Barbaro v Italiano

[1993] HCATrans 382

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S74 of 1993

B e t w e e n -

GUISEPPE BARBARO

Applicant

and

FRANK ITALIANO

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1993, AT 11.41 AM

Copyright in the High Court of Australia

Barbaro 1 10/12/93

MR D.F. JACKSON, QC: If the Court pleases, I appear with my

learned friend, MS A.J. KATZMANN, for the

applicant. (instructed by Andrews)

MR H.D. SPERLING, QC:  May it please the Court, I appear

with my learned friend, MR R.R. BARTLETT, for the

respondent. (instructed by Abbott Tout Russell

Kennedy)

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:  Your Honours should have a copy of our outline

of submissions.

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:  Your Honours. As Your Honours will see there

are two bases upon which we seek special leave, and
may I move immediately to the first of those, the

question whether there was a miscarriage of

justice. Now, Your Honours will see in paragraph 2

of our written submissions we set out the three

matters which, we submit, give rise to a

miscarriage of justice. Now, Your Honours, may I

turn immediately to deal with those, and the first

of them is that the master had made a finding,

which was crucial to the case, that the applicant
was not party to a conspiracy, the nature of which
was to stage an accident in which one of the
conspirators, or some other person, would be

injured thus giving rise to an entitlement to claim

damages for personal injuries.

Your Honours could I go immediately to

paragraph 3 of our submissions where Your Honours

will see that at page 12 of the application book,
that the master said, at the top of the page:

the crucial question in this case is not just the existence of a conspiracy. It is whether

the plaintiff was a party to it.

Now, Your Honours will see further, at the next

page of the master's reasons, lines 14 to 15, at

page 13, he referred to the fact that:

In cross-examination the plaintiff not

only denied any complicity in any conspiracy,

he also denied -

et cetera.

Your Honours I will come back to that passage in a

moment, but I just wanted to refer to the first two

lines of it that in cross-examination the plaintiff

had denied complicity in the conspiracy. In fact,

Barbaro 2 10/12/93

Your Honour, and Your Honours will see the page is

attached to the outline of submissions, on four

separate occasions in the cross-examination, the

plaintiff in fact had denied those matters and it

was evidence that the master had before him.

Now, Your Honours, if I could turn then to

paragraph 4 of our written submissions. The master

had the opportunity of seeing the plaintiff, seeing

the applicant, give oral evidence over four days

and in evidence which went on for many pages of the

transcript, nearly 160. He could see him when he

was giving evidence, he was entitled to accept his

evidence, of course, in whole or in part and,

Your Honours, if I could return to page 13 of the

master's decision, you will see that part of his
evidence there he did not accept, and that is the

part in the first sentence commencing on the second

line of that paragraph, commencing at line 15, he

also denied two other matters, and you will see

following on from that that those two matters are

ones that he did not accept, and that that is so

appears from the whole of the remainder of that page. He did not accept his denials of who the Reichs were or that the defence in the case was

going to be based on allegation of conspiracy, but

then he went on to say, at about line 22:

It does not follow, of course, that his

denial of complicity in the conspiracy must
also be rejected.

Now, Your Honours, if one goes to page 17 at

lines 16 to 20, he then said:

When all the evidence is taken into

account, I find that I am not persuaded that

the plaintiff had consented to be a party to

any staged accident, or that he had

conspired -

et cetera. In arriving at that conclusion he made

it clear that he took into account the view which

he had formed of the applicant at the hearing, and

Your Honours, that that is so appears a little

further up page 17, in the first two new

paragraphs on the page, where he said:

to succeed the defence must demonstrate that

the accident that happened was staged -

and then the next paragraph:

A number of common indicators of such a

false claim are absent.

Barbaro 10/12/93

And he refers then to a view which he must have

formed of the applicant during his oral evidence.

He was saying:

He did not exaggerate his injuries.	He made
no attempt to suggest -

et cetera:

genuine efforts to get back to work.

He also made it clear that he had taken into account the matters - I am referring Your Honours

to paragraph 5 of our written submissions - that

might lead to the opposite conclusion, such as

those referred to at page 16, line 23, his:

presence at the scene, his relationship with -

people who were undoubtedly conspirators:

and some unsatisfactory answers -

he had given in cross-examination.

He concluded, Your Honours, by saying, at

page 17, line 16, that his finding of no
participation by the applicant in any conspiracy

was based on a consideration of all the evidence. Now, Your Honours, could I pause at that point to

say this, if one looks at paragraph 6 of our

written submissions you will see the paucity of

evidence, objective evidence, that might lead to

the conclusion that he was a party to the

conspiracy.

