Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: The Council of the New South Wales Bar Association v Franklin [2014] NSWCA 329
• Hearing dates: 14 August 2014
• Decision date: 19 September 2014
• Before: Beazley P at [1]; Meagher JA at [2]; Leeming JA at [23]

Decision

(1) Rule that the hearsay rule does not apply to the documents referred to in the Schedule to the reasons of Meagher JA.

(2) Order that costs of the applicant's motion be costs in the cause.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: EVIDENCE - advance ruling as to admissibility of evidence - hearsay evidence - where applicant seeks to tender transcripts of evidence from respondent's criminal trial - notice of intention to adduce hearsay evidence where maker available to be called - where no written objection to tender - Evidence Act 1995 (NSW), ss 64, 67, 68
• Legislation Cited: Crimes Act 1900 (NSW), s 578A; Evidence Act 1995 (NSW), ss 59, 64, 67, 68, 190(3), 192A; Evidence Regulation 2010, cl 4; Legal Profession Act 2004 (NSW), s 32
• Cases Cited: De Rose v South Australia (No 4) [2001] FCA 1616; Fischer v Howe [2013] NSWSC 462; 85 NSWLR 67; Harrington-Smith v Western Australia (No 7) [2003] FCA 893; 130 FCR 424; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Walker v Walker [1937] HCA 44; 57 CLR 630
• Texts Cited: Evidence (Interim) Report (ALRC 26), Vol 1 (1985)
• Category: Interlocutory applications
• Parties: Council of the New South Wales Bar Association (Applicant); Craig Andrew Franklin (Respondent)
• Representation: Counsel: Ms C Webster SC (Applicant); No appearance; Solicitors: Hicksons (Applicant)
• File Number(s): 2013/337442

Judgment

1 BEAZLEY P: I have had the advantage of reading in draft the reasons of Meagher JA. I agree with his Honour's reasons and with the orders he proposes.

2 MEAGHER JA: By a summons filed on 8 November 2013 the applicant Council seeks declarations that the respondent, who practised as a barrister at the New South Wales Bar, is not a fit and proper person to remain on the roll of local lawyers maintained by the Court pursuant to s 32 of the Legal Profession Act 2004 (NSW). The application presently before the Court is made by the Council for rulings, in advance of the hearing of the summons, as to the admissibility of some parts of the transcript of evidence in criminal proceedings brought against the respondent. That application is primarily made under s 192A of the Evidence Act 1995 (NSW) which provides:

"Where a question arises in any proceedings, being a question about:

(a) the admissibility or use of evidence proposed to be adduced, ...

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings."

3 The respondent was admitted to the New South Wales Bar in May 2005. Earlier, in 2003, he had met and commenced a relationship with TM, the complainant in the criminal proceedings who cannot be identified because of the provisions of s 578A of the Crimes Act 1900 (NSW). For a period the respondent and TM shared accommodation. There were tensions in the relationship and, as the sentencing judge subsequently observed, it took on some of the features of an "on again off again" relationship. In Easter 2007 the respondent and TM took a weekend trip from Sydney to the Canberra region. During the course of that weekend, the respondent, who had never been in trouble with the law before, committed four criminal acts of violence upon TM.

4 On 10 July 2008, the respondent pleaded guilty to a charge that on 9 April 2007 he assaulted TM causing her actual bodily harm. On 17 February 2009, following a trial in the District Court before Nicholson DCJ, he was convicted of three further offences, each also taking place on 9 April 2007. They were common assault (count 1), taking and detaining the complainant without her consent and with the intent of obtaining an advantage, namely sexual gratification (count 2), and sexual intercourse without consent in circumstances of aggravation, namely the occasioning of actual bodily harm immediately before the commission of the offence (count 3). On 18 September 2009, Nicholson DCJ sentenced the respondent to terms of imprisonment, the latest of which expires on 17 March 2017, with a minimum term which expired on 17 March 2014. The respondent was released from custody on parole on about 24 June 2014.

5 In support of its application that the respondent's name be removed from the roll of lawyers, the Council does not merely rely upon the fact of the convictions and sentences and the underlying facts that it was essential to establish to make out those convictions. The grounds relied upon also include the following:

"...

