Tziotzis v Nine Digital Pty Limited (No 7)
[2025] VSC 245
•1 May 2025 (Ex tempore)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 04200
| PETER TZIOTZIS (and another according to the attached Schedule) | Plaintiffs |
| v | |
| NINE DIGITAL PTY LIMITED (ACN 077 753 461) (and others according to the attached Schedule) | Defendants |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 April 2025 |
DATE OF RULING: | 1 May 2025 (Ex tempore) |
DATE OF REASONS: | 8 May 2025 |
CASE MAY BE CITED AS: | Tziotzis v Nine Digital Pty Limited (No 7) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 245 |
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PRACTICE AND PROCEDURE — Evidence — Admissibility of photographs taken by Victoria Police of plaintiff’s business premises during execution of search warrant and produced in response to subpoena — Where no police officer has been called to give evidence on photographs — Tender of photographs which have been put to plaintiffs’ witnesses allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | D Gilbertson KC with H Jager | Moray & Agnew Lawyers |
| For the Defendants | S Mukerjea with S Brenker and C O’Beirne | Thomson Geer |
HIS HONOUR:
Introduction
This proceeding concerns publications by the defendants that are alleged to be about the plaintiffs. Victoria Police conducted an investigation of the first plaintiff’s conduct that is part of the subject matter of the publications. The defendants served a subpoena on Victoria Police to produce its investigation documents. Among the documents produced by Victoria Police in response to the subpoena are photographs of the plaintiffs’ funeral parlour business premises (‘premises’) taken on 24 November 2022 (‘photographs’). The defendants seek to tender some of the photographs without calling the police officer who took them or another police officer who was in attendance at the premises at the time.
The plaintiffs object to the tender of the photographs. The substance of their objection is that the photographs contain hearsay representations; that the notice requirements that apply to the exception in s 64 of the Evidence Act 2008 (Vic) (‘Act’) have not been complied with and should not be waived; and/or that the discretion in s 135 of the Act should be exercised to refuse to admit the photographs because they would be unfairly prejudicial to the plaintiffs and misleading or confusing. The plaintiffs submit that there is evidence suggesting that what is depicted in some of the photographs may be the result of police actions during the execution of the warrant, and that the plaintiffs will be deprived of the opportunity to cross-examine a police officer in order to put the photographs in context.
On 1 May 2025, I ruled to allow the tender of photographs which had been put to the plaintiffs’ witnesses. These are my reasons.
Background
The photographs in issue are part of a bundle of photographs taken during execution by Victoria Police of a search warrant of the premises on 24 November 2022. The photographs deployed in the trial to date show the outside of the premises; an internal parking bay area and adjacent kitchenette/office area; a preparation room where bodies are embalmed and prepared for funeral services including by being dressed and placed in coffins or caskets; a refrigerated cool room for holding bodies; and items associated with one funeral that is in issue in the proceeding, including bags containing clothing and jewellery and the contents of those bags.
The parties agreed at the beginning of the trial ‘that any document in the court book referred to [is to] be treated as tendered unless there is an objection then or later.’
The defendants relied on the photographs in their opening at the start of the trial. They have since used the photographs in cross-examination of the plaintiffs’ two principle witnesses, and in examination‑in‑chief of some of their witnesses. I accept that the defendants understood the photographs to have been tendered without objection.
The authenticity of the photographs is not in issue.
Objection to the photographs was taken on day 11 of the trial, midway through the evidence in chief of a defence witness. The witness had been asked in effect whether what was seen in the photographs was representative of the state of the preparation room and cool room at the premises during the period July to September 2022. The basis for objection was put as follows:
Your Honour, the issue has arisen because we now understand that the police officers will not be giving evidence. And I have allowed these photographs to be shown, this far, to several witnesses, on the basis that they would be giving evidence. But without the origin of these photographs being proven, I object to this - for these witnesses to be shown these photos.
