Mahboobi v IIC Three Pty Ltd [2025] VCC 619 | Case summary

County Court of Victoria|2025-05-20|Before: Mr P

On day nine of the trial before a jury of six, the defendant applied to discharge the jury. I rejected the defendant's application. These are my reasons.
The application to discharge the jury occurred against a background of the late discovery by the plaintiff of a photograph that she alleged had been taken on a previously used iPhone. The photograph was identified, and a copy of it was produced as an exhibit to an affidavit of Daniel Zucker, solicitor for the plaintiff, affirmed on 15 May 2025. Mr Zucker deposed to the following facts at paragraph 4 and 5 of his affidavit:

"At approximately 3:30 pm on Wednesday, 14 May 2025, following the adjournment of the seventh day of proceedings in this matter, the Plaintiff, having concluded her evidence and being at liberty to communicate with her lawyers for the first time since the commencement of her cross-examination on 9 May 2025, attended a conference with Mr Paul Czarnota, Senior Counsel, and Ms Karen Liu, Junior Counsel and myself. This is the first time the Plaintiff's legal representatives have conferred with the Plaintiff concerning the substance of her evidence in cross examination.

Shortly after the commencement of the conference, when asked about the questions asked in cross examination concerning identification of the oil container, the Plaintiff retrieved from her purse and presented to her lawyers an old iPhone 6 ("the Telephone"). She stated that it contained a photograph ("the Photograph") taken on 20 September 2019 and taken at the Defendant's premises and depicted the oil container she had lifted from the kitchen sink on that date".

Mr Zucker's affidavit was responded to by the making of an affidavit by Thomas O'Grady, solicitor for the defendant and sworn on 15 May 2025. The gist of Mr O'Grady's affidavit is that the photograph was not produced in accordance with the orders for discovery made by the Court and should not be admitted. As well, Mr O'Grady raised a concern that the photograph might have been manipulated and not taken on the date or at the location it purports to identify.
As a result of the hearing of submissions from the parties, I appointed an expert in accordance with section 65M of the Civil Procedure Act 2010 (Vic). The opinions sought from the expert, and agreed to by the parties were committed to writing as follows:

(a) Is it possible to tell from a forensic examination of the phone, whether the photo was originally taken at 2.14pm on 20 September 2019 in Doncaster East?

(b) If the answer to the previous question is yes, in your opinion, was the photograph taken in Doncaster East at 2.14pm on 20 September 2019, or are you of the opinion that the photograph was taken at a different place and/or time, and if so, are you able to identify where and/or when that occurred?

(c) If an examination of the phone results in the conclusion that you cannot tell whether or not the photo was taken at 2.14pm on 20 September 2019 in Doncaster East (for example because electronic data may have been deleted, altered or is otherwise not available but you cannot tell whether or not this has happened), what is the reason or what are the reasons for not being able to tell either way?

(d) Is there any reason to believe that the photo that accompanies this letter, has been altered or tampered with in any way as compared to the photograph that was originally taken?

On Monday 19 May 2025, Mr Harrison, the appointed expert from KordaMentha, gave evidence. Mr Harrison said that as a result of a detailed forensic examination he concluded that the photograph was genuine, that is, it was taken on the date it bears and within or at or about the location identified.
To the objection that the photograph if genuine should not be admitted at this late stage, I ruled that the photograph could be introduced by the plaintiff in re-examination on the ground that it was rebuttal evidence to the allegations of lying and the concoction of a fraudulent claim that was levelled at the plaintiff by the defendant in cross-examination and that the prejudice to her in being refused leave to introduce and rely on the photograph would be far greater than prejudice to the defendant. In light of the ruling on the photograph's admission Mr Broadfoot applied to discharge the jury.
I accept that the defendant will be occasioned some potential prejudice by the late admission of evidence. Having put to the plaintiff that her testimony that she lifted a clear 20 litre plastic container of cooking oil was a lie, but in light of the fact that on the date of the alleged injury the photograph proves such a container was on the defendant's premises, the allegation levelled by the defendant at the plaintiff may no longer be able to be pressed, and the positive puttage by Mr Broadfoot, that witnesses would be called by the defendant that such containers were not used at the café may not be able to be led. If this occurs, the plaintiff will be able to highlight that discordance in closing address. Mr Broadfoot argued that the jury may henceforth prejudicially default to accepting the plaintiff's evidence on other matters of contested fact than would otherwise be the case had the photograph not been admitted in evidence. Moreover, Mr Broadfoot submitted had the defendant known of the photograph, he would have undertaken a different cross-examination.
The decision taken by the defendant to accuse the plaintiff of lying, and creating a false account of injury, and of having given different accounts of the receptacle she lifted prior to her evidence in chief as being because she had forgotten that plastic containers were never in use at the defendant's café, was no doubt a forensic decision. The fact that it may prove to be a strategically misguided forensic decision is not a sound basis to discharge a jury.
Mr Broadfoot at one point in argument, intimated that I had perhaps impermissibly concluded one way or the other about the extent of his instructions. I did not. However, bearing in mind the obligations of counsel to not allege fraud or accuse a witness of lying without a proper basis, it is reasonable and logical to assume that the assertions put to the plaintiff were consistent with counsel's instructions at the time. The plaintiff's leading counsel opened with the account of a plastic container and the plaintiff gave her evidence in chief over some days in which she repeatedly referred to the plastic container. Moreover, an expert opinion report obtained by the plaintiff referred to the plaintiff's description o him of lifting such a container as is shown in her photograph, and a photograph of a like container was included in the expert report. The intimation that the defendant should be shielded from potential adverse conclusions the jury may reach because it pressed on with its thesis in cross-examination that the plaintiff had concocted the account of injury in light of these other points of evidence, and because of the late tendered photograph, is not sustainable.
The fact alone that the photograph establishes that a 20 litre container was at the defendant's premises on the date of injury, and the plaintiff's evidence that the container shown in the photo is the container she alleges she lifted, is not determinative or conclusive on the matter. The defendant will be allowed to re-examine the plaintiff on the reasons for the late provision of the photograph and of what the photograph depicts including its positioning as is depicted. As well, the defendant may be able to call evidence that sheds light on the container depicted. Lastly, and in due course, the jury will be given appropriate directions on the issues that might flow from the photograph, the puttage and of inferences that may or may not be able to be drawn from the evidence.
I am not satisfied the application to discharge has been made out and therefore, it is refused.

Mahboobi v IIC Three Pty Ltd

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