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:

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.

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.

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.

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.

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…

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.

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Details

Case: [2019] VSC 591
Decision Date: 16 August 2019 (Reasons 30 August 2019)

CaseChat Overview and Summary

The case involved a legal dispute between Tsamis and the state of Victoria, concerning the admissibility of certain evidence in court. The matter was heard in the Supreme Court of Victoria. The plaintiffs sought to rely on prior statements made by a witness who was now unavailable. The issue before the court was whether the plaintiffs had taken all reasonable steps to secure the attendance of the witness, a necessary condition for the exception to the hearsay rule to apply.

The court considered whether the plaintiffs had fulfilled their obligations under the Evidence Act 2008 (Vic) to take all reasonable steps to secure the attendance of the witness. It was found that the plaintiffs had not taken all reasonable steps. The court examined the circumstances under which the witness became unavailable and the efforts made by the plaintiffs to locate and secure the witness's attendance. The court concluded that the plaintiffs' efforts fell short of what was required to satisfy the exception to the hearsay rule.

As a result, the court ruled that the plaintiffs' evidence was inadmissible. The court's decision was based on the interpretation of the Evidence Act 2008 (Vic) and the specific provisions related to the exception for unavailable witnesses. The court emphasised the importance of taking all reasonable steps to secure the attendance of a witness and the consequences of failing to do so. The final orders of the court were that the plaintiffs' evidence was not admissible, and the case proceeded without the contested statements.

Orders