Christodoulou v Tunstall Square Fruit & Vegetables Pty Ltd

[2010] VCC 1618

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-10-01179

MARIA CHRISTODOULOU	Plaintiff
v
TUNSTALL SQUARE FRUIT & VEGETABLES PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10, 11,12, 15, 16, 17, 18, 19 and 22 November 2010
DATE OF RULING:	22 November 2010
CASE MAY BE CITED AS:	Christodoulou v Tunstall Square Fruit & Vegetables Pty Ltd (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2010] VCC 1618

RULING

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Catchwords: Application to discharge jury – attempted contact by interpreter retained by plaintiff with jury – various delays resulting from rulings in the course of jury trial – reference to the plaintiff’s solicitors in the course of cross-examination – witnesses referred to but not called - whether plaintiff confident of a fair verdict.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards SC with	Zaparas Lawyers
Ms P R Riddell
For the Defendant	Mr P A Scanlon QC with	Thompson Lawyers
Ms H Donmez
HIS HONOUR:

1          On 19 November 2010, Mr Richards, on behalf of the plaintiff, made application for the jury to be discharged without verdict and for the proceeding to continue as a cause. On 15 November 2010, he had indicated his concern about a number of matters put in the course of cross-examination by Mr Scanlon, on behalf of the defendant, and foreshadowed the prospect of an application to discharge the jury.[1]

[1]             See Transcript 254-263

2          On 19 November 2010, he made further application, referring to some of the same matters mentioned on the 15 November, and upon further grounds.

3          The basis of the application is as follows:

(1)  At around lunchtime on 19 November 2010, the jury delivered a note to
my Tipstaff which said the following:

“The interpreter is attempting to make contact by facial expressions and mouthing words whilst the evidence is being given. This is distracting. Can she please be asked to not to make any contact with the jury.”

The plaintiff gave her evidence in part through an interpreter, and in part in English. The interpreter on occasions returned to the Court later in the trial and sat with the plaintiff. Without the jury, I raised the matter with the interpreter, who was in Court at the time. She indicated that she had looked at one of the jurors who had a cold, the look intending to convey sympathy.

(2)	In an earlier Ruling, I permitted Mr Scanlon to cross-examine the plaintiff upon material contained in an affidavit of her husband. That affidavit was sworn in support of a ‘serious injury application’ relating to an injury to the plaintiff’s husband’s shoulder in the course of his employment. The plaintiff gave evidence that she was considerably restricted in her various domestic and recreational activities, and her husband had to assist. In his affidavit, the husband said that by reason of a shoulder injury, he also was restricted in recreational and domestic affairs and it was suggested there was an inconsistency between the two. That suggestion provoked an objection by Mr Richards,[2] as a result of which the jury retired for a period and a debate ensued as to whether it was appropriate for the cross-examination to be permitted. As stated, I ruled that Mr Scanlon could put the matters contained in the plaintiff’s husband’s affidavit but only on his undertaking to call the husband and properly prove the document. This subsequently occurred. Mr Richards submits that it would be open to the jury to take the view that it was his objection which caused the significant delay and that the dispute about the admissibility of the husband’s affidavit in that light may prejudice the plaintiff.
(3)	In a further Ruling,[3] I permitted the reading of a medical report of Mr Robert Marshall to the jury. Mr Marshall had fallen ill and was unable to give evidence. I permitted Mr Scanlon, in the course of opening, to explain to the jury the reason Mr Marshall was not called. In making that explanation, Mr Richards submits that Mr Scanlon gave details of Mr Marshall’s current condition, including that he is gravely ill and receiving chemotherapeutic treatment. As such that description had the risk of engendering sympathy for Mr Marshall, with the prospect that the jury would be more prepared to accept the contents of his report.
(4)	Mr Richards again raised the matters referred to in his objection to the reading of Mr Marshalls’ report. In particular it was put to a number of witnesses that Mr Marshall would be called, and statements in his report about the capacity of the plaintiff to move her arm had the prospect of significantly affecting the plaintiff’s case.

[2]             T 132, L13

[3]             Christodoulou v Tunstall Square Fruit & Vegetables Pty Ltd (Ruling No 4) [2010] VCC 1617

(5) Mr Richards submitted the cross-examination of Mr Scanlon of the plaintiff was, in part, bullying and unfair. He cited examples:

• In questioning the plaintiff about the alleged inconsistency between her and her husband’s affidavit, he said:[4]

[4]             T 226, L7

“Q:	So when he says he’s stopped the vegetable garden, you say that’s false, is that right?---
A:	I’m not saying it’s a lie.”

