Michael Bonavia v Transport Accident Commission
[2015] VSCA 324
•3 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0046
| MICHAEL BONAVIA | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
---
| JUDGES: | WARREN CJ, SANTAMARIA and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 October 2015 |
| DATE OF JUDGMENT: | 3 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 324 |
| JUDGMENT APPEALED FROM: | Orders of Justice Bell dated 6 May 2015 |
---
TORT – Negligence – Motor vehicle accident – Plaintiff claimed accident caused by unidentified third vehicle – Jury verdict for the defendant – Verdict that no negligence by driver of unidentified vehicle which was a cause of plaintiff’s injury, loss and damage – Whether jury verdict was against weight of the evidence – Verdict in favour of defendant was open to jury – Application for leave to appeal refused.
EVIDENCE – Allegation by plaintiff that injuries included anxiety, depression and suicidal behaviour – Plaintiff called expert evidence from consultant psychiatrist – Trial judge admitted into evidence testimony of expert that plaintiff was charged, tried and acquitted of rape two years before motor vehicle accident the subject of the trial – Whether evidence relevant and, if so, whether probative value of evidence substantially outweighed by prejudice to the plaintiff – Evidence was relevant and admissible – Prejudice controlled by judicial warning to jury and appropriate monitoring of references to alleged rape during trial – Plaintiff did not seek to discharge jury at trial – No House v The King type error identified – Appeal dismissed – Evidence Act 2008 ss 55(1), 56(2) and 135(a).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A G Uren QC with Mr A D B Ingram | Slater and Gordon |
| For the Respondent | Mr S O’Meara QC with Mr S Martin | Solicitor to the Transport Accident Commission |
THE COURT :
Introduction
On 22 February 2008, Michael Bonavia was working as an apprentice bricklayer for J & P Bricklaying on a project in Hoppers Crossing. There were four men on-site. In the middle of the day, Mr Bonavia and another apprentice (Blayde Stephens) went to get lunch for the workmen from a McDonalds store in Point Cook. On the way back to the worksite, the car that Mr Bonavia was driving collided with a Windscreen O’Brien’s truck just past a roundabout at the intersection of Central Avenue and Point Cook Road. Mr Bonavia suffered severe injuries.
Mr Bonavia’s case was that the accident was caused by another car which contacted his car. Mr Bonavia claimed that this caused him to lose control of his vehicle so that he collided with the truck which was coming in the opposite direction. He could not identify the driver of the other vehicle. In those circumstances, he brought proceedings against the Transport Accident Commission for the damages which he would have been able to recover from the unidentified driver.[1] He alleged that his injuries included anxiety, depression and suicidal behaviour. The jury’s verdict was that there was not negligence on the part of the driver of an unidentified vehicle which was a cause of Mr Bonavia’s injury, loss and damage.
[1]Transport Accident Act 1986, s 96(1).
Mr Bonavia seeks leave to appeal on two bases. First, that the jury’s verdict was perverse, unreasonable or was not in accordance with the evidence. Secondly, that the trial judge admitted evidence that Mr Bonavia had been charged, tried for and acquitted of the offence of rape. In relation to this latter proposed ground, Mr Bonavia contends that the evidence was of no probative value, or that if it did have any such value, that was outweighed by the danger that the evidence might be unfairly prejudicial to him such that it should have been excluded under s 135 of the Evidence Act 2008.
For the reasons which follow, we would grant leave to appeal in respect of the second proposed ground but would dismiss the appeal.
The evidence at trial
On the day of the accident, the weather conditions were good and there was not much traffic on the road. Having left McDonalds and travelled a short distance west along Central Avenue, Mr Bonavia came to the roundabout in question. He turned left into the roundabout and took the first exit, and began to travel south along Point Cook Road. In the first part of that road as it comes out of the roundabout, there are two lanes. They merge into one lane. At the point where the lanes merge, (which is about 30 metres after the roundabout), Mr Bonavia’s car collided with the Windscreen O’Brien’s truck. The truck was travelling in the opposite direction approaching the roundabout (that is, north along Point Cook Road).
