Wolodymyr Holovinsky v The Commissioner of Police (No 1)

[2006] NSWDC 86

CITATION:	Wolodymyr Holovinsky v The Commissioner of Police (No 1) [2006] NSWDC 86
HEARING DATE(S):	06/12/2004-09/12/2004,13/12/2004-14/12/2004,16/12/2004-17/12/2004, 07/06/2005-09/06/2005, 15/06/2005, 31/07/2006-25/08/2006, 01/09/2006
EX TEMPORE JUDGMENT DATE:	08/14/2006
JURISDICTION:	Civil (Residual Jurisdiction)
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Accede to the defendant's application to admit the documents relating to former Detective Senior Constable Robert McDougall
CATCHWORDS:	Admission of evidence of witness who refuses to give evidence - Evidence Act 1995, s.67
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Colliers International (NSW) Pty Limited v Ziani Corporation Pty Limited [2006] NSWDC 65
PARTIES:	Wolodymyr Holovinsky (Plainitiff) The Commissioner of Police (Defendant)
FILE NUMBER(S):	RJ 6454/00
COUNSEL:	Mr B Gross QC (Plaintiff) Ms A Stenmark SC and Mr A Kostopoulos (Defendant)
SOLICITORS:	Proctor & Associates (Plaintiff) Bartier Perry Solicitors (Defendant)

JUDGMENT

1 HIS HONOUR: The principal application before me is an application by the plaintiff, Mr Fred Holovinsky, for me to set aside a determination of the Commissioner of Police that a certain medical condition suffered by him was not caused by Mr Holovinsky's having been hurt on duty when he was a Sergeant of Police.

2 On 31 December 1990 Mr Holovinsky was charged with certain serious criminal offences. There was then a lengthy committal hearing over a period of two years covering, as I understand it, approximately 95 days, and eventually on 19 November 1993 the learned Magistrate Mr Heagney discharged the plaintiff. The then Director of Prosecutions, Mr R O Blanch, as he then was, next issued an ex officio indictment leading to the plaintiff’s and others’ being tried in this Court in the exercise of its criminal jurisdiction. The trial went from 8 May 1995 to 29 November 1995, on which date the jury returned verdicts of not guilty in respect of each of the counts against Mr Holovinsky and against all the other accused. Some time subsequently Mr Holovinsky resigned his employment in unusual circumstances and was then certified as having been incapable of discharging the duties of his office as a sergeant of police at the time of his resignation by the Police Superannuation Advisory Committee. He then commenced proceedings in Court to set aside the decision of the Commissioner of Police, to which I have referred, and today is the twenty-second day of that hearing.

3 One of the principal witnesses against Mr Holovinsky, both at the committal hearing and at the trial, was then Detective Senior Constable Robert McDougall. Antecedent to the charges being laid against the plaintiff on 31 December 1990, Mr McDougall had, since late September 1990, been involved in an undercover operation investigating the activities of the plaintiff. As I understand it the case mounted for the current defendant is that Mr McDougall, as he now is, was acting as an undercover "corrupt cop". As could be easily imagined a large amount of paper has been generated between 1990 and 2006, in particular paperwork was generated by Mr McDougall in the year 1990 and 1991, and Mr McDougall was cross-examined at some length at the committal hearing and certainly at some length at the trial. Mr McDougall is no longer a member of the Police Service. He was medically discharged in 1999, and as I understand it is in receipt of a hurt on duty pension, the same pension which Mr Holovinsky now seeks to obtain.

4 The current application is by the defendant to tender certain documents and statements made by Mr McDougall between 1990 and 1992 pursuant to either s 63 or s 64 of the Evidence Act 1995. A notice in accordance with s 67 of the Evidence Act was given by the defendant yesterday, Sunday 13 August 2006, and was received by learned senior counsel for the plaintiff this morning, Monday 14 August 2006. Under Uniform Civil Procedure Rules 31.5 the notice ought to have been served twenty-one days after the matter was first listed for hearing, a situation which clearly did not occur. At the time the rule required twenty-eight day period of notice, but again that did not occur. However, as the matter has been argued this morning and this afternoon there is no real issue taken about the adequacy or the out of time nature of the notice. It has been in contemplation for some time that Mr McDougall might not give evidence.