(c) The conduct underlying the convictions;

(d) In addition to (c), in relation to which the evidence of 'TM' is relied upon, the admissions by the respondent that he slapped and punched 'TM' up to 15 times occasioning actual bodily harm;

(e) The lack of candour of the respondent by failing to acknowledge the full extent of his offending conduct and the respondent giving knowingly false evidence on oath in his trial proceedings denying the conduct underlying the convictions on Counts 1 - 3, intending to procure his acquittal on those counts; or alternatively, intending to pervert the course of justice;

(f) The lack of candour of the respondent by failing to acknowledge the full extent of his offending conduct and the respondent giving knowingly false evidence on oath in his sentencing proceedings by continuing to deny the conduct underlying the convictions on Counts 1 - 3; and

(g) The humiliating and demeaning verbal abuse and conduct accompanying the conduct underlying the conviction[s] ..."

6 The Council resolved on 26 March 2009 to cancel the respondent's practising certificate. In August 2010 it resolved to apply to the Supreme Court for an order that his name be removed from the roll of local lawyers. The respondent was requested to consent, but has not consented, to the making of that order.

7 On 15 January 2014 the Council filed its motion seeking a ruling in advance of the hearing that would enable it to adduce in evidence, without leading oral evidence, extracts from the transcripts of evidence given at the respondent's trial. That evidence was of the following witnesses:

(a) TM

(b) Carmel Joan Shaw - as to immediate complaint by TM;

(c) Dr Patricia Saccasan Whelan - evidence in relation to the injuries to TM she observed and the history given to her by TM;

(d) Detective Senior Constable Ian Franca, a forensic investigator - as to his examination of TM's car and photographs that he took, including of injuries to TM and the respondent;

(e) Senior Constable William Gray - as to his observations of the injuries to TM and complaint by her;

(f) Dr David Bruce, a senior forensic biologist - as to DNA analysis he conducted;

(g) Detective Senior Constable Dean Roberts - as to his observations of TM subsequent to the offences, the ERISP (Electronically Recorded Interview of a Suspected Person) of the respondent, observations of injuries to the knuckles of the respondent and the respondent's admissions in relation to those injuries.

8 Each of those witnesses was available for cross-examination by the respondent's counsel at the trial. There was no cross-examination of Ms Shaw and some cross-examination of each of the others. In the case of Dr Whelan, that cross-examination consisted of two questions only.

9 Part 3.2 of the Evidence Act contains the hearsay rule (s 59) and exceptions to that rule. The Council seeks an order pursuant to s 190(3) that the provisions of that Part not apply in relation to the admissibility of the relevant transcript. That subsection provides that the Court may make such an order if:

"(a) the matter to which the evidence relates is not genuinely in dispute, or

(b) the application of those provisions would cause or involve unnecessary expense or delay."

10 The Council also seeks a direction that any objection made by the respondent to the tender of that evidence be determined before the hearing of its summons. Such a direction may be made under s 68(3) which permits the Court to determine an objection to the tender of hearsay evidence which has been the subject of a notice given under s 67 "at or before the hearing".

11 If a party wishes to rely upon the exception to the hearsay rule in s 64(2) it must give a notice of its intention to do so under s 67. Subsection 64(2) (which is set out below) does not apply to the evidence sought to be adduced unless such a notice is given. Section 68 provides for the making of objections to the tender of hearsay evidence that is the subject of a s 67 notice.

12 On 15 January 2014 the Council also prepared two notices under s 67 of the Evidence Act. The purpose of each was to give the respondent notice in writing of the Council's intention to adduce the hearsay evidence of these witnesses, relying on the exception to the hearsay rule in s 64 which provides:

"64(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to:

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence."

13 One notice (the first notice) was given in relation to extracts of the transcript of evidence of TM. The other (the second notice) was given in relation to extracts of the transcript of evidence of the six other witnesses. In each case, in the language of s 64, the transcript is a document containing previous representations of the relevant witnesses about various asserted facts and those witnesses are available to give evidence about those facts. The first and second notices were served on the respondent on 17 January 2014. Each had attached to it a copy of the transcript sought to be tendered.

