Sijia Guo v Yong Wei Gao

[2022] NSWSC 1379

Supreme Court

New South Wales

Medium Neutral Citation:

Sijia Guo v Yong Wei Gao [2022] NSWSC 1379

Hearing dates:

11 October 2022

Date of orders:

11 October 2022

Decision date:

11 October 2022

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Evidence rejected

Catchwords:

EVIDENCE – Documentary evidence – Tender of documents – Hearsay – Exceptions – Business records – Public documents – Transcript of coronial inquiry

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316

WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd [2000] NSWIRComm 214

Category:

Procedural rulings

Parties:

Sijia Guo (Plaintiff)
Yong Wei Gao (First Defendant)
Mark Henrick Peoples in his capacity as administrator of the estate of the late Wei Hong Guo (Second Defendant)

Representation:

Counsel:

T Morahan (Plaintiff)
K Morrissey (First Defendant)

Solicitors:

Chen Shan Lawyers (Plaintiff)
GHS Legal (First Defendant)

File Number(s):

2019/306478

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. Mr Morahan for the plaintiff seeks to tender certain extracts from the transcript of evidence given in a coronial inquest in the Coroner’s Court of New South Wales.  Mr Morrissey for the defendant has objected.  For the reasons which follow, that tender will be rejected.

2. Mr Morahan has sought to tender the material on two bases. First, he submits that the transcript is a business record such that the transcript can be received by the Court to prove the truth of the various representations made in it. He relies on s 69 of the Evidence Act 1995 (NSW) (Evidence Act) for that proposition. Alternatively, he submits that it is admissible for the truth of the representations contained in it by reason of s 157 of the Evidence Act, which concerns proof of public documents relating to Court processes.

3. Section 69 of the Evidence Act includes:

“69   Exception: business records

(1)  This section applies to a document that—

(a)  either—

(i)  is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or

(ii)  at any time was or formed part of such a record, and

(b)  contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2)  The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made—

(a)  by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or

(b)  on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3)  Subsection (2) does not apply if the representation—

(a)  was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or

(b)  was made in connection with an investigation relating or leading to a criminal proceeding. …”

4. Section 157 of the Evidence Act provides:

“157   Public documents relating to court processes

Evidence of a public document that is a judgment, act or other process of an Australian court or a foreign court, or that is a document lodged with an Australian court or a foreign court, may be adduced by producing a document that purports to be a copy of the public document and that—

(a)  is proved to be an examined copy, or

(b)  purports to be sealed with the seal of that court, or

(c)  purports to be signed by a judge, magistrate, registrar or other proper officer of that court.”

5. Accepting that the transcript is a business record as the record of “an activity engaged in or carried on by the Crown in any of its capacities” (see the inclusive definition of “business” in Clause 1(1)(b) of Part 2 of the Dictionary to the Evidence Act), being in this case the conduct of a coronial inquiry, in my respectful view the transcript is inadmissible by reason of s 69(3)(a) of the Evidence Act. That is to say that the representations made in the transcript sought to be adduced into evidence “were obtained for the purpose of conducting … or in connection with, an Australian or overseas proceeding”. “Australian or overseas proceeding” is defined in Part 1 of the Dictionary to the Evidence Act to mean "a proceeding (however described) in an Australian court or a foreign court".  "Australian court" is itself defined a few lines earlier to include "a court of a State or Territory".

6. Plainly, the Coroner's Court of New South Wales is such a court. It is therefore clear that the transcript is inadmissible as a business record by reason of s 69(3)(a). If authority in support of that proposition be required, it is provided by the decision of the Court of Appeal in Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316 (Thomas). In that case, Hodgson and JC Campbell JJA (Gyles AJA dissenting) concluded that the transcript of evidence given to a Royal Commission was not admissible in another proceeding because it had been “obtained … in connection with, an Australian … proceeding” for the purposes of s 69(3)(a) of the Evidence Act. There is no relevant difference between the transcript of evidence before a Royal Commission and the transcript of evidence given before the Coroner's Court for the purposes of s 69(3)(a). In those circumstances, I conclude that I am bound to apply Thomas to conclude that the transcript of the Coroner's Court proceedings is inadmissible by reason of s 69(3)(a).

7. Turning to Mr Morahan's submission that the transcript is also admissible by reason of s 157. The issue of attempting to tender a transcript for the truth of its contents in reliance upon s 157 was considered by the Full Bench of the Industrial Relations Commission of New South Wales in Court Session comprising Wright J – President, Walton J (as his Honour then was) – Vice President, and Hungerford J in WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd [2000] NSWIRComm 214. That was also a case where the transcript of a coronial inquiry was sought to be adduced for the purposes of proving the truth of its contents.

8. The Court dealt with the question of the admissibility of the transcript under s 157 in this way:

“[64] This section appears in Pt 4.3 of the Evidence Act which deals with the facilitation of proof. As such, the section merely refers to the methods available to prove the existence of a judgment, act or process of a court and does not say anything about the admissibility of the transcript itself. The prosecutor conceded that the transcript of the proceedings may be adduced “subject to the ordinary rules of admissibility”.”

9. I will assume, without deciding, that a court transcript falls within s 157. Making that assumption, I respectfully agree with the reasons and conclusion that their Honours expressed in that paragraph, namely that s 157 is intended to deal only with the proof of the existence of a judgment, act, or process of a court, and does not say anything about the admissibility of the document itself. The prosecutor’s concession was rightly made that the document must be admissible by other means under the general rules of evidence if tendered to prove the truth of its contents.

10. I record for completeness that Mr Morahan indicated that he relied only on ss 69 and 157. I also note that insofar as Mr Morahan foreshadowed that he was also intending to rely upon the learned Coroner's judgment as proof of its contents, that submission was abandoned. With respect, Mr Morahan was right to do so, not least having regard to s 91 of the Evidence Act.

11. For these reasons, the tender of any extract from the transcript of the coronial inquest is rejected.

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Decision last updated: 13 October 2022