Goldsmith v Sandilands

[2001] HCATrans 406

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P91 of 2000

B e t w e e n -

TREVOR JOHN GOLDSMITH

Appellant

and

MICHAEL DARREN SANDILANDS

First Respondent

THE STATE OF WESTERN AUSTRALIA

Second Respondent

THE COMMISSIONER OF POLICE

Third Respondent

THE STATE GOVERNMENT INSURANCE COMMISSION

Fourth Respondent

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 9.34 AM

(Continued from 23/10/01)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Cole.

MR COLE:   Yes, thank you, your Honour.  You asked that I make some inquiries in respect of the Evidence Act.  There is nothing in the Evidence Act in relation to the question about cross‑examination in relation to credit that would be relevant here.  I have also attempted to find any provisions in our rules or our legislation.  It appears it is a matter of court practice in Western Australia that these matters are dealt with on the basis that they are, and I am not able to point to any authority, other than to say that clearly in the Full Court’s decision, that is the subject of this appeal, they accept that the process that I followed was the correct one.

The issue that I was attempting to inelegantly address your Honours on yesterday in relation to point 4 of the ‑ ‑ ‑

GLEESON CJ:   You are trying to be inelegant?

MR COLE:   I was inelegant yesterday.  Point 4 of the ground of the credibility, the point that I was trying to get across was in relation to that point was the Full Court had said it did not mean that the Commissioner had to accept the appellant’s evidence because it was uncontradicted.  That, of course, is correct.  The point that I have a difficulty with is because there was no other evidence, it was not open to the Commissioner to make the inference that he did in relation to it, so that was another ground of credibility that we would say should have been overturned on appeal.

The issue in relation to these aspects of credibility - I have already dealt with that issue in respect that we say that a new trial should have been ordered simply on the grounds that the Full Court having found that we had been wrongly denied the opportunity to reopen our case in relation to those two issues, that is, the location of the cricket centre and the physiotherapist.  Our position is, in relation to the findings of credibility that were successfully challenged on appeal before the Full Court, that

there were sufficient there that in itself should have again justified that a new trial should have been ordered.

This case is not like the Rosenberg Case where, for example, it could be said that although the trial judge there had made one, or perhaps a couple of errors in relation to his credibility findings, there were still good grounds in the Rosenberg Case for finding that there were objective bases for the evidence as found by the judge.  Here the evidence is very much one that is dependent upon credibility.  The crucial point in this case is, of course, the finding that the appellant had injured himself at indoor cricket.  That is based solely upon the alleged admissions.  The credibility of the witnesses in relation to that is crucial, therefore, if there was a successful challenge as there was to several of the grounds upon which the Commissioner found adverse to the appellant, because credibility was so central to the matter, the matter should have been remitted for a trial on that basis.

On the questions of credibility, the point that I would make is that when one looks at those 16 numbered grounds that were relied upon by the Commissioner, none of those 16 grounds deals with what is the key issue, that is, whether those admissions were made.  They all deal with peripheral issues.  Some are less obviously peripheral than others.  Some, for example, deal with what happened in the high speed pursuit which, of course, was more relevant, but many of the issues upon which he relied upon are extremely peripheral.  That is not to say that a judge cannot rely upon peripheral issues, but it seems to me if there are issues that are more central to the matter, one would expect that the trial judge would deal with those.

I referred yesterday to those two documents, that is, the statutory declaration and the statement that the appellant signed.  In relation to the statement that the appellant signed, its admission before the court was challenged and then counsel for the first to third respondents put forward various reasons why it should not be admitted.  It was, however, admitted, but it was put forward on the basis that the first respondent was going to give evidence to say why he challenged what was contained in that statement that he had signed, and that he did not accept it.  There was no evidence given by the first respondent in relation to it.  The appellant was not cross‑examined about that and there was no evidence led on behalf of the respondents about that.  That should have been a significant matter upon which the trial Commissioner should have been focusing because, of course, that document itself contained no reference to any alleged admission and neither did the statutory declaration.

It follows from this that from the appellant’s point of view that, at the end of the day, the bases upon which the trial Commissioner therefore arrived at his conclusions in respect of credibility was an insufficient foundation upon which to support the findings that he made.  We have a situation in which when one analyses the evidence in respect of the so‑called admissions, there are some difficulties in respect of those admissions.  For example, the Commissioner does accept that Harmer’s evidence - and this is at appeal book page 822, lines 24 to 25 - the Commissioner accepts and categorises Harmer’s evidence as that the appellant told Harmer that he had “injured his back playing indoor cricket”.

When one analyses that evidence, the evidence we would suggest, is clear.  That is, that Harmer has inferred or formed an opinion that is what happened.  Harmer’s evidence was that as a result of a conversation he had with the first respondent he approached the appellant and he said that the appellant had demonstrated to him something.  He was “quite animated”, he said.  He could no re‑enact that demonstration but said, as a result of that that the appellant had inferred that he had injured himself at indoor cricket, and under cross‑examination he denied using the word “inferred” and said as a result of that he formed an opinion.

CALLINAN J:   Mr Cole, can you tell me where in the appeal books counsel for the respondents put the alleged admission to your client?

MR COLE:   Is this from Harmer?

CALLINAN J:   I just want to know where in cross‑examination in the appeal books I find it being put to your client that he made the admission about the cricket match.

GLEESON CJ:   Shortly after lunch on 2 April 1998, is that right?

MR COLE:   Yes.

CALLINAN J:   Can you give me the page?  The address is put at page 136 but I want to see where the admission is put.

HAYNE J:   Page 146, is it not?

MR COLE:   Thank you, your Honour, it is ‑ ‑ ‑

GLEESON CJ:   Page 146, line 20.

MR COLE:   Yes, that is correct, from line 30.

CALLINAN J:   Thank you.

MR COLE:   It is not challenged that it was put to my client, each of the admissions was put to him.  The issue really is that he was taken by surprise in relation to the question of the location of indoor cricket.

In respect of Harmer’s evidence, the other difficulty with Harmer’s evidence upon which the Commissioner does not comment is that Harmer, of course, said that he had approached the appellant as a result of a discussion he had with the first respondent, but the first respondent’s evidence was to deny that conversation.  Here we have an issue that seems to be central to the question of the credibility of that admission, that is, on the one hand, Sandilands, the first respondent, is denying that conversation but, of course, that conversation is the whole basis upon which Harmer alleges that he approached the appellant, that is, as a result of this conversation he approaches the appellant.  That is why, effectively, he can say he inferred he had injured himself at indoor cricket because he already knew from the first respondent that the first respondent had told him that the appellant had injured himself at indoor cricket.

That position appeared to be accepted, at least from the Full Court’s point of view in relation to the question that Harmer had approached the appellant in relation to the matter.  At AB 917, lines 13 to 20, the Full Court noted:

It is clear from Sergeant Harmer’s evidence in cross‑examination that to a certain extent at least, the source of his knowledge about the cricket injury said to have been suffered by the appellant was Constable Sandilands.

There was also the issue in relation to the credibility because another admission was made, allegedly, to Cross, another police officer.  Cross’ evidence, when it was put in cross‑examination, it was put that it was on the basis that it was about the time of the high speed pursuit.  By the time Cross had come to give evidence, and this was, of course, after the three‑month adjournment, Cross’ evidence had now reached the stage where it was now being alleged that he could say that it was in the week following the high speed pursuit.  Again, that is an issue which would raise that would raise a question of credibility as when the question was initially put I did challenge the vagueness of the question of about the time of the high speed pursuit, and the response was, that was the limit of counsel’s then instructions in relation to the matter.  Again there was a question in terms that the evidence was being bolstered somewhat and Cross, under cross‑examination, acknowledged that he had discussed the matter with counsel who had asked him to look through his police journal.

