Hutchinson v Van Den Berg

[2024] SASCA 117

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

HUTCHINSON v VAN DEN BERG

[2024] SASCA 117

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice S Doyle)

3 October 2024

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES

The appellant sustained injuries after being struck by the vehicle of the respondent, his estranged wife, in the context of an altercation occurring on the driveway of their formal matrimonial home. The appellant brought a claim for negligence, alleging the respondent intentionally collided with him.

The trial judge found that the respondent was acting in a state of fear caused by the appellant’s aggressive behaviour. The trial judge dismissed the claim, finding that the respondent did not owe the appellant a duty of care, or in the alternative, the circumstances were such that no breach of duty was made out.

On appeal, the appellant submitted that the trial judge erred in her approach to fact-finding, and in her approach to both duty of care and breach of duty of care.

Held, allowing the appeal, setting aside the judgment and remitting the matter for trial:

1.The trial judge erred in failing to properly consider all the evidence before making findings in relation to the credibility and reliability of the witnesses.

2.The trial judge erred in only considering the objective physical evidence left at the scene of the incident when assessing the expert accident reconstruction evidence.

3.The trial judge failed to give adequate reasons for her conclusions.

4.It is unnecessary to consider the question of duty of care and breach of duty given that the matter is to be retried.

Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277; AK v Western Australia (2008) 232 CLR 438; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 70 FLR 447; Alubaid v Kilani (2022) 100 MVR 282; Browne v Dunn (1893) 6 R 67 HL; Burke v Corruption and Crime Commission (2012) 289 ALR 150; Camden v McKenzie [2008] 1 Qd R 39; Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; Devries v Australian National Railways Commission (1993) 177 CLR 472; DL v The Queen (2018) 266 CLR 1; Fox v Percy (2003) 214 CLR 118; Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424; Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; Hutchinson v Van Den Berg [2022] SASC 90; Kazal v Thunder Studios Inc [2023] FCAFC 174; Macks v Viscariello (2017) 130 SASR 1; Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191; Murphy (a pseudonym) v The King [2023] SASCA 107; Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77; Ngyuen v Tran (2018) 86 MVR 16; Reid v Kerr (1974) 9 SASR 367; Saravinovska v Saravinovski (No 6) [2016] NSWSC 964; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816, considered.

.  

HUTCHINSON v VAN DEN BERG
[2024] SASCA 117

Court of Appeal – Civil: Kourakis CJ, Lovell and Doyle JJA

1. THE COURT: On 18 April 2014 the appellant was cleaning up his former matrimonial home at 15 Fairway Street, Para Hills (“the premises”). He had arranged for a skip bin to be delivered to the premises and was, along with his son Jamie and his son’s friends, throwing various items into the skip bin when his estranged wife, the respondent, arrived unexpectedly in her vehicle. The relationship between the appellant and respondent was toxic.

2. What occurred at the premises after the respondent arrived was contested. It was common ground that the appellant and the respondent became involved in a verbal altercation, although how it started and what was said was disputed. The appellant alleged that the respondent was angry and acted aggressively towards him as soon as she arrived. The appellant alleged that, during the argument, the respondent deliberately drove her vehicle at him. The appellant was struck by the vehicle and suffered serious injuries.

3. The respondent alleged that the appellant was angry and acting in an aggressive and intimidating manner towards her. In her attempt to flee the scene, and while she was panicking because of the appellant’s behaviour, the respondent accidentally engaged first gear of the vehicle instead of reverse. The car struck the appellant when it moved forward instead of, as she intended, moving backwards. There was no dispute that the respondent’s vehicle struck the appellant and that he sustained serious injuries.

4. The respondent was charged with serious criminal offences arising from the events. The trial was heard before a jury in April 2017. The respondent was acquitted of both charges.

5. The appellant sued the respondent for damages due to the injuries sustained in the incident. As the quantum of the appellant’s claim was agreed, the matter proceeded to trial on the issue of liability only.

6. The trial Judge dismissed the appellant’s claim, finding that the collision occurred while the respondent was acting in a state of fear and panic caused by the appellant’s aggressive behaviour. In those circumstances, the respondent did not owe the appellant a duty of care. In the alternative, the trial Judge found that if the respondent did owe the appellant a duty of care, the circumstances were such that no breach of duty was made out.

7. In deciding the case this way, the trial Judge largely accepted the evidence of the respondent, and rejected the evidence of the appellant and his son Jamie.

