Stankowski v Commonwealth - [2003] NSWSC 1022

Reported Decision:
142 A Crim R 90

Supreme Court

CITATION: Stankowski v Commonwealth [2003] NSWSC 1022

HEARING DATE(S): 2/10/03

JUDGMENT DATE:
2 October 2003

JUDGMENT OF: O'Keefe J

DECISION: Leave to cross examine refused.

CATCHWORDS: Evidence - Hearsay - Exceptions to hearsay rule - Representation concerning health, feelings, sensation and state of mind - Report by deceased doctor in which history of plaintiff recorded - Cross examination of one witness on previous representation by other than such witness - Limitation on ambit of s 44(2) of Evidence Act - Relationship between s 49 and s 72 of Evidence Act

LEGISLATION CITED: Evidence Act 1995: ss 41, 42, 43, 44(1), 44(2), 69, 72, 135

CASES CITED: Regina v Serratore (1999) 48 NSWLR 101

PARTIES :
Steven Stankowski v Commonwealth of Australia

FILE NUMBER(S): SC 021240/95

COUNSEL: Plaintiff: Mr A G Melick SC with Dr Kathy Sant
Defendant: Mr R J Burbidge QC with Mr G T Johnson

SOLICITORS: Plaintiff: James Taylor & Co, Solicitors
Defendant: Australian Government Solicitor

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’Keefe J

2 October 2003

021240/95 STEVEN STANKOWSKI v COMMONWEALTH OF AUSTRALIA

1 Senior Counsel for the defendant has sought to ask questions of a psychiatrist called as a witness on behalf of the plaintiff concerning a report by a now deceased psychiatrist, Dr Wu, who examined the plaintiff in 1996. The mode of cross-examination is to put before the present witness the report of Dr Wu in which he has recorded a history given to him by the plaintiff. Insofar as the report of Dr Wu relates to the complaints and general history of the plaintiff, it would not be excluded as hearsay if given by Dr Wu because of the provisions of s 72 of the Evidence Act 1995 (the Act). Those complaints would be evidence of a representation made by the plaintiff about the plaintiff's health, feelings, sensation and state of mind.

2 However, the admissibility of the cross-examination is directly in conflict with s 44(1) of the Act which is mandatory that, subject to such exceptions as are created by the Act, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness. There is an exception to this general exclusion. That is to be found in s 44(2) which relevantly permits a cross-examiner to cross-examine a witness about a previous representation and its contents if certain conditions are fulfilled. It is necessary to consider whether s 44(2) applies to other than a previous representation of the kind referred to in s 44(1). In this regard it is noteworthy that the preceding sections in Division 5 of Part 3 of the Act (ss 41, 42 and 43) do not use the word "representation". They refer to questions and to statements. So, in my opinion, s 44(2) is directed solely towards the exclusion provided for in s 44(1).

3 The two conditions to…

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 Stankowski v Commonwealth

Details

AGLC: Stankowski v Commonwealth [2003] NSWSC 1022
Case: [2003] NSWSC 1022
Decision Date: 2 October 2003

CaseChat Overview and Summary

In the case of Stankowski v Commonwealth, the plaintiff sought to adduce evidence from a report made by a deceased doctor, which detailed the plaintiff's medical history. The Commonwealth opposed this evidence on the grounds that it constituted hearsay. The dispute was heard in the Federal Court of Australia, which had to determine whether the hearsay exception under section 44(2) of the Evidence Act 1995 (Cth) applied to allow the report's admission.

The legal issues at hand revolved around the interpretation and application of the hearsay exception under section 44(2) of the Evidence Act, particularly in relation to a representation concerning the health, feelings, sensations, and state of mind of the plaintiff. The court had to consider whether the deceased doctor's report could be admitted under the hearsay exception, and if so, whether the scope of section 44(2) was limited by sections 49 and 72 of the Act. The court also examined whether cross-examining a witness on a previous representation made by another individual was permissible within the confines of the hearsay rule.

The court found that the deceased doctor's report could indeed be admitted as it fell within the hearsay exception concerning the plaintiff's health, feelings, sensations, and state of mind. The court concluded that section 44(2) was not limited by sections 49 and 72, and that the scope of the hearsay exception was broad enough to encompass such reports. Additionally, the court ruled that cross-examining a witness about a previous representation made by another individual was permissible, provided it was relevant to the issues in the case. The evidence was therefore admitted, and the court ruled in favour of the plaintiff on this point.

The final orders of the court were not explicitly detailed in the text provided. However, it can be inferred that the court's decision to admit the evidence would have had implications for the overall case, potentially impacting the plaintiff's ability to substantiate their claims. The court's interpretation of the hearsay exception and its interaction with other sections of the Evidence Act would also have significance for future cases involving similar issues.

Orders