Baloi v Jovanovic (No. 1)
[2014] VSC 678
•19 August 2014
| 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 of making a threat to kill. The plaintiff was sentenced to a total of six years' imprisonment with a minimum term before parole eligibility of four years. This was reduced on appeal to five years' imprisonment with a minimum of three. This was serious criminal offending involving an attack upon a man in his own home with a wheel brace wielded by the plaintiff. That wheel brace was applied to the unfortunate victim's head. That man suffered a fractured skull and a large extradural haematoma. The offending occurred in October 1999. The aggravated burglary charge involved entry as a trespasser into the victim's house with an intention to commit an assault therein. The full facts of this offending can be found in R v. Baloi [2001] VSCA 99.
(4)On 24 October 2000, at the County Court, the plaintiff was convicted of trafficking in a drug of dependence, heroin, and sentenced to two years' imprisonment wholly concurrent with the sentence that the plaintiff was then serving.
In addition to these prior convictions, the defendant also wishes to cross-examine the plaintiff about other matters which indirectly raise the fact that the plaintiff has served periods of imprisonment, for example:
(a) prior back injury sustained in prison in 1997 and 2000 and the failure to mention these to medico-legal witnesses;
(b) that in an affidavit sworn for the serious injury proceeding the plaintiff wilfully downplayed his prior criminal record (so the defendant argues);
(c) that assertions made to a medical witness about weight gain post-injury could be demonstrated to be false by reference to pre-injury weight checks recorded in prison records (as asserted by the defendant).
I shall refer to the evidence of the plaintiff's prior criminal record and evidence that is indirectly related to it as “the impugned evidence”. Mr Smith, who appears with Mr Dimsey for the plaintiff argues, (a) that the impugned evidence is irrelevant within the meaning of s 55 of the Act.[1] Alternatively, (b) that the probative value of the impugned evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff (s 135 of the Act).
Mr Smith's submissions as to the relevance and probative value of the impugned evidence were sensibly made as one submission. Mr Smith argued that, given the nature and age of the plaintiff's prior convictions and the indirect evidence that related to those convictions, (a) there was no logical connection to any fact in issue in the case; alternatively, (b) if there were some tenuous logical connection to a fact in issue, it was so faint as to render the probative value of the impugned evidence very marginal indeed; (c) Mr Smith argued that the danger of unfair prejudice that attaches to this kind of evidence is always high and that this case is no exception. He argued that there is a danger that the jury will reason, impermissibly, that the plaintiff is a criminal who deserves punishment rather than damages and thus the plaintiff will be denied a fair trial.
[1] And therefore inadmissible: s 56(1).
Relevance
I consider that the impugned evidence is relevant in the following ways:
(a) The plaintiff claims that his back injury has either destroyed or diminished his earning capacity.
The defendant seeks to argue that this earning capacity was already diminished, quite apart from the plaintiff's back injury, by his prior criminal history.
Employers in a competitive job market, so the argument goes, would either not employ or be reluctant to employ the plaintiff given his past criminality.
Mr Smith argued that in a practical sense the plaintiff had always been employed in the building industry and a past criminal record was of no import to prospective employers.
In my view it would be open to the jury to conclude that the plaintiff's earning capacity was already diminished pre-injury by his criminal past and that this is a factor relevant to measuring his lost capacities as a result of that injury.
b) Any claim for future economic loss must be discounted by the “vicissitudes of life”.
The award under this head of damages must be discounted for future contingencies that might otherwise have affected earning capacity.[2]
[2]General Motor-Holden’s Pty Ltd v Moularas (1964) 111 CLR 234.
The defendant seeks to argue that the fact that the plaintiff's past involved significant criminality and incarceration makes the likelihood of future criminal behaviour and incarceration such that it is a possibility that might impact upon future earning capacity.
In my view, given the significant nature of the plaintiff's past criminal offending and his lengthy periods of incarceration, it would be open to the jury to consider that this past history could impact upon future possibilities that might affect the plaintiff's earning capacity.