At the end of the day the appellant’s position is that if one looks at these issues overall, that is, the failure to allow the evidence to be adduced

in relation to those two issues, those documents which directly contradict the first respondent’s oral evidence in relation to the matter, and when one looks at those credibility findings, that the conclusion should be that the Commissioner was left with too slender a base upon which to justify his findings that were adverse to the appellant.

The only other matter that, briefly perhaps, if I address you on is that the Commissioner dealt with the evidence of the Joneses, Mr and Mrs Jones, who were an elderly couple, and he said that they were vague on particulars and therefore was not prepared to rely upon them.  I appreciate the difficulties an appellate court has in dealing with these matters because obviously they had not heard Mr and Mrs Jones.  He says that they were vague on particulars but interestingly enough in his reasons for decision he does not say what those particulars are, so we are left in a situation where he is saying this but not providing the reasons for that.

The only particular that I can ascertain that the Joneses got wrong was that Mrs Jones got the colour of the car wrong, but the on the face of it there were other particulars that they got right which were not even the subject of any contest in the proceedings, that is, that they could identify or Mrs Jones identified that there was another police car on the opposite side of the paddock and that she also identified where another police car, not the one that the appellant was in, also went.  So, in respect of independent issues, one would have to say that given her age that her recollection of particulars was quite outstanding, but yet the evidence of perhaps the only independent people, is simply dismissed.  I think that should give cause for concern in relation to the matter.  Thank you.

GLEESON CJ:   Thank you, Mr Cole.  Yes, Mr Tannin.

MR TANNIN:   May it please the Court.  The issue for this Court is whether the outcome of the trial would have been the same notwithstanding the errors that have been demonstrated in the judgment of the Full Court.  The approach of the ‑ ‑ ‑

KIRBY J:   Is it not true that in Stead this Court said that that will rarely be said where the issue is one of the credibility of a witness and the evidence that is being kept out might have affected the judgment on that credibility question?

MR TANNIN:   Your Honour, I was going to come to Stead.  In my respectful submission ‑ ‑ ‑

KIRBY J:   Text for today, I think.

MR TANNIN:   Yes, and in my respectful submission, the reliance placed upon Stead in this case is misconceived and that Stead is properly to be distinguished.  I will take your Honours to Stead before I take your Honour’s to the evidence in this case.  Before I do that, our submission is that this question of the location of the cricket centre has been elevated to a significance that it truly did not have.  The key evidentiary issue is whether or not the appellant had admitted to the first respondent, Sandilands, and to the other witnesses, Cross and Harmer, that he had injured himself at cricket, not ‑ ‑ ‑

KIRBY J:   In the nature of things you have assertion and counter assertion.  In the nature of our trial process you then either accept that and then you are reduced to saying, “Well, I believe X”, or “I don’t believe X because X has got a nice clear smile”, or “X has got clear eyes” or “looked honest to me”, or you test.  That is the whole point of the trial process.

MR TANNIN:   I do not detract in any way from that proposition.  The point we make is that when the evidence was led - perhaps I will take your Honour’s directly to the evidence.  Your Honour’s have seen the cross‑examination that was put to the appellant, but when the evidence was led from Mr Sandilands and when he was cross‑examined - I take your Honour’s to page 429 of the second appeal book.  Sandilands’ evidence, in essence, was that he had commenced work with the appellant a few days before.  He had known him at the police academy.  They were not close friends or anything like that.  He recalled picking up the appellant at a cricket function, at a cricket centre.  He said that he went there four years later to locate where it was.

GLEESON CJ:   Would you excuse me for a moment?  This, that you referred us to at page 429, is in the cross‑examination of Mr Sandilands?

MR TANNIN:   Yes, it is.

GLEESON CJ:   Did he deal with this matter of the location in his evidence‑in‑chief?

MR TANNIN:   Yes, your Honour.

GLEESON CJ:   Where do we find that?

KIRBY J:   He says at page 358, line 34, “via indoor cricket”, that is how he met him.

MR TANNIN:   It is at page 375 ‑ ‑ ‑

HAYNE J:   His evidence of the supposed confession is at page 381, I think.

MR TANNIN:   The significance of page 375, your Honours, is that what Sandilands always said was he was not sure where Strikers was.  At page 375, line 30, he testifies:

Was anything said to you by Mr Goldsmith?---Yes.  On either the 16th, 17th or 18th, I don’t recall which day it was, he informed me that he would be playing indoor cricket on the Tuesday night –

which was the 22nd –

and if I wouldn’t mind, could I pick him up from the said address, I can’t remember where it was, I know it was somewhere south of the river – to pick him up from this address at this time because he was playing indoor cricket.

GLEESON CJ:   That is what I want to understand.  What I would like to understand from my point is the significance at the trial of the geographical location at which the alleged admission was made?

MR TANNIN:   In our submission, is that the evidence was led from Sandilands and he was cross‑examined.  It was always clear that he was not sure.

GLEESON CJ:   Is that all that Sandilands said about this in-chief?

MR TANNIN:   At page 377, he continues ‑ ‑ ‑

HAYNE J:   You get this most elaborate description of what the street looks like.  One wonders what all that was about in-chief, but there we are.

MR TANNIN:   At page 377 he continues to make candid.  He told the court that he had gone back several years later to find it, this is before the trial.

KIRBY J:   Where is that?  Is that before this description?

MR TANNIN:   Yes, it is.  In fact I think it comes out in the cross‑examination, but that is clearly the evidence.  At page 377 he makes plain that he did not recall the street:

I know it was somewhere south of the river, I think.  I don’t remember the name of the street.  I’m only guessing but I remember the street was only short, it was a dead end, it had a cul-de-sac at the end of it and the cul‑de‑sac butted onto a major road.  I drove into the cul‑de‑sac and I couldn’t turn around, I had to take about two or three bites to turn around . . . I turned around and parked and stopped ‑ ‑ ‑

GLEESON CJ:   Is it fair to say that this evidence was being led by Mr Robbins as circumstantial detail to bolster the reliability of the evidence of the alleged admission?

MR TANNIN:   Yes, but it really, with respect, ended there.  When Mr Sandilands was cross‑examined, he was cross‑examined in the full knowledge that he was uncertain as to where the particular pick‑up place was.  He is cross‑examined at page 461 and it was put to him:

That site that you visited, that’s President Street, isn’t it?---Yes, I believe it is.

Yes.  Your evidence was that you weren’t entirely sure that it was President Street?---No, note entirely sure that it was.

To the end:

When you went out to President Street, can you tell the court the features of President Street that didn’t seem to gel with your memory because you are unsure about it being President Street?---No, it looked the same but I honestly can’t say that was the street,  I would be lying if I did.  I don’t know that that was the street.  It looks the same.  There was nothing in it that really looked any different.

GLEESON CJ:   It looks as though Mr Robbins started a hare, and the pursuit of that hare has ended up here.

MR TANNIN:   Yes.  Your Honours, one of the curious parts of this trial is where the court in the Full Court found that objectively the question was misleading, it was most misleading and most damaging, indeed, to Mr Robbins’ pursuit of the truth.  Nobody knew for sure, on the first respondent’s case, that it was President Street.  My point is that this was candidly before the court.