Mr Bonavia gave evidence that he was travelling at about 40kph at the time of the collision. He also testified that as he was turning into the roundabout from the east entry point (Central Avenue), he saw ‘a blue-ish car coming right up my tail-end of my car. Really fast.’ When his counsel asked him where the blue car was when he first saw it, he said it was approaching the roundabout from the northern entry point of the roundabout. Mr Bonavia testified that he was on the turn when he first saw it with the blue vehicle being just to the north approaching the roundabout. He then gave evidence that he saw the vehicle in his rear vision mirror as he straightened his car having come out of the roundabout and headed south. In cross examination, Mr Bonavia disavowed his evidence that he had seen the blue vehicle when it was north of the roundabout. Rather, he said that he only saw the other vehicle after he had turned into the roundabout and that it was right behind him. Later he testified that both his car and the other car had exited the roundabout when he first saw it in his rear vision mirror and that he did not know where it had come from. It was right on his bumper bar when he saw it. He assumed it came from north of the roundabout. The next thing that Mr Bonavia was aware of was a loud noise on the passenger side of the car and he heard a bang which was pretty loud. It sounded like two cars colliding. Because of the hit, he felt a jolt in the steering wheel which took his car to the right towards the oncoming cars. He could not recall anything after this, although there is no doubt that his car collided with the Windscreen O’Brien’s truck just after the roundabout. Mr Bonavia could not recall seeing the truck before the accident.
Mr Stephens, who was the passenger in Mr Bonavia’s car, was injured in the accident. He was 16 at the time. The last thing that he could recall about what happened before the accident was getting back into the car at McDonalds with the food that they had bought. The next thing that he could remember was waking up in hospital. Mr Stephens testified that his memory had been getting worse and he was struggling to remember things. A few years before the trial, he had made two written statements — one to the solicitor acting for Mr Bonavia and the other to a Transport Accident Commission assessor. When he was shown the statements in the witness box, he could not recall the matters that were set out in them.
Mr Stephens’ statement to Mr Bonavia’s solicitor was made on 22 August 2012 (more than four years after the accident). He said:
Michael [Bonavia] pulled out of McDonalds and went around the round about and we turned left from the round about into this road. All of a sudden, I was aware of this roaring sound.
The last thing I remember is that I turned to my right, which is over my shoulder, and I saw a blue ford coming at us. It was very, very close to the rear of us. It was definitely speeding. I turned back around and I don’t remember anything else after this. My presumption is that the car was bearing down on such a speed to try and overtake us or crashing into us but he was definitely speeding. The car sounded really hotted up. There was a really loud revving of the engine.
I cannot remember anything. I woke up in Hospital dazed.
Mr Stephens’ second statement (‘the TAC statement’) was made on 2 August 2013 (more than five years after the event). In the TAC statement, Mr Stephens said that he was a passenger in Mr Bonavia’s ‘brown’ Ford laser. He said:
I do not recall Michael [Bonavia’s] actions in the twenty five metres prior to the collision.
I do not know if Michael was concentrating on what he was doing just prior to the collision as I was focused on another vehicle travelling behind us. This vehicle was approximately 30+ metres behind us.
I did not see the vehicle we collided with prior to the collision.
I do not recall anything in regards to the incident after looking at the blue car that was following us. I do not know where this car came from but it was loud and a far way behind us.
To the best of my recollection we were travelling in the right lane as the two south bound lanes merged into one and the blue vehicle was in the same lane as us.
I lost consciousness at the collision scene and went into a coma for three days before finally waking.
Michael’s mother contacted me approximately four months after to see how I was going. I spoke to Michael at this time and we were trying to work out what happened as neither of us new [sic] completely. …
I do not recall how far from the intersection we were when the collision took place.
To the best of my recollection the traffic was not busy at the time.
I believe the blue vehicle following us contributed to the accident as it was approaching us very quickly from behind.
All I remember was that this other vehicle was a blue Ford. It sounded like a V8 engine was installed in this vehicle and it was travelling fast
I do not know how fast the blue car was travelling at. If we were travelling at 50-60 km/h then I estimate the blue vehicle to have been travelling at 100-120km/h but I cannot be sure.
