Perry v Kinnear (No. 4)

[2020] NSWDC 900

District Court

New South Wales

Medium Neutral Citation:

Perry v Kinnear & Ors (No. 4) [2020] NSWDC 900

Hearing dates:

15 September 2020 (of the voir dire)
23 September 2020

Date of orders:

23 September 2020

Decision date:

23 September 2020

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

The oral evidence of Ms Alberta Turner during voir dire 5 be admitted as evidence in re‑examination.

Catchwords:

Practice & Procedure – Re‑examination Evidence arising Out Of Cross‑Examination – Leading Question – Evidence Act 1995 (NSW) ss 37, 38, 39, 42 & 192

Legislation Cited:

Evidence Act 1995 (NSW) ss 37, 38, 39, 42 & 192

Cases Cited:

Hadid v Australis Media Ltd (unreported NSWSC, Sperling J, 5 November 1996)

R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12

Texts Cited:

Uniform Evidence Law, 15th edition, S.Odgers

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 (VOIR DIRE 5)

1. The defendants object to admission of oral evidence in re‑examination of Ms Turner. The evidence in question was taken in Voir Dire 5. The parties made brief oral submissions at the time. VD5 MFI 1 is the defendants’ written submission dated 18 September 2020. VD5 MFI2 is the plaintiff’s written submission dated 22 September 2020.

2. In her Amended Statement of Claim, the plaintiff pleads against the second defendant that the second defendant was aware of the first defendant’s sexual abuse of the plaintiff because Ms Turner (the second defendant’s sister-in-law) confronted the second defendant with the plaintiff’s allegations of the first defendant’s sexual abuse of her: paragraph 13A.

3. Paragraphs 5 and 8 of Ms Turner’s statement written by her following a telephone conversation between herself and the plaintiffs solicitor and dated 18 April 2020 (T414) are Exhibit B. Her statement is MFI 14. Ms Turner’s statement was contained in the Joint Court Book MFI 5 and had been available to the defendants for at least months before this civil trial. Paragraph 5 of Ms Turner’s statement described a conversation in which the plaintiff informed Ms Turner about a “smacking game”, during which “I would line up and Ian would hit me on the bottom. Sometimes Ian’s fingers would slide further and would touch my vagina”.

4. Ian is the first defendant. He is married to the second defendant, Leisha. Isabell is the plaintiff and was, at the relevant time, the defendants’ Foster Carer charge.

5. Ms Turner was called by the plaintiff. During examination in chief she gave evidence of a conversation with the second defendant, which she placed as having occurred when the second defendant came to Ms Turner’s home to pick up the plaintiff who had been staying with her during the September/October 2011 school holidays. Paragraph 8 of Ms Turner’s statement included that in the conversation…