Martin v NSW & Anor

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 to a significant degree on assessment of the credibility of witnesses. A trial judge has well-known advantages over an appellate court in this regard. The submissions in this Court did not indicate that the trial judge had in any way misused his advantage. There are long established restrictions on an appellate court interfering with findings of this character.
With respect to the van incident, on the morning of the 28 January, his Honour found that Mr Hoare’s prosthesis brushed across Ms Martin’s left breast but that it did so “without Hoare being aware of it, accidentally and without pressure”. There was a body of evidence on the basis of which the trial judge was entitled to conclude that a deliberate act applying pressure for some seconds was physically difficult and unlikely to have occurred.
His Honour found that the incident happened without Mr Hoare’s awareness and concluded:
“I am unable to infer that in that context Hoare proffered the apology ‘sorry’.”
Counsel for the appellant drew the attention of the Court to an interview between Mr Hoare and officers of the Department that occurred some ten months after the event, on 20 November 1998. The record of interview states that Mr Hoare answered a question about the first incident of 28 January by saying:
“Ms Martin alleged that as I was entering the van, my left artificial arm deliberately touched her left breast. I apologised as it was unintentional.”
The thrust of the statement was directed to denying any “deliberate” touching on the occasion. The reference to an apology in the statement attributed to Mr Hoare in this document was available as an admission that an apology had been proffered. That would have justified a finding by the trial judge to the effect that Mr Hoare was conscious that some contact had been made but, of course, the statement denied the deliberate nature of any such contact as alleged in these proceedings. Whilst such a finding was open it was not a necessary finding. The admission, such as it was in this document, did not have to be accepted by the trial judge. It was open for him to state, in the somewhat guarded words he used, that he was “unable to infer” that the apology was in fact proffered. I see no error in his Honour’s reasoning in this regard. In particular, his Honour was entitled to draw the conclusion that the Appellant had significantly exaggerated what had been an accidental contact.
In his judgment Meagher JA refers to the evidence, to the effect the Appellant agreed to work with Mr Hoare in the afternoon, as indicating that the van incident was not as distressing as Ms Martin asserts. A similar observation occurs in the course of the judgment below, but not in the context of the findings of fact that his Honour made about the van incident. I would not myself rely on any such failure to object to working as establishing this proposition. A woman distressed by an assault does not necessarily have the assertiveness to refuse to work with her harasser. However, as I have indicated, this did not play a role in his Honour’s conclusion with respect to the van incident.
With respect to the table incident that is alleged to have occurred later on 28 January, his Honour identified the numerous inconsistencies and exaggerations in the Appellant’s evidence. In particular he gave emphasis to the Appellant’s continued assertion that there was an independent eye witness to the alleged touching of her breast on that occasion, even after she knew that the person she identified that eye witness did not support her assertion. His Honour was entitled to reject the Plaintiff’s case with respect to the table incident on the basis of his assessment of the credibility of the Appellant and the whole of the evidence before him. These are precisely the kinds of matters on which an appellate court is reluctant to intervene. No occasion exists for doing so in this case.
The one issue that was raised that was capable of constituting a relevant error for purposes of an appeal to this Court, concerns the allegedly wrongful rejection of evidence of prior conduct by Mr Hoare when working for the Department of Community Services at another location prior to his assignment to the Centre at Collaroy. Before the trial judge, and in this Court, it was accepted that this evidence was only relevant as tendency evidence to be admitted in accordance with s97 of the Evidence Act 1995.
In the course of the trial his Honour had indicated that he would admit certain of the documents proposed to be tendered in this regard, but would reject others, unless the requirements of a Notice under s97 and reg 6(2) of the Evidence Regulations 2000 (NSW) had been complied with. However, the proposed tender was withdrawn. Counsel for the Appellant at trial expressly stated that he did not tender any of the documents as against the Second Defendant “as evidence of the proof of the commission of any one or more or all of the acts alleged against him by the plaintiff in this action”. (Black Appeal Book 226 lines 43-45). These grounds of appeal were misconceived.
Some of the material referred to was tendered against the State of New South Wales as evidence of what it knew as distinct from evidence which went to proof of the facts. The case against the First Respondent was dismissed on a number of alternative bases. His Honour accepted Ms Sinclair’s evidence, particularly as to the limited range of complaint that the Appellant had in fact made to her. His Honour found in this regard that Ms Sinclair, on behalf of the Department, acted with propriety and due care in following-up the matters of complaint that were drawn to her attention. In this regard he found that there had been no breach by the First Defendant in any material respects.
I agree that the appeal should be dismissed with costs.
MEAGHER JA: This is an appeal by an unsuccessful plaintiff, Miss Martin, against a verdict for the defendants found by his Honour Acting Judge Boyd-Boland. The two defendants are the current respondents. Miss Martin alleged, and still does allege, that Mr Hoare, the second respondent, had committed assaults and/or batteries on her on four occasions, as a result of which she suffered injury and as compensation for which she sought damages. She also sought damages for what is said to be the newly-emerging tort of sexual harassment. To what extent such a tort exists is dubious. Fortunately, the matter does not have to be decided in this case. However, counsel referred us to two helpful articles: “The Hobart City Council Case” by a Miss Sandra S. Berns (1994) 13 University of Tasmania Law Review 412, and “The Evolution of New Torts” by GHL Fridman (1997) University of Texas Law Review.
Miss Martin and Mr Hoare were both employed as Social Educators at the Department of Community Services Adult Day Placement in the Sydney suburb of Collaroy. The first respondent is sued as representing that institution. The Centre provides various facilities for profoundly handicapped adults, who are referred to as “clients”. Mr Hoare has an artificial left arm, which necessitates the wearing of an above elbow prosthesis.
