Fabre v Arenales

[1993] HCATrans 24

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S87 of 1992

B e t w e e n -

PASCALE MARIE FABRE

Applicant

and

JUAN CARLOS ARENALES

First Respondent

and

WASHINGTON CAVALIERI

Second Respondent

Application for special leave

to appeal

Fabre 1 12/2/93

MASON CJ

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1993, AT 10.50 AM

Copyright in the High Court of Australia

MR B.M.J. TOOMEY, QC:  May it please Your Honours, I appear

with my learned friend, MR P.N.D. JENKYN, for the

applicant. (instructed by Michell Sillar)

MR C.T. BARRY, QC:  May it please the Court, I appear with

my learned friend, MR G.R. PETTY, for the

respondents. (instructed by G.M. Meadows,

Solicitor for the Government Insurance Office of

New South Wales)

MR TOOMEY:  May I hand up a short outline of argument to

Your Honours?

MASON CJ: Yes.

MR TOOMEY:  Your Honours will see there are two questions

which arise. Your Honours, the facts were briefly

these: the plaintiff/applicant was a 19-year-old

woman who had had a difficult life; she had been

thrown out of home at the age 15; she had lived

rough. At the age of 19, on 4 July 1979, she was

at a party at Crows Nest in Sydney.

MASON CJ:  We are familiar with the facts.

MR TOOMEY:  Thank you, Your Honours. Your Honours, the

learned trial judge dealt with the matter on the

basis that it was a contest of fact between the
plaintiff and Mr Stephens, the non-party witness

who had seen her at the shop which was broken into

and such like, and having found the facts against

her and having accepted Mr Stephens, then said that
the only possible relationship between the

plaintiff and the defendant - as they were - was

one of two young criminals.

It is our respectful submission that in doing

that, he failed to take account of injunction of
this Court in Gala v Preston that the whole of the

circumstances and the whole of the relationship

between the parties must be looked at. The matters

we have set out in our outline of argument, we say,

made some difference to the normal position.

Can I advance this proposition to

Your Honours? Supposing, for instance, that a

finding were made that a man of full age and a
12-year-old child capable of criminal decision - of

12-years-old - were willingly together in the

commission of a criminal offence which resulted in

injury to the child. Now, would a court say the

matter is concluded by the fact that the child was

a willing and full participant in the criminal

activity or would the court consider that their

relationship must be examined by reason of the

Fabre 2 12/2/93

deficits of cerebral ability and judgment which the

child suffered by reason of his age?

If the answer is as we submit it must be, that

the court would consider the whole circumstances

and would not say simply, "Well, the 12-year-old

child was a participant in the crime, that's it.",
then we would submit, with respect, that one can
extend it to a case such as the present where there
are significant differences in the knowledge and

capacity of the parties at the time.

The plaintiff/applicant was, on the evidence

of the man, Stephens, whom His Honour expressly

accepted as a witness of truth, substantially

affected by something. She was wobbling; her eyes

were wide and staring; her behaviour was, in

itself, to a degree, bizarre. When she was

admitted to hospital - and perhaps I could hand up

to Your Honours some papers which were before the

trial court and the Court of Appeal but are not in

the application book. These are pages from the

hospital records.

MASON CJ: But, Mr Toomey, this is all a matter of

application of a principle. It does not raise any

question of general or fundamental principle.

MR TOOMEY:  With respect, Your Honour, we would differ to

this extent, that the Court of Appeal, as appears

at page 49 of the application book, decided the

matter solely on the basis, at line 15:

The ultimate question to be decided in this regard was whether the events of the morning

were as outlined by Mr Stephens or by the

plaintiff:  from that would flow the

conclusion as to what the plaintiff did in the

car and what duty Mr Arenales owed to her.

And then at page 60, again, at line 23:

It is obvious that the crucial evidence is that of Mr Stephens. If that evidence be

accepted, then the plaintiff was involved in

an offence in the George Street premises,

sought to escape from apprehension by

Mr Stephens, had Mr Arenales assist in her

escape by assaulting Mr Stephens, went off in

the car -

et cetera. Now, Their Honours determined the

matter solely on the question of whether or not the

plaintiff was involved in criminal conduct and, in

our respectful submission, that is a matter which

raises a question of general importance because if

the lower courts are interpreting this Court's

Fabre 3 12/2/93

decision in favour of Arenales to mean that the

question is concluded by that fact, then this Court

ought to correct it.

TOOHEY J: But it was not merely the engaging in criminal

activity. I am not sure what you mean by that.

