District Court New South Wales Medium Neutral Citation: Perry v Kinnear & Ors (No. 2) [2020] NSWDC 898 Hearing dates: 27 August 2020 Date of orders: 27 August 2020 Decision date: 27 August 2020 Jurisdiction: Civil Before: Montgomery DCJ Decision: That the evidence of Ms Alberta Turner, Ms Meg Scofield and Ms Anique Morris be admitted into evidence. Catchwords: Civil Practice & Procedure – Admissibility of Evidence – Allegations of Sexual Assault – Defence Objection to Evidence of Complaint – Hearsay – Credibility – Leave Pursuant to s 192 of the Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 195 (NSW) ss 59, 60(1), 108, 108(3), 108(3)(a), 108(3)(b), 192, 192(2), 192(2)(b), 192(2)(c), 192(2)(d) Cases Cited: Pollitt v The Queen (1992) 174 CLR 558 R v Sood (Ruling No 2) [2006] NSWSC 732 Category: Procedural rulings Parties: Mrs Isabell Perry (Plaintiff) Mr Ian Kinnear (First Defendant) Mrs Leisha Kinnear (Second Defendant) Representation: Counsel: Mr D Elliot (Plaintiff) Mr D Brezniak (First & Second Defendants) Solicitors: Gerard Malouf & Partners (Plaintiff) Paul & Labuzin Lawyers (First & Second Defendants) File Number(s): 2018/00106299 Publication restriction: N/A Judgment (EX TEMPORE) – VOIR DIRE 3 1. On the morning of the fourth day of the hearing, without any apparent prior notice to his opponent or to the Court, the defendants, for the first time, raised objection to the evidence of witnesses Turner, Morris and Scofield, which had been organised to be given by AVL. They are witnesses in the plaintiff case. It was contemplated that cross-examination of the plaintiff would conclude by luncheon today and that the evidence of those witnesses would then be taken via AVL, starting at 2 o'clock. 2. Each of them has made a statement, and their statements were served by the plaintiff on the defendant at least by the time of delivery of the Joint Court Book, MFI 5. I am informed that that Joint Court Book was delivered on about 28 April 2020. Those statements are, in this voir dire, tendered. They are: 1. Exhibit VD3‑1: Ms Turner's statement of 18 April 2020; 2. Exhibit VD3‑2: The statement of Ms Morris dated 23 April 2020; and 3. Exhibit VD3‑3: The statement of Ms Scofield of 21 April 2020. 1. It is obviously disappointing that this application was not made before this point, where it has caused the interruption of about an hour‑and‑a‑half before I commenced this voir dire judgement. That is, an hour and a half during which the Court staff have not had their morning adjournment. So the time of the morning adjournment is not lost, but in any event, given the parties have been aware that the hearing was to proceed in this way and had that awareness since at least April, it is disappointing that the application is made this morning. 2. I turn to the evidence of the witnesses. In relation to the evidence of Ms Turner; her statement includes both complaint evidence and evidence relevant to circumstances. Evidence of a prior consistent statement by the plaintiff to Ms Turner, as given by Ms Turner, is hearsay of the fact asserted by the plaintiff and pursuant to s 59 of the Evidence Act, would be inadmissible unless falling within an exception. Pursuant to s 60(1) of the Evidence Act, evidence of the plaintiff's complaint to Ms Turner is relevant evidence of Ms Turner's report to the second defendant and therefore is relevant to the material fact of the second defendant's knowledge of the plaintiff's complaint of the defendant's alleged conduct. On that basis, in my view, it would be admissible. It is also relevant because it could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact of the second defendant's knowledge of the plaintiff's complaint of the first defendant's conduct, which are facts in issue in these proceedings. Her evidence does not only go to credit. It is relevant to the complaint. 3. Evidence of a previous representation not adduced to prove the existence of the fact asserted by the representation is not always classified as hearsay. Assuming the fact complained of is relevant, as it no doubt is here, I refer to Pollitt v The Queen (1992) 174 CLR 558, particularly per Brennan J at pp 571 to 573. Evidence of the fact of the plaintiff's complaint is relevant to the fact that she was complaining, as her case is, that she did to the second defendant, Morris and Scofield. The fact that those complaints were made and their timing is also relevant to the plaintiff's case and the inference of surrounding circumstances; those circumstances being her conditions of living in the Kinnear household and the conduct of the first and second defendants, which conduct is precisely material to the facts in issue in the case. It is probative evidence of those circumstances because it is evidence relevant to a fact and, in some respects, directly of a fact. 4. As to the evidence of Ms Scofield; it is not just evidence of a complaint of a factual observation, but also direct evidence of her observation of one particular aspect of the conduct of the first defendant. It is admissible on that basis. So far as it goes to being evidence of a complaint made by the plaintiff; it is admissible of complaint on the same basis of that which I just ruled in relation to Ms Turner. For the same reasons, the evidence given by Ms Morris is admissible. 