Perry v Kinnear & Ors

Judgment (EX TEMPORE) - VOIR DIRE 3

1. On the morning of the fourth day of the hearing, without any apparent prior notice to his opponent or to the Court, the defendants, for the first time, raised objection to the evidence of witnesses Turner, Morris and Scofield, which had been organised to be given by AVL. They are witnesses in the plaintiff case. It was contemplated that cross-examination of the plaintiff would conclude by luncheon today and that the evidence of those witnesses would then be taken via AVL, starting at 2 o'clock.
2. Each of them has made a statement, and their statements were served by the plaintiff on the defendant at least by the time of delivery of the Joint Court Book, MFI 5. I am informed that that Joint Court Book was delivered on about 28 April 2020. Those statements are, in this voir dire, tendered. They are: 1. Exhibit VD3‑1: Ms Turner's statement of 18 April 2020; 2. Exhibit VD3‑2: The statement of Ms Morris dated 23 April 2020; and 3. Exhibit VD3‑3: The statement of Ms Scofield of 21 April 2020.
3. It is obviously disappointing that this application was not made before this point, where it has caused the interruption of about an hour‑and‑a‑half before I commenced this voir dire judgement. That is, an hour and a half during which the Court staff have not had their morning adjournment. So the time of the morning adjournment is not lost, but in any event, given the parties have been aware that the hearing was to proceed in this way and had that awareness since at least April, it is disappointing that the application is made this morning.
4. I turn to the evidence of the witnesses. In relation to the evidence of Ms Turner; her statement includes both complaint evidence and evidence relevant to circumstances. Evidence of a prior consistent statement by the plaintiff to Ms Turner, as given by Ms Turner, is hearsay of the fact asserted by the plaintiff and pursuant to s 59 of the Evidence Act, would be inadmissible unless falling within an exception. Pursuant to s 60(1) of the Evidence Act, evidence of the plaintiff's complaint to Ms Turner is relevant evidence of Ms Turner's report to the second defendant and therefore is relevant to the material fact of the second defendant's knowledge of the plaintiff's complaint of the defendant's alleged conduct. On that basis, in my view, it would be admissible. It is also relevant because it could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact of the second defendant's knowledge of the plaintiff's complaint of the first defendant's conduct, which are facts in issue in these proceedings. Her evidence does not only go to credit. It is relevant to the complaint.