Event and Time
Event Description
- The case involves the admissibility of a statement made by Dr. Amy Kelly concerning an incident where a deck of a truck allegedly fell on a person named Ross Kelly, resulting in an injury (potentially a broken arm).
- The plaintiff seeks to have Dr. Kelly's statement admitted as evidence in court despite the fact that it was not served according to previous court orders.
Application and Claims
- The plaintiff claims that Dr. Amy Kelly's statement is admissible based on two grounds:
1. It is part of the res gestae (statements made during or immediately after an event). 2. It relates to the credibility of another witness, Andrew Kelly, according to Section 108(3) of the Evidence Act 1995 (NSW).
Judicial Decisions
- The court ruled that Dr. Amy Kelly's statement dated 19 November 2020 is admitted into evidence despite the late service.
Dispute Points and Legal Basis
Dispute Points
- Defendant's Arguments:
- Contends that the statement is inadmissible due to lack of probative value and that it should not be admitted to prove what occurred.
- Plaintiff's Arguments:
- Argues that the statement forms part of the res gestae, being contemporaneous with the accident and therefore admissible. - Claims that the statement supports Andrew Kelly's credibility, established under Section 108(3) of the Evidence Act, countering insinuations that his evidence was fabricated.
- Key Evidence:
- Mr. Kelly’s claim that he was an eyewitness and observed the incident. - The context surrounding the statement made to Dr. Kelly shortly after the event which supports Mr. Kelly’s account.