Could I say this, Your Honours: there was much

reference made to a 1981 accident, which was the

year before. There was no evidence at all that the

applicant was in any way involved in that. The

any discussion with anyone about the accident, the	second thing was there was no evidence that he had	subject of present proceedings, or any conspiracy
about them, and in particular he was not a party to
the discussion that took place outside the cars at
the worker's club, you will see that at page 15,
line 16:

The plaintiff was not present.

Now, Your Honours, what could be said about

him is what we refer to in paragraph 6(c) that he

was in a car with persons who were conspirators,

and he should have been aware of what they were

doing.

Barbaro 10/12/93

If I could just pause at that point to jump to the view that every person who happens to be in a

car with persons who are engaged in forming, or
carrying out, a conspiracy, is himself a

conspirator, leads to the very considerable view of

guilt by association. But, having said that

Your Honours, what ultimately was the fact was that

the case was one in which there was oral evidence.

He gave oral evidence, he denied being in the

conspiracy and, Your Honours, the extract from
Official Trustee in Bankruptcy v Mitchell in the

Full Court of the Federal Court, to which we refer

in paragraph 7 - and I wonder if I could perhaps

give Your Honours some authorities to which we may

refer, in case Your Honours need to look at them.

It is obvious, of course, if one is looking to the question of the state of mind of a person,

whether a person is becoming part of a conspiracy,

fraudulent, acting in good faith, that in very many cases, except where the person is dead or does not, for some other reason, give evidence, that the view taken by the judge of that person, the measure of

the man as it is sometime said, is a very important

matter. Your Honours will see the reference to

Official Trustee in Bankruptcy v Mitchell in

paragraph 7 and, Your Honours, also to the well

known passage of Lord Sumner in in Hontestroom v

Sagaporack. Also in paragraph 7:

If -

the judge's -

estimate of the man forms any substantial part

of his reasons ..... conclusions ..... should ....

be let alone.

In this case the master's estimation of him

must, as we say, have played a part in his finding

that he was not a participant to the conspiracy.

To use the normal tests, he had not failed to use

or palpably misused the advantage of seeing the
witness.	He may have just made a decision on one

of the two ways that he could have gone and,

Your Honours, what we would submit is that if one

looks at what the Full Court of the Federal Court

did, at pages 70 through to 83, what in fact they
did was the very thing that the Court has said on a

number of occasions appellant courts should not do,

or should resist the temptation to do, and that is

to go on the basis of their own comparisons,

conclusions, their own view of the probabilities of

the case and, Your Honours, as the Court very

recently said in Devries v Australian National

Railways Commission, that should not be done, even

if the probabilities are against, or strongly

Barbaro 10/12/93

against, that finding of fact.	Your Honours that
is the first point.

The second point relates to a conversation to

which the applicant was not a party. A

conversation which took place between two of the

conspirators, Reich and Pangallo. Your Honours

will see that conversation referred to at page 14,

lines 1 to 7. May I invite Your Honours to read

that. It was something that took place, the

conversation that Reich - who was the conspirator

who had, in effect, taken to religion and told,

what he said, was the truth - and he said that at

some stage between the first accident, which was
the one at Queanbeyan, and the second accident,

which he said was the one in question here, or

happened here, he had had the discussion with

Pangallo, no suggestion the applicant present, in

which Pangallo told him that two of his partners

would be involved, and I should say the applicant

was engaged in a painting business, and in a loose

sense he was a partner in that sense as well as any

other darker sense of the term.

The Full Court of the Federal Court, as

Your Honours will see at page 84, at lines 20 to

24, treated the evidence of that conversation as

being:

an independent ground for the -

conclusion that the applicant was a party to the

conspiracy, and then, Your Honours, the problem in

that view, in our submission, is that the master

did not find that that conversation had taken place

or that any conversation had taken place in terms

which would implicate the applicant in a

conspiracy.

Could I take Your Honours to where the

conversation is dealt with by the master, it is at

page 14, lines 1 to 21.

DEANE J:  Mr Jackson, could I take you to page 17, the first

paragraph on that page. Does not that indicate

that the master completely misapprehended the

issue? And you see, when you go back to what you

are referring us to, the master keeps honing in on

was there a conspiracy to stage an accident in

which your client would be injured so he could put

in a fraudulent claim. The defence was there was a

conspiracy to stage an accident in which Mr Reich

would be injured.

