John Thornton seeks to tender, at the conclusion of the hearing and in a case in reply, a page of what appears to be transcript of the evidence of police officer Dale Woods at an earlier hearing. It is marked as MFI 14. Perhaps it is a transcript of a hearing of criminal proceedings against Mr Thornton or his son-in-law, Brett Roby. The page bears the date, 29 June 2012. Two passages are sought to be tendered, each of four lines. The first passage is as follows:
"Q. As the vehicle came to a stop that you were driving, the door opened on the passenger side and Smith jumped out?
A. He was out just as the vehicle was coming to a stop. It would have still been moving when he got out."
The second passage states:
"Q. But Thornton, at that stage, you say, was coming from the bush?
A. That's correct. He was almost - he was walking towards the front of Roby's car and I assume he would have been about five or six metres away from the front of the car."
The first passage provides some support for Mr Thornton's evidence that Senior Constable Brad Smith left the vehicle he was travelling in, or on, before it stopped on 4 December 2010. This is contrary to Senior Constable Smith's evidence that the vehicle had stopped before he alighted.
The second passage is less categorical as it is expressed in terms of an assumption, but, leaving that matter aside, provides some support for Mr Thornton being a few, that is, five to six metres away from Mr Roby's car when the police vehicle arrived, rather than being directly adjacent to Mr Roby's car.
The basis of the tender of the material is under s 64(2) of the Evidence Act 1995 which provides:
"64 Exception: civil proceedings if maker available
…
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation,
if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.
…"
It is, I think, not reasonably practicable to call Officer Woods. He is not at court and his absence has previously been explained. A medical certificate has been tendered by the State to indicate his inability to attend court. The certificate was admitted without objection and Mr Thornton made no application or submission that the doctor needed to be available for cross-examination on the certificate.
Section 67 of the Evidence Act 1995 imposes a requirement of notice in respect of evidence of a representation that would otherwise be inadmissible as hearsay but for the application of s 64(2). Section 67 provides:
"67 Notice to be given
(1) [Section]…64 (2)…[does] not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.
(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.
(3) The notice must state:
(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and
(b) if section 64 (2) is such a provision - the grounds, specified in that provision, on which the party intends to rely.
(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice.
(5) The direction:
(a) is subject to such conditions (if any) as the court thinks fit, and
(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies."
No reasonable notice was given in accordance with s 67. The first the State of New South Wales became aware of the tender of the material was after the close of its case in defence when Mr Thornton sought to advance the material as a case in reply. No explanation for this lack of notice was given.
It was common ground that the medical certificate in respect of Officer Woods was first served on 15 October 2015, some four days before the initial trial commenced before Maiden J. Further, the unavailability of the notebook of Officer Woods was not disclosed to Mr Thornton until sometime during the course of this trial. However, neither of those matters, to my mind, operates to provide an explanation as to why no notice of an intention to adduce this evidence was given, orally or in writing, until after the State had closed its case in defence.
It might be inferred that the lack of notice resulted from an oversight. On the other hand, no evidence of even that explanation was given. Since an explanation could be given, I doubt whether I should draw any inference in favour of Mr Thornton in respect of the failure to give notice, in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298. In other words, I cannot exclude the possibility that the lack of notice was not merely an oversight but the evidence was held back to a case in reply for tactical or forensic reasons. Whether the material is fairly material for a case in reply in any event was not argued before me.
I should note that Mr Thornton formally closed his case after the State closed its defence, although before the State's case commenced Mr Thornton closed his case subject to the tender of some hospital records. Obviously, the page of transcript was not within that reservation.
In Newton v Ellis [2012] NSWCA 106 at [23], the Court of Appeal stated that in respect of an adjournment application, "an explanation should be the starting point" and that it was not necessary that "absent exceptional circumstances" the Court should "examine the prejudice". As that decision involved a late application for adjournment it is not directly analogous to an application to be excused from a requirement of notice under s 67. But notice is the statutorily required norm under s 67, and, in my view, the need for an explanation of a failure to give notice is just as necessary in respect of s 67 as it is in respect of an adjournment application.