• Further:[5]

[5]             T 227, L16

“Q:  If your husband has sworn on oath within three weeks
of your affidavit that since his left shoulder injury –

‘I have had to stop the vegetable garden because
it requires the forceful use of both arms’

If he says that, and you say that he works in the vegetable garden using the other hand or arm – one of you is not telling the truth. Is that correct?---

• Further:[6]

[6]             T 242, L20

“Q:	Hang on, what do you mean, whatever they wrote down? This is automatically degenerated isn’t it?---
A:	Well I cannot understand how this is automated.
Q:	So do you think we’ve just made this up?---

This question was asked in the context of the authenticity of a document[7] generated by the defendant’s automated computer system.

[7]             Exhibit 4

(6) Regular reference was made in questioning of various witnesses in cross-examination, that both the plaintiff and her husband were represented by the firm, Zaparas Lawyers. It was further suggested that both Mr and Mrs Christadoulou had been treated by and consulted the same or similar doctors for the purposes of their respective serious injury applications or common law claims. The implicit inference to be drawn from this was that there was some form of conspiracy, or mutual exaggeration as between the plaintiff and her husband in relation to their respective claims. There was the risk the jury may infer that because they had the same firm of solicitors acting and were being treated by the same or similar doctors, there could be significant discrimination against the plaintiff by the jury.

(7) Various questions put by Mr Scanlon’s in cross-examination commenced with the word “so” and then a proposal which was said to logically follow from the previous question. This, said Mr Richards was a non-sequitur. Further, Mr Scanlon inappropriately referred to proper objections by Mr Richards as an attempt to interrupt his cross-examination.

4          In response to these matters, Mr Scanlon stated the following:

(1)	In the note from the jury, the jury simply referred to the conduct of the interpreter as “distracting”. He submitted it was a matter that could be easily cured by appropriate direction.
(2)	The reason for the significant delay in the middle of the trial was not to do with the admissibility of the affidavit of Mr Christadoulou, but rather Mr Scanlon’s application to adjourn the trial when it was thought the computer printout document ought to have been discovered.[8]
(3)	In relation to the opening of his case and reference to the illness of Mr Marshall, he was doing no more than was permitted by me so as to explain to the jury why Mr Marshall was not available to give evidence.
(4)	In relation to those aspects of the report of Mr Marshall which were put to various witnesses, particularly the medical witnesses, that matter was the subject of my Ruling[9] and was capable of explanation by a proper direction to the jury.

[8]             See my Ruling, Christodoulou v Tunstall Square Fruit & Vegetables Pty Ltd (Ruling No 1) [2010] VCC 1563

[9]             Ruling No 4

(5) He denied bullying any of the witnesses, nor conducting his cross- examination in any inappropriate way.

(6) He stated that the only reference to the fact that both the plaintiff and her husband were represented by Messrs Zaparas was, on occasions when it was necessary, and on other occasions because Mr Marshall, in the course of his report, had referred to the plaintiff as having “learned pain behaviour”. It was open to submit to the jury that some of the plaintiff’s presentation could have been learned from her husband given he had a similar injury.

(7) He denied that he had acted improperly in cross-examination and accused Mr Richards of inappropriate interruptions.

5          Order 47.02(3) of the County Court Civil Procedure Rules provides:

“Notwithstanding any signification under paragraph (1), the court may direct Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.”

6          This has been described as a general overriding discretion exercisable in the interests of the proper and efficient administration of justice.[10] It should be given the full scope which the natural and ordinary meaning of its words supports.[11]

[10]           Wilson v Burridge [1955] VLR 433 at 435

[11]           Pezzimenti v Seamer [1995] 2 VR 32 at 38

7          In Morgan v John Fairfax & Sons Ltd, John Fairfax & Sons Ltd v Morgan,[12] Kirby P (as he then was) restated the principles governing the discharge of a jury.[13] The learned President said the following:

[12] (1988) 13 NSWLR 208

[13]           See principles numbered 1 to 8

“1.	The mishaps and mistakes which can occur in the conduct of trials are almost infinite in their variety.
Accordingly, the remedies appropriate to deal with the circumstances which arise will necessarily depend, in each case, upon a consideration of those circumstances: see P W Street CJ in Croll v McRae (1930) 30 SR(NSW) 137 at 140; … This is a reason why an ample discretion must be reserved to a trial judge to decide whether any error which has occurred in the course of the conduct of a trial, as by the suggested misconduct or serious error of counsel in an address to the jury, requires the discharge of the jury and a fresh trial or can be otherwise justly dealt with: cf Hanna v Ford Motor Co of Aust Ltd (Full Court, Victoria, 13 April 1988, unreported).
2.	The general criterion by which this decision is to be made by the trial judge is the overriding principle that every litigant has a right ‘to have his case fairly tried, free from bias and prejudice and free from the intrusion of any extraneous matters calculated to influence the jury improperly in arriving at a determination’: see Croll (at 143).
3.	Nowadays, a more robust view than was formerly the case is generally adopted as to what a jury, properly instructed, can reject and ignore although heard in the course of a trial or elsewhere: see, eg, X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 590. However, where highly prejudicial matter is introduced, it may be judged difficult or impossible for such matter to be eradicated from the jury's mind. In such a case ’… The poison, once instilled …’ must inevitably undermine the community's confidence in the verdict and so warrant discharge of the jury and a fresh trial: see Croll (at 144).
4.	Where an objection is taken to the address of counsel and an application made for discharge of a jury upon the ground that counsel has introduced irrelevant facts, misstated the evidence or the law or has stated personal opinions in a prejudicial way (see Halsbury's, Laws of England, 4th ed, vol 3, at 622) the trial judge must consider the extent of any prejudice done and whether appropriate directions could cure that prejudice: see Strange v Hybinnet (1987) 5 MVR 389; Hanna v Ford Motor Co of Aust Ltd. Such consideration must evaluate the weight to be assigned to the estimated prejudice in the context of the trial to that point: see Wishart v Mirror Newspapers Ltd [1963] SR (NSW) 745 at 752; (1963) 80 WN (NSW) 1567 at 1572; [1964] NSWR 231 at 237.
5.	In exercising the discretion which is enlivened by the application, the trial judge should have regard to practical considerations such as the length of time the trial has proceeded: see, eg, Wishart (at 1572; 752; 237). The judge will consider whether the error is a mere slip or is part of an apparently deliberate course of conduct by counsel: see Croll (at 144); Buratti v Ramsay [1962] NSW 1217 and Taylor v Edwards (1967) 85 WN (Pt 1) (NSW) 386 at 390; [1967] 1 NSWR 689 at 691. These practical considerations may pull in opposite directions. Misconduct or serious error at a late stage may naturally disincline the trial judge to discharge the jury; but it may also make it more difficult by directions to eradicate the impact of the misconduct or error.
6.	The trial judge is not concerned with the actual effect of the conduct complained of because this can never be known, the jury giving no reasons. The concern is necessarily for the real possibility of a prejudicial effect: see Taylor (at 390; 691). Because this is inescapably speculative to some extent, it provides another reason why the trial judge's discretion is necessarily a wide one.
7.	Despite the oft stated width of the discretion of the trial judge, there are inhibitory reasons for restraining its exercise. These include the general disinclination to order a retrial which has long been regarded as, in a sense, a last resort (upon which see Priestley JA in Varga and the cases cited by him). Nor does it depend only upon the public and private costs which are necessarily incurred where a trial is aborted, together with the delay occasioned to the parties, the displacement of other parties awaiting hearing of their trials and the practical inhibition upon the having of a retrial which an order to pay the costs of the first trial may cause. They also include respect or the proper constitutional principle governing the relationship between the judge and the jury. The parties are normally entitled to have the verdict of the jury summoned to try their action. In the event that the jury's verdict is taken and the appellate court is convinced that there was a mistrial causing substantial injustice, a retrial can be had without the loss of the opportunity to take the jury's verdict, in case it can be sustained: cf Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200 at 211.
8.	Nevertheless, it remains the duty of the trial judge throughout the conduct of the trial to ensure that a fair trial is had and that any verdict is not affected by misconduct of counsel: see Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 501; cf R v George (1987) 9 NSWLR 527 at 534 per Street CJ. Before taking the extreme step of discharging a jury, particularly after a lengthy trial, the judge should consider whether, by appropriately expressed directions he or she could sufficiently correct the effect of the misconduct or serious error. This may require time for reflection and consideration of the transcript. This was the course adopted by Lee J in Anderson v Nationwide News Pty Ltd (Lee J, 23 December 1985, unreported at 7). The refinement of the possible directions and their discussion with counsel provides a preferable procedure to discharging a jury without paying consideration to the precise ways in which, by appropriate directions, the effect of the misconduct or error could be corrected.
. . . .”