5. This case is very unlike R v Sood (Ruling No 2) [2006] NSWSC 732, on which the defendants rely. This is not a criminal proceeding, but the reasoning of her Honour Simpson J in that decision is nevertheless of assistance. I assume, by reference to s 108, counsel for the defendants is contemplating application of s 108(3), which provision provides for circumstances in which the credibility rule does not apply. It was submitted by counsel for the defendants that the evidence of complaint in relation to the evidence of Turner, Scofield and Morris, was evidence going to credit only. At least, that is as I understood him. Section 108(3) provides: "(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement." 1. In relation to 108(3)(a), cross-examination of the plaintiff has not concluded. But already put to her in evidence, is a challenge as to her not complaining to other members of the Kinnear household. It has been put to her that her complaints to police have been inconsistent. In relation to subs 108(3)(b), she has been challenged on her recollection, and substantially so. In R v Sood, when considering the words of s 108(3)(b), her Honour, Simpson J, attended the words "fabricated or reconstructed or as a result of suggestion". At para 5, she said that the examination of the witness had suggested to her that a recollection was faulty. That would be in the character of the cross-examination and challenges to the evidence of the plaintiff here. She also noted, in the same paragraph, that the cross‑examination had put that the witness had made a conscious decision to try to forget relevant events. In this case, indeed the transcript will show substantial debate between counsel for the defendants and myself. The witness has given evidence of things blocked from her memory in circumstances of trauma suffered. In this case, unlike in Sood, I do not recall it having been put frankly that her recollection was the result of reconstruction. But here, the tenure of the cross‑examination concerning the witness' recollection, and that the cross‑examination has not completed, suggests that in reality the proposition being put is that she has no real recollection of events as claimed. 2. At para 10, Simpson J noted that counsel for the parties in that case had only put consideration of admissibility of the evidence to her, on the basis that: "At all times, it was maintained on behalf of the accused that the conflicting evidence given by the witness in this matter, correctly reflected on her credibility and impacted upon the assessment of the reliability of her evidence in general. No other significance of the issue was suggested." 1. Earlier, I said there were two differences between this case and the case of Sood. One had slipped my mind at the time of delivering this ex tempore judgment. The other is that, I am not asked to deal with inconsistent statements, but rather to be dealing with prior consistent statements. Here, like in Sood (and this was a weighty consideration for Simpson J, as observed by her, particularly para 11), the evidence of these witnesses is relied on by the plaintiff as evidence of complaint – and I am only here dealing with complaint, as I have said. That is, in this part of these reasons, only dealing with complaint, going to credit. But she is, as was the Crown witness there, the central witness in her case. 2. I have been asked expressly by counsel for the defendants to consider s 192(2) of the Evidence Act, and to give reasons. I have given reasons that the evidence is admissible without leave. But if I be wrong, then applying considerations of s 192 and the criteria included in s 192(2) in the exercise of my discretion, I would grant leave. As I have said, the essence is a challenge to the plaintiff's recollection. The challenge to the plaintiff's evidence is against recollection in the nature I have identified and I am satisfied, for the reasons I have given, that it falls within s 108(3)(b). 3. Applying s 192 considerations, little time is indicated to be taken by the evidence, indeed, the evidence of Ms Turner, Ms Morris and Ms Scofield was expected to be completed by AVL within two hours of court time today. 4. In relation to considerations at ss 192(2)(b), (c) and (d), I am again assisted by Simpson J's reasoning in Sood. In my opinion, it would be unfair to the plaintiff to refuse to admit the evidence because of the manner in which the complaint evidence tends to establish the circumstances of the alleged conduct of the first and second defendants. I repeat, the plaintiff being the central and only witness of primary facts, weighs heavily. So, the evidence of complaint is very important and these are proceedings of a grave nature requiring that all evidence be available subject to fairness, justice, the efficient and cost-effective conduct of the litigation, and the provisions of the Evidence Act. The evidence is capable of throwing light upon the accuracy of the evidence the plaintiff has given. For these reasons, I will admit the evidence. ORDER 1. I therefore make the following order: 1. That the evidence of Ms Alberta Turner, Ms Meg Scofield and Ms Anique Morris be admitted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2021