COMMONWEALTH OF AUSTRALIA v McLEAN [1997] NSWCA 77

COMMONWEALTH OF AUSTRALIA v McLEAN [1997] NSWCA 77

Specific directions were given under SCR pt 51 r 16(5) permitting the use of prior trial evidence transcripts for certain witnesses, subject to further cross-examination and just exceptions, to ensure fairness and convenience in the conduct of the second trial.

Parties
Plaintiff: Commonwealth of Australia; Defendant: McLean
Jurisdiction
Australia
Judgment Date
13 January 1997
Procedural Posture
Appeal / Post Judgment Ancillary Orders Prior to Second Trial
Outcome
Ancillary orders granted under SCR pt 51 r 16(5) providing directions for conduct of evidence and proceedings at second trial. Costs of today's hearing to be costs in the new trial.
Legal Topics
Use of Evidence From First Trial in Second Trial, Directions Under SCR Pt 51 R 16(5)
Civil Procedure Use of Evidence From First Trial in Second Trial Directions Under SCR Pt 51 R 16(5)

Case Brief

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Parties

Commonwealth of Australia

Plaintiff

McLean

Defendant

Procedural Posture

Appeal / Post Judgment Ancillary Orders Prior to Second Trial

Legal Issues

  1. 1 Whether and to what extent evidence from the first trial may be read or reused at the second trial under SCR pt 51 r 16(5)
  2. 2 Directions on costs and attendance of witnesses for the second trial
  3. 3 Whether to bind the Commonwealth to earlier evidentiary rulings

Ratio Decidendi

Specific directions were given under SCR pt 51 r 16(5) permitting the use of prior trial evidence transcripts for certain witnesses, subject to further cross-examination and just exceptions, to ensure fairness and convenience in the conduct of the second trial.

Court Disposition

Ancillary orders granted under SCR pt 51 r 16(5) providing directions for conduct of evidence and proceedings at second trial. Costs of today's hearing to be costs in the new trial.

Orders

  • Testimony in chief of Mr and Mrs McLean at first trial may be read from transcript at second trial; cross-examination to be fresh.
  • Full evidence of Mr Ryan at first trial may be read; Commonwealth entitled to further cross-examine; costs of Mr Ryan's attendance to be met by Commonwealth initially.