8          From this authority I glean that the overriding principle is that every litigant has a right to have his or her case fairly tried, free from bias and prejudice and free from matters extraneous to the principal issues which may, by calculation or otherwise, unfairly influence the jury.

9          It is a discretion which ought not likely be exercised. The defendant is entitled to have its cause tried by a jury, given that is the mode of trial it has selected. The trial is now in its tenth day. Nonetheless, the overriding principle is the entitlement of the plaintiff to have her case fairly tried.

10        In my view, the issue of the attention paid by the interpreter to the jury is a matter which can be cured by appropriate direction. In fact, I gave the jury a direction in that regard.[14]

[14]           T 668, L31

11        Likewise, any delay caused by objection by Mr Richards to the admissibility of the evidence relating to the plaintiff’s husband can be cured by appropriate direction. In relation to the description by Mr Scanlon as to Mr Marshall’s illness, while I did authorise Mr Scanlon to explain Mr Marshall’s inability to give evidence was to do with illness, it was not necessary for him to go into the depth he did. However, any sympathy engendered by those comments and any prejudice to the plaintiff could be cured by appropriate direction.

12        I have already ruled in relation to the reading of Mr Marshall’s report. Again, I intended to give the jury careful directions about what use they may make of that report, and the circumstances under which it came to be read to them. The report however does bear upon the general credibility of the plaintiff, and is linked to point 6 of Mr Richard’s submissions.

13        Points 5 and 7 are not sufficient to warrant a discharge of the jury. While it may be fairly said that the cross-examination of the plaintiff was vigorous and that it was put to her that either her husband or herself were telling untruths in respect of their capacity to carry out domestic activities, I am of the view that that is not sufficient to warrant a discharge of the jury.

14        The matter which requires careful examination and assessment is Mr Richards’ sixth point. I have considered the references in the Transcript to the plaintiff and her husband being represented by Zaparas Lawyers.

15        In the course of cross-examination by Mr Scanlon of the plaintiff, he made reference to the plaintiff’s affidavit in support of her serious injury application as being prepared by Zaparas Lawyers.[15] Further in cross-examination, the affidavit of the plaintiff’s husband, which was put to the plaintiff, made reference to it being prepared by Mr Yani Zaparas.[16] There was further reference to the plaintiff’s husband having sustained injury in respect of which he was suing his employer.

[15]           T 124, L31

[16]           T 221, L19

16        Of most significance is a passage in cross-examination of the plaintiff again relating to Zaparas, and the reference to a number of doctors having examined both the plaintiff and her husband as to their respective shoulder injuries.[17]

[17]           T 246, L15 – T 247, L31

17        I expressed concerns I had about the various references to Mr Zaparas in the course of discussion with counsel.[18]

[18]           T 248, L23

18        There was reference to the plaintiff being requested to step out of the witness box and take a seat next to “Mr Zaparas”.[19] I do not regard this reference as a matter of significance.

[19]           T 274, L20

19        In the cross-examination of Mr Heath[20] there was reference to Zaparas Lawyers having requested Mr Heath’s report.

[20]           T 367, L9

20        Likewise, in the course of cross-examination of the plaintiff’s general practitioner, Dr Jigau,[21] there was reference to a letter being addressed to Zaparas Lawyers. Neither of these last two references are of significance.

[21]           T 424, L22

21        Finally, in the course of cross-examination of the surgeon, Mr Richardson,[22] there was reference to all three of his reports being addressed to Zaparas Lawyers.

[22]           T 495, L21

22        The risk, in my view, of these various references is that the jury may perceive that there is something improper, or something in the nature of a conspiracy being engendered because:

[23]           In particular T 246

• both the plaintiff and her husband have retained the same firm of solicitors;

• the plaintiff and her husband have been referred to the same or similar doctors;[23]

• both the plaintiff and her husband have made claims for compensation for injury arising out of their respective employments.

23        It should be stated that I have ruled that Mr Scanlon is entitled to cross- examine the plaintiff about any alleged discrepancy between the respective affidavits of the husband and the wife. There is nothing improper about that. The question is whether the references in the Transcript to which I have made are likely to create in the minds of the jury that there is some form of conspiracy or mutual exaggeration as between the plaintiff, her husband, and Zaparas Lawyers in the claims for compensation.