I might add further, there is a finding in the Full Court at page 900, if your Honours look to the judgment of Justice Templeman, at paragraph 17 where his Honour observed:

Viewed objectively, the question whether Strikers “could have been” in President Street was misleading.  That is because Strikers is located in Esther Street, Belmont: it is not in President Street, Welshpool, where there is, or was, a different indoor cricket centre.

There is no evidence that there was a second cricket centre.  There was only ever Strikers and the only issue is whether it was in Belmont or in Welshpool three kilometres away in the south of the river.  The degree of mischief created by this question, with respect, is far less than the court appreciated there.  There was only one Strikers and all of the evidence was that the applicant played at Strikers.  He, himself, admitted he played at Strikers on or around the 22nd.  His colleagues, his three friends, Mr Baptie, Mr McIntyre and Mr Harty, all accepted that.  There was no evidence led from any of the three other cricketers that there was anything other than one cricket centre. 

At the point when the appellant is being cross‑examined, it is fairly put to him that a conversation allegedly took place, and fairly put to him the substance of that conversation and it is odd, with respect, that the appellant comes here and advances a ground of appeal to the effect that he is surprised by this when so squarely the matter was put.

In this State, there is not a procedure in the District Court level by mechanism of reply.  That is a creature, with respect, that comes from the separate application of the Federal Court Rules where witnesses put in there statements or affidavits as part of their evidence‑ in‑chief, in effect, and it is an exchange of statements between the witnesses.  That was not the situation here.

KIRBY J:   Is this described in the District Court Rules, the practice of this State?

MR TANNIN:   No, it is described in the sense that the District Court, that is the supreme industry court rules are absent any reference to a procedure of reply.

GLEESON CJ:   I am going to put an example to you that I realise you say is very different from this case.  Suppose Mr  Sandilands had said, “He admitted to me that he hurt his back at indoor cricket, and he made the admission while we were having a drink together on New Year’s Eve at the Fremantle hotel”, and suppose the plaintiff wanted to lead evidence that at New Year’s Eve he was not at Fremantle, he was at Sydney.  Is the way you would go about doing that in Western Australia by seeking leave to reopen his case?

MR TANNIN:   Yes.

GLEESON CJ:   The difference, as I understand it you would say between the example I have just given you and this case, is that when Mr Sandilands was asked where did he make the admission, on my illustration, he said, “I am very vague about where the admission was made, but I think it is possible that it might have been on New Year’s Eve at a Fremantle hotel”.

MR TANNIN:   Entirely, your Honour.  That is the distinction between this case and Stead.  In Stead, evidence was led from a doctor; counsel sought to make some submissions about it; the learned trial judge indicated he did not require submissions, he would not be relying on that, and later, in the absence of an opportunity of the parties to make submissions, the learned trial judge did, in fact, rely on the evidence where an assurance had been given that he would not.  Plainly there was reliance, and that is the denial of natural justice.  In this case there was no reliance and that is plain from the judgment of the Commissioner.  Can I take your Honours to ‑ ‑ ‑

KIRBY J:   The Full Court found that the appellant had suffered an injustice.  You are challenging that?  I thought you did not challenge that.

MR TANNIN:   No, your Honours.  Our submission is that because there is an absence of reliance upon this evidence against the appellant, or for even.  It was not as if he was cross‑examined by Mr Robbins to say, “Well, you have got the site wrong”, no one relied upon it, and the learned Commissioner, in this case ‑ ‑ ‑

CALLINAN J:   Why did you go into such detail about it?  Is not that the question: whether the first respondent by eliciting an elaborate description elevated what would otherwise apparently be a collateral matter to one of significance? Is not that the question?

MR TANNIN:   It is, and your Honour the answer is that ‑ ‑ ‑

CALLINAN J:   That question was resolved against you, in a sense, in the Full Court.

MR TANNIN:   Our response - and we are not arguing anything inconsistent with what the Full Court has found - is that the significance of the failure to allow the appellant to adduce evidence in relation to the location is diminished here because there was no reliance placed upon that fact before the Commissioner, and no reliance made by the Commissioner.  The issue was truly neutral, truly collateral, and that can be demonstrated in the very reasons of the Commissioner.  The relevant parts are at page 853 to page 855.  It is constructive for this Court to consider how the learned Commissioner dealt with this because it demonstrates, in our respectful submission, clearly, how entirely collateral the question was.

At page 853, in what is plainly a very long and, in some respects, with great respect, discursive approach, the learned Commissioner deals with the question of findings in relation to an indoor cricket injury.  Now, he made a key finding, and the key finding was not about the location, in his words at the bottom of 853, but about sustaining:

an injury during the course of a game of indoor cricket on the evening of Tuesday, 22 June 1993.

The Commissioner, at page 854 indicates he prefers the evidence of the first defendant to the plaintiff.  He accepts on oath also the question of the evidence of Harmer and Cross – and I will come back to those shortly – and indicates that their evidence was not identical, but corroborative.  He finds also that the plaintiff was aware before he gave his evidence that the defendant has alleged that he has injured himself at cricket.  That was in the pleadings.  There were findings about how vague and evasive he was as to whether or not he played cricket and any reading of this transcript would confirm that.

Then further down 854, the attack on the first defendant is noted and there was an attack because he could not bring up papers of his running sheets and there is reference to the nature of the evidence that is pertaining there.  Now, at the bottom of 854, the Commissioner deals with the application to reopen:

The plaintiff sought leave to re-open his case to call evidence on the location of the Strikers Indoor Cricket Centre.  I refused to grant leave for such purpose.  The location of the indoor cricket centre was raised with the plaintiff when he was cross-examined.  It is a matter that could have been pursued in re-examination.  None of the witnesses called by the plaintiff who played indoor cricket in the same team as him were asked to give details of the location of the cricket centre and a description of its surrounds.

So that is the justification the Commissioner gave for what he did.  But it is significant here as to what he did with it:

In the final analysis I am not satisfied on balance of the location of the cricket centre at which the indoor cricket game was played on the night of Tuesday, 22 June 1993.  At best I find that it was in or about Belmont or Welshpool.

That is hardly a finding harmful of the appellant’s case.  He goes on ‑ ‑ ‑

KIRBY J:   What you are overlooking is, you see, you know as well as I do that when you have oath against oath, counsel is in a difficult situation and counsel tries to latch on to anything in the evidence that will test the oath and here your predecessor tendered some evidence onto which counsel wanted to latch, not to show Mr Sandilands’ evidence was mistaken or was in the circumstances confused, but to show that it was false and that he was forced – the appellant had made this admission.  It was essentially made…..and that is an opportunity which normally a barrister will want to seize and test and if he does not get the chance to do it, then the suggestion is that he has not been given an opportunity to, as it were, put his best foot forward, put his client – in the end the result might be exactly the same, but our system of law rests on fair procedures, and that is what it is said this appellant was denied.

MR TANNIN:   Well, your Honour, with respect, I agree with your Honour in the sense of what the forensic purpose might be of testing a witness’ evidence, but in this particular case it would have meant nothing because in our first submission ‑ ‑ ‑

KIRBY J:   Jones v The National Coal Board says no case is ever over until the last bell has sounded.  That is essentially the spirit that is behind Stead, that no case on credibility is over until the best foot has been put forward and a party before a court in Australia has had an opportunity to try to dissuade a decision-maker from the prima facie situation that that decision-maker has reached.  How could we say the Commissioner would not have changed his mind if he did come to a conclusion that with this additional cross‑examination and additional material before him that Mr Sandilands had really gilded the lily and was not to be believed as a truthful witness?