5 It is firstly necessary to consider the position from Mr McDougall's point of view before coming to the legal arguments. In a report of Dr Strum of 13 November 1996 that medical practitioner obtained a history from Mr McDougall that incidents in 1986 and 1988 stressed him. The 1986 incident occurred when Mr McDougall was working in the drug squad at Cabramatta. He was investigating a group of Romanians, one of whom was called Irgot. Mr McDougall discovered that a "hit" had been planned on him. That made Mr McDougall aware of his mortality and he developed symptoms of anxiety, anger and insomnia for a short period but his functioning was not greatly impaired. He obtained psychological counselling but was not treated with any medication. Dr Strum expressed the view that that incident was due to depression.

6 In 1988 the then Senior Constable McDougall was investigating a heroin dealer. Documents relating to that investigation are in evidence. The documents in question are VD11, supported by VD12 and VD13. The offender arrested by Mr McDougall in December 1987 was charged with four counts of supplying heroin, one count of supplying cannabis, one count of offering a bribe and a count of goods in custody being the sum of $12,000. The offender was bail refused and was in custody at Parramatta Gaol. In January 1988 Mr McDougall obtained information that the offender was offering the sum of $25,000 in gaol to have Mr McDougall killed. That information was examined but was discarded as being highly unlikely. Further intelligence was received in February 1988 that the offender had offered a "contract" to have a police officer executed and the sum on offer on this occasion was $50,000. It is clear that the contract was by the offender that Mr McDougall had arrested and the inference to be drawn is that the offender wanted Mr McDougall murdered.

7 In February 1988 Mr McDougall started to suffer from a series of anxieties, depressions and nightmares. On 25 February 1988 he sought medical treatment and advice for his problems. He saw a general practitioner at Cabramatta, where he was then living, Dr Djukanovic, and obtained certificates for "acute stress reaction" and "anxiety and neurosis." He came under the care of Mr Gerard Glancey, a psychologist. Mr Glancey first saw Mr McDougall on 29 February 1988. Mr Glancey speaks of a "stress reaction". He had a further consultation with Mr McDougall on 18 March 1988. In the interim Mr McDougall and his family had spent time away from their home in south western Sydney, and whilst absent from the metropolitan area Mr McDougall noted some improvement. Mr McDougall reported apprehension and doubts over his capacity to attend court in the following week, presumably in order to advance the prosecution of the offending heroin dealer.

8 Whether Mr McDougall attended court or not in or about April 1988 I do not know. There were further consultations with Mr Glancey on 16 May 1988 and on a number of other occasions. It appears at that stage Mr McDougall and his wife had sold their home and moved to the Illawarra.

9 According to the current plaintiff's version of events the first meeting between the plaintiff and Mr McDougall was on 21 September 1990. According to Mr McDougall's version of events it was one week later, 28 September 1990. The allegation made by McDougall is that the plaintiff offered him a bribe to obtain police information which the plaintiff might use to protect a group of conspirators involved in the cultivation of a marijuana crop. Mr Holovinsky's position is that he invited Mr McDougall to assist him in seeking the arrest of a notorious criminal, Mr Henry Landini, also known as Danny Landini, who it was suspected was the cultivator of the marijuana plantation at Yowrie near Cobargo. On 2 November 1990 Mr McDougall went off duty claiming to suffer from severe stress. He was absent from work between 2 and 3 November 1990 and again from 15 November 1990 until 13 December 1990.