14 It is logical to deal first with the question whether, by reason of s 64(2), the hearsay rule does not apply to the transcript evidence. If it does not apply there is no basis for dispensing with the application of the provisions of Part 3.2 because, in the circumstances, their application would not cause or involve unnecessary expense or delay. The present is an appropriate case for the Court under s 192A to give a ruling in advance of the hearing as to the application of the hearsay rule to that evidence. If the transcript is subject to the hearsay rule, and accordingly inadmissible, it will be necessary for the Council to make arrangements to call the witnesses concerned or otherwise to adduce evidence as to the matters to which the transcript evidence is directed.

15 The Council submits that it would not be reasonably practicable to call TM to give evidence given her mental condition. That condition is described in the confidential reports of her treating consultant psychiatrist, that are in evidence. In relation to the remaining witnesses, it submits that it would cause undue expense and delay if they are called to give evidence, which was given at trial and tested or able to be tested on behalf of the respondent. There is also before this Court evidence as to the likely expense and additional hearing time required if these witnesses are required to attend and give oral evidence.

16 To be effective, a notice given under s 67 in relation to reliance on s 64(2) must refer to that subsection and specify the grounds relied on. Each notice complies with those provisions. The notice must also satisfy the requirements of the Evidence Regulation 2010. Clause 4 of that regulation provides:

"(1) A notice of previous representation must be given in accordance with the requirements of this clause.

(2) A notice of previous representation must state:

(a) subject to subclause (6), the substance of evidence of a previous representation that the notifying party intends to adduce, and

(b) the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party, and

(c) particulars of:

(i) the date, time, place and circumstances at or in which each of the representations mentioned in paragraph (a) or (b) was made, and

(ii) the names of the persons by whom, and the persons to whom, each of those representations was made, and

(iii) in a civil proceeding - the address of each person so named, so far as they are known to the notifying party.

(3) ...

(4) If a notifying party intends to rely on section 64(2)(a) or (b) of the Act, the party's notice of previous representation must state particulars of the facts that the party will rely on to establish the grounds specified in section 64(2) of the Act.

(5) If a notice of previous representation refers to a previous representation that is in writing:

(a) a copy of the document, or of the relevant portion of the document, containing the representation must be attached to the notice, and

(b) the notice must identify the document unless:

(i) a copy of the document is attached to the notice, and

(ii) the identity of the document is apparent on the face of the copy.

(6) If a copy of a document, or of a portion of a document, is attached to a notice it is a sufficient compliance for the purposes of subclause (2)(a) to specify in the notice, or in the copy of a document or portion of a document attached to the notice, the representation evidence of which the notifying party intends to adduce.

(7) ..."

17 Each of the first and second notices complied with the requirements of cl 4(2)(a), (b) and (c) and had attached to it a copy of the transcript containing the relevant evidence, and thus complied with cl 4(5). Each also included particulars of the facts relied upon to establish the grounds specified in s 64(2), as required by cl 4(4). In the case of TM, those particulars relevantly include the effect on her "mental state of giving evidence or being further questioned concerning the respondent". In the case of the remaining six witnesses, those particulars are that each gave evidence at the trial in the presence of the respondent's counsel and was available to be cross-examined. Although they might have been supplemented by reference to the specific expense and delay likely to be involved in calling each of the witnesses, the particulars provided and the attached transcript sufficiently expose the basis upon which the Council says that undue expense and delay would be occasioned if those witnesses were required to give that evidence orally. I am satisfied that the notices given were in accordance with cl 4. It follows that 64(2) applies to the evidence which the Council seeks to adduce.

18 Although s 68(1) provides that the party on whom a notice under s 67 is served "may" object to the tender of the evidence, the immediate context and other provisions of s 68 make clear that "may" is used in the sense "may only" so that s 68(1) defines the period of time in which the party receiving the notice is permitted to object to the tender of the relevant hearsay evidence. Unless subsection (1) is understood in that way it would not fix any time for the notification of objections or ensure that, as is provided by s 68(3), such objections might be determined before the hearing. That construction gives effect to the evident purpose of the provision, which is to enable costs to be saved in civil trials in not having to call witnesses. It does so by permitting parties to adopt a procedure which enables those questions to be addressed in advance of the trial. This is confirmed by reference to the Evidence (Interim) Report (ALRC 26), Vol 1 (1985) at par 695 where it is said of the proposal on which this provision is based (cl 61 of the draft Bill which was Appendix A to the report):

