VILLANUEVA v STATE OF NEW SOUTH WALES

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40208/98 DC 7133/95 SHELLER JA BEAZLEY JA GILES JA VILLANUEVA v STATE OF NEW SOUTH WALES

The appellant appealed against a verdict returned by a jury against him in proceedings he began against the State of New South Wales. He sought to recover damages for injuries he alleged he suffered when he fell from a ladder while changing a light bulb at the Special Purposes Prison, Long Bay, when he was a detainee there in 1994. This work was being performed at the direction of Department of Corrective Services officers.

The appellant submitted that the trial Judge was in error in admitting a handwritten statement made on 31 October 1994 by another prisoner who was working with the appellant in the maintenance workshop on the day he allegedly fell from the ladder. The statement effectively established that the prisoner did not see the appellant fall from the ladder. The statement was witnessed by an assistant superintendent whose duties included employing inmates and looking after maintenance, and who had instructed the two detainees to change the light bulbs in the workshop.

In tendering the statement, the respondent relied upon s63(2) of the Evidence Act 1995 which applies in civil proceedings where a person who made a previous representation is not available to give evidence about an asserted fact. Section 67(1) provides that s63(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. No such notice was given to the appellant, whose counsel was only given access to the statement on the day it was tendered. Section 67(4) provides that despite subs (1), if notice has not been given, the court may, on the application of a party, direct that s63(2) is to apply despite the party's failure to give notice.

The trial Judge heard argument on whether the statement should be admitted, and after the luncheon adjournment, admitted the document without giving any reasons for doing so. Held: By Sheller JA, Beazley and Giles JJA agreeing: (1) The appellant had to show that, upon the facts, to admit the statement was unreasonable or plainly unjust so that this Court would infer that in some way there had been a failure to properly exercise the discretion which the law reposed in the trial Judge; House v King (1936) 55 CLR 499 applied. (2) The trial Judge's failure to give reasons for his decision to admit the statement and to give a direction under s67(4) are matters of considerable concern, however, the issue was put squarely and fully to the trial judge who then took the adjournment to consider what he should do. In the context of legislation which permits such documents to be tendered and gives a discretion to excuse the failure to give notice, the trial Judge's decision cannot be categorised as unreasonable or plainly unjust. ORDERS Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40208/98 DC 7133/95 SHELLER JA BEAZLEY JA GILES JA