MR JACKSON:  Your Honour, if I could just say something in

response to that. Assuming for the moment that

that is right, the result -

Barbaro 6 10/12/93

DEANE J: It is right, is it not?

MR JACKSON: Well, with respect, Your Honour, I submit not

if I may, may I just say that the result should

have been a new trial, rather than anything else

because what the Full Court did was to arrive at

its conclusions against us on the basis of views of

the evidence that just were not correct.

DEANE J: But when you see that the master has completely

misapprehended what the thing was all about, then

that question arises whether you endeavour to deal

with it on the evidence, or whether you send it

back for new trial.

MR JACKSON: Well, Your Honour, if one endeavours to deal

with it on the evidence one should, with respect,

get the evidence right. Could I just say, the

first thing, Your Honour, is this, going back to

the question Your Honour asked me. It may be that

the master framed the ultimate question that he

asked himself in terms of the result of the case

incorrectly, but in arriving at that result the

question as to the acceptability of the evidence of

the witnesses - if I could use that expression -

was one that he framed correctly. Could I take

Your Honour to page 12, at the top of the page,

where he said:

the crucial question in this case is not just the existence of a conspiracy. It is whether the plaintiff was a party to it.

Now, Your Honour, that is the question to which he

was directing himself.

DEANE J: But, the wrong approach colours his whole

judgment. If you look at page 14, the last

sentence there, indicates that he simply got what

the question for him was quite wrong.

MR JACKSON: Well, Your Honour, accepting that for the

moment, if I may put it that way with respect, one

still has a situation where the view taken by the

Full Court in setting aside his approach to it was

one that should not have resulted at best for the

respondent in there being a judgment the other way.

What should have happened was that there be a new

trial on the basis that the right tests had not

been applied. What the Full Court did, in our

submission, was first of all set aside the first

finding to which I referred earlier, and I will not

go over that again, Your Honours, but it was one,

we would submit, that was plainly based on a view

of the plaintiff. It must have been based on a

view of the plaintiff's evidence, and even if the

Court were to set aside the judgment the result

Barbaro 10/12/93

that followed should not have been that they found

against the applicant.	Your Honours that is the
first thing.	The second thing is in respect of the

matter I am about to go to, the conversation with

Reich. The Full Court, with respect, just simply

seemed to be incorrect on the issue.

I was about to take Your Honours to page 14

where what Your Honours will see, if one goes from

lines 1 through to 21, you will see that he refers,
in the first paragraph, to the evidence of Reich

about the conversation. If I could ask

Your Honours to hold that page, as it were, for a

moment. He had said at page 11, at line 6:

that iri broad outline Mr Reich's evidence

should be accepted.

But, when one came to page 14, it is quite apparent

that in respect of the particular matter, namely
the occurrence of the conversation and its terms,
that he was saying that he did not accept Reich's

evidence. Your Honours, that that is so appears

from the whole of the paragraph commencing on page

14 about line 8, and then the way in which he

expresses the alternative view, at page 16, even if

it were safe and, Your Honours, for the Full Court

to take the view that there was a finding that that

conversation had occurred, we would submit is one

that the evidence and the master's findings could

not justify.

Your Honours could I, in that regard, say what

appears in paragraph 12 of our written submissions,

and that is that the Full Court appears to have

treated the master as accepting Reich's credibility

on this point. That appears at page 90, at line 25

through to the top of the next page, where he said:

it is an inference from primary facts found by

the Master and from evidence of a witness

whose credibility the Master accepted.

Your Honours, whilst the master said that in broad

outline - that was the expression he used - he

accepted Reich's evidence, this was a specific

matter where he did not make a finding accepting

his evidence and we would submit, with respect,

there is really no basis on which the Full Court

could take the view that it did in this regard.

That was treated as a separate ground.

The third feature, Your Honours, is this, that

the Full Court, or three members of the Full Court

proceeded to make a finding that the actual

accident which occurred was an implementation of

the conspiracy. Your Honours, that finding appears

Barbaro 10/12/93

at page 91, line 4, in a passage which goes through

to page 95 with the conclusion being in the last

four lines of page 95.