24        In response, Mr Scanlon referred to the report read to the jury of Mr Marshall where he stated:

“Ms Christodoulou presents as a patient with very severely abnormal

behaviour and learned pain behaviour. … .”

25        In my view, this submission is without foundation. There is no reference in the report of Mr Marshall to her husband suffering any injury, and any risk that she could learn any behaviour, pain or otherwise from him. It was not put to the plaintiff in the course of cross-examination that she had learned any behaviour from her husband. It was not put to any of the plaintiff’s doctors that an explanation for her symptoms could be because of any such behaviour.

26        I am concerned that there is the risk the jury may interpret the matters to which I have referred as leading to the prospect in their minds to some form of conspiracy or organised exaggeration as between the plaintiff, her husband and her lawyers.

27        The next question is whether that matter can be cured by appropriate and firm direction to the jury. It is clear that the law considers juries well capable of accepting a firm direction from a trial judge to ignore extraneous aspects of the evidence. In my experience, juries are well capable of understanding directions from a trial judge to ignore matters extraneous to the evidence to be considered and to their task.

28        When I came upon the bench on 22 November 2010, I was informed by Mr Scanlon, on behalf of the defendant, that a further matter had arisen. It had been put to the plaintiff that in a number of respects her evidence about aspects of her employment would be contested by the director of the defendant, Mr Samir El-Moustafa. In the course of his opening to the jury,[24] he said that the jury would hear from Mr El-Moustafa on these matters. In particular he stated that evidence would be given that the plaintiff had employment at another shop and it was suggested to her by Mr El-Moustafa she choose either one employer or the other. According to the opening, he was to give evidence that the plaintiff responded, “Well, I need the money and I’ll work with you”. This, it was said, “flies in the face” of the evidence given by the plaintiff that she was upset at being asked to work beyond 6pm. It was further said that Mr El-Moustafa would give evidence as to the manner in which the workplace was conducted. It was said that his evidence, together with other evidence called by the defendant, would show on balance that the defendant had not been negligent.

[24]           T 639, L23

29        I was informed during the course of the trial that Mr Samir El-Moustafa was overseas celebrating the fast of Ramadan. At one point I was advised he was in Mecca. I was further advised that it was proposed that a video link be established to enable evidence to be given. I granted an application in that regard. I am now advised that Mr Samir El-Moustafa cannot be located, and that there is no prospect he will be available to give evidence in the immediate future.

30        I caused a voire dire to be undertaken to enquire of the defendant’s solicitor as to the steps taken to ensure the attendance of Mr El-Moustafa. It is not necessary, for the purposes of this Ruling, for me to detail that evidence. I do remark however that it appears to me clearly inadequate steps were taken to inform Mr El-Moustafa of the need for him to attend to give evidence, given particularly that he was the defendant’s principal witness, and inadequate steps taken to locate him, once it was known he was overseas.

31        Mr Scanlon made application to have his statement previously taken, read to the jury. This was the basis, he said, upon which he had cross-examined the plaintiff.

32        In the circumstances of this trial, I have little difficulty in refusing the application to read the statement to the jury. The situation is different than it was with Mr Marshall. Mr El-Moustafa is the defendant’s principal witness and it has always been known that the issue of liability was to be hotly contested in this trial. Given the manner in which the plaintiff was cross-examined, and the manner in which the case was opened to the jury, it is, in my view, quite inappropriate to have the statement read to the jury.

33        More significantly, this added issue is significant to the application to discharge the jury. Mr El-Moustafa is a director of the defendant and his evidence was to be intricately tied to the issues of liability and the plaintiff’s credit. The puttage to the plaintiff on these issues and the opening to the jury of Mr El-Moustafa’s expected presence, at the very least unwise, in the knowledge that it was becoming increasingly likely he would not be able to be located. That combined with the impact on the jury of the puttage and the opening without the evidence being called, places the jury at risk of accepting those matter without evidence to substantiate them.

34        Added to the matrix of other matters referred to above, in particular the reference to the Zaparas matter, I am of the view it is no longer safe for the trial to continue as a jury. The plaintiff suffers the real risk of not being able to attain a fair verdict.

35        There being no opposition to the matter proceeding as a cause, I shall continue to hear the matter in that mode.

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