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Former prosecutor granted special leave to appeal after hitting ‘rock bottom’

A former Victorian prosecutor who developed post-traumatic stress disorder from her exposure to disturbing evidence like child exploitation material has been granted leave to appeal to the High Court after the Court of Appeal withdrew damages.

user iconNaomi Neilson 09 June 2021 Big Law
Victorian Office of Public Prosecutions
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Content warning: This article briefly deals with content on child exploitation material.

Former prosecutor Zagi Kozarov will take her case to the High Court to appeal the decision to overturn damages worth $435,000, which the Supreme Court granted after it found the Victorian Office of Public Prosecutions (OPP) had breached its duty of care despite being informed a number of times about her wellbeing concerns. 

From 2009 to 2012, Ms Kozarov worked in the Specialist Sexual Offences Unit and was often exposed to child exploitation material, pornography and other disturbing evidence to prepare for trials. In written judgment, the former prosecutor said that she “wasn’t coping with reliving what they were reliving” as the cases added up. 

 
 

During 2011, Ms Kozarov had told the Supreme Court of Victoria that she raised her concerns about the workload and the impact it was having on her symptoms, such as anger, anxiety, poor eating habits and sleeplessness. She told the trial judge that these symptoms were getting worse as she spent more and more time at work. 

“Something as simple as taking my children to the local swimming pools becomes a panic attack for me as I find myself constantly on edge and scanning the surroundings for potential paedophiles that may be taking photos,” Ms Kozarov said. 

The Supreme Court trial judge said the court was left with the impression that the OPP took “precedence [of workload requirements] over supervision of staff welfare and wellbeing during the claim period”. They added a high number of materials that Ms Kozarov was dealing with as part of her job related to child sexual offences complainants at the same time she was “bringing up two young children”.

Ultimately, the court found that the OPP should have had a system in place in order to review red flags in employees that might indicate the need for a welfare check. It awarded $200,000 for pain and suffering, $120,000 for past economic loss and $115,000 for future economic loss. These damages were soon overturned. 

In an application for special leave to appeal to the High Court, Ms Kozarov’s barrister, John Rush QC, argued that the Court of Appeal failed to conduct a real review and fell into error by way of contradictions “in relation to causation”, and that it had overlooked material evidence “that goes to the decision of the primary judge”. 

The overlooked evidence related in part to uncontradicted material from a psychologist who, in his clinical experience, told the court that people with PTSD “respond positively with the explanation as to why they have to move on”. Mr Rush also relied on evidence that Ms Kozarov should have been moved to another area. 

“That evidence was not referred to at all by the Court of Appeal in overturning the judge’s finding on causation. There was no real review in that sense of the material that was important to the trial judges’ determination on this point,” Mr Rush said.  

Barrister for the OPP Bret Walker SC argued that Ms Kozarov “never put the argument that something less than rotation would have avoided her harm”. 

“The battle lines at trial were how the [applicant] would have responded to an offer, not to enforcement, and the contract does lie under this in the sense that there was never any suggestion that under the contract, we were obliged, or she was entitled to, what I will call forcible redeployment,” Mr Walker told the court.

The matter will return to the High Court soon. More to come. 

The judgment on special leave to appeal is available on AustLII and can be found here: Kozarov v State of Victoria [2021] HCATrans.

Help is available. Contact Lifeline on 13 11 14 or Respect on 1800 RESPECT (1800 737 732). Every law society and bar association of each state also has further contacts available on their respective websites.