Skrijel v Mengler

[2003] VSC 117

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5446 of 1993

MEHMED SKRIJEL	Plaintiff
v
JOHN CARL MENGLER	Firstnamed Defendant
COMMONWEALTH OF AUSTRALIA	Secondnamed Defendant
GARY WESTON COOK	Thirdnamed Defendant
STATE OF VICTORIA	Fourthnamed Defendant

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 April 2003
DATE OF RULING:	14 April 2003
CASE MAY BE CITED AS:	Skrijel v Mengler and ors
MEDIUM NEUTRAL CITATION:	[2003] VSC 117

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Firstnamed Defendant	Mr M. Tovey QC with Mr P. Marzella	Hardham Dalton & Sunberg
For the Secondnamed Defendant	Mr B. Walters SC with Mr K. Mueller	Australian Government Solicitors
For the Thirdnamed Defendant	Mr J. Santamaria QC with Mr M. Gindberg	Victorian Government Solicitors
For the Fourthnamed Defendant	Mr R. Gipp	Ebsworth & Ebsworth

HIS HONOUR: 

1. The first defendant seeks to tender into evidence a number of psychological and psychiatric reports which are contained in court book volume 3, beginning at page 1163 and extending to page 1182.  They include a report prepared by Dr Robert Karoly; an extract from a report prepared by Mr Joseph Lee, forensic clinical psychologist; a report prepared by John Grigor, forensic psychiatrist; a report prepared by Mr Bernard Healey, clinical psychologist; and a report prepared by Mr W.F. Glaser, consultant forensic psychiatrist.

1. The documents are contended to be admissible on a number of bases.  First, in respect of all reports it is said that they contain histories of which the content makes it likely that they are histories which were given by the plaintiff to the doctors and psychologists concerned. This degree of likelihood, it is submitted, overcomes the objection that otherwise the histories are hearsay and that to draw the conclusion that they are statements made by Skrijel to the writers of the documents would be to draw a conclusion as to the truth of what is implicitly asserted as to the origin of the history.

1. I do not accept that the form in which the statements have been prepared is sufficient to overcome the objection that the contents of the reports are hearsay.

1. Next, it is submitted that in the case of the reports prepared by Mr Healey and Dr Glaser, there is evidence, or at least there is an indication by the plaintiff from the Bar table, supported to some extent by evidence given by Mr Berthelsen, that the reports were prepared on behalf of the plaintiff for the purposes of his criminal trial in the County Court and thus it must be taken, or it is at least sufficiently probable to be taken that the contents of the histories, were given by the plaintiff.

1. I do not accept that contention.  I do not consider that the fact that a medical practitioner or a psychologist may have recited a history in a report prepared on behalf of a patient overcomes the objection that unless and until the doctor or the psychologist is called, the statement is only hearsay as to the fact that it was given by the patient.

1. Thirdly, it is said that the reports are documents which were in the plaintiff's court book and that although not tendered into evidence, they may be regarded as being sufficiently under the control of the plaintiff as to have been adopted by him.  Reliance is placed upon the rule in Alderson v Clay[1] which is dealt with in Cross on Evidence, Australian edition at paragraph 33.510.

   [1](1816) 1 Stark 405, 171 ER 511

1. The basis of that rule is that if it is clear that a party has had access to, and control over the contents of a document the document may be proved against him as evidence of the truth of its contents.  The rule is always a difficult one to apply in practice but in this case it appears to me to be tolerably clear that it has not been demonstrated that the plaintiff had sufficient control over the contents of the documents to bring them within the ambit of the rule.

1. Finally, it is said on behalf of the first defendant that the documents are admissible on the basis that they have for a long time been in the possession of the plaintiff and admissions have been made by Mr Berthelsen in the course of his cross-examination, in substance to the effect that the plaintiff does not disagree with the contents of the reports prepared by Mr Healey and Dr Glaser.

1. Some evidence was given to that effect on 10 April 2003, which is recorded as page 569 of the transcript, and some more evidence was given by Mr Berthelsen this morning, although it was not as clear as that which he gave on 10 April this year.  At page 569 of the transcript the following appears at line 13.  Question:

"Did he (Skrijel) ever say anything to you to indicate that there was anything untruthful in those reports? --- Not in Bernard Healey's report and not in Dr Bill Glaser's report.

He was quite happy with those? --- Apparently.  I did not ask him, I was not in a position to ask him."

1. In my opinion, that evidence does not disclose that there has been an adoption by the plaintiff of the contents of the report of either Healey or Glaser.  Accordingly, I reject the tender.

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