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

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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

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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.

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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

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.

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.

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.

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

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’).

The defendant seeks to challenge this application.

Section 135 of the Act

Section 135(a) of the Act provides:

The court may refuse to admit evidence if its probative value…

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 Svajcer v Woolworths Ltd (Ruling)

Details

AGLC: Svajcer v Woolworths Ltd (Ruling) [2015] VSC 543
Case: [2015] VSC 543
Decision Date: 7 October 2015

CaseChat Overview and Summary

The case of Svajcer v Woolworths Ltd involved the plaintiff, Svajcer, who brought an action against Woolworths Ltd for damages following an incident at one of their stores. The plaintiff alleged that he had been unlawfully assaulted by Woolworths' employees. The dispute came before the court for consideration of several legal issues, including the admissibility of evidence regarding the plaintiff's prior criminal convictions and the appropriateness of the trial being conducted by a judge alone, as opposed to a judge and jury.

The primary legal issue the court had to decide was whether evidence of the plaintiff's prior criminal convictions should be excluded as unfairly prejudicial under section 137 of the Evidence Act 1995 (Cth). The court also had to determine whether there were exceptional circumstances warranting a trial by a judge alone, as opposed to a jury. Woolworths argued that the evidence of the plaintiff's criminal history was relevant and should not be excluded, while the plaintiff contended that it was unfairly prejudicial and should not be admitted.

The court found that the evidence of the plaintiff's prior criminal convictions had significant probative value in relation to the case and could not be excluded. Despite this, the court concluded that the evidence was potentially unfairly prejudicial to the plaintiff. However, the court found that there were exceptional circumstances that warranted the trial being conducted by a judge alone, rather than a jury. The court ordered that the trial proceed before a judge alone, while still allowing the evidence of the plaintiff's prior criminal convictions to be presented.

The final orders of the court included the exclusion of the jury from the trial, directing that it proceed before a judge alone. The court ruled that evidence of the plaintiff's prior criminal convictions could not be excluded due to its significant probative value, despite the potential for unfair prejudice. The case was thus set for a trial before a judge alone, with the evidence of the plaintiff's criminal history remaining admissible.

Orders