You are referring to the breaking and entering, are

you?

MR TOOMEY:	Yes, Your Honour.
TOOHEY J:	And the stealing of goods from the premises.
MR TOOMEY:	Yes.
TOOHEY J:	But the other aspect of it is that the applicant

became aware that there were police close by,

alerted the driver to that fact, tried to get into the car, was restrained by Stephens, called out to

Arenales who got out of the car and came round and

attacked Stephens.

MR TOOHEY:  Yes. Can I just say, with respect, Your Honour,

that the alerting happened after she had been

dragged from the car.

TOOHEY J: Yes, I am sorry, you are quite right. She calls

out to Arenales because Stephens is restraining her

from getting into the car and Arenales gets out,

assaults Stephens; then the applicant becomes aware

of the police; calls out, "Police"; gets into the

car and they both drive off at a fast speed and

erratically and collide with a brick wall.

So, it is not merely the fact that the

accident, as it were, arises from the breaking,

entering and stealing but from the attempt to get

away from the police and all that that involved by

way of the manner of driving.

MR TOOMEY:  Yes, Your Honour. May I say this: there are,

we say, facts which were not adverted to by

His Honour the trial judge, nor by the Court of

Appeal which ameliorate that view, that position,

and they are facts which are really

incontrovertible, that is, that the plaintiff was

not in full possession of her faculties; that the

car was stolen by Arenales with no involvement of

the plaintiff, and the plaintiff did not know the

car was stolen.

TOOHEY J:	Does that matter, really?
MR TOOMEY:	Your Honour, it may because it may have been one

of the factors which governed the way in which the defendant at the trial, to her, that she knew

Fabre 4 12/2/93

that Arenales was wanted by the police which, of

course, would certainly be something of extreme

importance in the manner in which Arenales would

behave when alerted to the fact that the police

were present.

MASON CJ:  Did she not say in evidence that Arenales looked

too young to be able to afford the car?

MR TOOMEY:  She said he had told her that he was 25 but she

thought he was about 20 and she wondered how he

could. But, Your Honour, it was a Leyland Marina.

It was not a - - -

MASON CJ:  What is a Leyland Marina?

MR TOOMEY: Well, it is not a big, expensive motor car,

Your Honour.

MASON CJ:	I thought it might have been a Porche.
MR TOOMEY:	No, Your Honour, it is at the other end of the scale. There was no finding that she knew and,
indeed, the facts that were presented to the court from the police said there was no suggestion she
had any involvement in the theft which had taken
place the day before, and there was simply no
evidence that she knew anything about the fact that
the car was stolen.

May I say something, Your Honours, about his

age:  he was 15. She said he told her he was 25,

and she thought he was about 20. He was charged,

indeed, by the police as an adult and he gave his

age as 20 and the police accepted that and charged him as being 20. It was some days later that they found out that, indeed, his age was 15, and he was

shifted out of the courts into the Children's

Court. So, there would appear to be some

corroboration for the plaintiff's express belief

that he looked 20.

TOOHEY J: But the catalyst for them taking off was the fact

that the police had come on to the scene rather

than that the car was a stolen car and that they

had just been involved in this break, enter and

stealing.

MR TOOMEY:  Your Honour, may I say this: there may have

been three factors: one, what they had been doing

in the shop; two, the fact that Arenales was

involved in a brawl in the street which would, in

any event, bring him under the attention of the

police and, three, the fact that Arenales knew tne

car to be stolen.

Fabre 5 12/2/93

Now, I appreciate that a finding of fact has been made against us of the plaintiff's knowledge

and involvement in the criminal activity of
breaking the shop but even there, Your Honours, we

would say if you look at O'Connor and you look at what O'Connor says about the fact that you can be

guilty of a crime even if you are performing acts
without any appreciation of their significance,

provided you intend to do the acts themselves,

provided you have not got to a stage where you

simply do not know what you are doing, then the

fact that she pleaded guilty says nothing to her

state of mind.

In our respectful submission, this is a case

where the two parties were in unequal positions.

He was sober; he had stolen the car and he knew

about it; he must have known that she was not

sober. She said herself she was drunk but capable

of making decisions when she left the party.

Mr Stephens, whose evidence is reproduced in the

application book, described her in the manner in

which I have said. The hospital records - may I

just take Your Honours to these for this purpose

only. There are three pages. The second of the

pages is paginated 25 at the bottom. If

Your Honours look there, on arrival, "O/A" - about

point 3 on the page:

O/A at SH -

Sydney Hospital - and I should tell you she was

taken immediately to Sydney Hospital from the scene

and was from there sent to the eye hospital.

screaming, unco-operative, drowsy -

then it describes her injuries.