The driver of the Windscreen O’Brien’s truck and his passenger gave evidence that apart from Mr Bonavia’s car, they did not see another vehicle on the other side of the road. Mr Omari was following the truck in his car. He too gave evidence. He saw Mr Bonavia’s car come through the roundabout at a high speed and collide with the truck. He did not see any other vehicles. His recollection was that Mr Bonavia’s car was a white Ford Laser. He later described it as ‘a light colour, hence white.’ The car was indeed a Ford Laser but it was not white. Nevertheless, in some of the hard copy photographs that were before the jury, the car appeared to be blue, in others it looked white and in others it seemed to be a silver/grey colour. Original digital images of the photographs were also in evidence. The car appears as a silver/grey colour in those images. Mr Omari testified that he gave his details to a policeman at the scene of the collision but did not speak to him or anyone at the scene about what had happened.
The policeman was Leading Senior Constable Pickering. He attended the scene of the accident to conduct an investigation into it. There were no skid marks or the like on the road. The police officer spoke to the truck driver, his passenger and Mr Omari but none of them could tell him anything which assisted him in forming a conclusion as to what had occurred. None of them said that there had been a third vehicle involved in the accident. He could not interview Mr Bonavia (who was in the back of the ambulance when he arrived at the accident scene) nor Mr Stephens (who was trapped in the car). In the absence of marks on the road and a witness who could tell him what had happened, the police officer formed the view that there were two possibilities — driver error or a third party involved in the collision. At the time he did not know which was the cause. At a later stage, the police officer spoke to Mr Bonavia who told him that a third car had been involved in the accident. As a result, the police officer formed the view that there had been a third vehicle which may have contributed to the accident.
After the accident, Mr Bonavia told others that his car had been sideswiped by another vehicle. Consistent with this, he originally pleaded that his car had been sideswiped by the blue vehicle. Mr Bonavia testified that his car had no damage to the panels on the passenger side of the vehicle before the accident. However, his car did have a dent in that part of the car after the accident. David Roy Axup, an accident reconstruction expert, was called by Mr Bonavia to give evidence about that damage. Mr Bonavia instructed Mr Axup that his car had been sideswiped by another vehicle attempting to overtake him and that this caused Mr Bonavia to lose control of his car and collide with the Windscreen O’Brien’s truck. Mr Axup’s opinion was that there was no indication of scraping on the passenger side of the car that would indicate a sideswipe, which can only occur when there are two vehicles travelling at different speeds. Rather, in Mr Axup’s opinion, the damage was consistent with contact with another car travelling at about the same speed. Immediately before closing addresses, Mr Bonavia amended his pleading to replace the allegation that his car had been sideswiped with an allegation that his vehicle had been ‘contacted’ by another vehicle. The jury were present when the successful amendment application was made.
Was the jury’s verdict against the evidence? (Proposed Ground 1)
On the whole of the evidence and on its weight and quality the verdict returned by the jury that there was not negligence on the part of the driver of an unidentified vehicle which was a cause of the plaintiff’s injury, loss and damage was perverse, unreasonable or was not in accordance with the evidence.
The test for ordering a new trial on the basis that a jury’s verdict is against the weight of the evidence is well settled:
The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.[2]
[2]Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 41 (Mason CJ, Deane, Toohey and McHugh JJ) (emphasis in original).
This means that it is not the task of this Court to supplant the jury’s verdict with the decision it or a differently constituted jury may think should have been reached.
The task of disturbing a jury verdict is particularly difficult for unsuccessful plaintiffs who bore the onus of proof at trial. They must show that the jury could not have done anything else except find in their favour.[3] The difficulty increases for unsuccessful litigants because the appeal proceeds on the basis that the jury took the view of the evidence which was most favourable to the successful party at trial.[4] This is unsurprising given the advantages which juries have in sitting through the whole of the case and observing the witnesses giving their evidence one after another.[5] In light of all of these matters, it is also unsurprising that the occasions on which a jury verdict will be upset will be extremely rare and will only be where there is a clear or exceptionally strong case.[6]
[3]Ibid 42 (Mason CJ, Deane, Toohey and McHugh JJ), 46-7 (Brennan J).
[4]Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308, 311 (Taylor, Menzies and Owen JJ).
[5]Savino v Schieven [2015] VSCA 67 [20] (Kaye JA, Warren CJ and Ferguson JA agreeing).
[6]Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308, 311 (Taylor, Menzies and Owen JJ); Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 42 (Mason CJ, Deane, Toohey and McHugh JJ).
Mr Bonavia submitted that both his evidence and that of Mr Stephens supported his case. He contended that his evidence that the third car was close behind him when he first saw it was always consistent. He argued that this was the important fact from which he did not sway. He contended that his evidence about when and where he first saw the other car was not inconsistent and that it was understandable that he was confused ‘in the agony of the moment’ about having been sideswiped. In short, he contended that his evidence was clear, credible, internally consistent and consistent with such physical evidence as was available.