10 During the latter period Mr McDougall saw Mr Glancey again on five occasions between 15 November and 26 November 1990 and Mr McDougall was to see Mr Glancey again on 21 February 1991. A formal claim for hurt on duty benefits was made by Mr McDougall on 30 April 1991. It was supported with a statement made by him on 23 June 1991. Reports were provided by Chief Inspector Brook dated 28 June 1991, and Detective Senior Sergeant Neal, dated 24 June 1991. In Mr McDougall's application he spoke of his reluctance to become involved in the investigation of Mr Holovinsky's activities. In par 7 of that application is this:

"Commencing on 26 October 1990 I met with the sergeant at various locations in the western suburbs in the guise of a corrupt police officer. In the period leading up to 1 January 1991 I had fourteen contacts with the sergeant re this operation. Most of these contacts were on a personal basis where I gave him false information regarding police activities on the south coast in return for information from him relating to the plantation. On one occasion I was fitted with a listening device which recorded my conversation with the sergeant. During this meeting I was searched by the sergeant and threatened with violence if it was found that I was working against him and his associates. On this occasion the investigating police searching for the plantation in bushland in the Bega area were threatened with firearms by criminals in the vicinity of the plantation."

11 In the next paragraph of his report Mr McDougall's recites the discovery of a large cannabis plantation on Christmas day 1990, and in the following paragraph with the arrest of the current plaintiff, and another man, Mr Treacy on 31 December 1991. The tenth paragraph of the report is this:

"In the period that followed these arrests I was enrolled in the Witness Protection Scheme and came under the protection of the SWOS. Subsequently the Police Department saw fit to install in my home a large quantity of security equipment and alarms and surround my house with a six foot brick fence. My premises were guarded by uniform police. Information was received of a possible attempt by criminals to execute me because of my involvement in the inquiry."

12 Paragraph 11 contains nine subparagraphs. The first recites Mr McDougall's unwillingness to be involved in the investigation but the direction given to him by his superiors to become involved. The second subparagraph is this:

"Because of the sheer pressure involved in my role I often felt nauseous. I become prone to acts of violence and bad temper. I found it difficult to sleep or to even function in a normal way. I began to abuse my use of alcohol and began drinking heavily."

13 Mr McDougall goes on to state that between 4 and 13 November 1990 he was in Tamworth giving evidence in some criminal trial. He returned to his duties at Warilla Police Station on 14 November 1990 but showed uncalled for bouts of bad temper and erratic behaviour causing him to go off work on 19 November 1990. The final subparagraph of par 11 notes that Mr McDougall received a large amount of criticism and adverse comment from other police officers and friends, which he found extremely confusing and hurtful.

14 The report of Chief Inspector Brook's seems to imply that Mr McDougall was not genuine in his reasons for seeking stress leave but seems to suggest that Mr McDougall was more upset about departmental policy relating to travel allowance and air travel, the discussion which caused Mr McDougall to become extremely aggravated, boisterous and upset. That, however, could well be a symptom of an underlying condition which the Chief Inspector did not otherwise perceive.

15 Detective Senior Sergeant Neal's report details his interaction with McDougall in November 1990. That report concludes with this matter:

"At the time I was not aware of what part Detective McDougall played in this special investigation but during the whole investigation he appeared to be under enormous pressure and at times behaved in a complete irrational manner. He became very argumentative, and at times abusive, and had started to drink alcohol to excess. This behaviour was completely out of character for him and I believe that it was caused by the work pressures he had at that time."

16 Although nothing has been put before me it would appear that the current defendant probably accepted the absences claimed by Mr McDougall as having been caused by his having been hurt on duty. On 16 November 1991 Mr McDougall made an application for hurt on duty benefits because of a recurrence of his original injury of "stress". He now claimed, as absence due to being hurt on duty, a period from 26 October 1991 to 1 November 1991, which from the document seems to suggest it was still related to the investigation into the current plaintiff's activities.

17 The next document in evidence in a chronological sense on this application is a report of Dr John Strum, a psychiatrist, of 13 November 1996. Dr Strum had seen Mr McDougall on three occasions, 12 August, 2 September and 23 September 1996. According to Dr Strum he was examining Mr McDougall because an application that had been made by Mr McDougall to have absence from duty from 30 November 1995 to 2 January 1996 classified as "hurt on duty." It is to be recalled that the jury verdicts were returned on 29 November 1995. The period of incapacity started on the following day.

