Hamilton v State of New South Wales (No 8)

Mr Steirn SC is cross‑examining Mr Lally, the ambulance paramedic who rendered assistance to Mr Hamilton shortly after the incident with which this case is concerned. Mr Steirn wishes to show Mr Lally part of Exhibit B which is a contemporaneous CCTV recording of the incident involving arresting police officers and Mr Hamilton. The ambulance was called because Mr Hamilton suffered injury in that incident. There is a significant issue about the nature of that injury and any justification for it.

Mr Steirn wishes to show the video and ask the witness some questions which might require him to express opinions. I have been given a general outline of the nature of the questions. Mr Bodor QC objects to this process.

3 It seems to me that under the provisions of s 44 Evidence Act 1995 (NSW), counsel is entitled to cross‑examine a witness about previous representations made by persons other than the witness, provided, in the circumstances of this case, evidence of the representation has been admitted. Under s 44(3) before that can be done, it is necessary that the document be produced to the witness and if the document is a tape recording, which this is not, the witness must be provided with the means of listening to it. However, subsection (3) does not apply because the evidence has been admitted and the former rules in the Queen's Case, re-enacted by s 44 are not engaged. It seems to me as I am bound by the rules of evidence in the hearing of this case, the course that Mr Steirn wishes to follow is authorised by the provisions of s 44(1) and (2) unless I am satisfied that a discretion to exclude evidence has been engaged.

Mr Bodor did not put his argument quite that way but some of what he said to me I think invoked the idea that the probative value of the course proposed is likely to be substantially outweighed by unfair prejudice to his client. It seems to me it is rare that s 135 comes into play in a civil trial by judge alone given that any palpable misuse of evidentiary material will be obvious on the face of my reasons and easily remedied.

Accordingly, although I have doubts about the utility of the exercise that I have expressed during the course of argument, it is a permissible course. I am not satisfied that s 135 has been engaged; I will permit Mr Steirn to proceed as he proposes.