Apparently patient had 3 200 mgm Seconal Na

1 hr before -

and I do not know what the next word is. "Crime",

is it? No, I do not think it is "crime". I am

sure it is not "crime".

Unable to obtain any other info.

So, that is the description of the girl on arrival

at hospital.

Mr Stephens' description of her during the

commission of the offence - it is reproduced on

page 71 of the application book:

Q. Did the girl, when you spoke to her, appear to be affected in any degree by

Fabre 6 12/2/93

alcohol, or any other way, when you spoke

to her?

A.	She was affected by something.
Q.	What do you mean by that?

A. Well, she was wobbly on her feet.

Q. What, the speech slurred, or what, or just

wobbly on her feet?

A. Wobbly on the feet. She was quite loud,

bad tempered, speaks slow, I would say I

didn't have time to recollect the speech

slurred, but she was wide eyed and her

eyes were glassy and watery.

Now, Your Honours, if it be the fact that her

faculties were significantly impaired and the

defendant's were not, then it would be our

respectful submission that the court ought to have

looked at the other circumstances, and we have set

those circumstances out in paragraph 1 of the

outcome of argument I handed up to Your Honours.

The suggestion that the respondent's English

may be imperfect arises from the fact that in

trial, a woman named S. Gravano, who was an

interpreter, was called, on the basis of whether

the respondent was present or not and she had been

outside the court with him and in the course of her
evidence she said that she had been interpreting

questions and answers to him in Spanish, and that

appears at page 132 of the original appeal book to

the Court of Appeal. So, he at that time - this is

in 1991 - was 27 years of age. At the time of

these events he was 15, and the evidence before the

lower court was that Mrs S. Gravano had to - or

did - whether she had to - translate questions and

answers to him.

Your Honours, we would submit, with respect,

that when Your Honours lay down the law for

Australia in a way which is not so much a

development from prior cases but a collation and a

determination of which of conflicting lines of

authority will be followed, as Your Honours did in

Gala v Preston, you would then wish, as it were, to

oversee the manner in which such a decision is

being applied by the courts and it is our

respectful submission that this raises a question,

that is, the question of what is the application of

Gala v Preston where you have people, one of whom

is affected by alcohol and one of whom is not, so
that their understanding and ability to command the

circumstances is different, and the question of to

Fabre 12/2/93

what degree such a matter ought to be taken into

account by the courts in determining whether or not

a duty of care can arise.

May I remind Your Honours that in Gala v

Preston the question did not arise at all because

the four young men involved in Gala v Preston were

drinking together all day, were all involved in

stealing the motor car and were all in the motor

car when the accident happened. So, that question

simply did not arise. This case is one of those

imponderables which arise and, in our respectful

submission, ought to be dealt with by this Court to

direct the lower courts because it is an important
question and it is a case that arises very

frequently in the common law courts.

There is a second ground which we would urge

upon Your Honours and that is the Jones v Dunkel

question.

MASON CJ: That is the bottom of the barrel, is it not,

Mr Toomey?

MR TOOMEY: Well, Your Honour, except that we would submit

that there are some pretty extreme statements made

by Mr Justice Mahoney about the way in which Jones

v Dunkel was to be applied in this case.

Your Honours will remember that the respondent was

at court during the hearing, was not called to give

evidence and no explanation for the failure to call

him was given, particularly having regard to the

fact that the plaintiff/applicant was affected by

drink or drugs. He may well have been the only

person who had an unclouded memory, let alone

knowledge, of what had actually happened and what

we say was important, the events leading up to the

commission of the crime, not just the crime itself,

because there was absolutely nothing to suggest

that when they left Crows Nest together that there

was anything in the mind of either of them -

certainly not the plaintiff - towards the

commission of a crime. So, what happened between

the time they left Crows Nest and the time they got
to the place where the crime was committed was or

could have been of great importance.

His Honour dealt with the matter by looking at

the facts, saying he found the plaintiff/applicant

to be an unsatisfactory witness, which he was
perfectly entitled to do and which we cannot

challenge in any way, and then said, "Because of that and because I accept Mr Stephens, it is not necessary for me to consider the failure to call

Mr Arenales." Arenales was in the special

position of being a party and, of course, in this

Court in Vocisano v Vocisano it was said that

Fabre 8 12/2/93

despite the fact that he was insured, he was, for

all purposes the party.