Now, the findings of fact made by the master,

in that regard, are at two places. Page 13, line 7

through to line 13, where you will see a reference

to:

His version -

that meaning the applicant

of the actual impact, under cross-examination,

was in essential details consistent with his

evidence in chief, and, indeed, with the
evidence of Mr Italiano and Mr Reich. There

is no reason in the evidence to doubt that

there was a car which came out of the car park

as if to cross in front of the Reichs' car,

causing the driver of that car to apply the

brakes suddenly.

Your Honours, could I also say the second passage

is at page 17, line 25, referring to this accident,

it said:

It happened unexpectedly while they were

returning to the Club to discuss the details

of the proposed staged accident.

As is apparent from the first of those two passages

at page 13, the master appears on this question to

have accepted the evidence of the applicant, where

he says:

His version of the actual impact -

as well, perhaps, as the evidence of Italiano and

Reich. It is clear, in our submission, that there

was evidence from those persons which entitled him

to make those findings.

the passages in paragraph 16, at the top of page 6, Your Honours, we set out

and you will see each of the references is to a

page, a copy of which is attached to the written

submissions, and there each of those three

witnesses gives evidence of the actual accident in

terms which tie up with the fact that it was
something that happened accidentally, if I could

use the expression. A car happened to come out of a car park, Reich's car stopped, the other one ran

into it from behind.

That version depended, or the acceptance of

that version, on the view of the witnesses taken by

the master hearing the case and, Your Honours, we

would submit again, for the reasons to which we

Barbaro 9 10/12/93

have referred, it simply was not open for the Full

Court itself to precede to make its own findings about what had happened in relation to that.

The master's finding involved accepting the

evidence of the applicant and, indeed, Your Honours

will see, as we say in paragraph 18 that a factor

which may have contributed to the Full Court's

error in this regard may appear at page 91.

Your Honours will see at lines 19 to 21 that what

was said there was:

The only version of the accident given by a

witness whose credit was accepted was the

account of Mr Reich.

Well, Your Honours, that just does not tie up with

what appears at page 13, line 7, where the master

speaks of the evidence of the applicant. It is

clear, in our submission, that the master was

accepting, relevantly, the evidence of the

applicant. Your Honours, what we submit then is

that, with respect, the Full Court has purported to apply the test laid down by the Court. In fact the

Full Court, with great respect to Their Honours,

has not, and we would submit that the manner in
which they have gone about it, it is a case which

does merit the intervention of the Court and,

Your Honours, the errors in this regard, we would

submit, are serious and they are ones which

co-operated to the very significant disadvantage of

the applicant. Now, Your Honours, that is the

first basis upon which we seek special leave.

The second thing, of course, concerns the Court's decision in Gala v Preston, and the issue

which arises in that regard is one that would

arise if, in effect, it is found where a party to a

conspiracy, but also found that the occurrence of

the accident was not itself part of the conspiracy.

Your Honours, the view taken by the Full Court is

set out at page 102, lines 24 to 28, in the

concluding few lines on that page. There is a more

lengthy discussion, of course, before getting to

that. But, what we would submit, in relation to

that, is that it does give rise, assuming that you

have persons who are conspirators, in a sense, but

are engaged in activities that are in furtherance

of the conspiracy, but no more than that, does the

duty of just driving along, really, does the duty

of care go away and, Your Honours, that is a matter

which we would submit, itself, is of some

importance and merits the grant of special leave.

Your Honours, those are our submissions.

BRENNAN J:  Mr Sperling.

Barbaro 10 10/12/93

MR SPERLING:  The Court will have an outline of submissions

which we took the liberty of filing last month, a

short document dated 23 November 1993. My learned

friend was good enough to supply us with an outline

of his submissions yesterday evening, and we have

prepared a supplementary outline which I would hand

to the Court. Could I say that in view of the

detail of my learned friend's outline we have

provided a good deal of detail in that document
and, if the Court would be good enough to read it,

I do not believe that it requires a great deal of elaboration.

BRENNAN J: Yes, Mr Sperling.

MR SPERLING:  I think my learned friend wishes to add

something.

MR JACKSON:  May I just add one thing? Your Honour

Justice Deane raised the formulation adopted by the

master, the way in which he put the issues. I was

reminded while Your Honours reading that that it is

referred to at page 3, and you will see in the

paragraph commencing about a quarter of the way

down the page, he refers to "a ruling" and then

sets out the issues in that paragraph, and the next

paragraph concluding at lines 19, 20 and 21:

I did not understand either counsel to

disagree with that formulation of the issues.

I do not want to take it beyond that, I just wanted

to refer to that.

