Perry v Kinnear (No. 2)

[2020] NSWDC 898

District Court

New South Wales

Medium Neutral Citation:

Perry v Kinnear & Ors (No. 2) [2020] NSWDC 898

Hearing dates:

27 August 2020

Date of orders:

27 August 2020

Decision date:

27 August 2020

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

That the evidence of Ms Alberta Turner, Ms Meg Scofield and Ms Anique Morris be admitted into evidence.

Catchwords:

Civil Practice & Procedure – Admissibility of Evidence – Allegations of Sexual Assault – Defence Objection to Evidence of Complaint – Hearsay – Credibility – Leave Pursuant to s 192 of the Evidence Act 1995 (NSW)

Legislation Cited:

Evidence Act 195 (NSW) ss 59, 60(1), 108, 108(3), 108(3)(a), 108(3)(b), 192, 192(2), 192(2)(b), 192(2)(c), 192(2)(d)

Cases Cited:

Pollitt v The Queen (1992) 174 CLR 558

R v Sood (Ruling No 2) [2006] NSWSC 732

Category:

Procedural rulings

Parties:

Mrs Isabell Perry (Plaintiff)

Mr Ian Kinnear (First Defendant)

Mrs Leisha Kinnear (Second Defendant)

Representation:

Counsel:

Mr D Elliot (Plaintiff)

Mr D Brezniak (First & Second Defendants)

Solicitors:

Gerard Malouf & Partners (Plaintiff)

Paul & Labuzin Lawyers (First & Second Defendants)

File Number(s):

2018/00106299

Publication restriction:

N/A

Judgment (EX TEMPORE) – VOIR DIRE 3

1. On the morning of the fourth day of the hearing, without any apparent prior notice to his opponent or to the Court, the defendants, for the first time, raised objection to the evidence of witnesses Turner, Morris and Scofield, which had been organised to be given by AVL. They are witnesses in the plaintiff case. It was contemplated that cross-examination of the plaintiff would conclude by luncheon today and that the evidence of those witnesses would then be taken via AVL, starting at 2 o’clock.

2. Each of them has made a statement, and their statements were served by the plaintiff on the defendant at least by the time of delivery of the Joint Court Book, MFI 5. I am informed that that Joint Court Book was delivered on about 28 April 2020. Those statements are, in this voir dire, tendered. They are:

1. Exhibit VD3‑1: Ms Turner’s statement of 18 April 2020;

2. Exhibit VD3‑2: The statement of Ms Morris dated 23 April 2020; and

3. Exhibit VD3‑3: The statement of Ms Scofield of 21 April 2020.

3. It is obviously disappointing that this application was not made before this point, where it has caused the interruption of about an hour‑and‑a‑half before I commenced this voir dire judgement. That is, an hour and a half during which the Court staff have not had their morning adjournment. So the time of the morning adjournment is not lost, but in any event, given the parties have been aware that the hearing was to proceed in this way and had that awareness since at least April, it is disappointing that the application is made this morning.

4. I turn to the evidence of the witnesses. In relation to the evidence of Ms Turner; her statement includes both complaint evidence and evidence relevant to circumstances. Evidence of a prior consistent statement by the plaintiff to Ms…