Miss Martin sued the first respondent, the State of New South Wales, on three bases: (1) as being vicariously liable for Mr Hoare’s torts, (2) for its failure to discharge its personal duty to take all reasonable steps to provide a safe working place for employees in Miss Martin’s position, and (3) for breach of a contractual promise to provide such a safe working place.
The first two occasions took place on 5 and 6 January 1998. Miss Martin’s account at first instance, and as recounted in her Statement of Claim, is that on 5 January Mr Hoare put his hand on her shoulder on at least 6 occasions, and on 6 January did the same thing twelve times. In cross-examination, those two figures contracted to 3 and 6 respectively. Mr Hoare’s version is that he definitely tapped her on the shoulder on one occasion, but could not remember doing so more than that. His purpose in doing so was to draw her attention to something when the noise level became so high that normal vocal communication was no longer possible. His Honour found that Mr Hoare had probably touched her shoulder on one or two occasions, but on each occasion with innocent intent. Since the question is entirely one of demeanour, his Honour was entitled to find as he did.
The third incident is a little more difficult. It concerned an event which took place in a van on 28 January 1998. Miss Martin’s evidence was that she entered the van with two of her clients with the intention of taking them on a shopping expedition to Dee Why, an adjacent suburb. She sat in a double seat, with one of her clients on her right. She was on the aisle seat opposite the side sliding door which provided entry to the van. According to her, they were running late and Mr Hoare entered the van through the sliding door and made his way to get into the seat behind her. As he did so his prosthesis arm came into contact with her left breast, which he held firmly for a time limit she variously estimated at 2, 3, 4 or 5 seconds. He did not stop, but continued his progress to his seat. However he did say “sorry”. His version is rather different. He could not remember touching her, and if he did so it was unintentional. He did not, he said, say “Sorry”. A medical report opined that it would have been next to impossible for his prosthesis arm to touch her breast. His Honour found: there was a touching, it was unintentional, and he never said “Sorry”. Unhappily an independent written report makes it quite clear that he did say “Sorry”. Whilst, therefore, his Honour made a mistake in finding that Mr Hoare never said “Sorry”, that error does not seem to me to invalidate his Honour’s finding that the touching was unintentional. Nor can the incident have been so wholly distressing as Miss Martin now pretends, as when her superior, Miss Sinclair, asked her whether she minded working with Mr Hoare for the rest of the afternoon, she replied: “Yes that will be OK”, or words to that effect.
The fourth incident alleged by Miss Martin also took place on 28 January 1998, in the course of her and Mr Hoare sorting, weighing and packing some of the fruits and vegetables they had purchased in Dee Why. This activity was conducted around a large table (about 12 ft by 6 ft). She said there were three clients involved (although she then drew a map showing there were only two). Mr Hoare was on the narrow side of the table, close to the corner; then a client sat at the corner; then, to the left of that client, but facing the longer side of the table, was Miss Martin; and on her left again was another client. Mr Hoare is alleged to have touched her breast as he leaned across her to engage the attention of the client on her left. It is a most unlikely story, and no wonder that Mr Hoare denied it and his Honour disbelieved it. It would be extraordinary that four (or five) people engaged in the exercise of packing vegetables at the table would seat themselves in such a bunched way. If Mr Hoare wished to reach towards the second client, it would be highly unlikely that he should do so in such a way as to touch Miss Martin’s breast. But, what seems to me to be more important, the episode (whatever it was) was witnessed by a Mr Mark Cauvin, and his account of the event (as set out in a statement he made to the police) bears no resemblance to Miss Martin’s. On his account, there was no breast-touching, although Mr Hoare was peering down the cleavage of Miss Martin’s breasts.
On the question of sexual harassment, it was alleged by Miss Martin that Mr Hoare was always staring at her breasts, and also that he was always running round at her heels (“like a puppy dog”). His Honour found no credible evidence of either activity.
On the case against the State, whether pleaded in contract or in tort, Miss Martin failed again. In this context, it was simply a matter of word against word. Was Miss Martin telling the truth, or was Miss Sinclair? The contest was usually head-on. For example, at one stage of her tribulations Miss Martin alleged she said to Miss Sinclair “Can I go into the office and write down what took place?” and that Miss Sinclair replied “No”. Miss Sinclair denied this. It was obviously open for his Honour to believe Miss Sinclair.
Finally, there was a rather mysterious appeal on the grounds of the wrongful admission of evidence. As expressed in the Grounds of Appeal, these are covered by Grounds 25 and 26, which were as follows:
25In relation to the admission of documents under Tab D in Exhibit 1, his Honour erred in admitting the documents on a limited basis, that is only as being admissible against the first defendant as evidence of the first defendant’s knowledge of the assertions made with respect to the second defendant.
26In relation to paragraph 25 above, his Honour erred in failing to admit those documents against the first defendant as evidence of the facts to which they referred.
These are the only Grounds in the Notice of Appeal which deal with evidentiary matters.
In argument, things were somewhat different. Whereas, under the Notice of Appeal, the only complaint made is of non-admission of certain material against the first defendant (i.e. the State of New South Wales), in oral submissions before this Court, the complaint was that the material should have been admitted against both defendants. No application was made to amend the Notice of Appeal.
In order to understand the curiosities involved, it is necessary to examine what happened at the trial. To begin with, his Honour made no order either admitting or rejecting any part of Tab D. He merely indicated what orders he would make if he were pressed. He was never pressed. That alone would dispose of both Grounds of Appeal.
Tab D was a bundle of documents dealing (inter alia) with the behaviour of Mr Hoare at places of employment before he went to the Collaroy Centre.
Mr Stevens SC, learned senior counsel for the appellant, devoted much time both in his written submissions and in his oral submissions to an encomiun on the beauties of this material as business records. His Honour the trial judge was not treated to any such performance. It thus becomes a little hard on his Honour to blame him for rejecting the material as business records when he was never invited to admit them on that basis. That is to put to one side the critical question: Business records of what? Presumably, of Mr Hoare’s behaviour at other places at other times.
