District Court New South Wales Medium Neutral Citation: Perry v Kinnear & Ors (No. 4) [2020] NSWDC 900 Hearing dates: 15 September 2020 (of the voir dire) 23 September 2020 Date of orders: 23 September 2020 Decision date: 23 September 2020 Jurisdiction: Civil Before: Montgomery DCJ Decision: The oral evidence of Ms Alberta Turner during voir dire 5 be admitted as evidence in re‑examination. Catchwords: Practice & Procedure – Re‑examination Evidence arising Out Of Cross‑Examination – Leading Question – Evidence Act 1995 (NSW) ss 37, 38, 39, 42 & 192 Legislation Cited: Evidence Act 1995 (NSW) ss 37, 38, 39, 42 & 192 Cases Cited: Hadid v Australis Media Ltd (unreported NSWSC, Sperling J, 5 November 1996) R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12 Texts Cited: Uniform Evidence Law, 15th edition, S.Odgers 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 (VOIR DIRE 5) 1. The defendants object to admission of oral evidence in re‑examination of Ms Turner. The evidence in question was taken in Voir Dire 5. The parties made brief oral submissions at the time. VD5 MFI 1 is the defendants' written submission dated 18 September 2020. VD5 MFI2 is the plaintiff's written submission dated 22 September 2020. 2. In her Amended Statement of Claim, the plaintiff pleads against the second defendant that the second defendant was aware of the first defendant's sexual abuse of the plaintiff because Ms Turner (the second defendant's sister-in-law) confronted the second defendant with the plaintiff's allegations of the first defendant's sexual abuse of her: paragraph 13A. 3. Paragraphs 5 and 8 of Ms Turner's statement written by her following a telephone conversation between herself and the plaintiffs solicitor and dated 18 April 2020 (T414) are Exhibit B. Her statement is MFI 14. Ms Turner's statement was contained in the Joint Court Book MFI 5 and had been available to the defendants for at least months before this civil trial. Paragraph 5 of Ms Turner's statement described a conversation in which the plaintiff informed Ms Turner about a "smacking game", during which "I would line up and Ian would hit me on the bottom. Sometimes Ian's fingers would slide further and would touch my vagina". 4. Ian is the first defendant. He is married to the second defendant, Leisha. Isabell is the plaintiff and was, at the relevant time, the defendants' Foster Carer charge. 5. Ms Turner was called by the plaintiff. During examination in chief she gave evidence of a conversation with the second defendant, which she placed as having occurred when the second defendant came to Ms Turner's home to pick up the plaintiff who had been staying with her during the September/October 2011 school holidays. Paragraph 8 of Ms Turner's statement included that in the conversation she approached the second defendant "in relation to the "smacking game"". The conversation recorded by Ms Turner in paragraph 8 was: I said: "What is going on in your household? I have been told that there is a smacking game where the girls line up and Ian smacks then (sic) on the bottoms." Leisha said: "It's harmless fun". I said: "I don't care if it's harmless fun or not. A man should not be touching a girl, regardless if it is his daughter or not. He should be keeping his hands to himself. What kind of a mother are you lettering (sic) this happen under your nose? It is your duty to ensure that the girls are safe. You need to speak to Ian and stop him from playing such games again." 1. As can be seen, the conversation so far as it was set out in paragraph 8 of Ms Turner's statement, did not include words spoken by Ms Turner to the second defendant describing the first defendant having touched the plaintiff's vagina. 2. Ms Turner and the second defendant had known each other for around 40 years, a period subsequently described by the second defendant in her evidence as virtually her lifetime. 3. In oral evidence, Ms Turner described the plaintiff's complaint to her of the slapping game consistently with the description given in paragraph 5 of her statement. She recounted the plaintiff saying that the three girls of the family which included the plaintiff, "would take it in turns to stand in front of Ian and bend over and he would slap them on the backside." In chief, she gave the following evidence at T412.10: "Q. Did she discuss with you anything about what that slapping on the backside entailed? A. It would be a slap on the backside and occasionally, his finger would touch her vagina." 