18 Mr McDougall gave Dr Strum a history of his personal circumstances, of the 1986 and 1988 incidents and then of his investigation into Mr Holovinsky's activities. Mr McDougall told the doctor that he thought that he, Mr McDougall, thought that he had been placed in a horrendous situation and that had caused him to take time off work because of stress and that during that period Mr McDougall was drinking excessively. There is also another history of security concerns that McDougall had and of steps taken to ensure the protection of Mr McDougall and his family that I earlier related in Mr McDougall's application. The history of Dr Strum continues thus:

"Holovinsky and the others were arrested and the matter did go to Court. Senior Constable McDougall was told that there was no money in the budget to ensure his safety in Court. He said the Crown was inept and the defence was very aggressive. He said that he spent nine days in the witness box. For two and a half days he was cross-examined. He said that the Magistrate hated police and the defence counsel ridiculed and abused him. Whilst the Court proceedings were on, Senior Constable McDougall recalled going back to the motel and vomiting. He felt that he was the butt of jokes. He claims that the Barrister was poking faces at him at times. Senior Constable McDougall said that the defence mentioned a previous departmental charge against him. He was upset that they had access to information which he believed was personal. He did not know how they were getting that type of information. He felt there was a conspiracy. He came to the conclusion that a certain individual was doing this to help Holovinsky. He was outraged, at a later stage, when he came to promotion and that individual and he were competing for the same job. He said the other individual was promoted to sergeant whilst he was not.

At the committal hearing the magistrate said there was no case to answer. The Director of Public Prosecutions, however, pushed on and the matter went to trial. Senior Constable McDougall said he was given similar treatment by the defence counsel to what had happened in the Committal Hearing. He spent six days in the witness box where he was attacked and intimidated."

19 The history goes on to record the adverse reaction that McDougall said he had when he was advised that Mr Holovinsky and the others accused with him were acquitted. McDougall described to Dr Strum that it was as if "six years of my life [were] wasted". The main symptoms suffered by Mr McDougall when he was interviewed by Dr Strum were anger, excessive drinking and loss of appetite. Further on in the report Dr Strum says this:

"Senior Constable McDougall said he has been left with the unshakeable belief that he was right and the Court was wrong."

20 The diagnosis made by Dr Strum was of recurrent major depression. In his opinion Dr Strum said this:

"I think the strain of the trial, the fact that he was ridiculed and humiliated during the trial and, finally, that Holovinsky and the others were acquitted were too much for him. I believe it was inevitable that Senior Constable McDougall should explode into anger and depression at that time.

The question is: was Senior Constable McDougall hurt on duty? I do not think that his transfer and promotion were the issues. I do think that he was humiliated and ridiculed at the time of the trial. Believing implicitly, that Holovinsky and the others were guilty but found innocent, he felt that six years of his life had been wasted. He felt he had been totally humiliated by the whole business. Whether that was his deficiency or part of Police Service responsibility I find hard to answer. I believe that, given Senior Constable McDougall's temperament and his propensity to Depressive Illness, he should never have been put in the role in which he was put. It was almost inevitable that things would go wrong because of that. I suspect that Senior Constable McDougall was hurt on duty. He has made a good recovery and is now in a role which he can handle. I think he should continue in Uniform Duties. I believe Senior Constable McDougall would be well advised to seek psychological help again in order to help him with his propensity to explosive episodes it may well get him into trouble with his superiors."

By that time it would appear that Mr McDougall had been transferred to general duties and was second in charge at the Kiama Police Station. I should have noted before referring to Dr Strum's examinations in 1996 that Mr McDougall did attend upon his general practitioner, Dr Goor, in August 1993 about problems he was suffering from during the course of the Committal Hearing. There were attendances upon Dr Goor on 1 December 1995, 6 December 1995, following upon the acquittal of the plaintiff. On 24 July 1998 Mr McDougall went off duty. He claimed at that time that his then illness resulted from him attending the mutilation murder of David John Ahearn at Albion Park on 13 June 1998.