It is, I think, fairly obvious that the material in Tab D could only be admissible, if at all, as “tendency” evidence. This is dealt with in s 97(1) of the Evidence Act 1995, which is in the following term:
97 The tendency rule
(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.
If I may be permitted to say so, that section discloses a clear intention that no such evidence be admitted unless it have “significant probative value”, and, in the present case, the material in Tab D has no probative value, significant or otherwise. In any event, the fact that the documents were admissible, if at all, under s 97, and that there was no alternative basis for admissibility, was eventually appreciated by the plaintiff’s legal advisor, because on 21 August 2001 they served (although, apparently, only on the solicitors for the second defendant, Mr Hoare) a s 97(1)(a) Notice with respect to all the material in Tab D.
When the matter came before his Honour, his Honour said that he was minded to make an order against the first defendant (The State of New South Wales) admitting the whole of the material as going to the question of the first defendant’s knowledge (a question which, of course, was irrelevant to the second defendant). His Honour then intimated that he would not, as then advised, admit the material against either defendant on any more expansive basis, i.e. as proving the facts referred to in the documents. His Honour, then, intimated that he was minded to admit two specific pages against the second defendant (Mr Hoare), subject to certain conditions as to the supplying of particulars of the matters contained therein.
Then, on 7 September 2001, the plaintiff sent to the second defendant’s solicitors a letter which, omitting formal parts, read as follows:
“We refer to the Section 97 Notices served on you under cover of our letter of 21 August 2001 and advise that, as against your client, we formally withdraw the Section 97 Notice which was served under cover of our letter of 21 August 2001.”

Finally, on 8 October 2001, learned senior counsel for the plaintiff, after a confused passage, said to the Court:
“The plaintiff does not tender the documents behind Tab D in Exhibit A against the second defendant as evidence of proof of the commission of any one or more or all of the acts alleged against him by the plaintiff.”
This has the effect of withdrawing the tender, not only of the two specific sheets I have referred to, but of the whole of Tab D. That does not leave much vitality in the evidentiary Grounds of Appeal.
In my view, the appeal should be dismissed with costs.
GILES JA: Mitzi Martin (“Martin”) and Richard Hoare (“Hoare”) were employed at the Adult Day Placement Centre (“the Centre”) conducted by the Department of Community Services (“DOCS”) at Collaroy. The Centre provided facilities for significantly or profoundly handicapped adults, referred to as clients.
Martin alleged that in the course of their employment Hoare assaulted and battered her on 5 January 1998, 6 January 1998 and 28 January 1998. The events particularised as the assaults and batteries were -
(a)on 5 January 1998 Hoare repeatedly touched Martin on her shoulder, in total approximately six times;
(b)on 6 January 1998 Hoare repeatedly touched Martin on her shoulder, in total approximately 12 times;
(c)on 28 January 1998 at about 10.30 am while entering a van in which Martin was seated Hoare deliberately touched and applied pressure to Martin’s left breast with his left artificial arm; and
(d)on 28 January 1998 at about 2.15 pm Hoare leant across a table at the Centre and deliberately touched and applied pressure to Martin’s left breast with his right hand.
Martin further alleged that in the course of their employment Hoare sexually harassed her. The events particularised as the assaults and batteries were said also to constitute the sexual harassment, together with the further particularisation that Hoare followed Martin in the workplace and repeatedly stared at her chest.
The proceedings below
In proceedings in the District Court Martin claimed damages from Hoare, and damages from the State of New South Wales (“the State”) on the alternative bases that as his employer it was vicariously liable for Hoare’s actions, that as her employer it was in breach of a duty of care in relation to workplace safety and conditions, and that it was in breach of implied terms of her employment contract in relation to her treatment as an employee.
Boyd-Boland ADCJ held that the defendants were not liable to Martin. His decision was essentially on the facts.
His Honour accepted that Hoare placed his hand on Martin’s shoulder on more than one occasion on 5 and 6 January 1998, but found that that occurred in the context of Hoare attempting to attract Martin’s attention in what was described as the noisy environment of their workplace. He did not accept that the touching occurred with the frequency particularised, noting that in her evidence Martin had ultimately reduced the occasions to considerably less than the approximately 18 particularised, and did not accept that at the time Martin considered the touching to be assault or battery or sexual harassment. In his Honour’s view the touching was no more than to attract Martin’s attention, without hostile intent. He said that although there must thereafter have been some form of complaint by Martin to her superior, Carol Sinclair (“Sinclair”), Sinclair appropriately counselled Hoare and the conduct was not repeated.
As to the first event on 28 January 1998, his Honour found that in entering the van Hoare’s prosthesis brushed across Martin’s left breast, but that this happened “without Hoare being aware of it, accidentally and without pressure”. His Honour further said -
“I find the incident in the van occurred as a consequence of the unintentional contact of Hoare’s left prosthesis with part of the Plaintiff’s anatomy, most probably her left breast, in circumstances where it was neither deliberate nor resulted from a lack of care and in circumstances where the prosthesis simply brushed over Martin as Hoare walked past her (T1.149/30). I infer it was in part contributed to by Hoare’s movements in entering the bus hurriedly because they were running late as Martin said. It was an isolated event. Nothing which occurred had hostile intent and it did not amount to either an assault or battery or sexual harassment. It was certainly not an assault occurring in the circumstances submitted on behalf of Martin.”
His Honour was not satisfied that the second event on 28 January 1998 occurred. He said -
“Her evidence as to the second event of the 28th January is not capable of acceptance. Physically, I find it almost impossible to accept, given the position she says she was in, and her description of the position of her own right arm, when it allegedly happened. When one couples that with her failure to report it, at all, on that day or on the 29th January, which I accept to be the case and her persistence it was witnessed at a time when she knew that was not the case, and the fact she refused to properly identify it to Sinclair on the 30th January, I have come to reject that the event occurred at all.”