MR SPERLING: If the Court please. Could I say something

about the context in which these issues arise, and

in this regard I say nothing that is beyond what is

revealed by the judgments in the Full Court. It is

apparent that prior to the statement being made by

Mr Reich on the first day of the hearing that the

case which the defendant proposed to adduce was one

involving a large number of prior episodes, with a

view to endeavouring to establish by circumstantial	evidence that this was a case in a series, and that
it could be inferred that it was a case of a staged
accident with the intent of providing the basis for
a claim for damages. That case was not going well,
the master rejected a body of material relating to earlier episodes, and his rejection of that material was not pursued in the subsequent appeal
proceedings.
The significant change in events was the statement by Mr Reich, who had undergone a
religious conversion, and notwithstanding that he
himself had made a claim for damages arising out of
the collision, he was prepared to say that a staged

Barbaro 11 10/12/93

collision had, ~ndeed, been arranged. So, there

was no need to rely on circumstantial evidence for

proof of the fact that there was truly a conspiracy

to stage a collision. The essential features of

his evidence were, and these were accepted by the master, that there was an arrangement between him

and Pangallo that a collision would be staged,

certainly for Reich's benefit; that there was a

gathering near the club where Italiano presented as

the driver of the vehicle which was to be at fault,

and where Pangallo and Barbaro were passengers in

that vehicle of which Mr Italiano was the driver.

BRENNAN J:  I am not quite following that. What do you say

was the evidence involving the plaintiff in the

action?

MR SPERLING:  The evidence by Mr Reich was that when he

arrived near the club where the people were
gathered, Mr Italiano had presented himself in
another vehicle, which was obviously to be the
vehicle at fault, and Mr Pangallo and the plaintiff

were occupants of that other vehicle.

BRENNAN J: Yes.

MR SPERLING:  The vehicles then drove around looking for a

suitable place at which to stage a collision, and

it was in the course of that activity that the

subject collision actually occurred. Now, the

master had no difficulty in finding, by inference,

that Italiano was a party to the conspiracy,

notwithstanding that there was no direct evidence

of any arrangements made between Pangallo and

Italiano for Italiano to be a participant, and that

was obviously to be inferred from the

circumstances. It arose from the fact that

Pangallo and Reich had made an arrangement for

there to be a staged accident. They had gone to
the place where they were to meet for the purpose,

and Italiano presented himself as the driver of the

vehicle which was obviously to be at fault. So,

the inference was drawn that he was a party to the

conspiracy.

There really was no different course of

reasoning available in relation to the applicant's

involvement. He can only have been there in a

limited number of roles. His own evidence was that

he was there because he was going with Italiano -

well he was in the vehicle - because he was going with Italiano for a drink at the club. But, once the findings were made in reliance upon Mr Reich's

evidence that a great deal more was, in fact, going

on, it really was impossible to accept that

explanation for his presence.

Barbaro 12 10/12/93

BRENNAN J:  Why?

MR SPERLING: Well, for this reason that what then occurred

was that the two vehicles moved away and, rather

than going to the club, drove around the streets in
the way that one can readily and necessarily

appreciate, where what was being done was to look

for a suitable place for an accident to be held.

BRENNAN J: Well, Italiano was not free for a drink at that

time, he had other things on his mind.

MR SPERLING:  Yes. By the same token, one could perhaps

think that Italiano was simply following the other vehicle around for no particular purpose. But, we

would say that it is inconsistent that a person
could be in a vehicle under those circumstances

without being privy to what was going on. Pangallo

was in the vehicle; Pangallo was the director of
the operation; Pangallo was in charge of an
exercise to look out for and find a suitable place

for an accident to happen.

DEANE J: But once you get Pangallo in the vehicle

everything you say makes complete sense to me, but

have you not got to get him in the vehicle?

MR SPERLING:	He was there at the club.
DEANE J:	The master made no finding on that.

MR SPERLING:  He did not. He was there at the club. He was

there at the scene of the accident because Reich

said that he slipped away when the police arrived.

Now, there is no logical explanation as to how he

can have arrived at the very place where the

accident occurred, the vehicle having moved through

a number of streets, other than that he came with

them. There is also the fact that the police

report recorded three persons in the Italiano

vehicle and the only way that that can have stacked up was if Pangallo was the third person. So, there is evidence to support that approach.

DEANE J: If you get him in the vehicle, the master's

findings become very difficult to understand. It

is also rather difficult to understand how the

master could have dealt with the case without

finding whether he was in the vehicle or not,

because if he were in the vehicle the plaintiff's account just became impossible, that nobody could

get in the front seat because of the door and so

on.

