Tsamis v Victoria (No 6)

[2019] VSC 591

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2014 06898

MARTHA TSAMIS	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2019
DATE OF RULING:	16 August 2019 (Reasons 30 August 2019)
CASE MAY BE CITED AS:	Tsamis v Victoria (No 6)
MEDIUM NEUTRAL CITATION:	[2019] VSC 591

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EVIDENCE – Hearsay – Exceptions – Where plaintiffs seek to rely on prior statements – Whether witness unavailable – Whether plaintiff took all reasonable steps to secure  attendance – All reasonable steps not taken – Evidence Act 2008 (Vic) ss 59, 63, Dictionary cl 4 (f).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Sowden with Mr H Kirimof	Mr Gary Prince
For the Defendant	Mr P Hayes QC with Ms R B Sion and Mr J C Hooper	Russell Kennedy

HIS HONOUR:

1. The defendant gave notice under s 67 of the Evidence Act 2008 of its intention to adduce evidence of previous representations made by a person who is not available to give evidence and to argue that the hearsay rule (s 59) did not apply to such evidence, relying on s 63 of the Act.

1. Broadly, the representations were statements made by persons at or in the vicinity of Inflation nightclub to police about drug-taking activities or health emergencies (overdoses) during 2013 and early 2014. Because they could not locate those persons, the defendant sought to rely on the evidence of the police officers recording the representations made to them. Notice was originally given on 17 July 2019, but it was subsequently amended reducing the number of witnesses subject to the notice as the defendant located and was able to call as a witness the person who made the representation.

1. By the time the application came to be argued on 15 August 2019, shortly before the defendant closed its case, only three witnesses remained relevant. Leading Senior Constable Franklin would give evidence of representations made by Kane Jobling.[1] Constable Matthew Kelly would give evidence of representations made by Ollie Pickering and Senior Constable Shaun Beard would give evidence of representations made by James Ellen. The defendant filed a number of affidavits updating their explanation of the efforts made to locate and subpoena those persons. The plaintiff’s solicitor then filed an affidavit about his contact with Kane Jobling and in the context of that information the defendant did not press the application in respect of the evidence of Leading Senior Constable Franklin.

   [1]a pseudonym, as is Ollie Pickering and James Ellen.

1. I ruled that the evidence of each of Constable Matthew Kelly and Senior Constable Shaun Beard was inadmissible. There are my reasons for that ruling.

1. The parties agreed that the representations were relevant under s 55 of the Act. By force of s 59 (the Hearsay Rule), evidence is not admissible from the police officers who heard them of such representations. An exception to the hearsay rule may apply where the maker of the previous representation is not available to give evidence.

63       Exception—civil proceedings if maker not available

(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)       The hearsay rule does not apply to—

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

1. As the defendant contended that each of Ollie Pickering and James Ellen was ‘not available to give evidence’ in the sense in which those words are used in s 63(1), attention is directed to the definition found in cl 4 of the Dictionary in the Act.

1. Clause 4 of Part 2 to the Dictionary provides that a person is taken not to be available to give evidence about a fact in only the following circumstances:

(a)       the person is dead; or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or

(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or

(d)      it would be unlawful for the person to give the evidence; or

(e)       a provision of this Act prohibits the evidence being given; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or

(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

1. The relevant sub-paragraph of this definition is sub-paragraph (f). Accordingly, the issue that I must determine is whether the defendant has taken all reasonable steps to secure the attendance of Mr Pickering and Mr Ellen. This is a question of fact.

1. It is the experience of the law that witnesses are often reluctant or unable readily to attend court to give evidence. Order 42 of the Rules currently regulates the longstanding practice of subpoenas to compel attendance to testify. In exceptional circumstances, talking all reasonable steps might not involve serving a subpoena, but this is not such a case.

