Tony Villanueva v John King

[2008] NSWDC 345

CITATION:	Tony Villanueva v John King [2008] NSWDC 345
HEARING DATE(S):	04/07/08
JUDGMENT DATE:	11 July 2008
JURISDICTION:	Civil
JUDGMENT OF:	Truss DCJ
DECISION:	Order general access to Supreme Court file re criminal proceedings against Julie Villanueva-Austin Order defendant to pay plaintiff's costs of motion
CATCHWORDS:	certificate under s 128 ss 7 Evidence Act in criminal proceedings - access to transcript in subsequent civil proceedings - application for leave to appeal dismissed on 20/3/09
LEGISLATION CITED:	Evidence Act 1995
PARTIES:	Tony Villanueva (Plaintiff) John King (Defendant)
FILE NUMBER(S):	1212/06
COUNSEL:	Mr H Marshall SC (Plaintiff)
SOLICITORS:	Mr P Papadopoulos (Defendant)

JUDGMENT

1 By notice of motion filed 16 May 2008 the plaintiff seeks access to a Supreme Court file in relation to criminal proceedings.

2 The plaintiff is claiming damages for nervous shock in respect of the death of his daughter at the age of six years on or about 18 September 2005 as a result of being administered methadone. It is alleged in the statement of claim that at that time she was in the care and control of the defendant.

3 In his affidavit sworn 12 May 2008 the plaintiff’s solicitor states that:

· the defendant was the de facto partner of the child’s mother, Julie Villanueva-Austin;

· criminal proceedings in respect of the child’s death were brought against Ms Villanueva-Austin in the Supreme Court;

· the defendant gave evidence in those proceedings relating to, inter alia, his involvement in the circumstances surrounding the child’s death.

4 The Court was informed that pursuant to a request by the Registrar of this court under Part 33 r.13 the Supreme Court has produced its file to this court. The plaintiff now seeks access and says that it is anticipated that the documents produced will be relevant to the issues in dispute between the plaintiff and the defendant in these proceedings.

5 The motion was strongly resisted by the defendant. His solicitor also acted for Ms Villanueva-Austin in relation to the Supreme Court trial. It emerged from the solicitor’s affidavit and submissions that:

· the defendant gave evidence at a Basha enquiry and at the trial after His Honour Justice Price had on both occasions granted a certificate pursuant to s 128 of the Evidence Act in relation to certain questions.

· the defendant had originally been charged in relation to the child’s death.

· at the trial the Crown Prosecutor informed his Honour that whilst those charges had been withdrawn in the Local Court before any committal proceedings, there was nothing preventing the charges being re-laid.

6 The defendant says that the plaintiff is not entitled access to any part of the file which reveals the evidence which he gave during the course of the trial by virtue of s 128(7) which provides:

(7) In any proceeding in a NSW court:
(a) evidence given by a person in respect of which a certificate under this section has been given, and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence,

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

7 The defendant further says that the protection granted to him by the certificate is broad and that there is no room for the exercise of the court’s discretion.

8 The defendant’s evidence was given in open court and the plaintiff relied upon the fact that the material produced by the Supreme Court comprises the public record of those proceedings.

9 It is clear from its wording that subs (7) is concerned not with access to evidence given by a person in respect of which a certificate has been given but that it imposes a restriction upon the use of such evidence. In my view the plaintiff is entitled to access to the file, including the transcript of the defendant’s evidence, and that any issue arising as to use of such evidence against the defendant would be a matter for the trial judge.

10 For these reasons I make an order for general access to the Supreme Court file in relation to the criminal proceedings against Julie Villanueva-Austin.

11 It is unclear from the material before me whether or not Justice Price actually signed a certificate under s 128. If his Honour did, the certificate ought be available to the trial judge to facilitate the making of any rulings.

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