Mr Bonavia submitted that the police officer’s evidence was also supportive of his case, particularly his opinion that it was probable that there was a third vehicle involved in the accident. Similarly, he submitted that the expert evidence of Mr Axup was consistent with his case.
On the other hand, Mr Bonavia contended that the evidence of the truck driver and his passenger did not assist because they were looking straight ahead instead of to the right where his car was travelling. Although they gave evidence that they had also not seen a third vehicle, he observed that that was not evidence that another car had not been involved. Mr Bonavia also sought to discredit the evidence of Mr Omari. Mr Bonavia referred to Mr Omari’s evidence about the colour of Mr Bonavia’s car and Mr Omari’s evidence that he had not spoken to the police officer at the scene of the accident, when the police officer gave evidence that he had spoken to Mr Omari and that Mr Omari had not told him anything useful regarding the collision. He contended that Mr Omari’s evidence was unreliable.
In our opinion, taking the evidence as a whole, the jury was entitled to return a verdict which was unfavourable to Mr Bonavia. It was for them to decide whether the accident was caused by the negligence of an unidentified driver. We do not know what the jury took into account in reaching its verdict that it was not so caused. But what can be said is that this is not a case where even the preponderance of the evidence was in favour of Mr Bonavia. Far from it. Contrary to his submission, he did not have a strong case. For a start, Mr Bonavia’s account of what occurred varied. Whilst his evidence was consistent about the alleged blue car being very close behind him, he was not able to settle on where and when he first saw the other car and where his car was at that time. In the witness box, Mr Stephens could not recall the accident. The statements that he gave were in some senses supportive of Mr Bonavia’s case but they were made some years after the event and there was a suggestion that he and Mr Bonavia had spoken to try to ‘work out what happened’. His recollection at trial was clearly not good and it was a matter for the jury as to the weight that it gave to the totality of his evidence and the statements. The police officer gave two possible causes for the collision — driver error or involvement of a third vehicle. He thought it may be the latter. But the jury was entitled to reject that conclusion. It was, of course, based on what Mr Bonavia alone told him. The evidence of the other drivers was that there was no other vehicle involved. They did not see any other vehicle and did not mention to the police officer on the day of the accident that there was any other vehicle that contributed to the accident. Whilst Mr Omari may have been wrong in his recollection of the colour of the car, he did have the correct make of car and, taking into account the photographic evidence before the jury, the discrepancy in the colour of the vehicle was not so egregious that the whole of Mr Omari’s evidence should have been rejected by the jury. Although he gave evidence that he did not speak to the police officer about what had happened, he did confirm that he had given him his details. Mr Axup’s evidence that the dent in Mr Bonavia’s car was not caused by a sideswipe (that is, it was not caused by an overtaking vehicle going at a faster speed) but was consistent with two vehicles making contact at the same speed did not support Mr Bonavia’s case. Mr Bonavia amended his claim to reflect the evidence at trial which did not accord with his earlier and oft repeated version of the accident having been caused because his vehicle was sideswiped.
In our view, the proposed appeal on ground one has no real prospect of success. We would not grant leave to appeal.[7] Had leave been granted, we would have dismissed the appeal on this ground for the reasons that we have given.
Should evidence of the fact that Mr Bonavia had been charged, tried and acquitted of rape been admitted? (Proposed Ground 2)
The trial judge erred in not refusing the admission of evidence that the plaintiff had been charged with and tried for the offence of rape, on the ground that such evidence had no probative value, or on the ground that any probative value that it had was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff.
[7]Supreme Court Act 1986, s 14C; Kennedy v Shire of Campaspe [2015] VSCA 47.
As we will explain in more detail below, the trial judge admitted into evidence the testimony of an expert witness about Mr Bonavia having been charged, tried and acquitted of rape some time before the relevant car accident. Both parties accepted that the judge’s ruling as to the admission of this evidence could only be overturned if error of the House v The King[8] type was identified. Consequently, Mr Bonavia must show that the trial judge made his decision based upon a wrong legal principle or made a mistake as to the facts or took into account an irrelevant matter or omitted to take into account a relevant matter when weighing the various considerations to arrive at his decision, or he must show that the decision is so unreasonable or plainly unjust that this Court can infer that there was a failure to exercise the discretion properly.
