Kelly v Thorn; Monteleone v Thorn (No 7) [2021] NSWSC 117

Kelly v Thorn; Monteleone v Thorn (No 7) [2021] NSWSC 117

Mr Kelly's credibility was in issue and the challenged statement was a prior consistent statement made shortly after the accident. It was admissible under s 108(3) of the Evidence Act 1995 (NSW). The statement was also sufficiently contemporaneous with the accident on Mr Kelly's property to be admissible as part of the res gestae and as evidence that Mr Kelly observed the deck drop on the plaintiff's arm.

Jurisdiction
Australia
Judgment Date
19 February 2021
Procedural Posture
Procedural Ruling / Tender of Statement and Objection to Admissibility
Outcome
The statement of Dr Amy Kelly dated 19 November 2020 is admitted.
Legal Topics
['documentary Evidence' 'tender of Documents' 'admissibility' 'late Service' 'res Gestae' 'credibility' 'prior Consistent Statement']
['evidence'] ['documentary Evidence' 'tender of Documents' 'admissibility' 'late Service' 'res Gestae' 'credibility' 'prior Consistent Statement']

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Procedural Posture

Procedural Ruling / Tender of Statement and Objection to Admissibility

Legal Issues

  1. 1 ["Whether the identified part of the statement of Dr Amy Kelly dated 19 November 2020 was admissible despite the defendant's objection." 'Whether the statement was admissible as part of the res gestae.' 'Whether the statement was admissible as impacting upon the credibility of Andrew Kelly under s 108(3) of the Evidence Act 1995 (NSW).']

Ratio Decidendi

Mr Kelly's credibility was in issue and the challenged statement was a prior consistent statement made shortly after the accident. It was admissible under s 108(3) of the Evidence Act 1995 (NSW). The statement was also sufficiently contemporaneous with the accident on Mr Kelly's property to be admissible as part of the res gestae and as evidence that Mr Kelly observed the deck drop on the plaintiff's arm.

Court Disposition

The statement of Dr Amy Kelly dated 19 November 2020 is admitted.

Orders

  • ['The statement of Dr Amy Kelly dated 19 November 2020 is admitted.']