MR TANNIN:   Your Honour, the Court can be confident that this issue did not matter because that is the finding of the Commissioner, the very next finding on page 855:

Even if the first defendant’s recollection in relation to the location of the cricket centre was shown to be wrong in any way then that would not necessarily mean his evidence of picking up the plaintiff from indoor cricket should be rejected.  It should be noted that even the plaintiff could not give a detailed description of the surrounds of the cricket centre and the name of the street in which it was located.

Our submission is that bearing in mind the way the matter was properly brought up and bearing in mind that the appellant himself had been testifying over, I think, it was two or three days at the beginning, there was ample opportunity ‑ ‑ ‑

CALLINAN J:   But the location of the cricket centre was not an issue of any significance during the course of the plaintiff’s case.  The location of it only became an issue – whether it is collateral or not may be another question – when your client went into an elaborate description of it.

GLEESON CJ:   Or was led into an elaborate description of it, perhaps unwillingly by counsel who seemed to be determined to pursue this issue while his witness was saying, “I can’t remember”.

MR TANNIN:   Yes, that is an absolutely fair analysis.  Your Honour, the question of President Street was raised in its doggedly clumsy way with the appellant.  My point earlier was that we all suffered from it, but it was there and in the end  ‑ ‑ ‑

KIRBY J:   You say that, but normally in Australia barristers and advocates do not pursue an issue unless they have a proof.  It does happen sometimes and people can foolishly and stupidly go like a bull in a china shop, but normally this is an issue that one would infer might have been raised and he said, “Oh, yes, I can remember it because it was a cul-de-sac and I don’t remember the name of the street”, but it is not usual for a lawyer, and it is very, very unwise, to open up issues that they have not gone through on a proof or in a conference beforehand.

MR TANNIN:   Your Honour, the clumsiness of it we concede, but there is certainly nothing indicating there was some deliberate attempt to mislead anyone.

GLEESON CJ:   Mr Tannin, there is an aspect of the fact that I have forgotten about or perhaps never properly understood, but in relation to page 855, did Mr Goldsmith deny that he had been picked up by Mr Sandilands after an indoor cricket game on some occasion in or about June 1993?

MR TANNIN:   Yes, he did.  The stark contest in the evidence upon which reliance was made by the Commissioner was whether or not he was picked up at all and if he was picked up, what he said.  That was the question, not whether Strikers was in President Street or in Esther Street.

GLEESON CJ:   But, as I understand what Mr Cole says against you, he says Mr Robbins was trying to bolster the evidence of Mr Sandilands by going into circumstantial detail to prove that he not only remembered what was said, but he remembered where it was said, and Mr Cole wanted to have the opportunity to shake Mr Sandilands on that circumstantial detail.

MR TANNIN:   Your Honour, the proper perspective, in our submission, is to look at what the witness Sandilands said.  Regardless of what you might construe Mr Robbins’ questioning to mean, the reality of it is what the witness said was that he was not sure and he never changed that.

HAYNE J:   But nor was Goldsmith sure, was he?

MR TANNIN:   No.

HAYNE J:   Goldsmith denied flatly making the admission.

MR TANNIN:   Indeed.

HAYNE J:   But Goldsmith’s denial of being picked up was less than wholesale, was it not?  All he says is, “I can’t remember it”.

MR TANNIN:   Indeed, and, your Honour, our submission ‑ ‑ ‑

HAYNE J:   And it is a side issue which is elevated into something bigger than the pyramids.

GLEESON CJ:   Ben Hur.

MR TANNIN:   Yes, Ben Hur gets a lot of use in these courts, your Honour, but Ben Hur is a very good example.  Our submission is that this question was ‑ ‑ ‑

HAYNE J:   Somebody is going to reach out with the whip soon, I think, Mr Tannin.

MR TANNIN:   This submission was in this trial truly collateral and the case is distinct from Stead, where, as I have emphasised, the Court placed reliance on the very thing that it ought not to have placed reliance.  In this case we can demonstrate in the reasons that the Commissioner placed no reliance upon it and for the right reasons, that the evidence was equivocal and it did not matter.  We respectfully accept that a forensic opportunity of a kind may have been denied in a sense that, as the Full Court found, the appellant should have been entitled to lead this evidence.  But if the appellant had led this evidence, it could have changed, in our respectful submission, nothing.

HAYNE J:   Can I just follow that out.  Let it be assumed the evidence had been permitted to be led.  What was the reasoning process that the judge was then invited to undertake?  The reasoning process would be, would it not, “Because I see the objective circumstances that obtained in this street rather than that street, I therefore conclude that Mr Sandilands is not accurate in his evidence, Mr Sandilands is fabricating his evidence”?  But are we reaching any conclusion other than a conclusion about the acceptability of Mr Sandilands’ evidence, not about what was said, but about where it was said?

MR TANNIN:   No, and, indeed, your Honour, it does not even get as high as that because it ‑ ‑ ‑

KIRBY J:   Let me put the other way a judge might reason:  “I believe Mr Sandilands.  He looked a very honest man and he has no real stake in this matter.  He is…..He has come along here and he has said that this was said and he has said that against a person who was at the time a colleague and, on the face of things, logic as well as my impression of Mr Sandilands leads me to think he is telling the truth.  However, I now discover that he was exaggerating, he was adding this material about the circumstances of the street and when it is tested, it has shown that this was gilding the lily.  Now, why would Mr Sandilands do this?  I have now got to cause myself to cast doubt on what Mr Sandilands has said and looking at the logic rather than just at impressions of – looking at all the circumstances, I am not prepared to accept what he says.”

MR TANNIN:   In our submission, the proper response to that approach is that on the facts here, it was never open to a judge to reasonably take that view.  Your Honour the Chief Justice yesterday gave a fairly stark example to my learned friend, where the evidence had indicated, for example, that someone was wearing a particular coloured coat that they could prove they did not have on that day, you would need material that contradicted the witness’ earlier testimony to reach the conclusion that the witness was in some way inaccurate or unreliable.  The point about the evidence in the way it was led from Sandilands both in examination and cross‑examination is that he was never in any way clear about where the thing was.  He never said he was clear.  He never asserted it.  To then prove evidence that, in fact, Strikers was not in President Street but was in Esther Street would never detract from a reasonable appreciation of his integrity.

KIRBY J:   You say that when you look at the realities, much more significant, infinitely more significant than where the incident occurred and the conversation is the fact that an admission of this kind had taken place and that the law, in judging these matters, has generally – it keeps its feet on the ground, takes a practical view of the matter and looking at the whole of this trial, where it happened was not so significant and Stead allowed a let‑out and even though the Full Court did not refer to it, effectively what they did was to follow the chain of reasoning in Stead and said, “Well, he should have been allowed to have it, but we don’t think it would have” ‑ ‑ ‑

MR TANNIN:   That is the case and ‑ ‑ ‑

GLEESON CJ:   Mr Tannin, you may be right – and I express no view one way or the other – but I cannot help thinking that the logical consequence of what you are saying, if it is correct, is that the Full Court was rather hard on the Commissioner because the Commissioner took a course in relation to this that trial judges are often encouraged to take. 

MR TANNIN:   That is right.

GLEESON CJ:   The Commissioner said, “I refused to permit every rabbit to be pursued down every burrow and fair process does not require trial judges to do that”.

MR TANNIN:   And there was a rabbit plague here, your Honour.  This was a case ‑ ‑ ‑

KIRBY J:   At least by your side.

MR TANNIN:   We will confess that sin, with respect.  But we had a trial that started with – set aside for four days ‑ ‑ ‑

KIRBY J:   How long?

