Romanoski v Clean Solutions Pty Ltd
[2018] VSC 526
•12 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2017 02114
| ALEKSANDAR ROMANOSKI | Plaintiff |
| v | |
| CLEAN SOLUTIONS PTY LTD | Defendant |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 September 2018 |
DATE OF RULING: | 12 September 2018 |
CASE MAY BE CITED AS: | Romanoski v Clean Solutions Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 526 |
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EVIDENCE – Video evidence – Video evidence sought to be adduced in personal injuries litigation – Objection to evidence – Whether evidence admissible – Whether jury should be discharged – Evidence of significant probative value – Whether probative value substantially outweighed by unfair prejudice – Whether prejudice can be cured by directions – Svajcer v Woolworths Ltd [2015] VSC 543 distinguished – Evidence Act 2008 s 135; Supreme Court (General Civil Procedure) Rules 2015 r 47.02(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | S McCredie and A Smietanka | Zaparas Lawyers |
| For the Defendant | P Scanlon QC and F Ryan | Russell Kennedy |
HER HONOUR:
Introduction
The plaintiff, Aleksandar Romanoski, claims damages in negligence from the defendant, Clean Solutions Pty Ltd, in respect of an alleged personal injury suffered in the course of his employment with the defendant. The defendant denies these allegations. The defendant filed a notice of requirement for a jury. The plaintiff has a significant criminal history, having been found guilty of offences including assault, armed robbery, aggravated burglary, related driving offences and use of a carriage service to harass.
The plaintiff has served several terms of imprisonment for those offences and these matters are all before the jury. The plaintiff has also given evidence about using illicit drugs in the past, including smoking heroin, ice and marijuana. He conceded in cross-examination that he still smokes marijuana at the present.
The video evidence
The Court was informed at the close of hearing yesterday that the defendant wished to show the jury a surveillance video of the plaintiff. The plaintiff is currently in the middle of cross-examination. I watched the video this morning. It ran for 3:21 minutes. The footage is recent; I am told that it dates from 13 August 2018. Mr Scanlon, counsel for the defendant, indicated that the defendant would show the jury other sections of the video in due course.
The relevant section of video shows the plaintiff walking down the street, opening the boot of a car, then getting into the driver’s seat of the car. He then waits until an unidentified individual, wearing a hooded jumped, approaches the driver’s side window. The plaintiff lowers the window and there is an interaction between them which cannot be heard. A later section of footage shows the plaintiff getting out of a car, before entering a bank branch and interacting with a teller. He then exits the bank and returns to the vehicle.
Mr McCredie, counsel for the plaintiff, objects to a section of the video being shown to the jury. The relevant section is where the plaintiff interacts with the unidentified individual. It is submitted that this 10 or 15 seconds should be redacted. I will refer to this section as the ‘impugned video’. Mr McCredie objects to the impugned video being shown to the jury on the basis that the plaintiff has been involved in a ‘drug drop’ (to use his language).
Mr Scanlon indicated that he would ask the plaintiff what he was doing in the impugned video; and that, subject to the plaintiff’s response, further questions may follow in relation to the impugned video.
Section 135 of the Evidence Act 2008
Section 135(a) of the Evidence Act 2008 (‘the Act’) provides:
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party; …
Relevantly, ‘unfair prejudice’ has been held to mean that there is ‘a real risk that the evidence will be misused by the jury in some unfair way’, such as where the jury may adopt an ‘illegitimate form of reasoning’.[1]
[1]Dupas v The Queen (2012) 40 VR 182, 227 [75] (Warren CJ and Maxwell P and Nettle, Redlich and Bongiorno JJA).
Submissions
Mr McCredie submitted that the impugned video should be excluded from evidence pursuant to s 135 of the Act. Alternatively, if the evidence is deemed admissible, he submitted that the jury should be discharged and the trial should proceed by judge alone pursuant to r 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). He submitted that allowing the impugned video into evidence would be unfairly prejudicial to the plaintiff and that the prejudice it would give rise to would substantially outweigh its probative value. Further, he submitted that the prejudice suffered by the plaintiff could not be cured by any directions, whether given now or at a later point in the trial.
Mr Scanlon submitted that the evidence in the impugned video is significantly probative as it goes to issues of credit which, in turn, go to liability and quantum. He submitted that the impugned video depicts the plaintiff going about his daily business and is so is relevant to the jury’s assessment of plaintiff’s capacity, movement, loss of social life and loss of earnings. He submitted, in particular, that the impugned video would give rise to a relevant line of questioning in cross-examination about the nature of the interaction between the plaintiff and the unidentified individual.
Consideration
Given the plaintiff’s criminal history, convictions and drug use, there is a real risk that the evidence may be used by the jury in some unfair way, or that they may adopt an illegitimate form of reasoning. Having said that, the impugned video clearly has significant probative value in that is it footage of a part of a day in the plaintiff’s life, subsequent to his alleged injury and prior to this trial.
The impugned video speaks to what the plaintiff does, and is capable of doing, during his day. This matter has been raised by the plaintiff in evidence in chief and is relevant to an assessment of his damages. The plaintiff, in his evidence, has said that he is unable to engage in any meaningful social activities—that, for example, he is dependent on his mother to ‘put on his shoes’—and does very little in his day because of the injuries he sustained as a result of the defendant’s negligence.