Section 192 of the Evidence Act 1995 provides certain matters that must be considered in respect of leave being granted under the Act. That provision states:
"192 Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence."
Thus, the statute requires consideration of matters beyond the absence of an explanation.
As to the first of these five specified factors, the mere tender of the transcript, if relief against the lack of notice was given, would not add substantially to the hearing. But it is at least possible that the interests of justice would require an adjournment for further evidence from Officer Woods in respect to the matter as well as from Senior Constable Smith concerning his view and Officer Woods' view of the matter the subject of the evidence.
In respect to the second factor, I think there is some real unfairness if the lack of notice is excused. The new evidence upsets the dynamic of the trial and the cross‑examination which proceeded without this evidence. It can fairly be argued that the evidence given by Officer Woods was evidence given on oath and that he would ordinarily be a witness for the State. However, there is without an adjournment no real prospect of the State exploring ways to deal with the evidence in the transcript either by evidence from Officer Woods or Senior Constable Smith or even expert evidence.
There is also an element of unfairness in extracting from a transcript, which self‑evidently extended beyond the two pages which form the document on which the particular evidence is found, some eight lines of material without tendering the residue of the evidence or the relevant evidence of Officer Woods. There may be some other evidence of Officer Woods that is confirmatory of the evidence of Senior Constable Smith and it would seem to me to be unfair to select one favourable piece, two favourable answers, without the other material going in.
The third matter, the importance of the evidence, is relevant here. The evidence is not so significant that it would warrant an adjournment and further evidence in respect to it. With respect to the first answer, the recollection of Senior Constable Smith about whether he alighted immediately before or after the car stopped some five years after the event is not, in my view, a matter where memory is likely to be particularly reliable. The same must be said of Mr Thornton's recollection some five years after the event of the moment when Senior Constable Smith alighted, and of Officer Woods' recollection as to when Senior Constable Smith alighted. According to the date on the document of the transcript (29 June 2012) Officer Woods' recollection was a little over 18 months after the event in question on 4 December 2010. Nor is the moment of Senior Constable Smith leaving the car directly relevant to the events the subject of the claim.
As to the second answer in the transcript - the location of Mr Thornton when the police car containing Officer Woods and Senior Constable Smith arrived - it is even less significant. In the first place, it is in the form of an assumption by Officer Woods. Secondly, there is no basis to conclude that the first observation of Mr Thornton by Officer Woods occurred at precisely the same time as the first observation of Senior Constable Smith or at the same time as any observations by Mr Thornton of the police car's arrival. It seems to be common ground that Mr Thornton was moving towards Mr Roby's car. Whether he had progressed to be five metres away or beside the car, perhaps at the different times of the different observations of those three witnesses, seems to me to be of little significance. The matter is peripheral to the significant events.
As I have not heard the parties in final submissions, I refrain from making any final determination. But it is my preliminary view that matters of credit are unlikely to be resolved by recollections of distances or times involving metres or milliseconds some years after the event.
The fact that the evidence is not especially important in the context of the proceedings weighs against relieving the requirement of notice.
The fourth matter, the nature of the proceedings, is that this is a final hearing in a civil case. I do not think that fact especially militates in favour of either party. That it is a final hearing means that the evidence is more significant to Mr Thornton, but also to the State in defence.
Finally, the Court has power to adjourn and make other directions, but whether it should do so in the present case is doubtful for the reasons already given.
In my view, bearing these matters in mind, especially the failure to give any explanation for the failure to give any real notice, written or oral, the potential for prejudice and the lack of real probative value of the material, I refuse to make a direction under s 67(4) to allow the evidence to be admitted notwithstanding the failure to give notice.
Accordingly, the tender of MFI 14 is rejected.
[2]
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Decision last updated: 05 November 2015