MR STERLING:  Yes. We would respectfully agree with the

view of the Full Court, that that question and the

Barbaro 13 10/12/93

resolution of it was integral to the fact-finding

process.

Now, the reason I embarked on that exercise

was in order to make this submission, that it was

something more than open to the Full Court to make

the finding that it did about the applicant's

participation in the accident. Indeed, they

expressed themselves in terms of being compelled to

make that finding, and we would say that was not to

put it too high.

The only thing which really stands in the way of that being not only a legitimate result but the only reasonable result is the argument that is

advanced here, namely, that they were precluded

from embarking upon that fact-finding approach by

reason of a finding by the master based, it is

said, on the acceptance by him of the applicant in

the applicant's denial that he was a conspirator.

That leads us into what we say in our written outline under point 2(a), to the effect that the

master made no finding of that kind. We set out

our reasons there and there is perhaps no need to

elaborate them, the point being that the master's
finding was a matter of not being persuaded rather

than a matter of being affirmatively satisfied that

what the applicant said on this issue was true.

Could we add just two observations in support of

that approach? My learned friend has referred the

Court to page 13 point 5 of the application book

where, at line 14, the master referred to the

plaintiff's evidence concerning denial of

complicity and also denial of certain other

matters. His Honour found that the applicant was

simply not credible in his denial of:

knowledge of who Mr or Mrs Reich were, or even

that he was aware -

of the nature of the - defence -

et cetera. It is simply not feasible that

His Honour may have rejected the applicant as a

witness of truth on those matters which he

mentioned and affirmatively have accepted him as a

witness of truth in his denial that he was party to

the conspiracy. It must be clear that the master

simply had no confidence in him and that he did

resolve the matter on the basis of not being persuaded of an onus that went the other way.

If we are wrong in our fundamental submission

that there was no finding of the relevant Abalos

Barbaro 14 10/12/93

kind then we would wish to add this, that even if

the master was affirmatively satisfied that the
applicant was telling the truth in his denial of

complicity, and even if the master based himself on

what he thought to be the demeanour of the witness,

the Full Court was entitled to treat that finding

as vitiated by the following considerations: first,
that as has been pointed out, the master

misconceived the question in that he posed it as

being whether the applicant was privy to a

conspiracy to claim damages for himself; secondly,

he incorrectly used his finding that the applicant

had made a genuine claim for damages which was, in

logic, simply not a matter bearing at all upon

whether the applicant was telling the truth about

privity to the conspiracy, it being entirely

consistent that a dishonest intent at the time may

have resulted in a genuine injury. But, more

particularly, we would say that the case would fall

within the exception to the Abalos rule,

conveniently stated in Devries v Australian

National Railways Commission, (1993) 67 ALJR 528

where, at page 531 the exceptions to the Abalos

rule are stated by quotation from earlier decisions

at the bottom of the second column, where:

it can be shown that the trial judge "has

failed to use or has palpably misused his (or

her] advantage" or has acted on evidence which

was "inconsistent with facts incontrovertibly
established by the evidence" or which was
"glaringly improbable".

In view of the findings in relation to the basic circumstances of the occasion, in so far as

the master did accept the evidence of Mr Reich, any
finding that the applicant was not privy to the
conspiracy was, we would say, "glaringly

improbable" within the meaning of that statement of

principle.

BRENNAN J: Can I just ask you again: what are the facts

with which the innocence of the applicant is

glaringly improbable?

MR SPERLING: That it is inconceivable that a person could

be a passenger in a vehicle engaged in this

enterprise without being aware of what was going

on, and if aware of what was going on - - -

BRENNAN J:  When you say "a vehicle engaged in this

enterprise", the vehicle was not engaged in

anything; somebody was engaged in the enterprise.

Who was doing what that makes this glaringly

improbable?

Barbaro 15 10/12/93

MR SPERLING: Italiano was following another vehicle through

various streets in the vicinity of the club;

Pangallo was keeping a look-out for a suitable

place in which to have an accident, all in

circumstances where the applicant's own account of

events was that he was merely going to the club

with Italiano for a drink. So that one has a

combination of factors; one has circumstances which would be inconsistent with a person not being aware

of what was going on.

BRENNAN J:  How do you approve, as against the applicant,

what Pangallo was doing?

MR SPERLING:  The conduct was, we would suggest, patently

unusual.