The photographs are relied on by the defendants as being relevant to the following matters in issue in the proceeding:
(a) whether the state of the premises recorded in the photographs is consistent with the state in which the premises were maintained between July and September 2022;
(b) whether the plaintiffs had a practice between July and September 2022 of storing deceased bodies from time to time in their preparation room rather than their cool room;
(c) the storage capacity of the plaintiffs’ cool room;
(d) whether in the period between July and September 2022, the premises were kept in a state of “complete disorganisation and disarray, such that it was not possible for the plaintiffs to store, in a safe, respectful and orderly manner, the quantity of deceased bodies that were being delivered to the second plaintiff’s premises in order to achieve the plaintiffs’ average workload of 39–43 funerals per month”;
(e) whether the plaintiffs left Helen Moraitis’ body at the Coroner’s Court until 18 July 2022 because they did not have capacity at their premises to store her body;
(f) whether the plaintiffs failed to store Helen Moraitis’ body in refrigeration;
(g) whether the plaintiffs’ practices for storing deceased bodies such as Helen Moraitis’ (including ‘top and tailed’ on a single bench and rested on hose reels) was cold‑hearted, callous, neglectful, despicable and vile; and
(h) the first plaintiff’s credit in circumstances where he holds himself out to be a compassionate and respectful funeral director and accepted that he has ethical obligations to act with compassion, respect and to treat deceased bodies with dignity.
Discussion
The plaintiffs submitted the photographs contain representations made by the person who took them, and that accordingly they are inadmissible unless an exception to the hearsay rule applies. The plaintiffs relied on a decision by Mossop AsJ in Hendricks v El‑Dik and Another (No 2) [2015] ACTSC 351, in which a party sought to tender photographs produced from the records of the Australian Federal Police. The proceeding concerned a claim by the plaintiff for personal injuries damages arising from a motor vehicle accident. The photographs were taken in the aftermath of the accident and recorded some aspects of the police investigation into the circumstances of the accident, including the lengths of skid marks made by the first defendant’s vehicle. The application to tender the photographs occurred before any evidence had been given. Mossop AsJ observed ‘[t]hus it is not a case where there is some person, present at the scene but not necessarily the taker of the photographs, who can say that what is depicted in the photographs is what they saw at the time.’[1] Because of the early stage of the trial at which the question arose, Mossop AsJ had not given consideration to the potential application of s 64 of the Evidence Act or whether the photographs were admissible for a non‑hearsay purpose, for instance because they formed part of the basis for expert opinion evidence. The consideration of whether the photographs were hearsay was limited to the following paragraph of the ruling:
Each document contains a previous representation because the document was “made or otherwise produced by [a] person” when that person took the photograph: see Dictionary Part 2 clause 6.[2]
It is not clear from the ruling whether this issue was contested. However, it seems unlikely given Mossop AsJ’s detailed consideration of the application of s 69(3) of the Evidence Act 2011 (ACT), which was obviously the determinative issue in dispute.
[1]Hendricks v El-Dik (No 2) [2015] ACTSC 351, [6].
[2]Ibid [13].
The defendants submitted that the conclusion by Mossop AsJ that a photograph is hearsay was clearly wrong and should not be followed. They relied on the following footnote in Cross on Evidence (‘Cross’):
A photograph had been held to fall within s 69(3), which implies the controversial view that it can be a ‘representation’: Hendricks v El‑Dik (No 2) (2015) 303 FLR 118; [2015] ACTSC 351.
The defendants could not point to any other authority relevant to the issue.
I accept the description by the learned authors of Cross of the view that a photograph can be a representation is ‘controversial’. The submissions to me on this issue by the parties were very limited. Whether the photographs are hearsay is not determinative of the outcome of this ruling. In the circumstances I decline to consider the issue, and will proceed for the purposes of this ruling on the basis that the photographs are hearsay.