MR TANNIN:   Four days.  Adjourned I think for three months.  Then there were a further four days, with persistent applications by the plaintiff, some of which bordered upon the bizarre.

CALLINAN J:   But asking these questions prolonged the trial.

MR TANNIN:   Indeed, but, in my respectful submission, in answer to the point made by the honourable Chief Justice, this was a case where the Commissioner was required to seek to control the proceedings. 

HAYNE J:   Do you say this was a collateral issue or do you not say it?

MR TANNIN:   It was very much a collateral issue.

HAYNE J:   What do you say are the relevant principles?  Where do we find them?  Do we in particular find them, for example, in Piddington v Bennett and Wood 63 CLR?  What is the principle that you say we should be applying in this connection?

MR TANNIN:   The principle is that, in our respectful submission, answers to collateral questions should be treated as matters of finality.

HAYNE J:   Why is this a collateral question?

MR TANNIN:   Because it is not, in the end, a relevant question to any particular matter in issue.  The matters in issue were ‑ ‑ ‑

CALLINAN J:   It goes to credit, that is why it is collateral, is it not?

MR TANNIN:   Indeed, but it was proper to raise the matter, but ultimately it was never relied upon.

GLEESON CJ:   But is part of your argument that the very uncertainty which your witness expressed about this subject when he gave evidence on it in‑chief and again in cross‑examination rendered it an issue that was at best collateral?

MR TANNIN:   Yes.

GLEESON CJ:   It might have been different if he had said, “I have a clear recollection of this incident.  Every aspect of it is fresh in my mind.  I not only remember what he said, I remember where he said it”?

MR TANNIN:   Yes, and it is that stark and it is why Stead does not help my friend in the way that – that was the high‑water mark yesterday, that somehow this was akin to Stead.  It is not.  Can I go to the other two ‑ ‑ ‑

KIRBY J:   Well, it is akin to Stead because Stead acknowledges an exception where it could not have affected the outcome of the trial, but it also says that that will rarely be the case where the evidence touched the issue of the credibility of a witness and one might say, in this case, the evidence of a – or the credibility of a witness whose testimony was on the point of the conversation crucial.  You have to concede that, that this conversation was critical.

MR TANNIN:   Entirely.

HAYNE J:   It seems to me that if your point is good – I express no view on whether it is good or not – it is a point that is covered by Piddington v Bennett and Wood, where the question was a witness to a motor accident said that he was on the street, saw the accident, in the course of cross‑examination says that he was there because he was doing a message for someone at a bank, held you could not call the bank to show whether or not business was done for the person on that day.

MR TANNIN:   We would add here on the question that must exercise the mind of this Court as to what the ultimate result would have been, that there were in addition to the admissions made to Mr Sandilands the admissions made by the appellant to the witnesses Cross and Harmer and it is important to deal with them in a bit of detail because they are far more salient than the appellant would accept.  In relation to Harmer, it has been consistently put by the appellant that his evidence was that he, Harmer, inferred that the appellant had hurt himself and that is the way it was approached, that is, Harmer was told something by someone and it was Harmer making the inference or the deduction or the conclusion.  That is not, in fact, what Harmer’s testimony was.  Harmer at page 659, appeal book 3, gives the relevant evidence in‑chief.  It is important your Honours understand how he did that.  It was led by Mr Robbins at the bottom of 659:

Just continue, if you would, and as you do, just go through it slowly and direct your remarks to Mr Commissioner –

The evidence is:

I had a conversation with Trevor –

that is Mr Goldsmith –

It was in the centre of the office part.  I can’t quote it word for word but it related to Trevor having injured himself playing indoor cricket.  He said something about how he had injured himself.  This over the period - - -

You might just need to move forward a little bit?--- - - - of 26 June 1996.

Here it comes:

Trevor said he had injured his back, and he was quite animated.  He showed me how he had injured himself.  Trevor could be quite comical, and I remember he said to me, “It bloody hurt.”  I didn’t ask him any great questions about how it actually happened but he inferred it happened while he was playing indoor cricket.

It is important to understand what the witness is actually testifying.  He is saying that he, that is, Mr Goldsmith, inferred it.  When Mr Harmer was cross‑examined about this question, a misconception was introduced which has followed – as your Honours noted in the earlier metaphor, the rabbits have been truly out in this case – it has followed us to this Court.  If you look at page 687, where he starts the cross‑examination, my learned friend in cross‑examining Harmer confuses who made the inference and then seeks to attack Harmer because of it.  At page 687, at the top:

What about that you have inferred that?  Did you say to Mr Chenu that you had inferred that from that conversation?---No, I don’t recall that.

Further:

But you said in terms of your evidence early on, did you not, that in that meeting that you had with Mr Goldsmith, the one in which you described him as being quite animated – this is in the 3 to 4 weeks after – that you inferred from what he had said that he had injured himself playing indoor cricket?---Did I use that word “inferred” in the court?

Then the debate becomes whether he used the word “inferred” and my friend puts to him:

Yes, you used the word “inferred”.  You alternated between “inferred” and that he told you.  What I’m putting to you is that this notion that Mr Goldsmith had told you something, that’s not correct.  You have inferred something, haven’t you?---From my conversation with Trevor Goldsmith in the motor squad office?

Yes?---No, that’s not correct.

Now, the witness is completely correct in the way ‑ ‑ ‑

GLEESON CJ:   There are a lot of people in the community who use the word “infer” to mean “imply”.

MR TANNIN:   Yes, but the question is who implied?  The witness in his testimony clearly said it was Mr Goldsmith who inferred it, not he the witness.  If that distinction has not been appreciated by the appellant in this case and it has been used to detract from the evidence of Harmer ‑ ‑ ‑

GLEESON CJ:   Can I come back to the matter of principle that Justice Hayne raised with you.  One thing is clear, as I understand it, and that is that the evidence about this alleged admission was said to have been made to Constable Sandilands when he as a police officer was picking up a fellow police officer from a game.  Suppose that the plaintiff had wished to prove that in June 1993 Constable Sandilands was not a member of the police force and that he did not join the police force until December 1993.  Would that have been a collateral issue?

MR TANNIN:   No, because it would have been a issue that was so central that the appellant would have been entitled to bring it forth in its own evidence.

GLEESON CJ:   In‑chief?

MR TANNIN:   Yes, it would have such ‑ ‑ ‑

GLEESON CJ:   So before Constable Sandilands had given a word of evidence about the alleged admission, the appellant in his case in‑chief would set about proving that Constable Sandilands was not in the police force in June 1993?

MR TANNIN:   If he had known about it, he would have been entitled to because he would say, “On the pleadings there is an indication that I have injured myself at cricket.  I want to indicate that I never did such a thing”.

GLEESON CJ:   But the pleadings surely would not include the evidence?

MR TANNIN:   No.

GLEESON CJ:   So there would be nothing in the pleadings that says, “The evidence by which the defendant intends to prove that the admission was made was that Constable Sandilands picked him up in a police car after a game of cricket and he made the admission then”.

MR TANNIN:   Well, he may know by some means, but if he knew, my point is that he would be entitled to lead evidence about it.

GLEESON CJ:   If he did not know, the way to deal with it would be to apply for leave to reopen his case after Constable Sandilands had given this evidence, is that right?

MR TANNIN:   Yes, or leave to adduce evidence in rebuttal, as the Full Court found.

GLEESON CJ:   But, in all events, you say that would be admissible evidence.  The issue would not be collateral because – why, because of the obvious importance of that matter to the truthfulness of Constable Sandilands’ evidence, is that right?

