Baloi v Jovanovic (No. 1) - [2014] VSC 678

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 01409

VEROLJUB BALOI	Plaintiff
v
VLADIMIR JOVANOVIC	Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2014
DATE OF RULING:	19 August 2014
CASE MAY BE CITED AS:	Baloi v Jovanovic (No. 1)
MEDIUM NEUTRAL CITATION:	[2014] VSC 678

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EVIDENCE – Anticipatory ruling – Negligence and breach of statutory duty in context of workplace injury – Whether evidence of Plaintiff’s criminal offending relevant to fact in issue in the proceeding – Evidence relevant to credibility and assessment of the plaintiff’s lost earning capacity – Probative value of the impugned evidence not substantially outweighed by danger that evidence might be unfairly prejudicial to plaintiff – Evidence admissible – Evidence Act 2008, ss 55, 56, 135, 192A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Smith Mr A. Dimsey	Zaparas Lawyers
For the Defendant	Mr J. Philbrick QC Ms A. Magee	Landers and Rodgers

HIS HONOUR:

The plaintiff has brought proceedings against his employer alleging that negligence and breach of statutory duty in the workplace have caused him injury. He seeks general and pecuniary damages.

Both liability and quantum are live issues in this jury trial. The plaintiff, through his counsel, has raised with me a concern that the plaintiff may be cross-examined about his prior criminal history.

I am asked under s 192A of the Evidence Act 2008 (‘the Act’) to determine in advance the admissibility of cross-examination of the plaintiff in regard to this criminal history. I have the power to do so in advance should I consider it appropriate, and in my view it is appropriate to determine this issue now.

If I were to defer the ruling until the usual time (that is after the question had been asked), and if I ultimately conclude that the evidence sought to be adduced was inadmissible, the damage would be done by the question itself and that damage may be irreparable.

The impugned evidence

Mr Philbrick QC appears with Ms Magee for the defendant. I am told by Mr Philbrick that the evidence sought to be adduced in cross-examination is to the following effect:

(1)The plaintiff was convicted at the Dandenong Magistrates' Court in 1992 of two counts of trafficking in a drug of dependence; one count of possession of a drug of dependence; and one count of unlawful possession. The defendant received a six-month suspended term of imprisonment, together with a community based order. It's not clear to me the conditions of that order.
(2)On 6 September 1996, at the County Court in Melbourne, the plaintiff was convicted of one count of trafficking in a drug of dependence - heroin. He was sentenced to two years' imprisonment, six months of that term was suspended for 24 months.
(3)On 25 September 2000 at the County Court in Melbourne, he was convicted of one count of aggravated burglary, one count of intentionally causing serious injury and one count…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baloi v Jovanovic (No. 1)

Details

AGLC: Baloi v Jovanovic (No. 1) [2014] VSC 678
Case: [2014] VSC 678
Decision Date: 19 August 2014

CaseChat Overview and Summary

The case of Baloi v Jovanovic (No. 1) involved a claim for damages for injuries sustained by the plaintiff in a workplace accident. The defendant was the employer of the plaintiff, and the case was heard in the Supreme Court of New South Wales. The dispute centred on the admissibility of certain evidence regarding the plaintiff's criminal history, which the plaintiff argued was irrelevant and prejudicial. The court was required to determine whether the evidence of the plaintiff's criminal offending was relevant to the fact in issue in the proceeding and whether its probative value was not substantially outweighed by the danger that evidence might be unfairly prejudicial to the plaintiff.

The legal issues before the court included the admissibility of evidence under the Evidence Act 2008, specifically sections 55, 56, 135, and 192A. The court considered whether the evidence of the plaintiff's criminal offending was relevant to the plaintiff's credibility and the assessment of the plaintiff's lost earning capacity. The court also had to balance the probative value of the evidence against the potential for unfair prejudice to the plaintiff. The court held that the evidence was relevant to the credibility of the plaintiff and the assessment of the plaintiff's lost earning capacity, and that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The court found that the evidence was admissible under the Evidence Act 2008.

The court found that the evidence of the plaintiff's criminal offending was relevant to the fact in issue in the proceeding, specifically the plaintiff's credibility and the assessment of the plaintiff's lost earning capacity. The court held that the evidence was relevant to the plaintiff's credibility because it was relevant to the plaintiff's character and propensity to commit acts of dishonesty or untruthfulness. The court also found that the evidence was relevant to the assessment of the plaintiff's lost earning capacity because it was relevant to the plaintiff's ability to obtain and maintain employment. The court held that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice to the plaintiff. The court found that the evidence was admissible under the Evidence Act 2008. The court made an order that the evidence of the plaintiff's criminal offending be admitted.

Orders