Martin v NSW & Anor - [2002] NSWCA 337

NEW SOUTH WALES COURT OF APPEAL

CITATION: Martin v State of NSW & Anor [2002] NSWCA 337

FILE NUMBER(S):
40975 of 2001

HEARING DATE(S): 08/10/02

JUDGMENT DATE: 21/11/2002

PARTIES:
Mitzi Martin
v
State of New South Wales & Richard Hoare

JUDGMENT OF: Spigelman CJ Meagher JA Giles JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 7460/99

LOWER COURT JUDICIAL OFFICER: Boyd-Boland ADCJ

COUNSEL:
A: C Stevens SC & A Porthouse
1st R: P Menzies QC & A Stone
2nd R: D Brogan

SOLICITORS:
A: L C Muriniti & Associates
1st R: Crown Solicitor's Office
2nd R: Marsdens

CATCHWORDS:
Sexual harassment - wrongful rejection of evidence - tendency and coincidence evidence - appeal dismissed with costs.

LEGISLATION CITED:
s97 Evidence Act 1995
cl 6(2) Evidence Regulation 2000 (NSW)

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40975 of 2001
DC 7460 of 1999
SPIGELMAN CJ
MEAGHER JA
GILES JA
Thursday, 21 November 2002

MITZI MARTIN v STATE OF NEW SOUTH WALES & Anor

Facts
The appellant, Miss Martin and the second respondent, Mr Hoare, were employed at the Adult Day Placement Centre conducted by the Department of Community Services. Miss Martin alleged that in the course of their employment, Mr Hoare assaulted and battered her on four occasions (5th and 6th January 1998, and twice on 28 January 1998), as a result of which she suffered injury and sought damages. She further alleged that Mr Hoare had sexually harassed her.
At trial, his Honour found that the touching did not constitute assault or battery and furthermore, was unable to find any credible evidence to support the appellant’s allegations of sexual harassment.
On appeal, it was contended (i) that the trial judge’s findings were inconsistent with a medical report (which established that Mr Hoare had apologised for touching the appellant); (ii) that the trial judge erred in rejecting documents tendered as tendency evidence.
Held
i. Whilst his Honour made a mistake in finding that the second respondent never said “Sorry” (as set out in the report), that error does not invalidate his Honour’s finding that the touching was unintentional.
ii. While it was accepted on appeal (and at trial) that this evidence could only be admissible, if at all, as “tendency” evidence under s 97(1) of the Evidence Act 1995, the material has no probative value, significant or otherwise.
Orders

Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40975 of 2001
DC 7460 of 1999
SPIGELMAN CJ
MEAGHER JA
GILES JA
Thursday, 21 November 2002

MITZI MARTIN v STATE OF NEW SOUTH WALES & Anor

Judgment

SPIGELMAN CJ: I have read the judgment of Meagher JA in draft. His Honour outlines the basic facts. I agree with his Honour’ conclusions and generally with his Honour’s reasons. I wish to add a few observations.
Almost all the issues sought to be agitated on appeal were concerned with findings of fact that turned…

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 Martin v NSW & Anor

Details

AGLC: Martin v NSW [2002] NSWCA 337
Case: [2002] NSWCA 337
Decision Date: 21 November 2002

CaseChat Overview and Summary

In *Martin v NSW & Anor*, the appellant, Martin, appealed to the court against findings made in relation to her claims of sexual harassment. The respondents were the State of New South Wales and Hoare. The appeal concerned the rejection of certain documents tendered as tendency evidence.

The primary legal issues before the court were whether the trial judge erred in rejecting documents from DOCS' records concerning Hoare's prior conduct at another workplace as tendency evidence against both Hoare and the State. Specifically, the court had to consider whether these documents could prove that Hoare had acted in a particular way on other occasions, whether such conduct was relevant to the alleged actions in January 1998, and whether the requirements of section 97 of the *Evidence Act 1995* (Cth) were met.

The court found that error in the findings as to the occurrence of the events had not been established. While the Tab D documents were admitted against the State as evidence of its knowledge of assertions made about Hoare's conduct, this admission did not permit their use as tendency evidence to prove Hoare's propensity to act in a certain way. The court noted that the tender of these documents as tendency evidence encountered section 97 of the *Evidence Act 1995*, which governs the admissibility of character, reputation, or conduct evidence. The court considered the potential hearsay issues within the documents and the relevance of the alleged prior conduct to the central allegations.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In my opinion, error in the findings as to the occurrence of the events has not been established. Rejection of documents tendered as tendency evidence Martin tendered a bundle of documents including what came to be known as the Tab D documents. The Tab D documents were documents from DOCS’ records concerning Hoare’s conduct when employed by DOCS at another workplace prior to his transfer to the Centre. They comprised pp 125-157 of the larger bundle of documents, and essentially were complaints or records of interviews and meetings following complaints about Hoare’s conduct made by fellow employees at the workplace, Karen Anderson (“Anderson”) and Veona Wysman-Davidson (“Wysman-Davidson”), plus internal consideration of what action by DOCS, if any, was appropriate. Martin’s grounds of appeal complained only of failure to admit the Tab D documents against the State as evidence of the facts to which they referred, although possibly they could be tortured into extending to failure to admit them against Hoare. Her submissions extended the complaint to failure to admit them against Hoare. The appeal was argued accordingly. There was some confusion in the dealing with the tender of the Tab D documents. It is necessary to trace in some detail what occurred. At an early time the State said that it did not object to the documents “as evidence against us of knowledge of the matters contained in them”, and in due course they were admitted against the State as evidence of “its knowledge of the assertions made with respect to Mr Hoare”. That knowledge was relevant, at least to some extent, to breach of duty of care on the part of the State. But that admission of the Tab D documents against the State did not permit their use, to the extent that they might prove that on other occasions Hoare had acted in a way relevant to establishing that he acted in January 1998 in the manner Martin alleged, to prove a tendency to act in that way: Evidence Act 1995 (“the Act”), s 95. (At the trial s 95 seems to have been overlooked, and there was much concern to have an express limitation to the admission of the Tab D documents against the State. It does not now matter.) Martin wished to have the documents admitted against Hoare and the State as tendency evidence. When asked to state what “comes from the documents under Tab D”, her counsel, Stevens QC, said that together with oral evidence proposed to be adduced from Wysman-Davidson they were “directed to a situation where Mr Hoare had a prior practice of touching” and that in the investigation of the complaints “there was, as it were, a case to answer in respect of there existing sexual harassment by him towards Ms Fiona Wiseman [sic]”. Hoare and the State objected to the admission of the Tab D documents as tendency evidence. Although they were but interstitially identified, three issues arose. One was whether the documents could prove that on other occasions Hoare had acted in a particular way (for example, if they recorded multiple-hand hearsay no exception to the hearsay rule may have applied). Another was whether acting in that way was relevant to proof that he acted in January 1998 in the manner Martin alleged (for example, if the documents could prove that Hoare habitually slept at his desk and left other employees to cope alone, which was in fact one of the complaints about Hoare’s conduct found in them, that would be wholly irrelevant). And the third was that the tender as tendency evidence encountered s 97 of the Act -“97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a)the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b)the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a)the evidence is adduced in accordance with any directions made by the court under section 100, or (b)the evidence is adduced to explain or contradict tendency evidence adduced by another party.”

Decision

Reasons for decision

SPIGELMAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ

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