MR TANNIN:   More than importance, that it would directly contradict Sandilands’ evidence.  It would bear upon his testimony.

HAYNE J:   That simply cannot be the test.

MR TANNIN:   Your Honours, the test as to collateral questioning – and I am just referring ‑ ‑ ‑

HAYNE J:    But in Piddington v Bennett and Wood – well, forget the texts, let us go to the cases – Justice Dixon said that:

The tendency to discredit him –

the witness –

may make the question of the admissibility of the evidence important, but it does not make the evidence admissible.

The bare fact that you can classify evidence as important does not really get you far enough.  Unless trials are conducted by reference to relevant issues, trials last forever.

MR TANNIN:   If your Honour pleases, whatever the barrier of collateral evidence test is, this case never gets near it because the issue was truly peripheral.  It was treated as peripheral, it ended up as peripheral and it has never changed.

GLEESON CJ:   But if your proposition that this was collateral is right, it was the duty of the Commissioner not to allow this issue to be pursued.

MR TANNIN:   Yes, in which case the Full Court, as your Honour has not suggested but noted as a possibility, may have been rather harsh upon the Commissioner.

KIRBY J:   That is not the way the Full Court reasoned.

MR TANNIN:   No.

KIRBY J:   You have not attacked the Full Court’s reasoning or decision on this.

MR TANNIN:   No, I have not put in a notice of contention.  We say that on the basis of the Full Court’s findings, even as they are, it is the inevitable result that the result of this case would have been the same, even if this evidence was led, even if at its highest the evidence is led, “Well, Strikers is not at President Street, it is in Esther Street.  Strikers is in the middle of the street, rather than at the end”.  None of that contradicts the testimony of Mr Sandilands at all.  It does not touch upon it.

GLEESON CJ:   You may be assuming we know something that you know, but how far is President Street from Esther Street?

MR TANNIN:   Your Honour, in the Australian tradition, I think, rivers divide cities and those of us on the one side do not know what happens on the other.  On the evidence here, it seems that the difference is between Belmont and Welshpool and, on the evidence, that is about three kilometres.

GLEESON CJ:   Thank you.

MR TANNIN:   Now, I have dealt with Sandilands to a slight extent.  It is also important that in relation to Mr Sandilands, he testified that not only did he pick up the appellant from the cricket, but that he worked with him in the succeeding nights, from the 26th to the 23rd and 24th.  At page 382 in his evidence in‑chief, Mr Sandilands talked about discussions he had with the appellant on those nights:

Incidentally, on the night of the 22nd when you finished –

he was asked about how he got the vehicle back, and then he is asked on 383:

Okay, so you worked again on the night of the 23rd, starting at?---8 pm.

And Mr Goldsmith was you partner again?---Yes, he was.

During he course of that night did you have a conversation with him?---Yes, we spoke, normal chitchat, that sort of thing throughout the night, yes.

And did anything in particular take your attention?---He mentioned that his shoulder was still sore.

The next night is dealt with further along, this is the 24th:

Did you have a conversation with Mr Goldsmith that night whilst in the vehicle?---Yes, same again, just idle chitchat, normal things that we talk about during the night, and he also mentioned that his shoulder was still sore.

I refer to those passages where there were direct admissions indicated by the witness made in‑chief by the appellant to him to point out to this Court that Mr Sandilands was not cross‑examined as to those two conversations by the appellant.  That evidence ‑ ‑ ‑

KIRBY J:   Presumably the appellant’s answer to that would be that if you knock over the fundamental premise you do not have to examine every hair in which some elaboration has been ‑ ‑ ‑

MR TANNIN:   Your Honour, with respect, there has to be a point where, if there is a direct admission against you on a succeeding night, you would at least challenge it.  It cannot be inferred that you say, “Well, you fabricated picking me up on the 22nd, that everything else that the witness said about your conversations is untrue”, there has to be some duty to cross‑examination fairly and the absence of that cross‑examination here sits very poorly with the appellant’s submission, which is certainly made in his written submissions that there is this conspiratorial fabrication between witnesses. 

The appellant goes so far as to cite the judgment of this Court in McKinney.  That citation, with respect, is erroneous in the sense that McKinney is dealing with people who are in police custody who are vulnerable because of their situation where confessions are allegedly made and the caution necessarily attributable to police testimony in that context.  McKinney is a long way from polite conversations between working people, who both happen to be police officers.

GLEESON CJ:   The submission that was made against you may not be sustained but, as I understood it, it was pretty direct; it was that Constable Sandilands put a verbal on Mr Goldsmith, because Constable Sandilands, for a time, thought that he was going to be personally liable to pay the damages.

MR TANNIN:   Well, that issue was squarely before the Commissioner and he ruled against it and that is an end of it, with respect.  I mean, the idea of verballing has magnificent irony in this case; the appellant himself was a police officer.  If verballing is a tradition amongst the police, they are all in it; it hardly helps him.  The question of whether or not these admissions were made was before the Commissioner.  He resolved it, and he resolved it fairly on the basis of the testimony.  I have not dealt with Cross in my oral submissions because, in my respectful submission, the only attack that could be made on Cross is he was not quite certain when the admission made to him took place; whether it was precisely on the night of the pursuit or later.  But he was clear about the fact of an admission.  Again, Cross is an independent witness.

It cannot be that all of this evidence to be discounted on the mere possibility that the appellant should have been allowed to call evidence about the location of the one cricket centre be it the difference between Belmont and Welshpool.  That cannot be what would pivotally change this case.  The entire approach of the appellant has been to raise as many possible grounds as possible to this Court.  Special leave was granted in relation to some discrete issues and in relation to those discrete issues he has, in our respectful submission, failed.

Quite aside from all of that, there is the separate question that this appellant had an onus upon him to demonstrate and prove its case on balance in relation to the question of how his injuries were caused and he failed upon that.  He claimed that the injuries were caused by reason of the

violence occasioned to him in the course of an extremely fast and very bumpy pursuit and in relation to that evidence, which is not the subject of a grant of special leave, he failed; he failed to prove that anything in the pursuit caused the injury. 

So quite aside from the injury in cricket, at a more fundamental level this appellant had failed; he failed to demonstrate, for example, the violence of the U-turns that he claimed made him go bumping around, he failed to prove that the police vehicle in which he was in, that is the pursuit vehicle, actually went over the traffic median strip at the corner of Hamilton Street and Welshpool Road.  That was a fundamental failing.  Without that there was not the kind of jerking that would set off the injury.  In those circumstances, having failed on causation, this Court can be more clearly satisfied that regardless of the error that the Full Court identified, its effect would have been not one that would change the result and, in that respect, the Full Court’s judgment is correct.

Now, I have made a very detailed response to each of the arguments put by the appellant and I will not go further than to rely upon the submissions but, in essence, if I might say in summary, this applicant fails.  It fails because - it failed in the issue of causation, it failed on relation to key findings of credibility.  The findings of credibility are consistent with the objective evidence and I include the objective evidence of the medical practitioners who were called in this matter and there is simply no warrant for the success of an appeal in relation to an issue so peripheral to the main matters in question.  They are my submissions.

GLEESON CJ:   Thank you, Mr Tannin.  Mr Allan.

MR ALLAN:   Briefly, your Honour, perhaps I could suggest to the Court that the reason why we are in here at the moment is because the appellant never articulated to the Commissioner the basis upon which he was entitled to reopen his case.  All that he did was to say, “I want to reopen the case as to Strikers, because evidence will show that there are different features of it”, and that was the basis that he did not articulate at a legal basis for it nor did he do so in respect to the physiotherapist.

