Perry v Kinnear (No. 3)

[2020] NSWDC 899

District Court

New South Wales

Medium Neutral Citation:

Perry v Kinnear & Ors (No. 3) [2020] NSWDC 899

Hearing dates:

21 September 2020 (of the application)

Date of orders:

21 September 2020

Decision date:

21 September 2020

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

I allow the questions of Brock Kinnear relating to character, as submitted by counsel for the plaintiff.

Catchwords:

Civil Practice & Procedure – Defence Objection to Cross‑Examination of its Witness – Objection on the Basis of Relevance – Admissibility of Oral Evidence under ss 55‑56 of the Evidence Act 1995 (NSW)

Legislation Cited:

Evidence Act 1995 (NSW) ss 55‑56

Cases Cited:

N/A

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

Mrs Isabell Perry (Plaintiff)

Mr Ian Kinnear (First Defendant)

Mrs Leisha Kinnear (Second Defendant)

Representation:

Counsel:

Mr D Elliot (Plaintiff)

Mr D Brezniak (First & Second Defendants)

Solicitors:

Gerard Malouf & Partners (Plaintiff)

Paul & Labuzin Lawyers (First & Second Defendants)

File Number(s):

2018/00106299

Publication restriction:

N/A

Judgment (EX TEMPORE)

1. Objection is made in an appropriately anticipatory fashion to a line of questioning which counsel for the plaintiff proposes to follow with the witness, Brock Kinnear, as counsel for the plaintiff, again properly identified by counsel for the defendant, has done with prior members of the Kinnear family.

2. The objection is made on the basis that the evidence is irrelevant, and also that the questions are badgering, cruel and for the purpose only of unsettling the witness.

3. The first thing to observe is that through an extensive and gruelling cross‑examination of the plaintiff, the defendants put very much in the front of their case, the character of the family. When I say character in this regard, I do not adopt what counsel for the defendant has put in his objection to questions going to character of Brock Kinnear. The character of the family of which I speak is character of conduct, character of the family environment. The character of the family environment being loving, close and affectionate such that the plaintiff was included, and the sexual assaults alleged in her case could not be seen or expected to be seen in that environment. So the first point I make in response is to accept the plaintiff counsel’s proposition that the defendants put this issue upfront and open, indeed unavoidably open, for cross-examination in my view.

4. The second point is that the evidence is relevant. It is not evidence in a prosecution, as counsel for the defence mistakenly referred during the objection. The evidence is evidence not just going to credibility of the witness, although it may do that in addition. The evidence is of a nature which if accepted could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: s 55 Evidence Act 1995 (NSW). Being relevant evidence, it would be generally admissible: s 56 Evidence Act 1995 (NSW).

5. The fact in issue is indeed the conduct in a sexual way of the first defendant and in the ancillary sense in which it is pleaded of the second defendant. It is an environment for instance, going to the second defendant’s case, in which she has denied the complaint made as described by Ms Turner in her evidence. The witnesses for the defence, in particular the first defendant, have referred to the allegations as disgusting. And specifically the messages, Exhibit P, are in evidence. Not only are they in evidence, they were put to the first defendant and the first defendant gave his responses to what he thought of them in terms of his son at that age and his family.

6. They are relevant. They are relevant in the case, as it has indeed been put forward, particularly by the defence through cross-examination of the plaintiff in the way in which I have said. On each basis, I allow the questions.

ORDER

7. I therefore make the following order:

1. I allow the questions of Brock Kinnear relating to character, as submitted by counsel for the plaintiff.

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