Hamilton v State of New South Wales (No 7)

My ruling is that I reject the tender of MFI 19 pursuant to the provisions of s 135 of the Evidence Act 1995 (NSW) on the basis that the probative value of the tender is substantially outweighed by the danger that the evidence might be misleading.

I am prepared to say under s 192A, if there was a tender of MFI 20 I would admit it. I will give reasons.

I will return MFI 19 and 20 to the parties at the end of my reasons.

This is a claim, as I have said in numerous interlocutory judgments, amongst other things for damages for malicious prosecution. As is well understood, an element of that tort is that the plaintiff must prove that the prosecution was brought and maintained without reasonable or probable cause. According to the judgment of the High Court of Australia in A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [77] there are three critical points. The unanimous Court went on as follows:

As commonly occurs the police brought two charges against Mr Hamilton arising out of various events on the night of 12 December 2009. The first charge relevant in point of time is a charge under s 61 Crimes Act 1900 (NSW) for the common assault of a taxi driver, Mr Mahabub Siddiquee. The second charge is that in contravention of s 58 of the same Act Mr Hamilton resisted an officer while in the execution of his duty.

6 The officer was Senior Constable Jared Mildenhall, who, upon hearing Mr Siddiquee's complaint pursued Mr Hamilton for the purpose of arresting him. It is only in respect of the second charge that the claim for damages for malicious prosecution is maintained. Mr Steirn of learned senior counsel appearing for the plaintiff argues by reference to the decision of the Full Court of the Supreme Court of New South Wales in Birchmeier v Council of Municipality of Rockdale (1934) 51 WN (NSW) 201 that it is a well‑established rule of law that where a person has been prosecuted in respect of two charges and subsequently brings an action for malicious prosecution in respect of one of the charges evidence tending to prove that reasonable and probable cause exists for prosecuting the other charge is inadmissible.

In Birchmeier Jordan CJ, (with whom Steven and Street JJ agreed) at p 202, said:

I emphasise this:

Later, at p 203, his Honour said:

In Hicks, Hawkins J, delivering the judgment of the Court of Appeal, at p 173, said:

Those matters, taken together with the circumstances which are contained in, for instance, Mr Mildenhall's statement are matters which are relevant in my judgment in the sense discussed by Sir Frederick Jordan in Birchmeier when expressing the qualification added to his statement of the general rule. In my judgment the full brief, MFI 20, represents the whole of the material which is relevant to the third critical question discussed by the High Court in A v New South Wales, that is what does the plaintiff demonstrate SC Mildenhall made of the material available to him when he issued the court attendance notices.

There is no doubt that what is contained in MFI 19 is relevant and therefore prima facie admissible. However, I am of the view that this is one of those rare, perhaps very rare, occasions where in a civil trial before a judge sitting alone the general discretion to exclude evidence conferred by s 135 of the Evidence Act is engaged. Given that this is an ultimate issue in the case and that it is necessary for the Court to examine the whole of the relevant material which may go beyond the admissible material in relation to the resist arrest charge, the probative value of MFI 19 is substantially outweighed by the danger that the evidence might be misleading, and I so rule.

Under s 135 of the Evidence Act 1995 I reject the tender of MFI 19. I return MFI 20 to the defendant.