BRENNAN J: What, two cars driving around in Canberra

streets?

MR SPERLING: Yes.

DEANE J: In circles.

MR SPERLING: There is that: the patently unusual feature

of what was going on; the inexplicability of it

unless knew what was going on; the fact that

Pangallo - one cannot imagine that Pangallo would

have had anyone in the vehicle unless he knew what

was going on.

BRENNAN J: But how do you prove, as against the applicant,

what Pangallo's state of mind was?

MR SPERLING:  We would say that the nature of the conduct

was such that it is not conceivable that a person
would have been in that vehicle without being

aware, at least, that something unusual was

happening. He then tells a number of lies about

how he came to be there from which an inference is

to be drawn about guilty intent.	The objective
fact is that the parties were driving around for

the purpose of looking for a place to have the

accident because that is what Reich says. So, we

know what Pangallo was in fact doing. It is not a

matter of it having to be proved in any particular

way against the applicant. Pangallo's state of

mind is proved by the circumstance that he had made

an arrangement with the applicant and was now

putting it into effect. So, once that state of

mind is established, the question is with what

confidence could one draw the inference that

Pangallo would have told the applicant what was

going on? We would say, from surrounding

circumstances, the inference is irresistible; that

he would not have had him in the car if he did not know and that he would not have had him in the car

Barbaro 16 10/12/93

if he did not have some reason to do with the

enterprise for being in the car. That is my answer

to Your Honour's query.

So, that is the response to my learned

friend's point 2(a).

BRENNAN J: What do you say to this:  that the applicant

might just as well have been a mate of a couple of

crooks whom he knew to be a couple of crooks, and that they were setting up this arrangement and he went with them because he was only going to have a

drink with one of them?

MR SPERLING:  Your Honour, if he had not told a whole lot of

lies about it that may perhaps be an acceptable

interpretation of events. But when he does say

that Pangallo was not in the vehicle; when he does

say that he was in the back seat, in order to try

and explain away the police record of three
occupants of the vehicle, whereas the hospital
records have him recorded as a front-seat
passenger, so he has been quite elaborate in his
untruthful account of what occurred, that that adds
a dimension to the matter which takes it out of an

area where one could comfortably ascribe an

innocent explanation to his presence.

There is nothing we can add to what we say

about 2(b). As far as the deliberate collision is concerned, point 2(c), the distinction which needs

to be made is a distinction between the third

vehicle coming out on to the roadway unexpectedly,

which all the witnesses deposed to, and the

question of whether Italiano either accidentally

collided with that vehicle or intentionally sees

the opportunity of colliding with it. It is

nothing to the point to establish that the third

vehicle came on to the roadway unexpectedly. That

is not where the area of debate arises. The area

of debate arises once that vehicle does emerge from

the car park and the question is whether, at that

point, Italiano accidentally or intentionally

collided with it.

So, really, the basis of the submission made

by the applicant in that regard is not made out

because it proceeds on what we would say, with

respect, is the false assumption that an unexpected

intrusion by the third vehicle resolves the

question. It does not.

We have nothing to add to what we say about

Gala v Preston. If the Court pleases, those are

out submissions.

BRENNAN J: Thank you. Mr Jackson.

Barbaro 17 10/12/93

MR JACKSON:  Your Honours, may I say one matter by way of

introduction, as it were? There is no evidence

whatsoever of any prior episode or accident

involving the applicant, any member of his family,

in any capacity whatsoever. Related to that is the fact, of course, that Mr Italiano had been involved

in previous accidents. We had not.

The second thing I would like to say is this:

that whether Pangallo was or was not in the car -

there was no finding as to his presence there - the
question was not whether we were in the car, the

question was whether we were a party to the

conspiracy. I should also say there was not

evidence of anything that went on in the car or any

detailed mode of moving around but, in any event,

the mere fact that we were - - -

McHUGH J: But did the Full Court not rely on the fact your

client would have heard instructions being given in

the car?

MR JACKSON: But, Your Honour, there was nothing to suggest

that instructions were given.

McHUGH J: That was the inference that the Full Court drew.

MR JACKSON:  Your Honour, that was the inference the

Full Court drew but what the Full Court seemed to

leave out of account was that there was no evidence

to show even that the cars stopped on the way, and

they were coming back to have a talk about it
afterwards in the club. So that all one had was a

situation where, on the evidence, a man sitting in

the car; he has not been party to any transaction

involving it and he is then involved in an accident

while others, who are found to be conspirators for

something else, are involved in their activities.

