Houghton v Potts & Anor.

Amongst a range of objections taken by the plaintiffs to the report from Dr Helen Dauncey, consultant pharmacologist and toxicologist, dated 6 August 2017, the plaintiffs object to specific parts of the report that deal with, in broad terms, the physiological and cognitive effects of intoxication upon an individual with a blood alcohol content within a particular range. They argue that there has been a failure to put the substance of this evidence to the first plaintiff and, in consequence, it ought to be excluded under s 135(a) of the Evidence Act 1995 (NSW) because it would be “unfairly prejudicial”.

There is no doubt that a failure to cross-examine a witness, in breach of the rule in Browne v Dunn (1893) 6 R 67, may result in exclusion of the evidence sought to be adduced in contradiction of the witness who had not been cross-examined on the evidence in dispute: see, by way of example, R v McCormack (No. 3) [2003] NSWSC 645 at [8]-[9].

The objection so raised covers the following paragraphs of the report: paragraphs 9.2 (dot points 2 and 3), 9.3, 9.4, 9.5, 12.2 and 12.3.

The argument raised by the plaintiffs may be illustrated by reference to paragraph 9.4. That evidence – I am expressing it in general terms – is that the first plaintiff’s level of intoxication contributed to “unclear thinking, poor judgment”, amongst other matters.

The defendants submit, in support of the admission of the evidence, that the issue of the first plaintiff’s degree of intoxication and its contribution to the events of the incident giving rise to his fall over the balcony wall on 28 December 2014 has been clearly, and importantly, fairly joined.

The key parts of the cross examination of the first plaintiff involved the cross examination as follows:

The rule in Browne v Dunn is designed, fundamentally, to achieve fairness not only to a witness, but a trial between the parties: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 224; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 16-26.

In my view the issue has been, by the cross examination and re-examination to which reference has been made, fairly joined. The first plaintiff was clearly cross-examined to the effect that:

Furthermore, having regard to the way the case has been conducted, including how the first plaintiff was cross-examined and his responses during cross examination and when re-examined, I consider that the first plaintiff has squarely disputed these propositions and has denied not only the version given by the witnesses called by the defendants, but also that alcohol had impaired his judgment or faculties in any way.

Even if my assessment of the import of the cross examination, and evidence generally, is wrong, then I retain a discretion as to how to best remedy any unfairness that arises, in order to ensure that the trial does not miscarry: Khamis v R [2010] NSWCCA 179 at [42] and [44]. The simplest solution is to permit the first plaintiff to be recalled: see s 46(1) of the Evidence Act and Khamis at [44]. This would also be the case if the plaintiffs are genuinely taken by surprise. That approach is consistent with what the High Court said in MWJ v The Queen (2005) 222 ALR 436; [2005] HCA 74 at [40]:

Accordingly, for those reasons, I allow those paragraphs of the report from Dr Dauncey to which objection was taken.