1. The parties accepted as correct my statement of principle in Roo Roofing Pty Ltd v Commonwealth (Ruling No 2).[2] In that case I was satisfied that there were clear and reasonable further steps available to secure the attendance of a witness to give evidence with no explanation as to why they weren’t taken. It was readily apparent that the steps in fact taken could not be considered to be reasonable. In the present case, the issue is whether the defendant has taken all reasonable steps.

   [2][2018] VSC 219.

1. Turning to the witness Mr Pickering, the defendant established that his last known address was his mother’s residence and that Mr Pickering was working in Sydney and not expected back in Melbourne until the end of the year. No current address or contact number could be obtained.

1. A ‘Pickering’ was identified on a ‘tenancy database’ as residing in a block of units in Redfern in Sydney. I accept that various inquiries were made by process servers to contact Mr Pickering by phone and text message on a particular number. Mr Pickering’s employer was identified, but a process server reported on 29 July 2019 that a shift coordinator with that company informed him that Mr Pickering had stopped working there four-weeks prior.

1. A significant consideration is that Mr Pickering had been spoken to by police approximately six years earlier. He had admitted to police that he had been on licensed premises while underage and that he had possessed a prohibited drug. The defendant could reasonably anticipate that Mr Pickering would exhibit a greater reticence to attend and give evidence about that conduct than might ordinarily be expected. In the event, other witnesses in like circumstances gave evidence under the protection of a pseudonym and a certificate under s 128 of the Act.

1. Secondly, the proceeding was fixed for trial on 4 February 2019. It appears that the defendant took no steps to secure Mr Pickering’s attendance until the start of July 2019. I accept that it is not uncommon for litigation solicitors to defer taking steps to secure the attendance of witnesses at trial until reasonably close to the trial date for a variety of reasons. In many cases that may not be unreasonable. However, having regard to the particular circumstances in this case, I do not consider that significant delay after the trial date was fixed was reasonable. It is probable that had steps been taken at an earlier point in time, Mr Pickering could have been served at his place of employment or alternatively an order obtained for substituted service on his employer before his trail went cold.

1. Accordingly, while I accept that the defendant reasonably took a number of steps, I am not persuaded that the defendant took all reasonable steps and the exception to the hearsay rule provided by s 63 of the Act is not enlivened. The evidence of Constable Kelly was inadmissible.

1. I would add that, were it necessary to do so, I would have accepted the plaintiff’s submission that the probative value of the evidence of Constable Kelly would be substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff and that I would refuse to admit that evidence under s 135 of the Act. I accept that having regard to the plaintiff’s cross-examination of other witnesses in a similar situation to that of Mr Pickering, the lack of opportunity to cross‑examine Mr Pickering would be capable of creating an unfair prejudice.[3] There was an ambiguity in Mr Pickering’s representation to Constable Kelly about his entry into the nightclub that might result in the jury failing to use that evidence properly and engaging in speculation.

   [3]Galvin v R [2006] NSWCCA 66 [28], [40].

1. The evidence of Senior Constable Shaun Beard concerning representations made by James Ellen was in the form of a hand-written statement made by Mr Ellen. Mr Ellen was intending to attend Cloud 9 and joined the queue at a point when it had snaked around from King Street into Collins Street. He left the queue and crossed Collins Street to intervene in a confrontation, resulting in his being assaulted in Collins Street. He then returned in the direction of Inflation nightclub where he received some assistance from security staff.

1. It was not necessary to consider whether the exception to the hearsay rule under s 63 of the Act applied because the antecedent enquiry, whether Mr Ellen’s evidence was relevant under s 55 of the Act, could not be resolved in favour of the defendant.

1. Mr Ellen’s evidence could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The assault occurred in Collins Street, at least half a block away from Inflation. The only connection with Inflation was that Mr Ellen had been standing in the queue to enter Cloud 9, but that connection was severed when he left the queue and crossed to the other side of Collins Street. There was no connection between his assailants and the nightclub and the fact that he later received some assistance from security staff was unrelated to the particulars of justification that defined the scope of the defendant’s plea.

1. Accordingly, the evidence of Senior Constable Shaun Beard was inadmissible.