[8](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).
Evidence is relevant (and therefore admissible) if it could rationally affect the assessment of the probability of the existence of a fact in issue.[9] Nevertheless, the Court retains a discretion as to whether to admit evidence. Relevant to this appeal, the Court may exclude evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.[10]
[9]Evidence Act 2008, ss 55(1), 56(2).
[10]Evidence Act 2008, s 135(a).
Expert medical evidence was called by Mr Bonavia from Dr Weissman, a consultant psychiatrist. He had prepared two reports. In the first report dated 6 March 2014, he recorded twice that Mr Bonavia had told him that he had been charged, tried and acquitted of rape in 2006. The first reference read:
Firstly, he told me that he was charged for ‘fucking rape’ in or around 2006. He told me that he was charged for raping his ex-girlfriend. … He told me that he went to [the] County Court for a 9-day trial in front of a jury and was found not guilty by all 14 jury members, he said.
He told me that it was … stressful and he was seeing a counsellor at that time. However, during the interview, he told me that ‘I’ve moved on from the (alleged) rape because I know I never did that.’
The second reference in Dr Weissman’s report to the charge and acquittal read as follows:
This is a complex and difficult case. The claimant told me two important pieces of information/history during the last 5-10 minutes of the interview which need to be taken into account. However, at this stage, it is difficult for me to [know] ‘how much’ they impact upon his current psychiatric state.
The claimant told me that he was charged with raping an ex-girlfriend and underwent a County Court [trial], as the defendant, before a jury of 14 (he said) in 2006. He told me that he was found not guilty by all jury members. He told me that this was (obviously) a stressful time for him and he saw a counsellor. The claimant told me that he was found not guilty before the subject transport accident and ‘I’m over the rape because I knew I never did that.’
The report then set out information about another event and continued (emphasis in original):
It would be helpful and prudent to obtain further information about both of these events above.
·At this stage, based upon my clinical experience and expertise, it would seem reasonable to apportion some pre-existing or unrelated psychiatric impairment in this case in terms of psychosocial stress, possible vulnerability factors and possible maladaptive personality traits.
Dr Weissman’s second report is dated 26 February 2015. Dr Weissman recorded in this report that he had asked Mr Bonavia that day:
about being charged with the rape of an ex-girlfriend and his County Court trial in 2006. The claimant reiterated that he is (and was) over that stressful time of his life. He reiterated that he was found not guilty by all jury members. He told me that he was ‘over’ the stress, even by the time that the subject transport accident occurred.
Dr Weissman then recorded having asked Mr Bonavia about the second event mentioned in his earlier report. Dr Weissman concluded that, based upon Mr Bonavia’s responses and his clinical experience and expertise, it seemed to him that Mr Bonavia was not completely ‘over’ the second event and may have some residual traumatisation features from it. He stated (emphasis in original):
Overall, on the balance of probabilities, I still think that it would be reasonable to apportion a small amount of pre-existing or unrelated psychiatric impairment in this case.
Trial counsel for Mr Bonavia proposed to call Dr Weissman with part of his report to be read into evidence on the basis that the material about the charge, trial and acquittal on rape would not be put into evidence. The trial judge ruled against this approach. His Honour accepted the respondent’s submission that in his first report, Dr Weissman had placed some significance and relevance on the event such that it became an integral part of his evidence. The judge observed that there was an acquittal. Whilst he accepted that the evidence was prejudicial, he took the view that it was capable of being dealt with by a stern judicial direction. The judge said that it was a topic for cross-examination ‘because the doctor was clearly of the view at one stage at least that a cause of injury or condition not related to the circumstances of this accident was playing a role in the plaintiff’s condition.’ His Honour observed that he would not permit cross-examination to go beyond legitimate testing of that matter and stated that if he saw any forensic advantage being taken of his ruling he would stop it.
When Dr Weissman gave evidence, he read in the first two paragraphs from his first report that we have set out above[11] in which he recorded what Mr Bonavia had told him about his psychiatric history. Dr Weissman testified that Mr Bonavia’s history did not provide any past psychiatric history of note. When asked why he had described this as a complex and difficult case, Dr Weissman mentioned a number of matters including that it was difficult for him to know what to do with what Mr Bonavia had told him about the charge and acquittal because he did not have any information about it.
