Morrison v Defence Maritime Services Pty Ltd - [2007] NSWLEC 290

Land and Environment Court

of New South Wales

CITATION: Morrison v Defence Maritime Services Pty Ltd [2007] NSWLEC 290

PARTIES:
50049 of 2005
PROSECUTOR:
Anthony Morrison
DEFENDANT:
Defence Maritime Services Pty Ltd
50048 of 2005
PROSECUTOR:
Anthony Morrison
DEFENDANT:
Allen Coates
50014 of 2006
PROSECUTOR:
Anthony Morrison
DEFENDANT:
Danny Mahon

FILE NUMBER(S): 50048-49 of 2005; 50014 of 2006

CORAM: Biscoe J

KEY ISSUES: Evidence :- Criminal proceedings - s 137 Evidence Act - refusal to admit evidence adduced by prosecutor if its probative value is outweighted by danger of unfair prejudice to defendant.

LEGISLATION CITED: Evidence Act 1995 s 69, s 137

DATES OF HEARING: 21 February 2007

EX TEMPORE JUDGMENT DATE: 21 February 2007

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr A Hill, barrister
SOLICITORS
Dibbs Abbott Stillman
FIRST AND SECOND DEFENDANTS
Mr G Grogin, barrister
SOLICITORS
Ebsworth & Ebsworth
THIRD DEFENDANT:
Mr D A McLure, barrister
SOLICITORS
Norton White

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

21 February 2007

50049 of 2005

ANTHONY MORRISON v DEFENCE MARITIME SERVICES

50048 of 2005

MORRISON v ALLEN COATES

50014 of 2005

MORRISON v DANNY MAHON
EX TEMPORE JUDGMENT

1 HIS HONOUR: These three prosecutions alleging water pollution in Sydney Harbour are brought against the owner, master and chief engineer of a ship. The defendants object to the tender by the prosecution of two expert reports by a Mr Trevor Cosh which are annexed to the expert report of Peter Burge of January 2006, which in turn is annexed to Mr Burge’s affidavit of 31 January 2006 read in the prosecution’s case.

2 The prosecutor seeks to tender the two Cosh reports on the basis that they are admissible as business records under s 69 of the Evidence Act. They were obtained by the prosecution from documents which the prosecution subpoenaed from the owner of the vessel.

3 The defendants variously submitted as follows.

4 First, it was submitted that the documents were not business records within s 69 of the Evidence Act. This submission was made on behalf of the owner and the master but not the chief engineer.

5 Secondly, it was submitted that Mr Cosh has not undertaken to be bound by the expert witness code of conduct as required by the old rules of the Supreme Court of New South Wales which are incorporated into the rules of this Court in proceedings of this type.

6 Thirdly, it was said that Mr Burge agreed with some of the opinions expressed by Mr Cosh, which made it the equivalent of a joint report where only one of the persons making the joint report is called to give evidence and the other is not.

7 Fourthly, it was submitted on behalf of the chief engineer that the opinions expressed by Mr Cosh are not admissible under s 69 because they contravene the opinion rule in s 76. It was pointed out that s 69 only provides that business records are exceptions to the hearsay rule.

8…

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.

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Details

Case: [2007] NSWLEC 290
Decision Date: 21 February 2007

CaseChat Overview and Summary

In Morrison v Defence Maritime Services Pty Ltd, the court was asked to consider the admissibility of expert reports tendered by the prosecution in proceedings related to alleged water pollution in Sydney Harbour. The defendants in these cases were the owner, master, and chief engineer of a ship, and they objected to the inclusion of two reports by Mr Trevor Cosh, which were annexed to a report by Peter Burge and an affidavit sworn by Mr Burge. The defendants argued that the reports were inadmissible on several grounds, including that they were not business records as defined by s 69 of the Evidence Act 1995, and that they should be excluded under s 137 of the Act, which requires the court to refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant.

The court considered the arguments put forward by the defendants and the prosecution. The court found that, even if the reports were admissible under s 69, they should be excluded under s 137 because the defendants would suffer unfair prejudice by not being able to cross-examine Mr Cosh. The court noted that the inability to cross-examine was a significant factor in determining whether the prejudicial effect of the evidence outweighed its probative value. The court also considered the request provisions of the Evidence Act, but ultimately concluded that these provisions did not sufficiently address the risk of unfair prejudice in this case.

In reaching its decision, the court drew on several cases that had considered the admissibility of expert reports and the balance between probative value and prejudicial effect. The court noted that the inability to cross-examine was a particularly important factor in this case, given the specific aspects of the reports that the defendants would wish to challenge. The court concluded that the prejudicial effect of admitting the reports outweighed their probative value and, accordingly, refused to admit them under s 137 of the Evidence Act.

In light of the court's decision, it was not necessary to consider the other grounds of objection raised by the defendants. The court's judgment reflects the importance of striking a balance between the admissibility of evidence and the rights of defendants to challenge that evidence through cross-examination. The court's decision also highlights the need for careful consideration of the specific circumstances of each case when determining whether evidence should be excluded under s 137 of the Evidence Act.

Orders