Klewer v Walton

[2005] HCATrans 523

[2005] HCATrans 523

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S25 of 2005

B e t w e e n -

LUCY KLEWER

Applicant

and

IAN WALTON

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 8.54 AM

Copyright in the High Court of Australia

McHUGH J: The applicant was the unrepresented informant in a private summons that alleged that the respondent was guilty of offences under ss 61, 314 and 547B of the Crimes Act 1900 (NSW). The Local Court Magistrate quashed and declared void the informations. At the Local Court hearing, the applicant had called the police officer as her first witness and, after the witness had given his name and address, had asked him to read from his prior written statement. The Magistrate upheld the respondent’s objection to the statement being read on the ground that the police officer was required to give the best evidence, which was oral evidence. The Magistrate also upheld the respondent’s objection to the applicant then asking the witness whether he was going to be a hostile witness.

The applicant appealed the Magistrate’s decision under s 104(2) of the Justices Act 1902 (NSW) on the grounds that the Magistrate erred in failing to admit a prior written statement of a police officer into evidence under ss 32, 33, 36 or 81 of the Evidence Act 1995 (NSW). The Supreme Court affirmed the Magistrate’s decision and held that the prior written statement was inadmissible because the statement did not contain an admission. As the police officer had read the relevant sentence in his written statement so as to revive his memory, ss 32 and 33 of the Evidence Act were not grounds on which the applicant could appeal the Magistrate’s decision.  The Court also held that the Magistrate’s decision not to declare the police officer a hostile witness was discretionary and did not involve an error of law.

The New South Wales Court of Appeal dismissed the applicant’s appeal, in the applicant’s absence, because the police officer was not a hostile witness and because the police officer’s written statement was not inconsistent with his oral testimony.

The applicant’s special leave application complained that the Supreme Court had erred in law in finding for the respondent.

An appeal has no prospects of success and does not raise a question of law of public importance.

The application is dismissed.

Under the power conferred by r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.  I publish our joint reasons.

AT 8.54 AM THE MATTER WAS CONCLUDED