hand hearsay, such that the provisions of Div 2 of Pt 3.2 of the Evidence Act 1995 (NSW) (“the Act”) did not apply. It was also submitted that the provisions of s. 60 of the Act had no application, given the purpose for which the evidence was sought to be led.

5. Counsel for the plaintiffs confirmed that the evidence was relied upon to prove that Mr Jardine knew of the arrival of SIEV 221.  It was submitted that notwithstanding its double hearsay nature, the passage was nevertheless admissible in order to prove that knowledge. 

6. The statement in question clearly offends the hearsay rule in s. 59 of the Act. It is in fact what might be described as “double hearsay”, the witness purporting to give evidence of what she was told by someone else concerning what that person had been told by someone else again.

7. I accept the submission of senior counsel for the defendant that the first-hand hearsay provisions in the Act do not apply. This is so for two reasons. Firstly, the evidence is not first-hand hearsay in the sense defined by the Act. Secondly, the application of the provisions relating to first-hand hearsay proceed on the proposition that the person making the representation (in this case Ms Radovanovic) has personal knowledge of the asserted fact. Clearly, on the basis of her statement, Ms Radovanovic has no such personal knowledge. She is purporting to give evidence about a conversation that she had with Mr Jardine about what he had been told by someone else, a matter which was clearly not within her own personal knowledge.

8. I am also not satisfied that the evidence is being led for a non-hearsay purpose, so as to fall within the exception to the hearsay rule in s. 60 of the Act. If, for example, the evidence was sought to be led to prove nothing more than the fact that a conversation had taken place, then that may fall within s. 60. However, it is clear that the evidence is led to prove the truth of what Mr Jardine said that he had been told by “the Navy”, and to therefore prove that he, as an agent of the Commonwealth, had knowledge that another SIEV was on its way to Christmas Island. In my view, given the stated purpose for which the evidence is sought to be led, it falls well outside the parameters of s. 60 of the Act.

9. There was no other section to which my attention was drawn which was said to constitute an exception to the hearsay rule which would make the evidence admissible.

10. Accordingly, that part of para. 18 of the statement of Ms Radovanovic is not admissible, and is rejected.

**********

Decision last updated: 10 October 2016