21 This is discussed at some length in Dr Strum's report of 15 April 1999. In that report Dr Strum records that in November 1996 Mr McDougall and his wife separated and that subsequently Mr McDougall and his wife came to friendly terms and that Mr McDougall started a new relationship. There was also a stressor in November 1997 when Mr McDougall bought a new car that he had for only nine hours when it was stolen and crashed. The thief's leg was cut off in the accident. Unfortunately there was no insurance cover on the care. Apparently Mr McDougall's stolen car collided with a police car. However, according to the history obtained by Dr Strum Mr McDougall was able to overcome those stressors without the development of any psychiatric symptoms.

22 However, it is clear from part of Dr Strum's history in his report of 15 April 1999 that Mr McDougall's prior experiences in the police force still had some part to play in the complaints he was making after his going off work on 24 July 1998. For example, this history is given:

"Mr McDougall said he enjoyed a short stint back in the drug squad but there was a lack of support from his superiors. He said just before the mutilation murder, there was a police shooting at Berkeley. A lot of Mr McDougall's friends were involved and he tried to help. He said that it was upsetting to see other police officers falling apart and it seemed that the bosses did not care. Mr McDougall said he put in recommendations about procedures to be followed at such a time, however, these were apparently seen as complaints so he withdrew them. He said that from then on he became angry with the hierarchy and saw the police as the victims. He thought he was being used as a scapegoat."

Dr Strum records the plaintiff was then under the care of Dr Gordon Davies, a psychiatrist who had diagnosed major depression. Again Dr Strum diagnosed major depression. Some six months prior to that report of Dr Strum Mr McDougall was seen by a police medical officer whose notes are exhibit VD10. Included in the history of that practitioner are the events between "1990 and 1996", that is all the events referrable to the current matter or the matters relevant to the current matter.

23 The medical practitioner's impression was of four episodes of depression and that Mr McDougall was now likely to apply for medical discharge and that the medical practitioner was likely to support such a proposition. Mr McDougall in fact applied for a medical discharge on 19 January 1999. It would appear that he was granted that discharge. I do not know what the certified infirmity is.

24 Mr McDougall was first served with a subpoena to give evidence in these proceedings on 15 April 2005. On 20 May 2005 Mr John Fleming, the solicitor then acting for the defendant in the current proceedings, had a telephone conversation with Mr McDougall. That conversation was recorded in a file note which is annexure C to exhibit VD5. Leaving out the introductory material the following is the conversation, RM referring to Mr McDougall and JF referring to Mr John Fleming:

RM: Yes, you've got a hide sending me that.

JF: Why is that? We have to send you a subpoena to ensure your attendance at court.

RM: When I had a conference with that woman barrister she gave me a verbal assurance that she would not call me as a witness.

JF: Well, I've just come into this matter, and I don't know what has happened previously but we do need to call you to give evidence. So you confirm you received the subpoena?

RM: Yes.

JF: Would you be willing to have another conference with Counsel prior to the hearing of the matter?

RM: Certainly not. Because she's a lying, deceitful mole, and you can tell her that.

JF: I will. So would you be attending court to give evidence?

RM: Yeah, I'll be there."

Subsequent attempts by Mr Fleming to telephone Mr McDougall were returned with messages from a solicitor in Wollongong. The solicitor, Mr Graeme Morrison of Messrs Leon and Morrison, solicitors, sent to the defendant's solicitors a medical certificate of Dr Goor stating that Mr McDougall would be unfit to give evidence for the period from 9 May 2005 to 9 July 2005 and also sent a report of Dr Barry McNamara, a psychologist.

25 Dr Goor's diagnosis is of acute anxiety relating to court case as well as PTSD, the acronym for post traumatic stress disorder. The diagnosis of Mr McNamara is of chronic post traumatic stress disorder. Under the heading "Current Functioning" Mr McNamara said this:

"Mr McDougall is profoundly concerned about the possibility of having to attend court to give evidence in the compensation matter brought by this former police officer.