As to the additional particularisation of sexual harassment, his Honour was not satisfied that the following around and staring occurred, or that, to the extent that it occurred, it could constitute or be perceived to constitute sexual harassment. He noted in particular that Martin had not complained to Sinclair of any such conduct and had not referred to it when she first consulted her general practitioner, and that there was no evidence from other employees of DOCS at the Centre to support Martin’s evidence that those employees commented that Hoare followed her around “like a little puppy”.
In coming to his findings his Honour was influenced by what he described as many inconsistencies and exaggerations in Martin’s evidence which limited him in accepting what she said. He preferred the evidence of Sinclair, whom he found to be an impressive witness, to that of Martin in relation to reporting of the events and to Martin’s apparent willingness to continue in association with Hoare, which told against the happening of the events as alleged by Martin. He regarded Hoare as somewhat defensive in giving his evidence, although understandably so, but considered that what Hoare said constituted his best recollection of events. His Honour’s findings were plainly based on his assessment of the credibility of the witnesses, with the advantage of seeing and hearing the witnesses.
The factual findings were fatal to Martin’s claims. The conduct of Hoare on 5 and 6 January and in the first event on 28 January 1998 as found was not assault or battery, nor did it constitute sexual harassment. The second event on 28 January 1998 did not occur. The following around and staring did not occur as alleged. There was no breach of duty of care or of the employment contract.
The contentions on appeal
There was a multitude of grounds of appeal. As the appeal was conducted, however, Martin did not contend that, if the factual findings stood, she had nonetheless established her claims or any of them, and her contentions on appeal came down to first, error in the finding as to the first event on 28 January 1998 which reflected upon the findings as to the other events, and secondly, error in rejecting documents tendered as tendency evidence.
Error in factual findings
Martin principally relied on two matters. The first was that a report of Dr Peter Henke (“Henke”), tendered by the State apparently to support the position that the touching of the breast on entering the van could not have occurred at all, said that in order to touch Martin as she had alleged Hoare would probably have had to kneel or partially squat and lean forward, because of the functioning of his left artificial arm and his control over it. The second was that a record of a later interview of Hoare by DOCS personnel included, purportedly as something said by Hoare -
“Ms Martin alleged that as I was entering the van, my left artificial arm deliberately touched her left breast. I apologised as it was unintentional.”
From these matters, Martin submitted that Boyd-Boland ADCJ was in error in finding that the brushing of the prosthesis across Martin’s left breast was unintentional and without Hoare being aware of it. It could not have been unintentional, it was said, because of the bodily movement required, and Hoare must have been aware of it because he apologised. As well, it was said that these matters showed that Hoare’s evidence was unsatisfactory insofar as he said that he was not aware of any physical contact with Martin as he entered the van and denied having engaged in an interview with the DOCS personnel concerning Martin’s complaints of misconduct in January 1998. If his Honour was in error as to the first event on 28 January 1998, it was said, the occurrence of that event put a different complexion on the preceding and following events whereby the findings as to those events could not stand.
On a reading of Hoare’s evidence as a whole, I consider that it amounted to him saying that there was no deliberate touching of Martin’s left breast as she alleged: I do not think he said that he was not aware of any physical contact with Martin as he entered the van.
His Honour did not overlook the report of Henke. He noted that Henke said that it would be possible for Hoare to touch Martin as alleged, although difficult to do so. With reference to other evidence that Hoare had an uneven gait, with consequent body movement, he said that he considered it more likely that the touching was accidental. Indeed, the report of Henke was quite inconsistent with Hoare having control sufficient for the duration and pressure of the touching and application of pressure alleged by Martin. In my opinion his Honour’s finding was not inconsistent with the report of Henke, which on balance supported the finding.
Nor was the interview with the DOCS personnel overlooked by his Honour. His Honour said that he was “unable to infer that in that context [the prothesis brushing across Martin’s left breast] Hoare proffered the apology ‘sorry’”, and later -
“There was some inconsistency between his evidence and documentation relating to a meeting on the 20th November 1998 but, as his Counsel said the documentation was never put to him and he appeared prepared to acknowledge that some meeting had taken place at some point, I did not form the view that was a matter that should weigh heavily in assessment of his evidence. He did identify the persons said to be involved but they were not called to substantiate the written documentation.”
Martin was critical of this in submissions, in that while the actual record of the interview was not put to Hoare he had been asked with some precision whether the interview had taken place and whether he had said what was recorded, and had given fairly explicit denials. I do not think his Honour failed to recognise those matters: he said there was inconsistency. Notwithstanding the record of the interview, he was not prepared to find from the truncated record that Hoare had said that he had apologised.
The restraint on appellate intervention in credibility-based findings has recently been affirmed in Rosenberg v Percival (2001) 75 ALJR 73. In question was whether there was a deliberate touching of Martin’s left breast as she alleged. I do not think that the record of the interview indicating that Hoare was aware of an unintentional touching was an incontrovertible fact inconsistent with Boyd-Boland ADCJ’s finding that there was not, or made that finding glaringly improbable or a misuse of his Honour’s advantage (to use the phrases used in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479). On the evidence as a whole, and in the light of his Honour’s adverse view of the acceptability of Martin’s evidence (for which the transcript showed good reason), I consider that the finding as to the first event on 28 January 1998 was well open and should not be overturned on appeal.
