FEDERAL COURT OF AUSTRALIA

Kowalski v Domestic Violence Crisis Service Inc (No 2) [2004] FCA 1186

STAN LECH KOWALSKI v DOMESTIC VIOLENCE CRISIS SERVICE INC

A18 of 2003

MADGWICK J

22 JULY 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The appellant is to pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

HIS HONOUR:

1                     In this matter an application has been made to have regard to a statement, dated 7 March 2003, made by Constable Perkins, one of the police officers intimately involved in this matter. 

2                     Thirteen years after the events in question, the police officer says that he can recall some pertinent details which, if that alleged recollection were accepted, would marginally but perhaps importantly help the appellant’s case.  The police officer was called to give evidence in this matter in 1997, before a Commissioner of the Human Rights and Equal Opportunity Commission by the appellant when the appellant was represented by counsel.  Constable Perkins was first asked to recall the events in question, which occurred on 6 February 1990 and October 1991.  He had made no contemporaneous notes of the event and it is clear that he was relying on his statement of 1 October 1991.  The burden of that statement is, on a crucial issue, generally helpful to the appellant.

3                     Before the Magistrates Court at first instance, an effort was made to tender a 2003 statement or report of the police officer.  Counsel for the respondent said:

‘In relation to Constable Perkins, we were advised that he was going to be called by telephone evidence and, again, only told this morning that he would not be called.  We would be objecting to his statement dated 7 March 2003 going in under any circumstances, and primarily on the basis that it serves no probative value whatsoever and we would be making that application under section 135 of the Evidence Act.’

She continued that, ‘the Constable, on his own say so, could not remember a crucial conversation but opined that he would have said certain things or if he had not had that conversation at all his police partner would have’.

4                     She pointed out that it was:

‘Very unsafe evidence and ought not be allowed.’

5                     The learned Federal Magistrate in the course of argument offered the opinion that he:

‘could see no point in that evidence’,

seemingly accepting the argument of counsel for the respondents. 

6                     However that may be, counsel for the appellant had the opportunity to challenge those submissions and that tentative conclusion, expressed in the course of argument, but did not do so.  It appears that counsel took a judgment, which may well be said to have a lot to recommend it, that the Perkins evidence was not, in the case as a whole, of great importance and there were more objective matters that pointed to overall probabilities that better assisted his client.

7                     In any event, there was no explanation as to why Constable Perkins ‘would not be called’.  There was no suggestion that he could not be called.  It follows that the appellant had every opportunity to have Constable Perkins give evidence below but, by his counsel (who does not appear to have misconducted himself) did not take advantage of that opportunity. 

8                     The learned Federal Magistrate is not shown to have been in error in his initial view that the evidence should not be admitted as lacking sufficient, relative weight when there was

no opportunity to cross-examine him, or in refusing to admit the report.  I would reject the application.

Associate:

Dated:              15 September 2004