GLEESON CJ:   Let me just be clear about one thing, Mr Allan.  There is only one Strikers, is that the ‑ ‑ ‑

MR ALLAN:   Yes.

GLEESON CJ:   And was the evidence of Mr Sandilands that it was at Strikers that he picked up ‑ ‑ ‑

MR ALLAN:   At Strikers, but he was not sure of the venue.

GLEESON CJ:   He was not sure where Strikers was.

MR ALLAN:   Yes.

GLEESON CJ:   Was there in June 1993 another indoor cricket centre?

MR ALLAN:   There was no evidence that that was so, no.

CALLINAN J:   Was there some evidence about one at Curtain Street?

MR ALLAN:   I cannot recall that, your Honour.

CALLINAN J:   There might have been, I am not sure.

MR ALLAN:   I just wanted to start my remarks and I agree with what my friend said, but what that has led to is the Commissioner has not been presented with a basis upon which he could understand what it is that the appellant wanted to do.  Now, in effect, the appropriate course that the appellant should have taken was to ask to recall Sandilands to cross‑examine him as to the features of the location.  That is all he could have done.  He could then put to him the different features and then on the evidence of Sandilands, Sandilands would have said, “Well, you may be right, because I do not really recall all of the features and I have made that clear in my evidence”.

GLEESON CJ:   How long after the alleged admission was made did this trial take place?

MR ALLAN:   Three or four years, your Honour, I am told.

GLEESON CJ:   No, five:  between June 1993 and April 1998.

MR ALLAN:   If there had been a cross‑examination - and this, I think, tests what the nature of the evidence is - and at the end of the cross‑examination my learned friend had said, “I now want to call evidence as to the features of the street where Strikers was, because the answers I have got are not in accord with those features”, the Commissioner would have said, “You cannot call that evidence because it is collateral”.

GLEESON CJ:   What exactly do you mean by that?

MR ALLAN:   I mean by that that the cross‑examination in respect of the features of the street where Strikers was, can only relate to Sandiland’s credit, to his recollection.

GLEESON CJ:   Well, in the example I gave of evidence that would prove that Sandilands was not in the police force in June 1993, was chosen because it is an example of evidence which, if true, would mean that it was impossible for Sandilands’ evidence about the admission to be true.  Would that be collateral?

MR ALLAN:   It may or may not be, but can I just answer it in a different way?  If the evidence was germane and was not raised in the plaintiff’s case, that is, by cross‑examination or if it was raised in cross‑examination, for example, or in some way in the pleadings, then the practice would be that the plaintiff would not be given leave to recall on that issue, because that is the practice in that State.  You are supposed to call all of your evidence in your case and to answer the case.  If you have not been given notice then the court can exercise its jurisdiction to allow you to reopen the case.  It is set out in the practice books, you would need a description and it is said to follow the appropriate ‑ ‑ ‑

GLEESON CJ:   I would like a copy of that.

MR ALLAN:   Yes, I am sorry.

GLEESON CJ:   You have got an extract from ‑ ‑ ‑

MR ALLAN:   From Seaman.

GLEESON CJ:   Why do you not just hand that to the associate and we will get some copies made for ourselves?

MR ALLAN:   I must say that the case that is quoted there overnight, it seems to be a misquotation, the reference seems to be wrong.

GLEESON CJ:   All right.  Do mind if we take some copies of it?

MR ALLAN:   No.  So, the point I am trying to make is that had an appropriate application been made and he was cross‑examined, it clearly illustrates the point that the evidence is collateral, because it simply goes to credit.  It does not go and it could not go in any way to a fundamental matter in issue on the trial.  I think the difference between the case where the person is out of the State or is not in the police force may have the different character which may make it not collateral in that if that evidence is accepted then it may mean, depending on the way in which the appellant or the party gave the evidence, that the fundamental issue, that is, that an admission was made, could not possibly have been made.

GLEESON CJ:   There is a difference between those two examples:  the one about the example of the conversation on New Year’s Eve at the

Fremantle hotel, if accepted, that evidence would not make it impossible that the admission had been made; it would cast doubt on the veracity of the evidence, but it would be possible that the person had been mistaken.  But, in the facts of this case, if Sandilands had not been a member of the police force in June1993, that would mean the event he was describing could not possibly have occurred, because the event he was describing was intimately connected with his position in the police force.

KIRBY J:   Or it could show that he was mistaken about the date.

MR ALLAN:   Well, I do not think you can answer, with respect, these questions in isolation; you would have to look at what, in the context of ‑ ‑ ‑

GLEESON CJ:   The date is pinned to the car chase.  The whole point of the date, June 1993, is that this is a back injury said to have been suffered about the same time as the car chase.

MR ALLAN:   Yes.  Well, I do not want to get into the issue as to the admission, I just simply wanted to deal with the issue as to the collateral aspect of the place where the admission occurred.

HAYNE J:   When the admission in either of the two examples given by the Chief Justice is put to the witness plaintiff in the course of cross‑examination, in the case of the Fremantle hotel example, it may well be that the plaintiff could not go into evidence at that point proving that he or the alleged hero of the confession was not present, but in the case of the confession to a fellow member of the force, you could go in evidence to prove the alleged recipient of the confession was not in the force at the time.  You can leave that as part of your case and that may identify that the one is collateral and the other is not.

MR ALLAN:   That is the only point I wish to make about that and the same applies to the issue of the physiotherapist

GLEESON CJ:   Thank you, Mr Allan.  Yes, Mr Cole.

MR COLE:   Your Honour, in relation to the indoor cricket, I would wish to correct my friend in relation to that.  Mr Sandilands could not identify it as being Strikers, so that Mr Sandilands’ position was is that he could not recall the name of either the indoor cricket arena or the name of the street.

GLEESON CJ:   But it was the evidence of your client, was it not, that the only place he ever played indoor cricket was at Strikers?

MR COLE:   Well, the evidence was that it was Strikers, yes, so that the uncontradicted evidence – and, of course, this raises the question about the Commissioner’s determination, because he still wants to suggest that he cannot be sure as to whether it is Belmont or Welshpool, but it clearly ‑ ‑ ‑

GLEESON CJ:   But it was clear on the evidence, was it not, that if Sandilands had picked up your client after a game of indoor cricket it must have been at Strikers?

MR COLE:   Well, certainly that would be our view, but it obviously was possible for the respondents to have led evidence otherwise, but there was not any evidence in the trial otherwise.  So that the difficulty in relation to this collateral issue that I have with it is that the crucial evidence surely is – and it seems to me this was appreciated by the Full Court where, at page 902, it dealt with why the evidence was important in relation to the features of the street.  Your Honours, at the bottom of 902, it notes:

If Constable Sandilands’ evidence about collecting the appellant from a street which resembled President Street in Welshpool could be controverted by proving that the configuration of that street was significantly different from Esther Street, Belmont, doubt might be cast also on his evidence about the admission [then said to have been made by the appellant as to injuring his neck or back.

The important point is that if he did not go to the indoor cricket arena then there could not have been that admission.

GLEESON CJ:   Mr Cole, could I ask you a question of fact about the evidence?  Did the evidence show how many indoor cricket venues there were in Perth in 1993?  Strikers is the one we have been hearing all about.

MR COLE:   No, there was no evidence about that and perhaps it is another point that I should clarify.  The Full Court is correct when it makes reference to there being another indoor cricket arena and my understanding that that arises from during the course of one of the numerous exchanges that occurred between counsel during the course of this trial - and this is not, of course, in the appeal book that you have - counsel for the first to third respondents had indicated that he had visited President Street and that there once was an indoor cricket centre in that street.  I think that is the area where the Full Court has picked up this notion that there is another indoor cricket arena.

