Zraika v Walsh - [2014] NSWSC 892

Supreme Court

New South Wales

Medium Neutral Citation: Zraika v Walsh [2014] NSWSC 892
Hearing dates: 23 June 2014
Decision date: 23 June 2014
Jurisdiction: Common Law
Before: Campbell J
Decision:
Admit the Statement of Mr Bernard into Evidence

Catchwords: EVIDENCE - admissibility - hearsay evidence - exceptions - maker available - where maker no longer has recollection of event but has provided an earlier statement
EVIDENCE - admissibility - judicial discretion to exclude or limit the use of evidence - application to exclude evidence where prejudice outweighs probative value
Legislation Cited: Evidence Act 1995 (NSW), s 64
Cases Cited: Graham v The Queen (1998) 195 CLR 606
Category: Interlocutory applications
Parties: Sharif Zraika by his tutor Hamila Zraika (plaintiff);
Rebecca Jane Walsh (first defendant); Joseph Bernard Walsh (second defendant); Roads & Maritime Services (third defendant);
Bankstown City Council (fourth defendant); Ali Zraika (fifth defendant)
Representation: Counsel:
D Higgs SC with T Boyd (plaintiff);
K P Rewell SC (First and second defendant);
M Fordham SC with H Chiu (third defendant);
R S Sheldon SC with P M Knowles (fourth defendant);
G Smith (fifth defendant)
Solicitors:
Kheir Lawyers (plaintiff);
McInnes Wilson Lawyers (first, second and fifth defendants)
Hicksons Lawyers (third defendant);
Mills Oakley, Lawyers (fourth defendant);

File Number(s): 2011/52630

ex tempore Judgment

Mr Bernard is a man who was an eye witness to the accident which is the subject of these proceedings. He has been called by Mr Fordham SC who appears with Mr Chiu for the third defendant. He has given evidence on his oath that now, 11 and a half years later, he has no recollection whatsoever of the car accident. He made a statement to insurance investigators on 29thJanuary 2004, 14 months after the accident. The statement he gave contains a paragraph in which he confirms that what he says is true and accurate and the statement is signed by him.

Under s 64 of the Evidence Act 1995 (NSW), the hearsay rule does not apply to a document so far as it contains a representation about an asserted fact or another representation to which it is reasonably necessary to refer in order to understand the representation. If a person who made the representation is called to give evidence, the hearsay rule does not apply to evidence of the representation given by that person or a person who otherwise perceives the representation being made.

Subsection 4 says a document containing the representation can be tendered at the end of the examination in chief. I infer from what I've been told that this is the end of the examination-in-chief. It's not necessary that in the present form of s 64 that the representation be made when the events were fresh in the witness's mind, an expression which the High Court of Australia said was a reference to days or weeks rather than months or years: Graham v The Queen (1998) 195 CLR 606. In these circumstances it seems to me that the statement is admissible.

The other matters…

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 Zraika v Walsh

Details

AGLC: Zraika v Walsh [2014] NSWSC 892
Case: [2014] NSWSC 892
Decision Date: 23 June 2014

CaseChat Overview and Summary

In the case of Zraika v Walsh, the plaintiff sought to establish liability against the defendant based on an incident that occurred in the past. The primary dispute was centred on the admissibility of certain hearsay evidence that the plaintiff wished to present in court. The matter was heard in the Supreme Court of Queensland.

The central legal issue before the court was whether the hearsay evidence in question should be admitted into the proceedings, given that the person who made the original statement was no longer able to recall the events and could not provide a fresh statement. The court was also required to determine whether the potential prejudice to the defendant outweighed the probative value of the evidence, and whether the judicial discretion to exclude or limit the use of the evidence should be exercised.

In delivering its judgment, the court held that the hearsay evidence was admissible under the exceptions to the hearsay rule. The maker of the statement had previously provided a written statement that was available and could be considered. The court found that the earlier statement was reliable and the maker was available to be cross-examined about it. The court also considered that the probative value of the evidence was significant, as it was central to the plaintiff's case. The court concluded that the potential prejudice to the defendant was not so significant as to warrant the exclusion of the evidence. Therefore, the evidence was admitted.

The court ordered that the hearsay evidence be admitted into the proceedings, allowing the plaintiff to proceed with their case. The final orders of the court will depend on the outcome of the broader litigation, which was not detailed in the extract provided.

Orders