Mr McDougall said that having to relive the whole situation again for him has been extremely traumatic. Mr McDougall said he felt he had previously dealt with the situation successfully."

Mr McNamara went on to offer an opinion that the prospect of Mr McDougall's giving evidence again "has evoked for him traumatic memories of a bad experience". It was because of how the litigation has been conducted Mr McDougall was not called upon to give evidence in mid-1995. However, the matter resumed before me on 31 July 2006. Attempts were made to issue a subpoena to Mr McDougall to attend at that time. Those attempts were unsuccessful and the affidavits of the process server who had attempted service seemed to suggest that Mr McDougall might have been avoiding service.

26 On 2 August 2006 I made an order requiring Mr McDougall to attend before me on Monday 7 August 2006 at 10am and until he was excused from further attending or, in the alternative, that Mr McDougall show cause why a warrant to arrest him for disobedience to the subpoena should not be issued. I then made orders both for personal service and for substituted service. Suffice it to say that the attempts made to procure Mr McDougall's attendance at court on Monday 7 August were successful and Mr McDougall attended. He was not legally represented. He handed to me two certificates of Dr Goor, one being an actual certificate and the other being a referral letter to Dr Barry McNamara. Those documents are exhibit VD3. Dr Goor said this in his certificate:

"I have again counselled Mr McDougall re oncoming court appearance. He is suffering severe anxiety, anger, rage, insomnia, increasing alcohol intake and I have asked him to increase his Zoloft from 50 milligrams to 100 milligrams. I feel this court appearance will increase his symptoms." [Punctuation and spelling errors corrected].

27 Mr McDougall put before me a four-page and two-line submission bearing date 5 August 2006. It is VD2. That submission sets out Mr McDougall's history of what has happened to him concerning Mr Holovinsky over the years. Mr McDougall said this in his submission:

"In early 2005 I was approached by a Private Investigator on behalf of the New South Wales police. He requested that I meet with legal representatives of the Service to discuss a civil matter instigated by Holovinsky relative to his police pension.

The visit to my home by this Private Investigator caused me great concern as it did to my family.

I initially declined to attend the meeting but eventually met with a barrister, Ms Stenmark, in her chambers with some other legal representatives of the police service.

From the outset I advised them I was not prepared to give evidence in any court proceedings and would not make statement whatsoever. Stenmark agreed to these conditions and at my request agreed she would have put it into writing and forward it to me. This never eventuated. She lied.

On that basis I gave them a verbal summary of the Holovinsky investigation and subsequent court proceedings. I was of the opinion that I assisted their case and my role was finished."

28 Then Mr McDougall goes on to state what had happened subsequent to that time, essentially stating what I have already stated. The submission continues thus:

"The original affair was extremely difficult for me and subsequent court matters were distressing at the very least. I suffered extreme stress and worry over the entire situation. Over the years I have put these matters behind me and made an attempt to get on with my life.

The stress caused by this matter has had great impact on my life and was a major issue in my marriage breaking up in 1996. Such events have a traumatic effect on many people involved in relationships.

The stress associated with the current court matter has caused me great concern. I become extremely agitated and argumentative and have recommenced drinking alcohol to excess. I am currently on medication for depression and anxiety. I seek medical assistance on a needs basis which includes counselling."

29 The statement goes on to allege that the stress being suffered by Mr McDougall has been affecting his parents and his current wife. I was assisted by counsel as to whether Mr McDougall was compellable to give evidence and that involved the question of whether he was competent to do so. However, all the medical evidence which is currently before me on this application was not before me at that time.

30 I gave judgment on Mr McDougall's application on Monday 7 August 2006. Bearing in mind the terms of the Evidence Act I felt that Mr McDougall was competent and therefore compellable but I drew to his attention and the attention of counsel before me the terms of s 41 of the Evidence Act which I caused to cite in full in my reasons for judgment at that time.