[11]See [23] above.
Dr Weissman was taken to his second report where he mentioned the charge and acquittal. He testified as follows:
So I accepted — I’m not sure, actually, whether I accepted that part, that he was necessarily over the stress by the time the transport accident occurred in 2008. But I accepted that he was over the stress of the case — the court case, for the alleged rape when I saw him just a couple of months ago in February.
There was evidence that Mr Bonavia had prior convictions for offences. Dr Weissman did not mention this in his reports and so he was cross-examined about whether he had been told about these offences. Dr Weissman testified that ‘apart from the alleged rape thing,’ Mr Bonavia had not told him about any prior police involvement. The doctor gave evidence that for the purpose of forming his expert medical opinion it was important for him to know about the prior convictions. A little later in cross-examination the following exchanges occurred:
DEFENDANT’S COUNSEL: And you’d hope that they would have been mentioned because obviously enough they’re all relevant in some way, shape and form? ---Yes.
Any idea why, for example, there was mention of the business to do with the rape, but not - - -
HIS HONOUR: Well, let’s be clear about this. It was an alleged rape, of which he was acquitted.
COUNSEL: Yes.
HIS HONOUR: So I think we need to - - -
COUNSEL: I’m sorry. I didn’t mean to infer anything else, Your Honour.
HIS HONOUR: No intention inferred on my part. But, having regard to the fact that the man was acquitted on the alleged charge - - -
COUNSEL: I understand.
HIS HONOUR: I think it’s important we claim the respect of describing what happened properly.
COUNSEL: Indeed, Your Honour. That will form part of the question - - -
HIS HONOUR: Excellent.
COUNSEL: - - - that differentiation. Any idea why he’d mention a charge on which he was acquitted to you, but not mention a suite of charges, as it were, where he’s convicted. Where in fact as we understand it, he pleaded guilty to thefts and burglaries and things like that? ---Look, again, I would just have ideas about that like anyone. I mean I’m a psychiatrist. I can’t read people’s minds. It would just - - -
Dr Andre Gomez, a psychologist, also gave evidence. He testified that Mr Bonavia had told him that he had been charged with rape and had gone through a trial. Dr Gomez was of the opinion that this was not relevant to Mr Bonavia’s then current presentation or for his treatment and so he did not record it in his notes. During cross examination there was the following exchange:
DEFENDANT’S COUNSEL: What about trouble with the police? Put the rape allegation to one side. Any other trouble with the police?
HIS HONOUR: Well, … we went through this yesterday. He was acquitted of this charge and we need, I think, to include the acquittal - - -
COUNSEL: I’m sorry, Your Honour, that’s why I said ‘allegation’, it was - - -
HIS HONOUR: Well I don’t think that’s quite good enough.
COUNSEL: I apologise - - -
HIS HONOUR: ‘The rape charge of which he was acquitted’, I think pays due respect to him - - -
COUNSEL: I’m happy to - - -
HIS HONOUR: - - - and the facts of what happened.
COUNSEL: I’m happy to adopt that phraseology, Your Honour…
COUNSEL: I’m sorry, I didn’t mean to infer anything - - -
HIS HONOUR: No, I don’t imply that you did.
COUNSEL: Apart from that issue did you get a history of any other trouble with police from the plaintiff?
When it came to the conclusion of the trial, counsel for Mr Bonavia requested that the trial judge give a reasonably strong direction on the use that the jury could make of the allegation of rape. The judge urged counsel to consider that request further because by his observation, the jury were not interested in that aspect and there was a risk that it could be made worse if too much prominence was given to it in the charge to the jury. The judge observed that there were two possible approaches that could be taken and said:
HIS HONOUR: I really do invite you to think about the impact of me looking at the jury over there and saying - - -
PLAINTIFF’S COUNSEL: Yes. I understand.
HIS HONOUR: - - - ‘Madam Foreperson and members of the jury, now there was an allegation of rape made against this man and it went to trial. After a full trial he was acquitted of it. You’re not to take into account that fact because it’s a non fact. He was not guilty — found not guilty in relation to this charge’. Just think about that.
COUNSEL: Yes.
HIS HONOUR: Whereas what I could say, almost sotto voce, is well of course there was an allegation and he was acquitted and that’s the end of it. You wouldn’t take that into account, that’d be grievously unfair. Next point.
