Issues on the use of surveillance evidence

22 February 2016

The decision of Robb J in Panos v FSS Trustee Corporation [2015] NSWSC 1217 (Panos) illustrates the persuasiveness of surveillance evidence in certain circumstances where the plaintiff’s credit is in issue.

Surveillance evidence must nevertheless be treated with caution given its sensitive nature, the context in which it may be relied upon and applicable rules relating to service.

Decision of Panos v FSS Trustee Corporation

Mr Panos lodged a claim for Total Permanent Disablement (TPD) under a group insurance policy held by the trustee of a superannuation fund. Mr Panos allegedly suffered injuries in the course of his employment in addition to two motor vehicle accidents. Robb J allowed surveillance footage to be shown to the plaintiff and a medical expert during cross-examination, despite it not having been previously served or disclosed to the plaintiff. The footage showed Mr Panos exercising at a gym and engaging in other activities that led to his Honour concluding that the plaintiff had “exaggerated his circumstances”. The plaintiff ultimately failed to establish any entitlement under the relevant policy.

UCPR Rule 31.10

Rule 31.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) relevantly provides that a party seeking to rely on an audio-visual recording (such as surveillance footage) must, at least 7 days before the commencement of a hearing, give the other parties an opportunity to inspect it and to agree to its admission without proof, except where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect it or otherwise grants leave to rely on such evidence.

The rule encourages pre-trial disclosure for the purpose of achieving the overriding purpose of the Uniform Civil Procedure Act as well as countering injustice that non-disclosure may affect parties to the dispute.

The “legitimate forensic purpose” exception to r. 31.10(1) means that a party seeking to rely on surveillance footage must decide whether disclosure might, for instance, cause a defendant to tailor his or her position or otherwise contrive evidence to meet what is shown in the footage.  A party that cannot satisfy the court of a “legitimate forensic purpose” for not disclosing the footage before trial may not be allowed to rely on it unless leave is otherwise granted. In certain circumstances it may be open for a defendant to bring an ex parte application to obtain leave to dispense with the obligation to disclose under r. 31.10(1).

“Legitimate forensic purpose” exception

In the interlocutory judgment of Cockburn v Trust Company Pty Ltd [2014] NSWDC, Cogswell SC DCJ held that the legitimate forensic purpose exception under r. 31.10 (2)(a) raised different and independent considerations compared to the more general question of leave under r. 31.10 (2)(b). Therefore, whether non-disclosure is for a legitimate forensic purpose is considered in terms of the type evidence to which the exception applies: photographic and audio-visual recordings obtained by a party for “the purpose of testing the credibility of the witness.” Recent cases have found the non-disclosure of surveillance evidence prior to cross-examination to be legitimate where the forensic purpose was to test the plaintiff’s credibility in regards to their assessment of physical injuries. The utility of surveillance in cases of non-physical injuries such as claims involving mental illness, and hence the legitimate forensic purpose in not disclosing such evidence prior to trial, is generally less clear and it may be much more difficult for defendants in those cases to rely on undisclosed surveillance.

In Panos, the surveillance footage was admitted for the purpose of determining the existence of the plaintiff’s alleged physical disability and it precipitated the abandoning of expert evidence by the plaintiff’s doctor under cross examination. In addition the credibility of the plaintiff was undermined.  Life insurers must be aware, however, that in cases of non-physical injury, surveillance evidence may not be so decisive and generally should be disclosed, if probative, in the course of procedural fairness prior to determining the claim.

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