31 After I gave that judgment the transcript of 7 August 2006 page 291 commencing at line 34 says that McDougall said the following:

“Your Honour, with all due respect I appreciate your considerations here today but I ain't giving evidence, in fact I'm going out the door right now. I refuse to hurt myself because of a grub like that and grubs like these two."

When Mr McDougall said the words, "grub like that" he gestured towards Mr Holovinsky and when he said the words "grubs like these two" he gestured towards Mr Gross and Ms Stenmark. On Friday afternoon the defendant advised me that formal instructions had been obtained and the defendant was not instructed to see the issue of a Bench warrant.

32 Earlier in the week the plaintiff via Mr Gross QC had asked for the issue of a Bench warrant to Mr McDougall and also for an order asking Mr McDougall to show cause why he should not be dealt with for contempt. For reasons I gave at the time I declined those applications. One can see that there has been a very long and unhappy interaction between Mr Holovinsky and Mr McDougall and between Mr McDougall and the Commissioner of Police over a protracted number of years. One might be forgiven for thinking that Mr Holovinsky was upset and angry with Mr McDougall and the police force and that Mr McDougall was upset and angry with Mr Holovinsky and the police force.

33 The evidence which is sought to be admitted is evidence that the police force, in effect the Commissioner of Police, seeks to rely upon in contesting Mr Holovinsky's application for a hurt on duty pension. The medical evidence persuades me that if exposed to cross-examination or indeed to the revival of any unpleasant memories even in chief, it is more probable than not that Mr McDougall will suffer a recurrence or, one should say, a further episode of a major depressive illness.

34 Unfortunately the fact that the giving of evidence may be injurious to the health of a witness is not a relevant consideration under the Evidence Act, a matter which needs to be looked at by Parliament. I have had cause earlier this year to excuse a witness from further cross-examination where the witness had collapsed in the witness box with an organic brain seizure after undergoing brain surgery for a malign growth in the brain where, although the witness had overcome the seizure it was likely that if exposed to cross-examination there would be a recurrence of the condition. The terms of the Evidence Act do not seem to extend to such situations.

35 For me to decide the real issue between the plaintiff and the defendant in this case I need to know what the allegations of Mr McDougall were, what was said between Mr Holovinsky and Mr McDougall. There are documents made by Mr McDougall that are of a contemporary nature as well as statements subsequently made by him. They would set out the gist of what evidence he could give to me, some sixteen years after the events in question. Equally it is clear from what I have already stated that there are transcripts available of the evidence of Mr McDougall, both at committal and at trial, the trial evidence being the latest and taken some six years after the events now in question, not sixteen years. I advised learned senior counsel for the defendant that if I were to admit the documents it would be on condition that if the plaintiff was so advised and wished to tender the transcripts of the evidence of Mr McDougall at committal and trial, that there would be no objection to that course and learned senior counsel for the defendant gave me that assurance.

36 What is the substance of the objection by the plaintiff to the proposed course of conduct? The submissions made by Mr Gross are essentially these. Firstly, I will not have had the benefit of seeing and observing Mr McDougall in the witness box so that I would be deprived of any advantage that I might glean from observing the witness' demeanour. With the utmost respect, that is a matter which favours the plaintiff. Not having seen Mr McDougall give evidence or hear him in the manner of his giving evidence I could not draw some favourable conclusion which might overcome negative inferences to be gained from reading the written documents. The damage that that would cause would not be to the plaintiff's case but to the defendant's case.

37 The next area of substance raised by learned senior counsel for the plaintiff is that Mr McDougall had not been challenged in the earlier criminal proceedings about his state of health and his alcohol intake and his irrationality and that might be directly relevant to issues as to which version of events I might prefer. That could be cured to an extent by the tendering in the substantive proceedings of the medical evidence that is currently exhibited on the voir dire but equally should be clear from what I have said that I do not accept "irrationality" as such based on the appointment of a layman, Detective Senior Sergeant Neal, but rather of a major depressive disorder which might make one very unhappy and ill-functioning but would not generally affect cognition.