1. When asked what, if anything, she did in "respect of that"? At T412.15‑20, Ms Turner answered in chief: "A. I spoke to Leshia when she came to pick them ‑ pick Isabell up." 1. I understood from that evidence in chief that Ms Turner spoke to the second defendant about "that" being the plaintiff's allegation that the first defendant's finger would touch the plaintiff's vagina. At T413.01‑15, Ms Turner gave the following precise in chief evidence that she spoke to the second defendant of the plaintiff's allegation of the first defendant touching the plaintiffs vagina: "Q. Did you raise with her the specific issue about the touching of the vagina? A. I did. I mentioned that. Q. Doing the best you can, what did you say to Leisha about that and, if anything, what did she say back to you? A. I said it had to stop. And she had to talk to Ian and say that the game was inappropriate and had to stop." 1. Plainly, the words "that" and "it" in the question and answer referred to touching of the plaintiff's vagina by the first defendant. 2. In cross‑examination, particularly commencing at T414 and continuing to T415, questions focused on Ms Turner's statement, paragraphs 5 and 8. It was put to Ms Turner that the discussion between herself and the second defendant involved Ms Turner protesting that the second defendant stop a "kicking game" and that the conversation was not between them on the occasion of the plaintiff being picked up, but between them by telephone. Ms Turner denied that and insisted their conversation was face-to-face when the second defendant picked up the plaintiff from Ms Turner's home. She repeatedly answered that they discussed a "smacking game". Commencing at T416.01, the following questions and answers occurred during cross-examination: "Q. Can you see anywhere there in paragraph 8 where you told her the words, "Occasionally Ian's finger would touch Isabell's vagina"? A. No. That's back in the other paragraph. Q. Yes. The other paragraph is where you say that Isabell told you something, isn't it? A. Yeah. But I didn't write everything in this paragraph that I said to Leshia word for word. Q. Well, you didn't tell Leshia, for example, as I've just put to you, that Isabell said to you, "Occasionally his finger would touch my," that is Isabell's, "vagina." A. No. I didn't say that to Leshia." 1. Whilst the last quoted answer given by Ms Turner, standing alone, was that she did not tell the second defendant of the plaintiff's allegation that the first defendant touched the plaintiff's vagina; I was concerned that the answer was given whilst the witness remained focused on the content of paragraph 8 of her statement, in the stream of questions focusing her on her statement, and in particular, her immediately preceding answer that she didn't write down in paragraph 8 everything spoken between them. Indeed, the words within the question "as I've just put to you", referred Ms Turner to the limits of the content of paragraph 8 of her statement. She had, during evidence in chief, in a forthright way, stated that she did tell the second defendant of the touching of the vagina. This further advanced concern that the last answer quoted above might properly be read as a further response given from thinking only of the content of paragraph 8. 2. The next question in cross-examination at T416.15 was: "Q. Nor, I put to you, did you ever say it to Leshia? A. I can't remember." 1. That question containing the word "ever" received not an answer from Ms Turner that she did not tell the second defendant of the plaintiffs allegation that the first defendant touched her vagina; but rather, that she could not recall. The question, in sequence, might have been understood by Ms Turner, to ask of a time other than the occasion when the second defendant picked up the plaintiff from Ms Turner's house but without identifying place and time of conversation over years. In short, as I listened to those questions and answers, I was not confident that the plaintiff understood the questions to initially refer to the conversation at the pick‑up of the plaintiff from her home and then to unidentified conversations at other times. At no point did Ms Turner give evidence that she had no conversation with the second defendant which included her telling the second defendant of the plaintiff's complaint that the first defendant touched her vagina. 2. Subsequent cross-examination extensively put a long telephone conversation, described as of one hours duration, during which Ms Turner complained to the second defendant that she should stop the "kicking game": T 416.38‑T417.41. Ms Turner conceded that there might have been a telephone conversation which, after 10 years, she could not recall in which she protested but denied it could have been about a "kicking game". She was adamant that she spoke of a "smacking game". 3. Ms Turner's concession of imperfection of memory after the passage of years was typical of her presentation as an honest and accurate witness. It was an obviously sensible concession to make. It was put to her that the subject matter of the telephone conversation was Ms Turner's request of the second defendant that the plaintiff be permitted to have her ears pierced. Albeit, there is no evidence in the case of the plaintiff practising a lack of personal hygiene, and that the request was for a second, not a first experience for her ear piercing; the conversation put to Ms Turner included that the second defendant denied the request, saying (T 416.46): "Q. Leisha said to you on the telephone, "No, as I don't think Isabell would be responsible enough to clean her ears daily to stop infections."" 