There is no occasion to disturb the findings as to the other events. The finding as to the second event on 28 January 1998, in particular, tends to support the rejection of Martin’s allegation of a deliberate touching earlier that day. As Boyd-Boland DCJ said, it was all but physically impossible for the touching to have occurred as she alleged. The person Martin named as an eyewitness did not support the touching, but told the police that he had seen Hoare looking down Martin’s shirt, and his Honour accepted Sinclair’s evidence of later seeing Martin with Hoare “engaging in conduct which is totally inconsistent with Martin’s allegations”. In short, if Martin could not be believed as to the second event on 28 January 1998 her evidence of the first event on that day was very much under a cloud.
Martin put two other submissions. One was that Sinclair had failed to include in a report reference to one of the events, her credibility was therefore to be questioned, but Boyd-Boland ADCJ had not taken that into account when preferring her evidence to that of Martin. It is sufficient to say that there was no compelling reason for Sinclair to include reference to the event in the report, and obvious enough reason why she should not do so, and it was not put to her that she had been remiss in that respect. The other was that his Honour had failed to give proper weight to the evidence of Nigel Walter (“Walter”) as to change in Martin’s behaviour. Walter could not say when the change was noticed in a way clearly linking it to events in January 1998, or why it occurred (Martin refused to discuss it with him). His Honour said that he felt that Walter’s evidence “added little weight to the plaintiff’s case”. He was correct.
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.”
The third issue also involved cl 6(2) of the Evidence Regulation 2000 (“reg 6(2)”), which stated as to the reasonable notice in writing required by s 97(1)(a) -
“(2) A notice given under section 97 (1)(a) of the Act (relating to the tendency rule) must state:
(a) the substance of the evidence of the kind referred to in that subsection that the party giving the notice intends to adduce; and
(b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of:
(i)the date, time, place and circumstances at or in which the conduct occurred, and
(ii)the name of each person who saw, heard or otherwise perceived the conduct, and
(iii)in a civil proceeding---the address of each person so named, so far as they are known to the notifying party.”
The only notice given by Martin had been a letter dated 1 March 2001 stating that at the hearing -
“ … the Plaintiff will pursuant to Section 97(a) of the Evidence Act adduce evidence that Richard Hoare is a person of character, reputation, conduct and tendency such that he has a history and pre-disposition of indecently touching fellow workers and in particular, but not limited to, one Veona Wyseman [sic], making numerous sexual references and innuendoes and being prone to outbursts of aggressive and violent behaviour and sexually deviant behaviour.
Evidence will be adduced in the following form -
1.Previous work records, reports, notations and recommendations compiled by the Department of Community Service [sic].
2. Oral evidence to be given by Veona Wyseman [sic].
3. Expert evidence.”
On any view, this was not in compliance with reg 6(2).

After Stevens QC had stated what came from the documents, Boyd-Boland ADCJ questioned whether, so far as a case to answer was found in the DOCS investigation, that was evidence of any more than DOCS’ view. After some discussion with Stevens QC, his Honour said that he “would not find that the documentation demonstrates that last proposition that you have put”. In context, his Honour meant that he did not accept the relevance of the documents so far as they might prove that DOCS was of the view that there was a case to answer. That did not re-emerge in the hearing below and no complaint was made of it in the appeal.
Counsel for the State, Menzies QC, and counsel for Hoare, Brogan, then put submissions. Menzies QC submitted that “none of it seems to be tendency evidence”. There was no elaboration, possibly because his Honour then called on Brogan, and the objection was taken up by Brogan. With references to the documents, Brogan made submissions to the effect that -
(a)the documents “by and large” could not prove that on other occasions Hoare had acted in any particular way, being infected by hearsay, giving as one instance that Anderson’s letter of complaint stated that she had not been “targeted” by any of Hoare’s conduct;
(b)there was no identification in the documents of specific occasions of conduct, and a proper reg 6(2) notice had not been given from which could be seen what occasions of conduct Martin relied on; and
(c)what was in the documents in any event did not have significant probative value, in particular when the specific occasions of conduct were not identified and so the circumstances of the conduct and the significance of the tendency evidence to establishing the fact in issue, Hoare’s conduct in January 1998, could not be determined.
In the course of Brogan’s submissions Boyd-Boland ADCJ referred to matters appearing at pp 147 and 148 of the Tab D documents, indicating that he could not otherwise see “anything in them [the tab D documents] that related to any event that had any similarity to what we are considering here”. What followed makes desirable an appreciation of what appeared at pp 147 and 148.
At p 147 was part of a record of DOCS’ investigation of Wysman-Davidson’s complaint, relevantly reading -
“The behaviours [sic] which Ms Wysman-Davidson has based her grievances against Mr Hoare on, include:

Sexual harassment, for example, referring to Ms Wysman-Davidson’s breasts other people’s anatomy, including bottoms; staring at Ms Wysman-Davidson for extended periods of time and invading her personal space. A previous interview with the supervisor Lorna revealed that she had observed Mr Hoare standing very close to others and invading their personal space. Previous interviews with Ms Noni Green also indicated that Mr Hoare does persist in discussing his own sexuality, even when asked to cease. Likewise, Ms Karen Anderson also stated in a previous interview that Mr Hoare is prone to using sexual language and innuendo.
Physical aggression by raising his hook in a striking motion above Ms Wysman-Davidson in a threatening and intimidating manner.
Verbal abuse, for example calling Ms Wysman-Davidson a ‘bitch’ and raising his voice at her.
Not performing his duties correctly, for example, falling asleep, leaving the premises and not supporting colleagues with difficult situations whilst on duty. In a previous interview Lorna recalled observing Mr Hoare fall asleep on 2 occasions but excused this as Mr Hoare was going through ‘personal problems’ at the time.”

At p 148 was part of a record of a meeting of DOCS personnel with Wysman-Davidson, relevantly reading -
“At Amanda and Karene’s request, Veona related a history of her concerns which are outlined:
Veona returned from recreational leave late January 1997 and met fellow DCS employee Richard Hoare upon her return to work. According to Veona, on the first occasion she worked with Richard he informed her that he did not like their supervisor Lorna and that he intended to take over Lorna’s job.
