Ewin v Vergara

REASONS FOR JUDGMENT 1 In this proceeding, the applicant ("Ewin") has alleged that the respondent ("Vergara") sexually harassed her in breach of s 28B of the Sex Discrimination Act 1984 (Cth). The trial in this matter is due to commence on 3 December 2012. A very large number of witnesses are proposed to be called and, in the management of the trial, I have required and received from the parties outlines of witness evidence in relation to each of the witnesses a party proposes to call. There is a contest as to whether three witnesses which Vergara proposes to call can give admissible evidence. These reasons deal with that issue. 2 Vergara proposes to adduce evidence from witnesses including the following: Stephen Carter ("Carter"); Brad Crump ("Crump") and Mark Franklin ("Franklin"). Vergara has filed a summary of the evidence proposed to be adduced from each of these individuals together with submissions as to the admissibility of the evidence proposed to be adduced. The applicant ("Ewin") opposes the calling of these proposed witnesses and has filed submissions contesting the admissibility of the evidence proposed to be adduced from them. 3 Section 192A of the Evidence Act 1995 (Cth) ("the Evidence Act") empowers the Court to give a ruling in relation to a question which arises in a proceeding about the admissibility or use of evidence proposed to be adduced. Such a ruling may be given before the evidence is adduced in the proceedings. In the exercise of the Court's power given by that provision I have determined to make the rulings set out in these reasons for judgment. 4 The purpose of the evidence which Vergara proposes be adduced from both Carter and Crump is to challenge the credibility of Ewin. Section 102 of the Evidence Act provides that credibility evidence about a witness is not admissible. However, a number of exceptions are thereafter provided for by the Evidence Act and Vergara seeks to rely on the exception contained in s 106. Before evidence may be admitted under the exception provided for by s 106(1), the substance of the evidence that is relevant to the credibility of a witness needs to be put to that witness in cross-examination. That has not occurred. There are other prerequisites required by s 106 including that the witness whose credibility is challenged has either denied, not admitted or not agreed to, the substance of the evidence sought to be led. Vergara's proposal to adduce evidence from Carter and Crump assumes that those pre-conditions will be satisfied when in fact, they may not be. The proposal to adduce that evidence is therefore premature. The question of admissibility may be revisited should the prerequisites required by s 106 be satisfied. Until those conditions are satisfied, the evidence proposed to be adduced from Carter and Franklin as to Ewin's credibility is not admissible. 5 There is one further aspect to the evidence proposed to be adduced from Carter. Vergara proposes to adduce evidence rebutting a claim said to have been made by Ewin that Vergara had provided Carter with an admission in relation to events in May 2009 which are the subject of this proceeding. Ewin has not pleaded that Vergara has made any such admission and has disavowed any reliance by her upon any such admission. In those circumstances, I accept Ewin's submission that Carter's evidence is not relevant to any fact in issue in the proceeding and rule that this aspect of Carter's proposed evidence is not admissable. 6 The allegations of sexual harassment made by Ewin against Vergara in these proceedings include allegations of sexual assault. It is not in issue that allegations of sexual assault were reported by Ewin to the Victoria Police. Franklin is a Senior Sergeant in the Victoria Police force and was involved in police investigations consequent upon the complaint made by Ewin. The evidence which Vergara proposes be adduced from Franklin falls into two categories. The first, in essence, seeks to deal with why Vergara was not charged by the Victoria Police, including what are said to be the major flaws associated with Ewin's claims, and how the police perceived and assessed her allegations. The second category of evidence sought to be adduced relates to police investigation tactics and processes for dealing with crime, including crime fighting measures in existence in King Street, Melbourne. 7 Vergara contends that the evidence is admissible under the exception to the credibility rule provided by s 108C of the Evidence Act. 8 Vergara's reliance on s 108C is misplaced. That exception applies to evidence given by an expert (a person with specialised knowledge). The exception is directed to evidence dealing with the capacity of a witness to give credible evidence given the impact on the witness of some behavioural or other factor which may have affected that capacity. Both s 108C(2) and the Explanatory Memorandum to the Evidence Amendment Act 2008 (at [163]) suggest that the purpose of the exception provided for by s 108C is to permit expert evidence to be called as to behavioural factors (whether environmental, cognitive or otherwise) which would assist the Court's understanding of the capacity of a witness to give credible evidence. An example of specialised knowledge of that kind is given in s 108C(2) as specialised knowledge of child development and child behaviour. McCallum J in Harris v Bellemore [2009] NSWSC 1496 seems to have reached the same conclusion at [12]-[13]. See further National Australia Bank v Caporale [2012] NSWSC 509 at [12] (Schmidt J). 9 Vergara identifies the specialist knowledge of Franklin as that of a "law enforcer". He relies on Franklin's training and work experience as a policeman. That is not the kind of specialised knowledge contemplated by s 108C. Franklin is not able to give expert evidence about Ewin's capacity to give credible testimony. The evidence proposed to be called from him is simply his own opinion about the truthfulness of allegations made to police by Ewin. That evidence is not admissible. 10 As to the second category of proposed evidence from Franklin, dealing with what are said to be crime fighting measures in King Street, Melbourne, the outline of the proposed evidence is so general and vague that I am unable to identify its relevance. In any event, Vergara has not sought to support that proposed evidence other than by reference to s 108C of the Evidence Act and it clearly fails to come within that exception. 11 Vergara is self-represented. I have taken account of the fact that in dealing with complex issues raised by the Evidence Act, Vergara may not be in the best position to advocate a proper basis for why the evidence he proposes to adduce should be regarded as admissible. For that reason, I have given consideration to whether a basis for admissibility in relation to the proposed evidence exists, beyond that contended for by Vergara. I have come to the view that no such basis is apparent. 12 The attendance of, and the taking of evidence from, witnesses who are not able to give admissible evidence is fraught with inconvenience, inefficiency and cost. The requirements of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) include that civil disputes be resolved as quickly, inexpensively and efficiently as possible. In view of the rulings I have made as to the admissibility of the evidence proposed to be adduced, I think it appropriate that I order that Carter, Crump and Franklin not be called as witnesses by Vergara without the leave of the Court. If changed circumstances justify the calling of those witnesses, the Court will consider any application from Vergara for the grant of leave. 13 Finally, I note that Vergara does not pursue his prior intent to call Jodie Yorgey or Dr Wendy Triggs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.