VILLANUEVA v STATE OF NEW SOUTH WALES JUDGMENT 1 SHELLER JA: Tony Villanueva, the plaintiff, has appealed from a verdict against him returned by a jury in proceedings he began against the State of New South Wales to recover damages for injuries he alleged he suffered when he fell from a ladder while changing a light bulb or fluorescent light at the Special Purposes Prison, Long Bay when he was a detainee there in September or October 1994. The plaintiff was performing the work at the direction of officers of the Department of Corrective Services. The proceedings were heard by Judge Christie and a jury of four on 30 and 31 March and 1 April 1998, on which last date the jury returned its verdict. 2 The grounds of appeal are all concerned with his Honour's alleged error in admitting a handwritten statement made on 31 October 1994 by another prisoner known by the letter and number P183. This document was admitted as exhibit 2. The reference to the maker of the statement as P183 was in accordance with the practice used for security reasons in the Special Purposes Prison which was a witness protection gaol. The plaintiff was known as P198. The statement was as follows: "I P183 was given a job to do by Mr Bright on friday. I was to change some light tubes in the maintenance work shop with P198. P198 and myself changed the tubes. I did not see any accident with P198 falling from the ladder." 3 The statement appeared to be witnessed by Mr Bright who was at the time an assistant superintendent at Long Bay Correctional Centre and whose duties included employing inmates and looking after maintenance. Mr Bright gave evidence at the trial on behalf of the defendant and said that he allocated the job to two inmates, P198 and P183. He went and got a step ladder and a box of fluorescent tubes and took them to the painting/maintenance workshop and showed them what had to be done. 4 He seems to have thought that this occurred on 28 October 1994. He did not know anything about the accident until 31 October, a Monday, when he was told the plaintiff was sick in his cell. He went there to investigate and had a conversation during which the plaintiff told him that he had slipped off the ladder but did not hurt himself. He said that his bed was giving him problems. The plaintiff said he was not making any claims. 5 At this point in the evidence of Mr Bright, the trial Judge said that he proposed to admit the document which became exhibit 2 subject to its being proved. Mr Bright said that he recognised the document and the writing on it as the writing of P183. He said that he had had a conversation with P198 on 31 October because he wanted to find out more about what had happened. He identified the statement which became exhibit 2 as the document P183 had written on 31 October. After this evidence had been given the document was tendered and admitted. 6 Argument about its admissibility had taken place before Mr Bright was called to give evidence and indeed before the plaintiff had closed his case. That argument shows that the plaintiff's counsel conceded that the maker of the statement was not available to give evidence. In tendering the document the defendant relied upon s63 of the Evidence Act 1995 which applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. The effect of the section is that the hearsay rule does not apply to: "(a) oral 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." 7 Section 67 (1) of the Act provides that s63 (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. No notice of such an intention was given by the defendant. The counsel for the plaintiff was given access to the document only on the day it was tendered. Section 67 (4) provides that despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that s63 (2) is to apply despite the party's failure to give notice. 8 In his submissions to the trial Judge, counsel for the plaintiff stressed that the maker of the statement was unidentified except for a number and could not be cross-examined. The plaintiff could not, because no notice had been given, seek to find him, and could not attempt to find out what the maker had been told or what he believed to be the purpose of the statement or whether he was under some belief that he was compelled to make it. Having heard these submissions the trial Judge said that he would give the question some thought over lunch. After lunch and after Mr Bright had given part of his evidence, without apparently any further submissions, the trial Judge admitted the document without giving any reasons for doing so. 9 The appellant challenges the trial Judge's exercise of discretion. No point was taken that no reasons or insufficient reasons were given. The appellant bore the onus of showing that some error had been made in the exercise of the discretion. It was not enough that this Court might, if its members had been in the position of the primary Judge, have taken a different course. The appellant did not suggest that the trial Judge had acted upon a wrong principle, had allowed extraneous or irrelevant matters to guide or affect him, had mistaken the facts or had not taken into account some material consideration. Accordingly, the appellant had to show that upon the facts to admit exhibit 2 was unreasonable or plainly unjust so that this Court would infer that in some way there had been a failure properly to exercise the discretion which the law reposed in the trial Judge; see generally House v The King (1936) 55 CLR 499 at 504-5. 10 Counsel again stressed the matters that had been put to the trial Judge, and advanced several matters of possible investigation which might have been undertaken had notice been given that the document would be used. 11 For the purposes of this appeal it can be accepted that if exhibit 2 was wrongly admitted into evidence the appellant is entitled to a new trial. The trial Judge in summing up acknowledged that it was open to the jury to interpret the document as meaning that P183 was present in the maintenance workshop when the work was being done by the plaintiff and that, accordingly, the plaintiff's account of the accident could not be accepted. This means that, if the plaintiff's contentions are right, an inadmissible document which might have been decisive in the jury's mind was wrongly before them. 12 Section 67 of the Evidence Act is undoubtedly intended to protect parties, to some extent, against the consequences of a document going into evidence even though the maker of the document is not available to give evidence about the facts asserted in the document and hence not available to be cross-examined. As in this case, the admission of the document in those circumstances is prejudicial to the other party. The statutory provision designed to ameliorate that prejudice has by the exercise of the Judge's discretion not so operated. The failure to give notice should not lightly be excused. However that may be, the Evidence Act permits documents, in which facts are asserted, to be admitted in evidence as evidence of those facts even though the party making the statement is not called, and permits a trial Judge in the exercise of that Judge's discretion to direct that s63 (2) applies despite the defendant's failure to give notice. 13 In this case Judge Christie did not give reasons for his decision and did not in terms give a direction under s67 (4). These are matters which have caused me considerable concern. However, the matter was put squarely and fully to the trial Judge who then took the adjournment to consider what he should do. In the context of legislation which permits such documents to be tendered and gives a discretion to excuse the failure to give notice, I do not think that his Honour's decision can be categorised as unreasonable or plainly unjust. I repeat that it is not for this Court to set aside the order because this Court in the circumstances would not have made it. 14 Accordingly, in my opinion, the appeal must be dismissed with costs. 15 BEAZLEY JA: I agree with Sheller JA. 16 GILES JA: I agree with Sheller JA.

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