The defendants submitted that the photographs are admissible because they are relied on for non‑hearsay purposes.[3] The defendants submitted that the purposes set out in [9] above are all non‑hearsay purposes, apart from that in sub‑paragraph [9](b). I accept this submission, which was not challenged by the plaintiffs.
[3]Evidence Act 2008 (Vic) s 60.
The defendants submitted in the alternative that the notice requirement applicable to reliance on s 64 of the Act should be waived. They submitted that given the use that has been made of the photographs in the trial to date, and the evidence that has been given about the photographs, any expense or delay associated with the need to call the person who took the photographs should be considered ‘undue’.
Had it been necessary, I would conclude for reasons that follow that the notice requirement attaching to s 64 of the Act should be waived.
The substantive objection by the plaintiffs to the tender of the photographs relied on s 135 of the Act. The plaintiffs submitted that the probative value of the photographs was substantially outweighed by the danger that they may be unfairly prejudicial or misleading or confusing, because the plaintiffs would be deprived of the opportunity through cross-examination to explore the circumstances in which the photographs were taken. This submission related principally, if not entirely, to the preparation room photographs and the defendant’s purpose set out in [9](a). The plaintiffs submitted that evidence had been given suggesting that the state of the preparation room depicted in the photographs may in part be a result of actions by police during execution of the warrant before the photographs were taken.
The defendants put in issue the state of the plaintiffs’ preparation room in the period of July to September 2022. The plaintiffs were on notice before trial that the defendants intended to deploy the photographs in respect of that issue. Expert reports served by the defendants include opinions to the effect that the state of the premises depicted in the photographs was ‘disgraceful’ and ‘appalling’, and did not comply with best practice for a funeral director’s premises. The plaintiffs responded to these opinions in an outline of lay expert evidence to be given by the plaintiffs’ contract embalmer, Janet Langford.
In opening on the first day of trial, lead counsel for the defendants said:
Mr McCrae will give evidence that the state of the premises and the preparation room depicted in the photographs to which I have just taken Your Honour, is virtually the same as the condition in which those premises were maintained by the plaintiff throughout the eight years that Mr McCrae delivered bodies to the plaintiffs on an almost nightly basis.
In cross-examination the first plaintiff, Peter Tziotzis, agreed that Victoria Police took photographs during the execution of a search warrant on 24 November 2022. Tziotzis agreed that the photographs put to him showed parts of his premises including the preparation room and the cool room.
The following exchange occurred with Tziotzis:
I want to suggest to you that the condition of your preparation room that is evident in the photographs I have just been showing you, is virtually identical, if not identical to the condition in which your preparation room was maintained throughout July, August and September of 2022?---Absolutely not.
Thank you?---This is an embalming area where Janet is preparing to [embalm] these bodies so she's removed them from the cool room. She's done nothing wrong.
Yes, I'm not suggesting she's done anything wrong, at least not in the question I just asked. Let's leave the bodies out of the picture, okay?---Sure.
I will be fair to you, that was probably something I should have said. Let's ignore the bodies, let's talk about the rest of the preparation room. So I'm not asking you about bodies in the preparation room although I will have some questions for you about that?---Sure.
I'm talking about the general conditions and presentation of the preparation room, and I want to suggest to you that what we see in these photos about the way in which your preparation room is kept and maintained is virtually identical to how it was kept and maintained throughout July, August and September of 2022?---Incorrect.
So if evidence were given to that effect, you would disagree with it?---Well, I am disagreeing with it because depending on Janet's workload.
Was it a particularly high workload in July, August and September of 2022?---Well, we average between seven, eight and nine a week.
Could be more in busier times?---It wouldn't go more than 12, that has to be in order for that to be done, it's, you know - factors that have changed.
Are there times where there are more than 12 bodies at your mortuary?---I doubt it very much.