1. Ms Turner did not deny that the conversation occurred. Her response was (T416.49): "A. Doesn't sound familiar." 1. Subsequent evidence was (T417.01‑10): "Q. It may not sound familiar, but we're talking about October 2010 which is nearly ten years ago, isn't it? A. Exactly. Q. Yes, so such a conversation could have occurred, but you don't remember it. Is that right? A. No, I don't remember. Q. No. But it could have occurred and you don't remember. Is that right? A. Could have." 1. In this way, questions asked in cross‑examination described a new and different conversation between Ms Turner and the second defendant involving Ms Turner protesting the inappropriateness of the game played between the first defendant and the girls of the Kinnear household including the plaintiff. 2. Counsel for the plaintiff commenced re‑examination of Ms Turner with a question packaging cross‑examination directed to paragraph 8 of her statement and the subsequent telephone conversation but ending with an enquiry only about the conversation at the time of the second defendant picking up the plaintiff at Ms Turner's home (T420.26‑31): "Q. Madam, you were asked some questions by my friend a moment ago about your statement and then your conversations with Leshia about the smacking game on your evidence, or the kicking game as the way the questions were put to you and whether or not you mentioned the vagina touching in your conversation with Leshia in your statement. A. Yeah." 1. Objection by counsel for the defendant came when the following statement preceded the question to be asked by counsel for the plaintiff (T420.35): Q. Your answer I'm afraid - at least as far as I was concerned - was confusing. Did you‑‑ 1. The AVL connection to the witness was muted for the hearing of the objection, which was: "The objection is, your honour, that the question was asked and answered, and it doesn't arise in cross-examination." 1. At first, counsel for the defendant was unable to assist by repeating the evidence the subject of his objection and responded to my enquiry (T421.01) "What the witness said, your honour." A search of my note and enquiry of the transcript monitor did not offer a ready replay of the evidence for the purposes of considering the objection. At T421.30, counsel for the defendant was then able to assist by referring to Ms Turner's answer that she did not recall saying to the second defendant that the plaintiff had reported the first defendant's fingers touched her vagina. That was evidence in cross‑examination, not evidence in chief. That accorded with my note and can now be seen to be accurate in the above quoted transcript of the question and answer at T416.15. 2. Counsel for the plaintiff put that there was confusion in the evidence as to whether or not the "broad terms" of that answer were given whilst Ms Turner was limiting her focus to the absence of words of that effect in paragraph 8 of her statement: T421.40. 3. Because a securely accurate record of the evidence was not readily available, and because I was not sure, when I listened to Ms Turner, whether when giving the answer to which counsel for the defendant referred, she was still focused on her paragraph 8, or was giving a deliberate answer that she had no recollection of ever having conveyed to the second defendant the plaintiff's report of the first defendant's finger touching her vagina; I directed that further examination on the point be taken within Voir Dire 5 for determination of the defendant's objection after receipt of transcript: T422. 4. Within VD5, the relevant proposed re‑examination evidence is (T423.15‑29): "Q. Madam, did you mention the vagina touching when you spoke to Leisha? OBJECTION BREZNIAK It's been asked and answered precisely. HIS HONOUR: I'll allow it. ELLIOTT Q. Madam, did you mention the vagina touching when you spoke to Leisha after Isabell's visit? A. Yes." 1. The defendants' written submission (VD5 MFI 1) submitted that the question had been asked and answered in evidence in chief; and on that basis, the evidence ought not be permitted in re‑examination. The submission also disputed that there was room for "clearing up matters raised during cross‑examination" or "to remove any distortions created" by cross‑examination. 2. The defendant's submission refers to the evidence in chief, shown above, and says that the evidence in cross‑examination was clearly given. 