Svajcer v Woolworths Ltd (Ruling)

[2015] VSC 543

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2014 03060

MARK SVAJCER	Plaintiff
v
WOOLWORTHS LIMITED	Defendant

---

JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2015
DATE OF RULING:	7 October 2015
CASE MAY BE CITED AS:	Svajcer v Woolworths Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2015] VSC 543

---

EVIDENCE – Evidence of prior criminal convictions – Application to have evidence of prior criminal convictions excluded – Application to have trial heard by Judge alone – Evidence unfairly prejudicial – Evidence of significant probative value – Evidence cannot be excluded – Trial by Judge alone ordered.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell QC with Mr D Purcell	Maurice Blackburn Lawyers
For the Defendant	Mr R Gillies QC with Ms M Britbart	Sparke Helmore

HIS HONOUR:

Introduction

1. By Writ filed on 19 June 2014, the plaintiff claims damages from the defendant in respect of an alleged personal injury suffered by the plaintiff in the course of employment which he alleges was caused or contributed to by the negligence of the defendant.  The defendant denies these allegations.  In the Writ the plaintiff elected to proceed by trial by jury.  The defendant filed a notice for the requirement of a jury on 25 August 2014.[1]

   [1]See r 47.02(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005.

1. The plaintiff has a significant criminal history, having been found guilty of property, dishonesty and sexual offences.  It is the plaintiff’s sexual offence history that is of main relevance to this application.  In 2008, the plaintiff was found guilty of five counts of sexual penetration of a child under 16 years and three counts of an indecent act with a child under 16 years.  The plaintiff was convicted and sentenced to a five year and nine month term of imprisonment.  The plaintiff remains listed on the Sex Offenders Register.

1. The defendant has indicated that it wishes to lead evidence of the plaintiff’s criminal history at trial as it is relevant to the issues of credibility, liability and quantum, particularly in the sense of the plaintiff’s employability and claims of psychiatric injury.

1. By summons filed on 15 September 2015, the plaintiff made an application that the trial be heard before a Judge alone.

1. At the hearing of this application on 30 September 2015, senior counsel for the plaintiff, Mr James Mighell QC, submitted that evidence of the plaintiff’s criminal history should be excluded from the trial pursuant to s 135 of the Evidence Act 2008 (the ‘Act’). Alternatively, it was submitted if the plaintiff is unsuccessful as to this ground, it should be ordered the trial should be heard before a Judge alone pursuant to r 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (the ‘Rules’).

1. The defendant seeks to challenge this application.

Section 135 of the Act

1. Section 135(a) of the Act provides:

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; …

1. Mr Mighell submitted that adducing evidence of the plaintiff’s criminal history before a jury would be unfairly prejudicial to the plaintiff to the extent that the unfair prejudice arising from the evidence substantially outweighs its probative value and therefore should be excluded.

1. ‘Unfairly prejudicial’ 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’.[2]

   [2]Dupas v R (2012) 40 VR 182, 227 [175] (Warren CJ and Maxwell P and Nettle, Redlich and Bongiorno JJA).

1. In support of the plaintiff’s application, Mr Mighell cited the following passage from an Interim Report of the Australian Law Reform Commission, which was quoted by McHugh J in Papakosmas v The Queen:

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, ie on a basis logically unconnected with the issues in the case.  Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish or triggers other mainsprings of human action, may cause the fact-finder to base his decision on something other than the established propositions in the case.  Similarly, on hearing the evidence, the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.[3]

[3](1999) 196 CLR 297, 325 [92].

1. I accept the plaintiff’s submission that adducing before a jury the plaintiff’s criminal history, particularly in respect of the sexual offending, might be unfairly prejudicial.  In fact, this appears to me an archetypal case of unfairly prejudicial evidence.  Sexual offences, and particularly those involving a child, evoke heightened emotional and moralistic responses within our society.  The strength of this instinctive response creates the very real risk that members of the jury may ground their decision or be influenced in their decision making not on the facts of the case, as to whether or not the defendant is liable in negligence to the plaintiff, but rather on an improper basis, such as whether the plaintiff is morally deserving of such a finding given that he has committed abhorrent crimes in the past.