Counsel for Mr Bonavia observed that the second approach was desirable.
In his closing address to the jury, counsel for the respondent did not mention the rape charge and acquittal. However, in his address, Mr Bonavia’s counsel did refer to Dr Weissman’s evidence that he had mentioned as a stressor ‘the allegation ultimately unproved … in front of a jury, of rape.’ Counsel for Mr Bonavia observed that it was not an incident that appeared in Dr Weissman’s later report as an ongoing stressor. In the charge to the jury, the trial judge said:
Next is the important subject of sympathy and prejudice. You can see that I am a judge here; you are judges of fact there now, the collective body of you. I am required to decide questions of fact, indeed all questions whether of law or fact, in an objective intellectual kind of way. I cannot take into account some sympathy or feeling, positively or negatively, prejudicial or otherwise which I may have because I am a judge.
And it is the same with you because you are judges individually and collectively you cannot do any such thing; you have to put feelings aside and attend to the task that you have as you would expect judges to do. The kind of thing that I have in mind is you have heard that the plaintiff was charged with rape and found not guilty of that charge by the unanimous jury in a criminal trial; obviously this is not something that you can allow to affect you in any way whatsoever.
It would be most unfair and egregious breach of your duty as jurors to do otherwise and I am sure that you will not. Further, you have heard the plaintiff admit to various activities with which you may or may not agree or may or may not regard as unusual; taking marijuana and other drugs and committing some criminal offending, which you have heard in the evidence.
You may think he was a bit of a rascal, but I really must emphasise to you that even rascals are entitled to their day in court and to the full measure of justice which it is the obligation of a jury to provide. So whatever you might think about those things, then you must not allow feelings of prejudice or sympathy for that matter to interfere with the objective and impersonal judgment which you must reach in relation to the proceedings that have been brought.[12]
[12]T864.24-865.26.
Later in his charge, the judge said:
Credibility attacks are permissible. It is valid for a party to say that a witness is not reliable for particular reasons and to invite you to take into account those reasons when determining whether to accept the evidence of the witness. The reasons can be as were put forward here that the witness had been guilty of criminal offending or had been guilty of conduct which tended to suggest that their evidence was not such as to be reliable.
That was done in this case. Not by reference to the acquittal on the charge of rape, because I have already told you that can play no part in your considerations whatsoever and certainly not as to credibility, but rather by reference to the other more minor criminal offending which the plaintiff admitted.[13]
[13]T875.9-23.
Mr Bonavia submitted that the evidence about the rape charge and acquittal was not relevant because there was no evidence (and the respondent did not intend to call any) that those events had an effect on his prior mental condition at the time of the collision such as to contribute partly to his subsequent mental condition. He speculated in his submissions that there was a danger that at least some of the members of the jury may have thought that he had had a lucky escape and that they were dealing with a rapist who had lied when he said that he was not guilty and that this was made worse when viewed in light of the evidence that Mr Bonavia was a long term user of various drugs and had convictions for property offences. His counsel observed that an acquittal does not carry with it a verdict of innocence.
Counsel submitted that the trial judge had erred in stating in his ruling that Dr Weissman had clearly been of the view at one stage that a cause of the injury to Mr Bonavia that was not related to the circumstances of the accident was playing a role in Mr Bonavia’s condition. Counsel submitted that Dr Weissman had never clearly been of the view that the rape charge and what followed were important to his opinion. His first report had simply recorded a tentative view that it was possible that those events had had some effect on Mr Bonavia’s mental condition but by his second report, Dr Weissman was satisfied that it had no effect. Mr Bonavia submitted that this showed that the evidence had no probative value, as did the fact that Dr Weissman was not cross-examined about the issue. Mr Bonavia argued that once the evidence was admitted, it was highly prejudicial and was allowed to remain in the minds of the jury members as a stain on him.
We do not accept those submissions. Dr Weissman gave evidence that it was relevant to know about a person’s past psychiatric or medical problems when making a psychiatric assessment. It is clear from his first report that the rape charge, trial and acquittal were considered by him to have contributed to Mr Bonavia’s psychiatric state, although he could not tell how much they continued to impact upon his psychiatric state in 2014. For this reason, he opined that it would be helpful and prudent to obtain further information. He referred to the issue again in his second report. It is not clear to us from reading that report that he considered the matter of the rape charge and acquittal as irrelevant. He restated what Mr Bonavia had told him about the rape charge and then dealt with a second event in Mr Bonavia’s history. It is not obvious to us that his conclusion that ‘it would be reasonable to apportion a small amount of pre-existing or unrelated psychiatric impairment in this case’ (emphasis in original) was confined to the second event alone.
