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Re GHI (a protected person)

Re GHI (a protected person)

Case [2005] NSWSC 466 11 May 2005

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re GHI (a protected person)

Details

AGLC: Re GHI (a protected person) [2005] NSWSC 466
Case: [2005] NSWSC 466
Decision Date: 11 May 2005

CaseChat Overview and Summary

In the case of Re GHI (a protected person), the parties involved were the Office of the Public Advocate and the respondent, GHI, a protected person. The dispute centred around the admissibility of hearsay evidence in proceedings related to the revocation of a protection order. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining whether certain hearsay evidence could be admitted under section 135 of the Evidence Act 1995. This required careful consideration of the relevance and reliability of the evidence, as well as its potential impact on the fair trial of the proceedings.

The legal issues that the court had to resolve included the application of section 135 of the Evidence Act 1995, which provides a discretion to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion or misleading the court. The court also needed to consider the principles of natural justice and the rights of the protected person, GHI, to a fair hearing. Additionally, the court was required to weigh the importance of the hearsay evidence in the context of the mental health proceedings and the administration of GHI's property.

The court carefully analysed the evidence and concluded that, while the hearsay statements had some probative value, their potential to cause unfair prejudice and mislead the court substantially outweighed this value. The court held that the discretion under section 135 should be exercised to exclude the hearsay evidence from the proceedings. The court found that the exclusion of the hearsay evidence did not infringe upon the principles of natural justice or the rights of GHI to a fair hearing, as there was other admissible evidence that sufficiently addressed the issues before the court. The court ultimately decided that the hearsay evidence should be excluded, as its prejudicial effect outweighed its probative value.

The final orders of the court were that the hearsay evidence in question should be excluded from the proceedings. The court's decision was based on a careful consideration of the relevant legal principles and the specific circumstances of the case. The court's ruling upheld the importance of ensuring a fair trial and protecting the rights of protected persons in mental health proceedings.

Orders