The probative value of the impugned video must be considered in light of the likely answers to any questions put to the plaintiff about it in cross-examination. The plaintiff’s credit, arising out of his criminal history and drug use, are squarely matters for the jury. The impugned video, and any evidence the plaintiff may give about it, represent an extension of evidence and issues already before the jury, namely, his criminal history, convictions, and prior and current drug use, all of which go to his credit. These matters, as I have said, go to facts in issue in this case and will be central to the jury’s ability to determine liability, causation and quantum.
True it is that the impugned video will cause ‘prejudice’ to the plaintiff in that it may hurt his case. However, the question is whether the evidence will cause ‘unfair prejudice’, as per s 135 of the Act. This case does not give rise to the sort of unfair prejudice contemplated by Rush J in Svajcer v Woolworths Ltd.[2] There the jury were unaware of the plaintiff’s prior criminal convictions for sexual offences against children. The introduction of that evidence may have given rise to a prejudicial and emotive response from the jury. By contrast, in this case, the impugned video will invite a line of questioning that does not raise a fresh issue; rather, it flows from evidence already given and admissions already made.
[2][2015] VSC 543 (‘Svajcer’).
As McHugh J stated in Papakosmas v The Queen (in turn quoting from an interim report of the Australian Law Reform Commission):
By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional basis, i.e. on a basis logically unconnected to the issues in the case.[3]
The key point here is that the impugned video does not give rise to considerations logically unconnected to the issues in this case. Instead, while it may give rise to an emotive response, it is directly related to and probative of facts that are in dispute between the parties.
[3](1999) 196 CLR 297, 325 [92] (emphasis added) (‘Papakosmas’).
What is more, in Svajcer, Rush J held that the evidence of the plaintiff’s prior convictions could, as McHugh J put it in Papakosmas, ‘appeal to the fact-finder’s sympathies, arouse a sense of horror [and] provoke an instinct to punish’.’[4] But the evidence that falls to be considered here is in a completely different class. The impugned video does not show the plaintiff in the commission of an offence against which the community reacts in horror. It is not even clear, from the footage, what is taking place. It would be open to the jury, on the evidence, to conclude that the video depicts no more than the plaintiff getting into his car and speaking to an unidentified person. It will be a matter for further evidence, and submissions, as to what use should be made of the impugned video. There is thus no reason, at this stage, to find that it will give rise to incurable prejudice.
[4]Ibid.
I am not persuaded that the impugned video will cause such unfair prejudice to the plaintiff that it substantially outweighs the probative value of the evidence. I do not consider that this Court should exercise its discretion to exclude the impugned video. As such it is admissible. Directions can be given in due course to ensure the impugned video is not used improperly or unfairly by the jury.
Juries in both criminal and civil trials are assumed to understand and comply with directions. As Kyrou AJA (with whom Warren CJ and Harper JA agreed) observed in Reza v Summerhill Orchards Ltd:
The experience and wisdom of the law is that, almost universally, jurors approach their task conscientiously. It is assumed that, when they are properly directed by trial judges to decide cases in accordance with the law—that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations—juries comply. The capacity of juries to do so is critical to ensuring that proceedings are fair.[5]
This passage has been cited approvingly many times by this Court and the Victorian Court of Appeal.[6]
[5](2013) 37 VR 204 [50] (citations omitted).
[6]See, eg, Brotherhood of St Laurence v McCabe [2013] VSCA 257 [67]; Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (2014) 42 VR 236 [199]; Srbinovski v Americold Logistics Ltd [2015] VSCA 139 [74]; Love v TAC [2017] VSC 491 [10].
As the learned author of Cross on Evidence notes: ‘Where it is the very probative weight of the evidence which gives rise to the prejudice, it is unlikely to be excluded’.[7] The learned author goes on to explain that this is because:
the relevant prejudice does not lie in the simple fact that the evidence may advance one side’s case or weaken the other’s; prejudice means damage in some unacceptable way, for example, by provoking irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves, in a way logically unconnected in the issues with the case.[8]
[7]J D Heydon, Cross on Evidence (LexisNexis Butterworths Australia 10th ed., 2015) 404 [11125]. See also R v Truong (1996) 86 A Crim R 188, 195; R v BD 1997 94 A Crim R 131, 139; Papakosmas (1999) 196 CLR 297, 291.
[8]J D Heydon, Cross on Evidence (LexisNexis Butterworths Australia 10th ed., 2015) 404–5 [11125].
The issue here is whether the probative value of the impugned video is substantially outweighed by the danger of unfair prejudice to the plaintiff. Even if there is some risk that the jury will misuse the impugned evidence by proceeding on an improper basis, it is my duty to give appropriate directions, and I have taken this into account in assessing the danger of unfair prejudice.
Conclusion
In the circumstances I do not consider that the potential for unfair prejudice substantially outweighs the probative value of the impugned video. I will therefore allow the defendant to show it to the jury and to ask relevant questions.
For the reasons given above, I also reject the plaintiff’s submission that the jury in this trial should be discharged.
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