"● Maker Available - Civil Trials. Costs can be saved in civil trials in not having to call witnesses. The proposal extends the existing law by enabling a party to avoid having to call witnesses who are available by serving notice on the other parties containing the above details and, should objection be received, obtaining the court's leave - before or at trial - to not call the witness. If there is no objection the representation may be received in evidence without proof. In this context the notice provision not only protects the parties but also gives the court the means to regulate the admission of firsthand hearsay in civil trials... The procedure introduces a discretionary element and therefore uncertainty in preparation for trial. It addresses that problem, however, by enabling the issues to be resolved before the trial commences should a party wish to do so."

19 The evidence established that the respondent has made no written objection to the tender of the transcript. That being the position, this Court could deal with the issue as to its admissibility on the basis that there is no objection to it as hearsay. That would still leave for consideration at the hearing the question as to the weight to be given to the evidence: Walker v Walker [1937] HCA 44; 57 CLR 630; Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 212; Harrington-Smith v Western Australia (No 7) [2003] FCA 893; 130 FCR 424 at [13]. However, in view of the significance of the evidence sought to be adduced, and the need for certainty in relation to the question of its admissibility as hearsay, it is appropriate that the Court rule on the question whether the exception to the hearsay rule in s 64(2) applies.

20 In relation to the giving of evidence by TM, the opinion of her treating psychiatrist is that if she has to give evidence about the relevant events again it would "seriously affect her psychiatric stability" and "lead to an exacerbation of her condition with worsening of anxiety and PTSD". That evidence justifies the conclusion that it is not reasonably practicable to call her: both because of her infirmity and because, it might be inferred, she would be unwilling to give evidence: see De Rose v South Australia (No 4) [2001] FCA 1616 at [15]; Fischer v Howe [2013] NSWSC 462; 85 NSWLR 67 at [58].

21 In relation to the remaining six witnesses, the evidence of Mr Blanch (affidavit sworn 5 February 2014) establishes that each, with the exception of the forensic expert, Dr Bruce, lives outside Sydney and that expenses would be incurred in his or her travelling to Sydney to give evidence. With one exception those witnesses would have to be accommodated overnight. The hearsay evidence was given under oath. Each witness was then available for cross-examination by the respondent's counsel. The evidence given in cross-examination is part of the tender. The material before the Court does not identify any respects in which the respondent challenges the veracity or the reliability of the proposed evidence to the extent that it is directed to facts that were not essential to the four convictions. In these circumstances it would cause unwarranted expense and delay to call each of the six witnesses to give his or her evidence orally. It follows that s 64(2) is satisfied and that the hearsay rule does not apply to the transcript.

22 Accordingly, I propose that a ruling be made pursuant to s 192A of the Evidence Act that by reason of the application of s 64(2)(b), the hearsay rule does not apply to the documents being the transcripts referred to in the Schedule below. I also propose that the costs of the applicant's motion filed on 15 January 2014 be costs in the cause.

SCHEDULE

1	Transcript of the evidence of TM being page numbers 38-83, 87-91, 103-105 and 171-174 in Exhibit "PAS2" to the affidavit of Philip Allen Selth sworn 31 October 2013
2	Transcript of the evidence of Carmel Shaw being page numbers 92-94 in Exhibit "PAS2"
3	Transcript of the evidence of Dr Patricia Ann Saccasan Whelan being page numbers 159-165 in Exhibit "PAS2"
4	Transcript of the evidence of Constable William Gray being page numbers 188-193, 199-205 and 210-211 in Exhibit "PAS2"
5	Transcript of the evidence of Senior Constable Dean Roberts being page numbers 275-299, 308, 560 and 561-588 in Exhibit "PAS2"
6	Transcript of the evidence of Senior Constable Ian Franca being page numbers 175-186, 554-556 and 557-559 in Exhibit "PAS2"
7	Transcript of the evidence of Dr David Bruce being page numbers 242-252 and 269-271 in Exhibit "PAS2"

23 LEEMING JA: I agree with Meagher JA.

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Decision last updated: 22 September 2014