Mr Justice Mahoney dealt with the matter at

page 53, starting at line 5, in these terms:

I have to this point dealt with what the

judge did upon the assumption that an

inference was properly to be drawn from the

fact that Mr Arenales was not called. But, in

my opinion, that assumption is not correct:
at least, it did not appear to the judge

necessarily to be so. The significance to be attributed to the fact that a witness did not

give evidence will in the end depend upon

whether, in the circumstances, it is to be

inferred that the reason why the witness was not called was because the party expected to

call him feared to do so. But there are

circumstances in which it has been recognised

that such an inference is not available or, if

available, is of little significance. The party may not be in a position to call the

witness. He may not be sufficiently aware of

what the witness would say to warrant the

inference that, in the relevant sense, he

feared to call him. The reason why the

witness is not called may have no relevant
relationship to the fact in issue: it may be

related to, eg, the fact that the party simply

does not know what the witness will say.	A
party is not, under pain of a detrimental

inference, required to call a witness "blind".

Well, with respect, those circumstances did not

arise in this case and none of those inferences was

available to explain the failure of the defendant

to get in the witness-box. There was simply no

evidence to suggest that the Government Insurance

Office which, in any event, was not the party -

Arenales was the party, as this Court said in

Vocisano. There was no evidence to suggest that

there was any requirement for them to call him

blind and there was evidence that he was available

at court with an interpreter and had been spoken to

by the solicitor and barrister for the Government

Insurance Office. That was evidence on oath in the case.

His Honour went on to say:

These matters are of relevance in the

present case. A Jones v Dunkel inference may

not arise if, eg, a witness has a reason for

not telling the truth or refusing to assist

and the party who may call him is aware of

this.

Fabre 9 12/2/93

Now, that may well be the case of a witness, but

what about the party themselves? That must suggest

that the party is afraid to call himself because he

may not tell the truth, and you can draw an

inference from that alone, surely.	Then
His Honour went on to say:

If the Government Insurance Office had been

the party and Mr Arenales merely a witness, it

is at least arguable that no inference would

be drawn from the fact that he was not called

for the defendant. If called he would have

been asked in effect to admit a crime of some

seriousness.

Your Honours, he had already pleaded guilty to

whatever crimes he could be called upon to admit.

He pleaded guilty to the break, enter and steal and he had pleaded guilty to stealing a car.

If he did, he might be liable to reimburse the

Government Insurance Office for or in respect

of the amount recovered by the plaintiff.

And, perhaps, it might be doubted that he

would co-operate, by way of prior

consultation, proof of evidence, or the like.

Your Honours, he would only become liable to

reimburse the Government Insurance Office if there

were a verdict against him and the Government

Insurance Office decided to proceed against him on

the basis that he was driving a stolen car. Those

facts were already known. Accordingly, he could

only increase his danger by getting into the
witness-box if the evidence which he was going to

give when he got into the witness-box would assist

the plaintiff to obtain a verdict. That must mean,
surely, as a matter of unavoidable logic, that the

fear of calling him was the fear that his evidence

would assist the plaintiff. His Honour went on:

It may be that his character or criminal

record would affect these matters. These

were, in my opinion, matters which the learned

judge would have been required to "address"

had the Jones v Dunkel inference been of

significance in his consideration of the

plaintiff's credibility.

I am conscious that there is, under the

general and the statutory law, an obligation

of co-operation case upon those covered by

third party insurance. But the effect of such

matters and whether they would influence a

person in Mr Arenales' position to co-operate

and given accurate and truthful evidence if

called by the Office in this proceeding must

Fabre 10 12/2/93

be assessed in the light of the facts. It may

be that, in the present case, the attitude of

Mr Arenales was such that, if the facts were

fully known in that regard, it would not have

been expected that the Government Insurance

Office would call him as a witness. This matter was, of course, not pursued at the

trial.

Well, the only person who could have pursued it at

the trial was the GIO because they were the only

people in possession of the facts as to what

Arenales' attitude was. It is significant in this

regard that Your Honours said in Gala v Preston

that this defence of joint illegal enterprise is

one which must be established by the defendant.

The plaintiff established a case of negligence in

the finding by His Honour the trial judge that

Arenales had driven the car in a reckless and

dangerous manner, so it then became the duty of the
defendant to satisfy the court of the circumstances

which allowed the Gala v Preston exception to mean

that the plaintiff could not succeed. In those

circumstances, onus was fairly and squarely on the
defendant.