Other photographs put to Tziotzis allowed him the opportunity to give evidence about the state of the preparation room as depicted. The following is an example:
If we look at court book p1825, please. Could you explain to His Honour what all that is that we see on the floor?---That would be Janet's gear and her towels.
Would they be clean or dirty sitting on the floor?---Well, I think what she does is she probably places them in the corner and then she pops them in the washing machine, so I mean, that's her procedure.
Yes, is it common for used items like towels to be sitting on the floor directly next to a deceased body on a table?---Well, I don't know what her workload was on the day, so …
Tziotzis did not give evidence that the state of the preparation room depicted in any photographs shown to him was affected by police actions during the search of his premises.
Tziotzis was not asked in examination-in-chief or re-examination questions about the photographs, the state of the preparation room or cool room depicted in them, or what the usual state of those rooms was in the period July to September 2022.
There is evidence to the effect that Langford worked in the plaintiffs’ preparation room and used the plaintiffs’ cool room on an almost daily basis throughout the relevant period in 2022. Langford was working at the premises on 24 November 2022 when police attended to execute the search warrant.
Langford was asked questions about the photographs of the preparation room and the cool room. The following is an example:
That's another photograph of the clothing rack?---Yes.
And then what's to the right of the clothing rack there, those white objects?---Either wet or washed sheets.
Can you tell from that whether they are clean or dirty?---They look clean to me, I don't –
Was it common practice for clean sheets to be bundled up like that on top of the washing machine or the dryer, or was it common for them to be folded and put away?---No, it was probably in between emptying dryers and washing machines.
The following exchange occurred in relation to another photograph:
And next to it are some - what are those items on the floor?---I'm not sure what that pile is.
Sheets?---It looks like that whole area is messed up, I'm not - I don't understand why.
…
You'd agree that if an item of clothing were to slip off that rack and fall into the spilt formaldehyde that could cause problems for the deceased body on which that clothing would eventually be placed?---No, but I'm not sure - this is what I'm saying, I'm not sure what - why that was set up the way it was. So I don't know if the police had already done that, moved everything.
I see, you mean the bottles?---Yes, the bottles and the heap of stuff on the floor.
Langford said that she was not allowed in the mortuary when Victoria Police were executing the search warrant.
The following exchange occurred in relation to another photograph of the preparation room:
And would you accept that surrounding the deceased body in the background of the photograph is a pile of mess?---That's what I was just saying, that's not normal, so I - I'm assuming the police had already gone through and pulled things out and looked and –
I see, okay. If evidence were given that the condition of the mortuary and the preparation room that is depicted in these photographs I have taken you through?---M'mm.
Is consistent with the way the mortuary was maintained throughout July to September 2022, you'd disagree with that evidence?---Can you just say that again, sorry?
If evidence were given that the condition of the - I'm not talking about the bodies on the tables, I'm talking about everything else?---Yes.
If evidence were given that the condition that we've seen in these photographs in which the preparation room was maintained is consistent with how it was maintained throughout the period of July to September 2022, would you disagree with that evidence?---I would disagree.
Thank you?---It was a very busy period at that time.
What was a very busy period?---At that time.
In November 2022?---Yes, with the COVID, with everything going on, it was a very - - -
So was it also busy - - -?---- - - busy time for Peter.
Was it also busy in July of 2022?---Yes.
And August?---It would have been.
And September?---More than likely.
Yes. And so do you accept therefore that the condition we see here in November 2022 was likely the same condition in which the mortuary was kept in July, August and September?---No, that's what I'm saying, it's - that - like I said, that wasn't the complete condition, and like I said, it was a very busy period so we needed to get in there and - we had to clean things out as well. But when it's busy it's a constant - we work and then we just throw out everything else later, go through everything and throw it.
There was no re-examination of Langford.
The defendants called Dean Macrae who worked as a driver for a contract mortuary transfer company engaged by the plaintiffs during 2022. Macrae gave evidence to the effect that he delivered deceased bodies to the plaintiffs’ premises on an almost nightly basis during the relevant period of 2022. Macrae said that he left the bodies he was delivering either in the plaintiffs’ cool room or in the preparation room.