By the time he testified at trial, Dr Weissman’s evidence was that he did not necessarily accept Mr Bonavia’s statement that he was over the stress of the rape charge and acquittal by the time of the accident in 2008, although he accepted that its effect had been removed when he saw Mr Bonavia in February 2015.
The evidence about the rape charge, trial and acquittal was a matter that could rationally affect the probability of Mr Bonavia’s psychiatric condition having been caused in part by an event unrelated to the traffic accident. Consequently, unless it could properly be excluded on some other basis, the evidence was relevant and admissible.
In this regard, Mr Bonavia contended that the evidence was of such little weight and so prejudicial that it should have been excluded. His counsel submitted that the direction to the jury could not remove the stain that had been cast upon him by the mention of the charge of rape. We do not accept that submission. In our view, it underestimates the capability of jurors and the diligence with which they attend to their duty as the triers of fact. There would be little point in giving any directions to juries if they were thought to have no effect. Indeed, the directions given by the judge were considered. They were discussed with counsel for Mr Bonavia before the charge was delivered. Counsel accepted as appropriate the course taken by the trial judge.
In addition, the trial judge was vigilant and ensured that the respondent’s counsel did not overstep the mark in cross examination. As can be seen from what we have set out above, more than once the judge ensured that counsel was careful with the language that he used when speaking of the rape charge and what followed.
The respondent made a number of submissions regarding the manner in which the issue of the rape charge and acquittal was dealt with by trial counsel for Mr Bonavia. Counsel for the respondent observed that, in addition to the references made by Dr Weissman and Dr Gomez, references to the rape charge and acquittal were also made in the evidence-in-chief of two other witnesses for Mr Bonavia: Ms Mullaly (a neuropsychologist) and Mrs Bonavia (Mr Bonavia’s mother). The respondent submitted that aside from the initial application to excise part of Dr Weissman’s evidence, trial counsel for Mr Bonavia did not object to the references to the rape charge and acquittal that subsequently arose. No application to discharge the jury was made. Instead, as we have discussed, trial counsel for Mr Bonavia agreed with the judge on the appropriate form of jury directions regarding the rape charge and acquittal, and addressed the jury on the issue in his closing.
Mr Bonavia submitted in response that, having received an adverse ruling in relation to Dr Weissman’s evidence, his trial counsel took a reasonable course of doing the best that he could within the parameters of that ruling. This included dealing with the rape charge and acquittal in-chief to defuse what could otherwise have been a difficult issue for Mr Bonavia.
It seems to us that, faced with the judge’s adverse ruling, trial counsel made the forensic choice of not seeking that the jury be discharged and indeed of raising the issue of the rape charge and acquittal before the jury. Having made that forensic decision, it is now difficult for Mr Bonavia to argue the inconsistent position that the evidence of the rape charge and acquittal was so prejudicial that no direction by the trial judge could ensure a fair trial. As this Court said in Green v Emergency Services Telecommunications Authority:
generally speaking, a litigant is bound by the conduct of his or her counsel; and … again generally speaking, the failure of a litigant’s counsel to adopt a readily available strategy at trial so as to endeavour to remedy or ameliorate wrongful prejudice to his or her client ought tell against the litigant on appeal.[14]
[14][2014] VSCA 207 [72] (Ashley, Priest and Santamaria JJA).
Where there is evidence of a prejudicial nature, there is always a question of balancing the prejudice against the probative value of the evidence. It is worth emphasising that the probative value of the evidence must be substantially outweighed by the danger before the evidence may be excluded. Here, the judge did balance both probative value and prejudice. He put in place protections to contain the prejudice. In short, there was no House v The King[15] type of error on the part of the trial judge that would permit this Court to overturn his ruling as to this part of the evidence.
[15](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).
In our opinion, leave to appeal should be granted in respect of proposed ground two of appeal. That ground was not fanciful. Nevertheless, for the reasons that we have given, we would dismiss the appeal.
0
5
0