His Honour went on to say, and this is where he dealt with Vocisano, we say, virtually, to

deprive it of any effect:

The position was, of course, complicated

by the fact that although the Office had the
conduct of the proceeding, Mr Arenales was one

of the defendant parties. It was pointed out

by Barwick CJ in Vocisano v Vocisano (1974)

130 CLR 267 that, in such a case, it is the

insured and not the insurer who is the party

to the proceeding. In a sense, it was

therefore Mr Arenales as a defendant who was

to decide whether he was to given evidence.

This, in form would affect the considerations

discussed in Payne v Parker, (1976)

1 NSWLR 191 and the application of them to the

present case. As, I think, was suggested in

argument, Mr Arenales would for this purpose

know what evidence he could give and might be

"expected" to give.

I confess to feeling something of

unreality in such a situation.

Now, can I say this: with great respect,

His Honour's feeling of unreality is because he

does not, with great respect to him, take the true

meaning of Vocisano. Vocisano does not say that

the insurance company does not conduct the

litigation and such like, what it says is that for

Fabre 11 12/2/93

the purposes of the law the decisions of the

insurance company are the decisions of the party,

and so His Honour's feeling of unreality is, in our

respectful submission, immaterial.

McHUGH J:  But there is another line of cases about fresh

evidence in fraud cases which - - -

MR TOOMEY:	Yes, Mccann v Parsons.
McHUGH J:	Mccann, yes - cases that indicate that the GIO is

to be regarded as the real party. I must confess I

also feel something of a feeling of unreality in

this sort of argument. It just strikes me as,

really, offending all notions of common sense in

this sort of case, Mr Toomey, to talk about

invoking Jones v Dunkel in this case where you have

two people involved in a crime, assaulting

Mr Stephens, then attempting to escape from the

police and then the Government Insurance Office

does not call the "nominal defendant", I will call

him, and it is said to draw Jones v Dunkel

inferences. It really is unreal.

MR TOOMEY:  Your Honour, may I ask Your Honour why it is

unreal?

McHUGH J: It is unreal because the real defendant is the

Government Insurance Office. As Mr Justice Isaacs

said to the jury in Onderanko v Summers, there as

not a struck match between the plaintiff and the

defendant in that case.

MR TOOMEY:  No. But in this case there may well have been,

Your Honour. There was no suggestion of an

identity of interest between the plaintiff and the
defendant here. In this case, one of the persons

was affected, one of them was not. You see, we are

left in the position where the plaintiff is called,

gives her version of the facts which His Honour

finds to be unsatisfactory. She does not bear the

onus on that issue because, on the issue where she
does bear the onus, His Honour has found for her on

that. He said, "Yes, there's no question about it,

reckless and dangerous driving, so there's only

this other issue left." She is called; she gives

her evidence. The only other person who could say

what happened is Arenales who was sober and present

during the whole of the time.

McHUGH J: Apart from the inferences you draw from what

happened when Mr Stephens came on the scene and the

escape from the police and the pursuit of the

police.

MR TOOMEY:  Your Honour, I am not saying that inferences

were not available there at all.

Fabre 12 12/2/93

McHUGH J:	No, I know.
MR TOOMEY:	Your Honour will remember I expressly eschewed

his suggestion it was not open to His Honour to

make the finding.	But what we do say is that that
is a discrete part of the events of the night.	The
only other person who can tell us what happened
between the time they left the party: she drunk;
he sober, is him and he is sober and he is there
and he is not called.	Now, with great respect,

Your Honour, how can it be unreal to say that there was interest - - -

McHUGH J:  She was the one who sooled Arenales on to

Stephens.

MR TOOMEY:  That was because he grabbed her by the arm,

Your Honour. With great respect, there is no

particular - - -

McHUGH J:	"Fix him up", what does that mean?
MR TOOMEY:	That means, "Get him off me", Your Honour.

"Take this man away from me.	Stop him grabbing my
arm."

MCHUGH J: Yes.

MR TOOMEY:  I see Your Honours are fully apprised of my

argument.

MASON CJ:  I think that is an understatement, if anything,

Mr Toomey.

MR TOOMEY:	As Your Honours please.
MASON CJ:	The Court need not trouble you, Mr Barry.
MR BARRY:	May it please the Court.

MASON CJ:	The Court is not persuaded that the decision of the Court of Appeal is attended with sufficient
doubt to justify the grant of special leave to
appeal.  The application is refused.
MR TOOMEY:	May it please Your Honour.
MR BARRY:	The respondent seeks costs, Your Honour.
MASON CJ:	You do not oppose that, Mr Toomey?
MR TOOMEY:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 11.22 AM THE MATTER WAS ADJOURNED SINE DIE

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