In examination‑in‑chief, Macrae was asked questions about the state of the preparation room during the relevant period by reference to some of the photographs. The following is an example:
[In] terms of presentation and tidiness, how does what you see there on the clothing rack compare to the state of the clothing rack over the course of the eight years you were delivering bodies to Mr Tziotzis on a nightly basis?---Same. Same.
It was only after Macrae had given similar evidence by reference to eight of the photographs that the objection by the plaintiffs that is the subject of this ruling was raised.
The examination of Macrae continued on the basis that it would be subject to a ruling on the admissibility of the photographs.
In cross-examination, Macrae was asked the following questions:
You were shown several photographs?---Yep.
Of the clothing rack, of other parts of the preparation room; do you remember being shown those photographs?---Yep.
And in several parts of your evidence you said that there was - conditions were the same or at the standard in July 2022; do you remember giving that evidence?---Correct.
You have no particular recollection of that at all; do you?---It was a really busy time. If we go back to have a look at the books and how many jobs were done back then, I'm pretty sure that youse would – would know how many jobs were done at that time.
For the following reasons, I reject the plaintiffs’ submission that admitting the photographs into evidence will cause them unfair prejudice or will mislead or confuse.
First, the authenticity of the photographs is not in issue. The plaintiffs accept that they were taken by Victoria Police during execution of the search warrant and that they show the plaintiffs’ premises. Witnesses including Tziotzis, Langford and Macrae said that the photographs show various views of the premises.
Second, the plaintiffs were on notice of the use that the defendants intended to make of the photographs.
Third, the plaintiffs had a fair opportunity to lead evidence from Tziotzis and Langford about whether the state of the premises depicted in the photographs reflects things done by police officers during the search before the photographs were taken. Langford was working in the preparation room on 24 November 2022 and was in a position to give evidence about any difference between the state of the premises that morning and what was shown in the photographs. There was an opportunity for Tziotzis and Langford to describe the usual state of the preparation and cool room during July to September 2022, including by way of contrast to what was shown in the photographs.
Fourth, the defendants rely on Macrae’s evidence which in effect adopts what can be seen in the photographs as fairly representing the state of the preparation room during the period he delivered deceased bodies to the premises. The plaintiffs have been given a fair opportunity to respond to that issue.
Fifth, the defendants rely on the photographs in relation to the plaintiffs’ system for storing deceased bodies at the premises. There has been no evidence putting in question the position of bodies shown in the photographs, or suggesting that bodies may have been moved by police. Tziotzis and Langford were given a fair opportunity to explain the plaintiffs’ storage system for bodies, including by reference to the photographs.
The photographs have significant probative value. I conclude that the danger of any unfair prejudice to the plaintiffs, or that the photographs may mislead or confuse, does not outweigh the probative value of the evidence.
Remaining matter
The defendants sought to tender a redacted statement made to police by witness Teresa Moraitis as a prior consistent statement.[4] The plaintiffs argued that the statement should be admitted in unredacted form because the redacted portion gave important context to the balance of the statement. The single substantive paragraph relied on by the defendants concerns a matter which is quite discrete. No issue of context arose. I allowed the redacted statement to be admitted.
[4]Ibid s 108.
SCHEDULE OF PARTIES
PETER TZIOTZIS
First Plaintiff
and
P AND S ORTHODOX FUNERALS PTY LTD (ACN 600 643 141)
Second Plaintiff
and
NINE DIGITAL PTY LTD (ACN 077 753 461)
First Defendant
and
NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407)
Second Defendant
and
THE AGE COMPANY PTY LTD (ACN 004 262 702)
Third Defendant
and
SAM CUCCHIARA
Fourth Defendant
and
GEORGIA LINNELL
Fifth Defendant
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