Veona stated that during this initial period Richard would regularly invade her personal space by standing within centimetres of her face and on one occasion touched her on the shoulder. Veona apparently advised Richard that she was not comfortable with him touching her and requested that he refrain from doing it again, however his behaviour did not alter and Veona is of the opinion that Richard believes he is entitled to do and say as he pleases, regardless of other people’s feelings.
Veona also stated that Richard would use ‘bad language’ in front of herself and colleagues. When asked who witnessed this incident Veona stated that whilst other staff witnessed the incidents, only Karen Anderson was willing to come forward. Veona reasoned that this as [sic] some staff had not left DCS, whilst the majority of others were casuals and therefore did not want to make waves for fear of losing work.
Veona advised that she has described other incidents in her correspondence to the Department, including Richard calling her a ‘bitch’ and raising his hook at her in a striking pose. Veona stated that at these times Richard would have an ‘animal look’ on his face as he would redden, his jaw and body would tense and he would appear to ‘lose control’. Veona stated that for her safety and to diffuse [sic] the situation she would remove herself to another area, away from Richard, as she feared for her safety.”
At the conclusion of Brogan’s submissions his Honour asked Stevens QC for his response. The transcript reads -
“STEVENS: Your Honour is correct in terms of identifying the documents which put the issue at the highest in terms of 147 and 148.
HIS HONOUR: There is nothing anywhere else, is there … (not transcribable) … ?
STEVENS: No, not within those documents there isn’t.
HIS HONOUR: So it is just those two lines [sic].
STEVENS: That’s right your Honour.
HIS HONOUR: Well why are the balance of the documents being tendered?
STEVENS: As against the second defendant?
HIS HONOUR: Yes.
STEVENS: Your Honour, in terms of the substantial probative value, if one extends it beyond the same actions of touching.
HIS HONOUR: Of punishing?
STEVENS: Of touch – if you extend it beyond the concept of touching to sexual harassment conduct we submit that the whole of the documents then satisfy the significant probative value of a constancy of issues being raised against the second defendant of conduct of a nature of sexual harassment.
HIS HONOUR: You will never convince me of that.
STEVENS: I am sorry, your Honour.
HIS HONOUR: You would never convince me of that. Why would I be led to that conclusion by these documents? We are seeking to consider here an isolated series of events described in considerable detail. They bear no relationship to most of what has been dealt with here. If you look at the first document itself and the series of headings, or the second document, ‘explicit remarks of a sexual nature; tendency towards violence; violence’ they are not issues that are in any sense relevant here. They have never been made relevant.
STEVENS: They aren’t, your Honour.
HIS HONOUR: Aren’t I right in saying that the only documentation that is of any significance in the context of the second defendant are those ones that I have identified?
STEVENS: Yes, if you take that narrow view in terms of the same actions which are in issue in the case.
HIS HONOUR: What I repeat is why then should I admit any of the other documents against the second defendant?
STEVENS: Your Honour, I am not going to take up further arguments then if your Honour wants to adopt the narrow construction as against the second defendant.
HIS HONOUR: And then I would have to require you, would I not, if I admit those limited amounts of documentation, I would have to require you to give particulars under regulation 6.
STEVENS: Yes, to the extent that we are able to and those same requirements in relation – yes.
HIS HONOUR: All right. Mr Brogan is that? [sic]
BROGAN: That is quite troubling your Honour, for my friend to say to the extent that we are able to. It is not a question of --
HIS HONOUR: Well if he is not able to properly particularise then I will deal with that issue if it arises.”
It will be recalled that Martin’s letter of 1 March 2001 had referred to oral evidence from Wysman-Davidson. There followed discussion of provision of a proof of any oral evidence to be given by her. The proceedings had used up the available hearing time and were to be adjourned to a later date, so there was the opportunity for a reg 6(2) notice and provision of a proof.
In due course Boyd-Boland ADCJ noted that “As against the second defendant [Hoare], I will be prepared to admit only those matters appearing on pages 147 and 148”. His Honour also gave a direction about a proof of evidence to be given by Wysman-Davidson.
It should be noted that the submission which brought his Honour’s statements that he would never be convinced was that there was substantial probative value in prior conduct of Hoare other than in touching. The tenor of his Honour’s response might be thought to lead to rejection of those parts of pp 147 and 148 going beyond evidence of touching, but what his Honour noted permitted admission of all the matters on those pages. Strangely, when his Honour indicated his view that the wider conduct was not relevant Stevens QC agreed, but nonetheless seemed to press the tender by suggesting that his Honour was taking a narrow view. There is a question whether at this point Martin abandoned the tender of the Tab D documents other than pp 147 and 148 by declining to argue the matter further although invited to do so. But in the result what his Honour said allowed to Martin, plainly subject to a proper reg 6(2) notice, tendency evidence of very wide scope, the full scope of pp 147 and 148.
Prior to the resumption of the hearing, the proceedings were re-listed at Hoare’s request to deal with a dispute arising from, amongst other things, the further reg 6(2) notice given by Martin. The notice was given under cover of a letter to Hoare dated 21 August 2001. There was no evidence of a similar letter to the State, but the State was present at the re-listing and joined in Hoare’s complaints.
The letter said that Wysman-Davidson had refused to provide a proof, and the notice said that -
“The substance of the evidence which will be adduced will be documentary evidence consisting of written correspondence, file notes and reports produced on subpoena by the Department of Community Services, copies of which are annexed hereto by way of service and oral evidence to be adduced from some or all of the following:
(a)          Veona Wysman-Davidson;
(b)          Amanda Crane;
(c)          Karen Anderson;
(d)          Noni Green.