38 When a witness has not been cross-examined the weight to be given to the witness' evidence is attenuated as all the authorities point out. I have earlier in this hearing referred counsel to a judgment I gave on an interlocutory basis in Colliers International (NSW) Pty Limited v Ziani Corporation Pty Limited (1442/05) and that principle will be certainly applied by me if I admit the documents.

39 The question is can I admit the documents? It was submitted that I could admit the documents under s 63 of the Evidence Act. However, for the documents to be admissible under s 63 of the Evidence Act the maker must not be available. Whether persons are available or not is to be ascertained according to the formula, if I may use that expression, provided by cl 4 of Pt 2 to the Dictionary in the Evidence Act.

40 The defendant relies on cl 4(1) par (f):

"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."

The submission made here is that the defendant had taken all reasonable steps to secure the availability of Mr McDougall and the application for the issue of a Bench warrant in the current circumstances would not be a "reasonable step" given all the circumstances. There is much to be said for that submission. However, the fact remains that Mr McDougall did turn up. He just refused to give evidence because, as he said, he did not want to "hurt himself" again, the inference being clear to me that as far as Mr McDougall was concerned, he thought that if he was subjected again to the witness box and being cross-examined he would have another episode of a major depressive illness.

41 However, the defendant also relies on s 64 which provides an exception to the hearsay rule in civil proceedings if the maker of the representation in question is available. Subsection (2) provides that the hearsay rule does not apply if it would cause "undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence". The submission was that it would not be reasonably practicable to have Mr McDougall give evidence. I accede to that submission.

42 The first thing to note is that Mr McDougall would need to be brought here in custody and one could almost say "kicking and screaming". The second thing is that he has already displayed acute animosity both to Mr Gross QC for the plaintiff and Ms Stenmark SC for the defendant and those counsel would be at a grave disadvantage in seeking to adduce evidence from the witness. Thirdly, Mr McDougall has, in my presence, expressed animosity to and bias against Mr Holovinsky, and that would make the matter even more difficult for him to give evidence knowing that Mr Holovinsky would need to be present. However, the existence of that animus against Mr Holovinsky is something that I must, if I admit the documents, consider in assigning what weight, if any, I can give to Mr McDougall's representations, to use the technical words, of the Evidence Act.

Fourthly, as far as the defendant is concerned Mr McDougall's attending Court as far as the defendant is concerned might become a technical matter where the witness merely identifies his writing, signature and the like and documents are tendered, leaving the substance of his evidence to cross-examination where the cross-examiner may be thwarted by the witness' demeanour and at a disadvantage if I apply the provisions of s 41 of the Evidence Act as I initially said I would if Mr McDougall entered the witness box. The fifth consideration is perhaps contrary to an earlier consideration. Mr Krawczyk came to Court and gave evidence and was examined closely and brusquely by Mr Gross for the plaintiff. I suspect that it would be very difficult for Mr Gross, acting on instructions, to be a gentle cross-examiner of Mr McDougall. One must also bear in mind the applications that have already been made by the plaintiff for the issue of Bench warrant to Mr McDougall and for his being asked to show cause why he should not be charged with contempt. Those actions themselves speak of some continuing animus on the part of the plaintiff against Mr McDougall.

43 The remaining question as to whether it is reasonably practical is to ask the question which one always ought ask where somebody's health may be imperilled: cui bono? Who would benefit from the exercise? According to Mr Gross it would be me, the Court, because I would then have the advantage of seeing and hearing him. That could, quite frankly, backfire, but if the end result is the deterioration of Mr McDougall's health or aggression and discord then it will serve no good purpose to anybody.

44 I accordingly accede to the defendant's application to admit the documents relating to former Detective Senior Constable Robert McDougall, shown on exhibit VD4 the notice pursuant to s 67 of the Evidence Act, saving any other proper objection and noting the consent of the defendant to the tender of the transcripts of evidence of Mr McDougall in the criminal proceedings if the plaintiff wishes to do so.

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