1. The difficulty for an applicant in making out an application under s 135 of the Act is that the evidence must not simply be unfairly prejudicial; it must be unfairly prejudicial to the extent that the unfair prejudice substantially outweighs the probative value of the evidence.

1. The defendant submits that evidence of the plaintiff’s criminal history is significantly probative as it goes to issues of credit, liability and quantum.

1. Senior counsel for the defendant, Mr Ross Gillies QC, submitted that the plaintiff’s criminal history was relevant to the extent that these crimes, rather than the event the subject of the plaintiff’s claim, were causative of the plaintiff’s psychological injuries.  For example, in the report of Dr Paul Kornan dated 20 September 2012, which was obtained for the purposes of the proceeding, Dr Kornan states that:

… the bulk of [the plaintiff’s] adjustment problems stem from the fact that he sees himself as an innocent man, who was wrongly convicted, and jailed, for a sexual crime, which he claims he did not commit.[4]

[4]Affidavit of Ilona Carmen Strong sworn 29 September 2015, Exhibit ICS1.

1. The defendant seeks to establish it is the plaintiff’s attitude towards his criminal convictions, and in particular his belief that he was wrongly convicted of these crimes, that is the significant cause of his psychological injuries, rather than the accident at work.

1. Further, Mr Gillies submitted that the plaintiff’s ‘sexual conviction, incarceration registration [sic] as being something that impacts very much on what his employment versatility would have been in the ordinary course of events.’[5]  Thus it is submitted on behalf of the defendant that this evidence is highly relevant to the plaintiff’s claim of loss of earnings in the event that he is successful in establishing liability.

   [5]Supreme Court Transcript (‘Transcript’), 6.17 – 6.20.

1. In making this submission, Mr Gillies relied in part on the vocational assessment report of Ms Leonie Schneider dated 1 May 2015.  In this report, Ms Schneider states:

Given the Full Extent of Mr Svajcer’s Criminal History [sic] and the fact that he is registered for life as a Sex Offender it is my opinion that his criminal history will have a very large impact on his employment versatility.[6]

[6]Affidavit of Ilona Carmen Strong sworn 29 September 2015, Exhibit ICS1.

1. Finally, Mr Gillies submitted that the plaintiff’s criminal convictions are relevant to his credibility.[7]

   [7]See Defendant’s Outline of Submissions, paragraph 8(c).

1. Whilst wholly recognising the difficulty of weighing incommensurables,[8] it is apparent that this evidence is relevant to the determination of issues of liability and quantum, not to mention the plaintiff’s credibility. On the evidence before me the plaintiff’s prior convictions and entry on the Sex Offenders Register are highly relevant to the origins of the claimed psychiatric injury and to the plaintiff’s employability, both past and future. I cannot find that the prejudice, significant though it is, substantially outweighs the probative value of this evidence in this matter. I therefore reject the application to exclude evidence of the plaintiff’s criminal convictions pursuant to s 135 of the Act.

   [8]Pfennig v R (1995) 182 CLR 461, 528 (McHugh J).

1. I turn now to consider whether the trial should be heard before a Judge alone or a jury.

Trial by Judge alone or by jury

1. As stated above, the plaintiff has also applied for a ruling that the trial in this matter be heard by a Judge alone pursuant to the discretion afforded to me by r 47.02(3) of the Rules, which provides:

… the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.

1. In Gunns Ltd & Ors v Marr & Ors (No 5), Forrest J set out the following principles relevant to considering whether to exercise this discretion:

(e)A court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.

(f)As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.

(g)The onus in persuading a court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the right of the other party to seek trial by jury. There must be some special reason to do so.

(h)The considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.[9]

(Citations omitted).

[9][2009] VSC 284, [9].

1. Mr Mighell submitted that the Court should exercise this discretion and order that the proceeding not be tried before a jury because to lead evidence of the plaintiff’s sexual offences and the fact that he is currently on the Sex Offenders Register would be to create a risk ‘that the jury could be distracted … from their task.’[10]

   [10]Transcript, 2.25 – 2.26.

