Stankowski v Commonwealth [2003] NSWSC 1022

Stankowski v Commonwealth [2003] NSWSC 1022

The proposed cross-examination was not permitted because Dr Wu's report was prepared by Dr Wu and obtained by the plaintiff's solicitors for the purposes of the present action, so s 69(3) excluded the business records exception. The representations in the report recording what the plaintiff told Dr Wu would not be...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
02 October 2003
Procedural Posture
Common Law Proceeding; Evidentiary Ruling / Application to Cross Examine a Plaintiff's Witness About a Report by a Deceased Psychiatrist
Outcome
Leave to cross examine refused.
Legal Topics
['hearsay' 'exceptions to Hearsay Rule' 'business Records' 'representations Concerning Health, Feelings, Sensations and State of Mind' 'cross Examination on Previous Representations' 'discretionary Exclusion of Evidence']
['evidence'] ['hearsay' 'exceptions to Hearsay Rule' 'business Records' 'representations Concerning Health, Feelings, Sensations and State of Mind' 'cross Examination on Previous Representations' 'discretionary Exclusion of Evidence']

Source-derived case record

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Procedural Posture

Common Law Proceeding; Evidentiary Ruling / Application to Cross Examine a Plaintiff's Witness About a Report by a Deceased Psychiatrist

Legal Issues

  1. 1 ['Whether the defendant could cross-examine a psychiatrist called by the plaintiff about a report by deceased psychiatrist Dr Wu recording a history given by the plaintiff.' 'Whether s 44(2) of the Evidence Act 1995 permitted cross-examination about previous representations made by a person other than the witness.' "Whether Dr Wu's report was admissible as a business record under s 69 or was excluded by s 69(3)(a) because it was prepared or obtained for the purposes of legal proceedings." "Whether s 72 applied to permit evidence of the plaintiff's representations about health, feelings, sensations or state of mind despite the exclusion of the business record." 'Whether the evidence should in any event be excluded under s 135 because its probative value was substantially outweighed by the danger of unfair prejudice, or of being misleading or confusing.']

Ratio Decidendi

The proposed cross-examination was not permitted because Dr Wu's report was prepared by Dr Wu and obtained by the plaintiff's solicitors for the purposes of the present action, so s 69(3) excluded the business records exception. The representations in the report recording what the plaintiff told Dr Wu would not be admissible, meaning s 44(2)(b) was not satisfied. Even if that conclusion were wrong, the evidence would be refused under s 135 because, given Dr Wu's death and the presence of a jury, its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the plaintiff or misleading or confusing.

Court Disposition

Leave to cross examine refused.

Orders

  • ['Leave to cross examine refused.']