The plaintiff points to the antiquity of the offending and submits that it is unrealistic to suggest that it could impact upon those future possibilities in any meaningful way.
I disagree. As I have said, I consider the extent and nature of the prior offending, together with the lengthy prison sentences then imposed, sufficient for the jury to conclude if they wished that a repetition of this conduct was a possibility that might affect the plaintiff's future liberty and thus earning capacity.
I consider that the impugned evidence is also more broadly relevant to the matters in dispute in this case. The plaintiff's criminal history and its consequences are part of the history of his life. The plaintiff, no doubt, will lead evidence of his past employment, both in Romania before 1989 and in Australia after that date. If the evidence of crime and punishment is quarantined from the jury's consideration, approximately four and a half years of the plaintiff’s otherwise working life will simply be excluded from the evidence before the jury. Any direction from me not to speculate about “the lost four and a half years” will in my view trigger precisely what is sought to be avoided.
c) Credibility
I am also of the view that the evidence is relevant to the plaintiff's credit. Mr Smith argues that the offences are ancient and unrelated to dishonesty and thus incapable of impugning Mr Baloi’s credit.
I do not agree with these submissions. I discussed with counsel in argument my view that whether a prior conviction is capable of impugning a witness's credit is very much a question of fact and degree. An ancient Children's Court conviction for assault may not have this capacity. A recent conviction for perjury obviously would.
In my view, if a person has four prior convictions for trafficking in a prohibited substance and single convictions for intentionally causing serious injury, aggravated burglary, making threats to kill and unlawful possession, then those convictions are highly relevant to an assessment of whether that person can be relied upon as a witness of truth. I consider that the drug convictions alone are capable of demonstrating a disregard for the law such as could substantially affect the assessment of the credibility of the plaintiff.
For these reasons I am of the view that the impugned evidence is relevant and that its probative value in this trial is reasonably high.
Section 135 of the Act
Section 135 of the Act provides a trial judge with a general discretion to exclude evidence if the probative value of the evidence is substantially outweighed by the danger that the evidence might (inter alia) be unfairly prejudicial to a party. The use of the word “substantially”" in s 135 conveys the weighty onus resting upon the party seeking exclusion.
The term “probative value” is defined in the dictionary. It means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. I have already stated that I consider the probative value of the impugned evidence to be reasonably high.
Prejudice
Evidence is not unfairly prejudicial to a party merely because it tends to damage his or her case.[3] It may be unfairly prejudicial if there is a real risk of misuse by the jury.[4] If there is a danger that the jury will use the evidence to reason impermissibly that the plaintiff is a criminal, deserves punishment and is disentitled to a fair trial, or similar, then there will be such a danger.
[3]Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985), [957]; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 (Gleeson CJ).
[4]R v BD (1997) 94 A Crim R 131, 139, 151; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 325 [91] (McHugh J); R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317 (Mason P).
In this case I consider that there is a danger that the impugned cross-examination will cause the jury to reason emotionally and adversely to the plaintiff's interests. As I have said, the evidence is relevant in a particular intellectually sustainable way(s), and it would be impermissible for the jury to use it beyond those boundaries.
Any assessment of the danger of unfair prejudice to the plaintiff must consider whether the prejudice can be extinguished or ameliorated by judicial direction. In my view, the danger of the jury using the evidence impermissibly can be ameliorated significantly by direction. In my view a firm direction can be tailored that directs the jury to both the permissible uses to which the evidence may be put and which identifies and prohibits the impermissible uses that I have referred to.
It follows from what I have said that I consider that, whilst there will still be a danger that the impugned evidence might be unfairly prejudicial to the plaintiff, that danger is manageable and it certainly does not substantially outweigh the probative value of that evidence which, as I have said, I assess as being reasonably high.
Accordingly, I propose to allow the proposed cross-examination on the impugned evidence to proceed.
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