In particular, evidence will be adduced that in or about the period 1997, the aforesaid Richard Hoare whilst working at the Department of Community Services at Manly Warringah District Office did behave in the manner listed herein below towards Veona Wysman-Davidson:
(1)Persisted in making comments of an explicit sexual nature including comments about staff members’ body parts. … “
There followed 26 further paragraphs, each in similarly general terms without identifying particular occasions of conduct. A number went beyond behaviour towards Wysman-Davidson, for example, “Behaved in a violent manner towards the staff and clients” and “Invading the personal space and standing too close to other members of the staff of the Department of Community Services”. Only one was concerned with touching, namely “Touching Veona Wysman-Davidson without her consent or without any need to touch her”. Others ranged through “Behaved in a violent manner towards the staff and clients”, “Stating to Veona Wysman-Davidson that she should leave her husband” and “Stated that he did not believe that workplace harassment policies applied to him”. It was an extraordinary notice, travelling far beyond what could be admissible tendency evidence.
The annexed documents were not congruent with the Tab D documents. There was a common core. But the annexed documents omitted seven of the pages (not pp 147 and 148) of the Tab D documents, including a record of an interview with Wysman-Davidson in which she was asked to clarify her complaints of Hoare’s conduct and spoke of that conduct. They included other complaints from Wysman-Davidson and a number of documents which do not seem to have anything to do with showing that Hoare acted in a particular way.
At the re-listing Hoare submitted that there had been leave to call evidence only from Wysman-Davidson, that the documents were inadequate as a proof of Wysman-Davidson’s evidence, that there was no proof of evidence from any of the other proposed witnesses, and that his Honour had earlier ruled that the documents other than pp 147 and 148 were not admissible against him. As I have said, the State joined in Hoare’s complaints. The submission as to leave was strictly not correct, as no question of leave had arisen, and more correctly only evidence from Wysman-Davidson had earlier been foreshadowed. The other submissions were of substance, but were not directly addressed. There was extended discussion, which did not clearly distinguish between the documents and the proposed oral evidence. Boyd-Boland ADCJ said that if there were inadequate particulars “then I am not going to allow the evidence in”, but that he was not making any rulings and was only “giving indications as to the attitude I believe I will take in certain circumstances”. Martin’s junior counsel, Porthouse, said that she would “provide particulars of the date, time, place and circumstances in which the conduct occurred if we are able”.
From the width of the reg 6(2) notice with the letter of 21 August 2001, Martin had not taken to heart either his Honour’s preparedness to admit “only those matters appearing on pages 147 and 148”, or the tenor of his Honour’s statements that he would never be convinced so far as it might be thought they led to restriction of the tendency evidence to evidence of touching. Neither limitation to what Martin could do was re-visited by his Honour.
After the re-listing and before the resumption of the hearing, Martin wrote to Hoare stating that the reg 6(2) notice with the letter of 21 August 2001 was withdrawn. This letter was not in evidence before Boyd-Boland ADCJ, but was tendered and admitted in the appeal. So far as appeared there was no similar letter to the State.
When the hearing resumed Martin was represented by different senior counsel, Graves SC, although also by Porthouse. Graves SC immediately went to the Tab D documents and the proposed oral evidence.
First as to the State, Graves SC referred to the admission of the Tab D documents as evidence of knowledge of the assertions made with respect to Hoare, and said that Martin understood that the admission -
“ … specifically excludes the tender of those documents as against the first defendant [the State] as documents that were or might be admissible under s 97 of the Evidence Act. We understand your Honour’s ruling to encompass the proposition that tender of those documents against the Crown on that basis is rejected. And I will conduct the case on that basis.”
The transcript records that at that point his Honour said “Yes”. Menzies QC did not question the stated understanding of the admission of the documents.
Graves SC then moved to Hoare, and said that Martin did not tender the Tab D documents against him “as evidence of the proof of the commission of any one or more of all of the acts alleged against him by the plaintiff in this action”. He said that for the sake of completeness he should say “in that same context” that Wysman-Davidson would not be called to give oral evidence in Martin’s case.
The hearing then proceeded to its conclusion.
A catalogue of the confusion in the dealing with the tender of the Tab D documents would be long indeed. The most prominent confusion was in any ruling on their tender as tendency evidence against the State. As tendency evidence, there was no reason to distinguish between the State and Hoare. If admissible, the documents would go to assist in proving that the events occurred as alleged by Martin. Both the State and Hoare objected to their admission as tendency evidence. Although Brogan took the objection up in submissions, any ruling would equally apply to the State. The exchange set out in para [36] above was in its terms as to tender against Hoare, and Boyd-Boland DCJ did preface his preparedness to admit pp 147 and 148 with the words “As against the second defendant”. But at no time did his Honour say either that he would or that he would not be prepared to admit the Tab D documents as a whole, or pp 147 and 148 in particular, as tendency evidence against the State. It is all but inconceivable that his Honour and counsel did not at the time appreciate that the ruling, effectively that the documents would be rejected save for pp 147 and 148 and as to those pages their admissibility being subject to a proper reg 6(2) notice, applied also to admissibility as tendency evidence against the State. That the State joined in Hoare’s complaints at the re-listing suggests that it saw itself in the same position as Hoare.
It is plain enough from the preceding and following pages of the transcript of the resumed hearing that Boyd-Boland ADCJ had not received the transcript of the earlier hearing, and did not have a precise recollection of what had occurred. His Honour’s “yes” was not an endorsement of Martin’s understanding of any ruling he had given, but an invitation to Graves SC to continue.
Nonetheless Martin’s lawyers appear to have conceived the all but inconceivable, and Graves SC stated it. The absence of a new reg 6(2) notice to the State indicates that, however extraordinarily, Martin’s lawyers believed that there had been a wholesale ruling against admission of the Tab D documents as tendency evidence against the State. Regrettably, no one questioned the understanding expressed by Graves SC.
