Wormleaton v Thomas and Coffey Ltd (No 2)
[2013] NSWSC 1816
•05 December 2013
Supreme Court
New South Wales
Case Title: Wormleaton v Thomas & Coffey Ltd (No 2) Medium Neutral Citation: [2013] NSWSC 1816 Hearing Date(s): 5 December 2013 Decision Date: 05 December 2013 Jurisdiction: Common Law Before: Campbell J Decision: I reject the tender
Catchwords: EVIDENCE - admissibility of police event record - hearsay - whether document is a business record - whether document constitutes an admission Legislation Cited: Evidence Act 1995 (NSW) Category: Interlocutory applications Parties: David Wormleaton (plaintiff)
Thomas & Coffey Limited (first defendant)
Transfield Services Engineering Group Pty Limited (second defendant)
Bluescope Steel (AIS) Pty Ltd (third defendant)
Workers Compensation Nominal Insurer (fourth defendant)Representation - Counsel: Counsel:
M Cranitch SC with M Perry (plaintiff)
G Parker SC (first and second defendants)
No appearance (third defendant)
L Morgan (fourth defendant)- Solicitors: Solicitors:
Taylor & Scott Lawyers (plaintiff)
Curwoods Lawyers (first and second defendants)
No appearance (third defendant)
Moray & Agnew (fourth defendant)File Number(s): 10/283242
EX TEMPORE JUDGMENT
Mr Parker of senior counsel, who appears for the first and second defendants, tenders a printout of a Police Event Record relating to the invasion of the plaintiff's home which occurred in January 2004 and about which I have heard evidence. The occurrence of that event and its consequences have some relevance to the issues in this case, at least to the extent to which it is clear, on the evidence I have already heard, that the plaintiff suffered significant physical and psychological injuries as a result of that event. Those injuries are relevant, or potentially relevant at least, to the question of the assessment of economic loss after March 2009, and also relevant to explain, in relation to the same question, potentially, why his tax returns for the years leading up to 2009 disclose income far below the amount that the plaintiff claims. To that extent, I reject the objection of Mr Cranitch of senior counsel, who appears for the plaintiff, so far as it is based on relevance.
However, there is a second basis of objection going to the means of proof. The document is clearly caught by the exclusionary rule relating to hearsay.
Mr Parker submits that the document falls within one of two exceptions to that rule.
The first exception relates to the business records exception established by s 69 of the Evidence Act 1995 (NSW). I am not satisfied that learned senior counsel has made that submission good, given that I have heard evidence that these offenders were apprehended, charged and dealt with by the courts. Quite clearly, in my judgment, the representations contained in the document were made in connection with an investigation relating to or leading to a criminal proceeding. Accordingly, the exception established by s 69(2) does not apply: s 69(3)(b).
Mr Parker secondly submits that statements recorded in the document are admissions by the plaintiff of his participating in criminal activity, and I suppose such a consideration may also be relevant to the issue of assessment of economic loss, in terms of motivation to work and ability to find work, as persons who have offended may find it more difficult than others to compete in the open labour market. However, s 82, it seems to me, is relevant. It is in the following terms:
Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless:
(a) it is given by a person who saw, heard or otherwise perceived the admission being made, or
(b) it is a document in which the admission is made.It seems to me that what s 82 makes clear is that there must be direct evidence of an admission, either given in court orally by a person who saw, heard or otherwise perceived the admission being made or, on the other hand, in a document by which the admission is made. Necessarily, to my mind, paragraph (b) must relate to a document created by the party who is said to have made the admission. Clearly that condition is not satisfied here, nor is the alternative condition established by paragraph (a) satisfied, inasmuch as any police officer who might have heard Mr Wormleaton make such admissions has not been called to give evidence.
In my judgment, the conditions necessary for the admission of evidence of admissions have not been satisfied and I reject the tender.
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