Re GHI (a protected person)

[2005] NSWSC 466

CITATION:	Re GHI (a Protected Person) [2005] NSWSC 466
HEARING DATE(S):	10/5/05 - 13/5/05 & 1/6/05
JUDGMENT DATE :	11 May 2005
JURISDICTION:	Equity Protective List
JUDGMENT OF:	Campbell J
DECISION:	Evidence admitted.

CATCHWORDS:	EVIDENCE - admissibility and relevancy - discretion to exclude under section 135 Evidence Act 1995 - MENTAL HEALTH - management and administration of property - proceedings for revocation of protection order - admissibility of hearsay evidence
LEGISLATION CITED:	Evidence Act 1995 Protected Estates Act 1983
CASES CITED:	ACCC v Australian Safeway Stores Pty Ltd [1999] FCA 1269 Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 Commonwealth v McLean (1996) 41 NSWLR 389 Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike (No.1) (Federal Court of Australia, Beaumont J, 1 September 1995, unreported) Guide Dog Owners' and Friends' Association Inc v Guide Dog Association (NSW & ACT) (1998) 154 ALR 527 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 222 Longhurst v Hunt [2004] NSWCA 91 NSW Bar Association v Somosi [2001] NSWCA 285 Ordukaya v Hicks [2000] NSWCA 180 Papakosmas v R (1999) 196 CLR 297 Perpetual Trustee Company Ltd v George; Estate of Conacher (No 1) (NSWSC, Einstein J, 19 November 1997, unreported) R v BD (1997) 94 A Crim R 131 R v Clark [2001] NSWCCA 494 R v Esposito (1998) 105 A Crim R 27 R v GAC (NSWCCA, 1 April 1997, unreported) R v Le [2002] NSWCCA 193 R v McCormack (No 3) [2003] NSWSC 645 R v Sing (2002) 54 NSWLR 31; [2002] NSWCCA 20 Tucker v Hospital Corporation of Australia Pty Ltd (NSWSC, 6 May, 1998, unreported) Vitali v Stachnik [2001] NSWSC 303
PARTIES:	GHI (a protected person) - Plaintiff Office of the Protective Commissioner - Defendant
FILE NUMBER(S):	SC 66/03
COUNSEL:	M Bradford - Plaintiff S Balafoutis - Defendant
SOLICITORS:	Uther Webster & Evans - Plaintiff Office of the Protective Commissioner - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

CAMPBELL J

WEDNESDAY 11 MAY 2005

66/03 RE: GHI (A PROTECTED PERSON)

JUDGMENT - Ex Tempore (Re objection to paras 3 and 4 of the affidavit of Kenneth Gulline of 17 March 2005)

1 HIS HONOUR: I am hearing an application by a protected person under section 35 Protected Estates Act 1983 to revoke the protection order. Objection has been taken to two portions of evidence. They are in paragraphs 3 and 4 of the affidavit of Kenneth Gulline of 17 March 2005. Those paragraphs are ones which annex a copy of a police facts sheet dated 12 March 2004 relating to a criminal charge which was brought against the plaintiff.

2 The way in which that charge proceeded is that initially there were three charges proffered, of assault with act of indecency, common assault and maliciously destroying or damaging property. Ultimately, the plaintiff pleaded guilty to the second and third of the charges and the first of the charges was not proceeded with. The material which is annexed to paragraphs 3 and 4 of Mr Gulline’s affidavit is a facts sheet which had been prepared by the police, which includes the police summary of the evidence they intended to call concerning the first of the charges, and some witness statements which relate to the first of the charges.

3 The plaintiff denies that the first charge is one which was justified. The charges all arose from an incident which occurred on 11 March 2004, when the plaintiff caused a woman who had been living at his house for a short time to leave the premises and, admittedly, damaged some of her property, and assaulted her. The material which has been objected to is material which, if accepted, would, broadly, show that the assault which was involved had a sexual element, and was more than just him slapping her. That evidence is evidence which has been taken into account by the psychiatrist, Dr Milton in a report which he has prepared.

4 It is submitted on behalf of the plaintiff that I should reject the evidence under section 135 of the Evidence Act 1995. The basis for that is said to be that section 135 (a) or (b) are attracted.

5 Section 135 (a) confers on the Court a discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. There is debate, the merits of which I do not propose to enter into, about what “unfairly prejudicial” means in this context: R v BD (1997) 94 A Crim R 131; Papakosmas v R (1999) 196 CLR 297; Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike (No.1) (Federal Court of Australia, Beaumont J, 1 September 1995, unreported); Guide Dog Owners’ and Friends’ Association Inc v Guide Dog Association (NSW & ACT) (1998) 154 ALR 527 at 532; Tucker v Hospital Corporation of Australia Pty Ltd (NSWSC, 6 May, 1998, unreported); R v GAC (NSWCCA, 1 April 1997, unreported); Perpetual Trustee Company Ltd v George; Estate of Conacher (No 1) (NSWSC, Einstein J, 19 November 1997, unreported); Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 434-5; R v Esposito (1998) 105 A Crim R 27 at 71; Commonwealth v McLean (1996) 41 NSWLR 389 at 400-402; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 222 at [46]; Ordukaya v Hicks [2000] NSWCA 180 at [6] per Mason P, [35] – [40] per Sheller JA; NSW Bar Association v Somosi [2001] NSWCA 285 at [77]; R v McCormack (No 3) [2003] NSWSC 645; R v Sing (2002) 54 NSWLR 31; [2002] NSWCCA 20 at [35]; R v Clark [2001] NSWCCA 494 at [164]; ACCC v Australian Safeway Stores Pty Ltd [1999] FCA 1269; Vitali v Stachnik [2001] NSWSC 303; Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [55]; Longhurst v Hunt [2004] NSWCA 91 at [46] – [49]; R v Le [2002] NSWCCA 193 at [93] – [97]. The debate concerns, broadly, whether the expression should be used in the way in which it has been commonly understood in the context of Common Law jury trials, where certain evidence might be so startling as to distract a jury from the task which is properly before them. A broader view is that “unfairly prejudicial” means that it is unfavourable to a party, in a way which cannot adequately be evaluated in the trial process. I shall assume without deciding that the wider of these views is the correct one. Section 135(b) permits evidence to be excluded if its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing.

6 In the present case, I have already allowed into evidence a statement from the person who was the victim of the assault. This I did under section 13 of the Protected Estates Act 1983, which allows evidence in an application like the present to be given in such form and in accordance with such procedures as the Court thinks fit.

7 The material which is objected to is material which has a possible relevance, in that the psychiatrist Dr Milton has taken it into account as being relevant to his opinion about the plaintiff’s capacity. I am very conscious of the potential for unreliability that there is in evidence of the type which is objected to. I am conscious of the fact that the evidence is evidence which tells the version of the facts of a person who had a motive to exaggerate what had happened to her, and who will not be called. But the evidence about this assault is only one factor among many in the inquiry before the Court. Dr Milton will be called to give evidence, and can be either examined in chief or cross-examined to elucidate the role which the evidence had in forming his opinion. The nature of an inquiry such as the Court is now engaged in is in many ways different to an ordinary court case, and section 13 of the Protected Estates Act 1983 recognises that difference. I do not conclude that the unfavourable tendency of the evidence is one which cannot be evaluated in the trial process.

8 As to section 135(b), there is something bizarre in submitting to a judge sitting alone that he or she should reject evidence on the ground that it might mislead or confuse him or her. I propose to trust myself, so far as that is concerned.

9 Paragraphs 3 and 4 of the affidavit of Kenneth Gulline of 17 March 2005 will be received in evidence and are taken as read.

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