HAYNE J:   Perhaps you could give us the reference to where this evidence is to be found?

MR COLE:   This was an exchange from the Bar table and it is not contained in the appeal book that is before you, so that the appeal book was before the Full Court.  I am just explaining that is the reference in the Full Court’s reference to the other indoor cricket location.  So that there was never any evidence about that, but the counsel for the first through third respondents had indicated that point and as far as the evidence was concerned, there was only evidence about one indoor cricket centre and that was identified by all the relevant appellant witnesses as being Strikers, which, according to their evidence again, they variously refer to it as “Strikers, Belmont” or “Strikers in Belmont” and, of course, the appellant’s evidence was that it was Strikers in an industrial area in Belmont or off Belmont Avenue. 

So that this issue that it seems to me…..is hedging on is his issue as to whether it is to be regarded as collateral, but the important point, it seems to me, is that when the appellant was cross‑examined in relation to these matters, it was not being put to him on the basis that there was uncertainty as to the location of the street, et cetera, et cetera; it was being cross‑examined clearly on the basis that there were certain features of the street.  Now the appellant was unable to answer that because he could not recall.  Not surprisingly he was only a casual indoor cricket player. 

It seems to me, we cannot have a situation in which, with a view to advancing the respondent’s case, they are cross‑examining in relation to issues that they now wish to say are collateral and, in effect, impliedly want to concede, “Well, perhaps we should not have been cross‑examining about them”, because we then have the difficulty of what is the influence of this on the trial Commissioner?  Now they say, in relation to the Commissioner’s decision, he was not able to make a finding in relation to this.  But, the important point is he made the finding that the admission occurred.  Now, the admission cannot occur if we could adduce evidence that is going to point to his identification of features in the street.

KIRBY J:   What is your answer to the suggestion that Mr Sandilands at all times indicated that he was very unclear about the name of the street and even the description of the street and therefore whatever evidence you put, it would not really be contradicting his testimony?  His testimony was very vague and uncertain?

MR COLE:   He was not vague or uncertain about the features of the street.  He was certain about that.  His evidence was, he was vague about the name of the street.  His evidence was, that he identified these specific features:  cul-de-sac; that there were bollards there, et cetera, and that, when requested by counsel, he went around looking for the street that met those features.

CALLINAN J:   Mr Cole, you were still able to make the forensic point that there is a discrepancy between what was put to your client and the evidence that was adduced.  No doubt you tried to make that forensic point, even though you were not allowed to meet the evidence by calling evidence yourself.

MR COLE:   Yes.  It was clearly put to my client ‑ ‑ ‑

CALLINAN J:   No, attend to my question.  You were able to make the forensic point, were you not and you can make it here, that there is a discrepancy between what was put to your client and what was adduced in evidence?  That is a good forensic point.  Whether it gets you home or not is another question.  But it is a forensic point that is available to you absent the opportunity of calling the evidence.  Is that not right?

MR COLE:   I accept that point.  The difficulty I have with the argument ‑ ‑ ‑

KIRBY J:   You want the killer blow, because you want to be able to call the evidence that knocks this crucial conversation on the head by showing that it is given by a witness who is gilding the lily about one aspect of his evidence and therefore is not to be believed about another, that is the way you read it, is it not?

MR COLE:   Well, that is right, but I think because this is the killer point - because although what the Full Court did, the Full Court came along and said, “Well, there were other admissions; there was the admission of Cross and Harmer”.  But when one analyses the admissions of Cross and Harmer they are very insubstantial.  Cross just simply says he mentioned it, and that is the sum total of that evidence, and I have already addressed you previously on how insubstantial Harmer’s was.  My friend has already addressed you on that point.  He should have taken you then on to – if we look at page 687 here – and this is, it seems to me, the basis upon which I say that Harmer’s evidence was insubstantial.  If you look commencing at line 30.  I accept, your Honour, that I had misunderstood the inferred, but the point was that Harmer was saying at lines 19 and 20:

Did I use that word “inferred” in the court?

So he is querying whether he used that.  There is a misunderstanding, but then we go, starting at line 31:

It’s not correct?  So you didn’t infer anything?  I take it that you’re saying that if you had said “inferred” before, now you don’t mean that at all?

And this is the crucial part:

As I understand it, what I was saying to the court was that Mr Goldsmith told me something and I understood what he was telling me.  I don’t recall the exact words.  I recall some of the words because they were a little unusual –

which I take it as a reference to his saying that Goldsmith told him “it bloody hurt” was to use his words –

and from what he told me I then formed my opinion.

Now “opinion”, “inferred”, it does not make any difference.  At the end we are dealing with the situation where Harmer’s evidence of the omission is, he has this animated demonstration to him, which he cannot re-enact, he comes along and says, “Well, I formed an opinion about that.”  That is very insubstantial evidence of an admission.

KIRBY J:   Maybe it is on a statement.  I mean, lawyers expect people to remember what they said five years earlier, word for word; maybe all the truth is that a witness can remember very generally that something was said and from what was said he drew the inference that your client had had his injury whilst playing indoor cricket.

MR COLE:   I understand the point in terms of the elapse of time, but what clearly comes out in the evidence here is this is something that is over and over again being refreshed in his memory, because it is something that right from the start it has been raised with him by Sandilands that they have gone out to the paddock and they have looked at the paddock - what has occurred ‑ and Sandilands is expressing concerns that he may be liable for any judgment that is obtained and they approached the Police Union about this matter, et cetera, et cetera.  So it is not something that five years ‑ ‑ ‑

KIRBY J:   This on the basis of Enever’s Case, that the Commissioner is not vicariously liable?  Has that been fixed up by statute here?

MR COLE:   No, it has not been fixed up yet, but it is a misapprehension, of course; he does not understand that he is covered by SGIC, because he is driving a vehicle that is covered.  It is covered.  There is no suggestion of personal liability, it is just his misunderstanding of what the position is.  So it is not a situation where five years later he is being asked to recollect something he just did not recall previously.  So that, in substance, it seems to me, what the respondent’s case now boils down to is effectively they are trying to challenge the findings of the Full Court, even though they have not lodged an appeal against that decision.  The Full Court’s position was clear in relation to the matter, but they did not regard the matter as being collateral.  It was not argued on the basis that the matter was being

collateral and obviously from the Full Court’s point of view the matter was key evidential evidence that should have been permitted to be adduced.

We would say it would be unfortunate this matter is to be disposed of on the basis that it is to be categorised as collateral given the way in which it was originally raised.  It was raised that way in cross‑examination.  That is the whole basis upon which Mr Sandilands wants to say that he has been to that street, he can identify the features in that street and that is his proof, as it were, that he has been to the indoor cricket street, because he cannot recall the name of the indoor cricket centre, he cannot recall the name of the street. 

So it is not a question of saying, this issue was not about whether it is President Street or whether it is Esther Street, this issue is about the first respondent gave evidence to say, “These are the features of the street that I went to when I picked him up and he made an admission”.  So the starting point is the features in that street.  Those features in the street were put to my client in cross‑examination.  It was also improperly put to him that it was President Street, and it was constantly being put to him that it was President Street.  It was being put to him that it was President Street at Welshpool, which, of course, it was not.  Those are my submissions.

GLEESON CJ:   Thank you, Mr Cole.  We will reserve our decision in this matter.

AT 11.03 AM THE MATTER WAS ADJOURNED