1. Mr Gillies submitted that adducing this evidence before a jury would not create any complexity or raise any issues such that an order of this nature is justified.  In making this submission, Mr Gillies relied on authority for the proposition that juries are able to cope with issues of considerable complexity, including the following extract from Nathan J’s judgment in B.P. v Australian Red Cross Society:

In my view, juries in this State are able to come to their adjudicative tasks with dispassion and intellectual honesty, to weigh and assess the evidence before them rather than bringing to the task their prejudices, pre-conceptions and biases. Juries are customarily warned of the dangers of coming to their tasks with any matters of pre-judgment in their minds.  The experience of the common law courts is that juries have honestly disposed and dispensed with their task over the centuries.[11]

[11](Unreported, Supreme Court of Victoria, Nathan J, 21 August 1991) 5.

1. I agree with Nathan J’s statement that juries can generally be trusted to carry out their duties with impartiality and honesty.  However, this does not mean that there is no risk of a jury failing to do this.  The risk of a jury being unable to carry out its task properly after having been exposed to prior criminal convictions is well recognised.  For example, in R v Knape, Winneke CJ, Pape and Starke JJ held that:

The law has long recognized the prejudicial effect of evidence of prior conviction and bad character, and that such evidence is calculated to render a fair trial improbable.[12]

[12][1965] VR 469, 472.

1. While the decision in R v Knape was made in the context of a criminal trial, it gives lie to the suggestion that juries will always be able to make decisions fairly and objectively and without reference to irrelevant considerations.

1. That is not to say that every trial in which one party seeks to adduce evidence of the criminal conduct of another party should not be heard before a jury.  However, in my opinion, a special risk arises in this case that the plaintiff will not be afforded a proper and fair trial if it is to proceed before a jury.  This is because, as stated above, the risk that a jury will not carry out its duties properly is heightened in situations where the jury has been exposed to a fact about one of the parties to the proceeding that is of particular emotional significance to the broader community.  I consider that a sexual offence against a child is one such fact.  In my opinion this fact carries with it the very real potential to distract a jury from the logical and objective analysis required.  This potential risk is magnified by the plaintiff’s apparent denial that he committed the child sex abuse of which he has been convicted by a jury.  This denial, which, according to Dr Kornan, is responsible for the ‘bulk of [the plaintiff’s] adjustment problems’, may well be the focus of evidence that serves to highlight the nature of the plaintiff’s offending.[13]

   [13]Transcript, 22.12 – 22.19.

1. No doubt a Judge could direct the jury as to the manner in which they must use the evidence of the plaintiff’s prior convictions and what would be impermissible use.  I accept that juries in most cases are capable of coping with directions of law and complex issues of fact and I do not underestimate the capacity of a jury to decide a case in accordance with law and directions.[14]  However, even after the strongest direction I think there remains the high risk of a jury being distracted by the nature of these prior convictions such that ‘an instinct to punish, or … other mainsprings of human action, may cause the fact-finder to base his decision on something other than the established propositions in the case.’[15]  As I stated earlier in these reasons, this is an archetypal case of unfairly prejudicial evidence.  I think there is a real risk the evidence may be used by a jury in an unfair way.  This risk is accentuated by the apparent failure of the plaintiff to accept the jury verdict that convicted him of child sex abuse in his criminal trial.

   [14]Dupas v The Queen (2010) 241 CLR 237, 247 [26].

   [15]Papakosmas v The Queen (1999) 196 CLR 297, 325 [91] (McHugh J).

1. In this case, it was the plaintiff who initially sought trial by jury.  It is not apparent on the materials why the plaintiff sought trial by jury and paid jury fees.  This history is of little relevance to this application.  The discretion I may exercise concerning trial by jury is triggered if I am of the opinion the proceeding in all the circumstances should not be tried before a jury.  Whilst a consideration in the exercise of my discretion against directing trial without a jury is that the plaintiff initially requested a jury, the circumstances upon which I rely in finding the matter should not be tried by a jury are as stated, the proposed introduction into evidence of the plaintiff’s prior conviction concerning child sex abuse, that he is listed on the Sex Offenders Register and consequently the risk this evidence may be used by a jury in an unfair way.

1. Pursuant to r 47.02(3) of the Rules, I direct in this matter proceed to trial without a jury.