It is convenient first to address the complaint of failure to admit the Tab D documents against Hoare.
Although Martin had a statement by his Honour in her favour to the extent of pp 147 and 148, one of preparedness to admit those pages subject to a proper reg 6(2) notice, she withdrew the tender of the Tab D documents against Hoare in their entirety. Whether there had been a proper reg 6(2) notice was never put to the test – Boyd-Boland ADCJ expressly refrained from giving a ruling at the re-listing. It could not be said that Martin was caused to withdraw the tender of the Tab D documents against Hoare by the statement whereby only pp 147 and 148 would be admitted, firstly because (as was acknowledged at the time) those pages were the high point of the documentary tendency evidence, and they would not lightly have been abandoned, and secondly because by the reg 6(2) notice with the letter of 21 August 2001 and at the re-listing Martin had continued to seek to tender tendency evidence from the Tab D documents additional to pp 147 and 148. As early noted, the evidence Martin had continued to seek to tender went beyond evidence of touching. The withdrawal of the tender of the Tab D documents against Hoare must be taken to have been a forensic choice freely made by Martin. The complaint of failure to admit the Tab D documents against Hoare is without substance.
The complaint of failure to admit the Tab D documents as tendency evidence against the State is complicated by the confusion earlier mentioned. I do not think that Boyd-Boland ADCJ did refuse to admit all the Tab D documents as tendency evidence against the State. He was prepared to admit pp 147 and 148, subject to a proper reg 6(2) notice. But that is not the way the matter was expressed, and left, when the hearing resumed.

The confusion at the trial was carried over to the appeal. There was some difficulty in having Martin identify the ruling from which she was appealing. She ultimately identified a ruling implicit in Boyd-Boland ADCJ’s statements that he would never be convinced, in the exchange set out in para [36] above. As has been seen, his Honour was responding to a submission that Tab D documents other than pp 147 and 148 should be admitted against Hoare, the appeal in this respect underlining that admission as tendency evidence against the State can not be distinguished from admission as tendency evidence against Hoare. What his Honour said was said to indicate that he was not inclined to permit evidence beyond evidence of touching. Yet in the end his Honour said he was prepared to admit pp 147 and 148, without stating any limitation as to evidence of touching, and that should have been applicable to the tender as tendency evidence against the State. The implicit ruling Martin identified was not an operative ruling.
The only ruling by Boyd-Boland ADCJ (if it is correctly so described) of which Martin could complain is his Honour’s anticipatory confining of the tender of the Tab D documents as tendency evidence against the State to pp 147 and 148. That left ample scope for tendency evidence against the State, which Martin sought to take up by the reg 6(2) notice with the letter of 21 August 2001 – she was not limited and did not limit herself to evidence of touching. So far as Martin submitted in the appeal that the tendency evidence should have been allowed to go beyond evidence of touching, saying that evidence of (for example) violence by Hoare towards staff members or even invading personal space had significant probative value in proof of the events of January 1998 alleged by Martin, that was permitted subject to a proper reg 6(2) notice. So far Martin submitted in the appeal that the tendency evidence should have been allowed to go beyond pp 147 and 148 it is far from clear what the other documents realistically added to pp 147 and 148. From the reg 6(2) notice with the letter of 12 August 2001, Martin did not see herself as relevantly impeded by the ruling. The basis for complaint is elusive, and was not captured in Martin’s submissions.
It remains that, for whatever reason, Martin understood that his Honour had excluded the Tab D documents as tendency evidence against the State, she stated that understanding, and it was not questioned. It was not submitted that this gave rise to a miscarriage of justice in the conduct of the trial such that a new trial should be ordered, and there was no ground of appeal of that kind, and it would therefore be inappropriate to consider whether that ending to a sorry chapter provided a ground of appeal. But if it did, and if some basis for complaint as to a ruling by Boyd-Boland ADCJ were perceived, this Court could not order a new trial unless it appeared to it “that some substantial wrong or miscarriage has been thereby occasioned” (Supreme Court Rules Pt 51 r 23). This rule, it seems to me, is in itself a complete answer to Martin’s contention of error in rejecting documents tendered as tendency evidence.
Whatever occurred in the trial concerning the tender of the Tab D documents as tendency evidence was subject to a proper reg 6(2) notice. Boyd-Boland ADCJ was never required to consider the adequacy of the notice with the letter of 12 August 2001, or to consider with the benefit of the notice the probative value of the evidence of the conduct of Hoare so far as the documents proved his conduct on other occasions. I do not think that refusal to admit the Tab D documents as tendency evidence against the State, if there had been such a ruling, would have been in error, because I do not think that his Honour could have done other than reject the documents.
The purpose of a reg 6(2) notice is first, to ensure that attention is given to specific conduct and the circumstances of the conduct, and secondly, to enable the person whose conduct is in question to meet the tendency evidence. The purpose is linked with the decision upon probative value to be made by the court, since only with knowledge of specific conduct and the circumstances of the conduct can a proper assessment be made of the probative value of the evidence in relation to the conduct alleged in the trial.
The reg 6(2) notice with the letter of 12 August 2001 was unspecific, even where the conduct was (occasionally) arguably of some parity with the conduct in January 1998 alleged against Hoare. Perusal of the Tab D documents themselves would not add to Hoare’s, still less the State’s, knowledge of the particular conduct on Hoare’s part. It would have been intolerable for Hoare, still more the State, to have had to meet the generalised and often second-hand or worse assertions in the Tab D documents. And in my view his Honour could not have found substantial probative value in the Tab D documents, to the extent that they could prove that on other occasions Hoare had acted in a particular way, because of the same generality and often remoteness. The rejection of the documents was inevitable.
The result
In my opinion, the appeal should be dismissed with costs.

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LAST UPDATED: 21/11/2002

[2002] NSWCA 337

21 November 2002

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