3. In written submission (VD5 MFI 2), the plaintiff submitted that at no point did Ms Turner "concede that she had no conversation on the topic" and that there was "plain confusion" justifying re‑examination. I would understand the confusion referred to, to be whether or not in cross‑examination regarding the occasion of the pick‑up of the plaintiff, Ms Turner had reversed her position in evidence in chief and answered that she did not mention the complaint of touching of the vagina when she spoke to the second defendant, or was answering whilst thinking that the interrogation limited her to paragraph 8 of her statement. DETERMINATION 1. The defendants' objection at T423.20 was and by their written submission remains not to the form of the question asked but rather is a submission against re-examination. 2. Pursuant to s 39(a) Evidence Act 1995 (NSW), the plaintiff was entitled to re‑examine on the confusion. I find the confusion described above to have arisen out of cross‑examination. If I be wrong in finding that confusion, then pursuant to s 39(b), further examination of the witness by the plaintiff on that matter should proceed with leave. In my opinion, the cross-examination would, unless supplemented or explained, leave the court with an impression of the facts which is capable of being construed unfavourably to the plaintiff and which represents a distortion or incomplete account of the truth as Ms Turner was able to present it; being the truth of whether or not she informed the second defendant that the plaintiff had stated to her that the first defendant had touched her vagina during the smacking game: Uniform Evidence Law, 15th edition, Odgers-[E A. 39. 120] and footnote 293 Hadid v Australis Media Ltd (unreported NSWSC, Sperling J, 5 November 1996). There is nothing unfair in permitting examination of a witness to achieve a truer picture of the situation the witness seeks to present: R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12, per Ipp JA at[70] and [83] ( his Honour was considering s 38 Evidence Act). 3. At T424.26‑27, the defendants submitted that the question "was entirely leading… In re‑examination and is-… Of no value". This submissions was not repeated in their written submission VD5 MFI 1. I do not know if it was abandoned, so I will deal with it. Section 37(1) of the Act provides that a leading question must not be put to a witness in re-examination, including unless: "(a) the court gives leave;…or… (c) no objection is made to the question…" 1. The Dictionary to the Act defines "leading question" to mean a question asked of a witness that: "(a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked." 1. Because the question indirectly suggests the answer and contains the fact of the subject of touching vagina, it has a leading quality. However, the witness had been examined in chief and in cross‑examination almost exclusively on the question of speaking of that fact. In chief, she had clearly said that she did. Fairness is informed by postulating, that one could even take the view, that had Ms Turner clearly answered in cross‑examination that she could not remember "ever" having done so; that evidence would have been "unfavourable" within the meaning of s 38 of the Act. If that be correct, then no objection can be taken to the question, if leading, because it was asked in the cross‑examination context: s 42 of the Act. Finally, however, it would be unfair to the plaintiff to reject the evidence on the basis that it was a leading question, in circumstances where the defendant did not object to the form of the question at the time it was asked. 2. Should leave be required, either for the purposes of ss 39(b) or 37(1)(a); then leave is granted on the following application of considerations under s 192 of the Act: 1. It would add undue length to the hearing and inconvenience to the significantly ill witness if Ms Turner was to be recalled; 2. For the reasons given I do not consider the evidence to be unfair to the defendants; 3. The evidence is very important because it is fundamental to paragraph 13A of the Amended Statement of Claim; 4. The nature of the proceedings are a civil suit alleging conduct of a criminal nature and the evidence is important in the context of the gravity of the subject matter of the proceedings, for the reasons given: s 140(2) of the Act; 5. To reject the evidence would be unfair to the plaintiff; 6. To reject the evidence would be unfair to the witness, Ms Turner, because her evidence overall was that she did so inform the second defendant. 1. Just prior to delivery of these reasons, a reply submission was received from the defendants. It will be marked VD5‑MFI 3. I understand it to be focused on the weight of the evidence the subject of the objection, rather than on the admissibility of the evidence and otherwise to refer to T414 evidence, which does not vary my above reasons. ORDER 1. I therefore make the following order: 1. Evidence of re‑examination of the witness, Ms Turner, 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