Anthony Glohe v Nicholas Simington [2016] NSWDC 127

Anthony Glohe v Nicholas Simington [2016] NSWDC 127

The lack of s 67 notice did not justify rejection because the plaintiff could not fairly be surprised by the recording, given the transcript was already in evidence subject to limited use and the defendant's capacity to continue giving evidence was already an issue. On the untested psychiatric evidence, Mr Simington was mentally unable to give further evidence and there was no reasonably practicable way to overcome that inability, so he was not available for the purposes of s 63 and s 64 did not apply. Although the plaintiff would suffer some prejudice from being unable to further cross-examine Mr Simington, the prejudice was not unfair and the probative value was not substantially...

Jurisdiction
Australia
Judgment Date
30 May 2016
Procedural Posture
Civil Negligence Road Accident Proceeding / Procedural Ruling on Admissibility of Evidence
Outcome
MFI 12 was admitted into evidence and the limitations on exhibit 1 under s 136 of the Evidence Act 1995 (NSW) were removed.
Legal Topics
['negligence' 'road Accident Liability' 'pedestrian Accident' 'hearsay Exception for Documents' 'availability of Maker of Previous Representation' 'unfair Prejudice' 'limitation on Use of Evidence']
['torts' 'evidence'] ['negligence' 'road Accident Liability' 'pedestrian Accident' 'hearsay Exception for Documents' 'availability of Maker of Previous Representation' 'unfair Prejudice' 'limitation on Use of Evidence']

Case Brief

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Procedural Posture

Civil Negligence Road Accident Proceeding / Procedural Ruling on Admissibility of Evidence

Legal Issues

  1. 1 ['Whether the CD recording of the police interview with Mr Simington, marked MFI 12, should be admitted despite lack of notice under s 67 of the Evidence Act 1995 (NSW).' 'Whether Mr Simington was not available to give evidence for the purposes of s 63 of the Evidence Act 1995 (NSW) because he was mentally unable to give evidence and it was not reasonably practicable to overcome that inability.' 'Whether s 64 of the Evidence Act 1995 (NSW) provided a basis for tender where Mr Simington was found not available to give evidence.' 'Whether admission of MFI 12, and removal of the s 136 limitation on exhibit 1, should be refused or restricted because inability to further cross-examine Mr Simington would be unfairly prejudicial.']

Ratio Decidendi

The lack of s 67 notice did not justify rejection because the plaintiff could not fairly be surprised by the recording, given the transcript was already in evidence subject to limited use and the defendant's capacity to continue giving evidence was already an issue. On the untested psychiatric evidence, Mr Simington was mentally unable to give further evidence and there was no reasonably practicable way to overcome that inability, so he was not available for the purposes of s 63 and s 64 did not apply. Although the plaintiff would suffer some prejudice from being unable to further cross-examine Mr Simington, the prejudice was not unfair and the probative value was not substantially...

Court Disposition

MFI 12 was admitted into evidence and the limitations on exhibit 1 under s 136 of the Evidence Act 1995 (NSW) were removed.

Orders

  • ['MFI 12 is admitted into evidence.' 'The limitations on exhibit 1 under s 136 of the Evidence Act 1995 (NSW) are removed.']