What had to be proved was not that he was in the

car or that he knew about it but that he was a

party to the conspiracy.

DEANE J: But if Pangallo was in the car, you have then got

the position that he has given an account where he

says Pangallo was not in the car and has elaborated

a concocted reason why he was sitting in the back

seat, because the door to the front seat was in a

mess and so on.

MR JACKSON:  Your Honour, could I just say that that is one

of the things that one might have thought would be

a matter that the master, having heard all the

evidence, would take into account. Your Honours, I

did not actually take Your Honours to the pages in

which the evidence was given by him denying the

conspiracy but the fact of the matter is, if one

looks at the four pages immediately following our

Barbaro 18 10/12/93

outline of submissions, what you will see is that

he gave oral evidence, as I said before, denying

it. I am using the page numbers at the top of the

page. At page 99, about point 4, Mr Costigan puts

to him:

Let me not beat about the bush, Mr Barbaro.

This accident ..... was a put-up job?

He denies it. On the next page, page 103, about

point 7 on the page, he denied he knew all about

it. The next page, page 104, the last two

questions and answers; over to the top of the next

page; he denied that he knew anything about them

driving around for a suitable spot, and then the top of the next page, Your Honours, in the first

three questions again he denies it.

Now, Your Honours, no doubt all the matters

that my learned friend seeks to refer to are

matters that one could rely on but, in the end, the

person who has the opportunity to get the measure

of the man, as it were, is the person who was

conducting the trial and he had the opportunity to

see him giving evidence, as I said, over a long

time.

Your Honours, our learned friends say that the

principle in Abalos and Devries and so on does not

really apply in a case such as this. This is

simply a case where the onus of proof was on my

learned friend's side. There is nothing, we would

submit, to suggest that those cases are not germane

in such a situation.

Could I refer Your Honours to page 531 of

Devries and in the passage referred to before in

the right column, two-thirds of the way down the

page:

If the trial judge's finding depends to any substantial degree on the credibility of the

witness -

et cetera. Now, Your Honours, if one goes to the

way in which the finding was expressed in the

present case it is apparent, we would submit, that

it was based upon credibility in that sense. Could

I refer Your Honours to, at the bottom of page 13,

where he says:

It does not follow, of course, that his denial of complicity in the conspiracy must

also be rejected. In weighing up that

question -

Barbaro 19 10/12/93

various matters seem to be significant. Then,

Your Honours, at page 17, he speaks of the onus of

proof in the first new paragraph, and then in the

third new paragraph on that page, says:

When all the evidence is taken into

account, I find that I am not persuaded -

and, Your Honours, in that passage he is, of

course, referring back to the agreed formulation of

the issues at page 13.	I am sorry, Your Honours,
perhaps I did not put that very clearly.	What I am

seeking to say is that at page 17, commencing at

line 16, and referring back to the two paragraphs

above on page 17, he is referring back to the

formulation of the issues which appears at an

earlier part of the case - I gave Your Honours a

reference to it a little earlier, I think - at

page 3. Your Honours, those are our submissions.

BRENNAN J:  Thank you, Mr Jackson. The Court will consider

its decision in this application and will give its

judgment at 2 o'clock.

AT 12.45 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.16:

BRENNAN J:  The principles on which a Court of Appeal can

interfere with the findings of fact of a trial

judge which depend in part on the credibility of a

witness are set out in Devries v. Australian

National Railways Commission, (1993)

177 C.L.R. 472. In this case, consistently with those

principles, it was open to the Full Federal Court

to reach the conclusion that the Master had failed

to make a finding concerning a fact most material
to credibility, namely, whether the architect of
the conspiracy, Mr Pangallo, was present in the car

in which the applicant was travelling. Once the

majority of the Full Federal Court reached that

conclusion and went on to find that the evidence

clearly established that Mr Pangallo was in the

car, their Honours were entitled to reassess the

evidence for themselves.

In these circumstances, it would not be

appropriate to grant special leave to appeal so

Barbaro 20 10/12/93

that this Court could embark on a re-examination of

those findings. The application for special leave

to appeal is accordingly refused.

MS KRATZMAN:  May it please the Court.

MR BARTLETT: Costs, Your Honour?

MS KRATZMAN:  I have nothing to say, Your Honour.

BRENNAN J: It is refused with costs.

AT 2.17 PM THE MATTER WAS ADJOURNED SINE DIE

Barbaro 21 10/12/93