   Grounds of appeal

8. The appellant's grounds of appeals may be summarised as follows:

   1.The trial Judge erred in law in:

   1.1     Finding that the respondent did not owe the appellant a duty of care;

   1.2    Finding that no duty of care was owed because the respondent was in a state of panic;

   1.3     Implicitly finding that the duty of care otherwise owed by the respondent was “suspended”; and

   1.4     Failing to give adequate reasons for those findings.

   2.The trial Judge erred in law in finding that, in the alternative, in respect of a duty of care, “the circumstances were such as to bring about a significant reduction in its normal content such that no breach of duty is made out”.

   3.In the alternative to Grounds 1 and 2, the trial Judge erred in:

   3.1     Considering and making findings only in respect of whether the respondent intentionally collided with appellant; and

   3.2    Failing to consider whether the respondent’s conduct otherwise met the objective standard of skill and care required in the circumstances.

   4.The trial Judge erred in the fact-finding process in:

   4.1     Failing to make sufficient findings or to give sufficient reasons;

   4.2     Adopting a fragmented approach to the fact-finding process;

   4.3    That the trial Judge ought to have found that there was ample opportunity for the respondent to have departed the area without incident if that was what she was seeking to do; and

   4.4     Failed to reconcile or properly address a number of incontrovertible facts and evidence.

   5.The findings as a whole have been affected by operative delay in the context of findings of fact that were wholly or at least materially, dependent upon findings as to the credibility of witnesses.

   6.The trial Judge erred in relation to her assessment of the credibility of the witnesses.

9. There is considerable overlap between Grounds 4 and 6.

   The case at trial

10. The appellant and respondent separated in May 2013. Prior to their separation, the appellant and respondent had lived in a house registered in the appellant’s name at the premises with Taylor, their daughter, and one of the respondent’s two elder daughters from a previous relationship, Tori. Following separation and the appellant’s departure from the premises, the respondent continued living in the property and retained the use of a 2010 grey manual Mazda 3 sedan registered in the appellant’s name (“the vehicle”). In or about January 2014, the respondent left the property with Taylor and Tori to live in a women’s shelter. The property was left in a run-down state and was unoccupied for some months. There was a dispute at trial as to the state of the property at the time the respondent moved out. It was sufficiently untidy for the appellant to have organised a skip bin in which to dispose of unwanted items.

11. On 18 April 2014, the appellant attended the premises, accompanied by his son, Jamie, and two of Jamie’s friends, Daniel and Cruz. The appellant’s intention was to clear rubbish and, as mentioned, he had organised a skip bin for that purpose. The skip bin had been delivered, and was positioned on the footpath in front of the premises. While the appellant was at the premises, the respondent drove the vehicle west down Fairway Street towards the premises. Taylor was seated in the front passenger seat.

12. The respondent stopped the vehicle. The precise stopping point was disputed. The appellant alleged that the respondent stopped the vehicle near the skip bin; the respondent stated that she stopped the vehicle to the west of the concrete driveway and parallel to the kerb. It was common ground that when the vehicle stopped, the appellant and respondent argued.

13. The appellant stated that during the initial argument, the respondent reversed the vehicle towards him and Jamie. They had to move behind the skip bin to avoid being hit. The appellant said that he kicked the rear of the vehicle as it moved towards them. Subsequent investigations by the police revealed a shoeprint located on the rear of the vehicle. The respondent then drove forward to a position parallel to the kerb, just to the west of the driveway to 13 Fairway Street.

14. The respondent denied reversing the vehicle towards the appellant near the skip bin and said that she first brought the vehicle to a halt next to the kerb to the west of the driveway to 13 Fairway Street, and that this was where the appellant first argued with her. While the appellant agreed he went over to the front passenger side of the vehicle to speak to Taylor, his precise movements were disputed. The respondent alleged that the appellant was yelling and behaving aggressively which included kicking the passenger side door of the vehicle. A shoeprint, closely resembling the shoeprint detected on the rear of the vehicle, was detected on the passenger side door. Despite the presence of the shoeprint, the appellant denied kicking the passenger door.

15. The evidence suggested that the appellant then went to the driver’s window and argued further with the respondent, and at some point punched the side mirror. Jamie went over and restrained the appellant.

16. The respondent alleged that the appellant then moved to the front of the vehicle, blocking her from driving forwards. She stated that to get away from the appellant, she reversed the vehicle rapidly. She lost sight of the appellant while reversing.

17. It was common ground that the respondent reversed the vehicle rapidly in an arc, driving over the kerb and onto the grass verge. Exactly where the vehicle stopped after reversing was disputed. The appellant alleged that the respondent reversed the vehicle onto the driveway of the premises where he was and then she drove forwards and into or over him on two occasions. Jamie, who said he had seen his father be hit by the vehicle, went to the driver’s side of the vehicle, and punched the windscreen causing it to shatter. He then removed the driver’s side window. Jamie said that he did this to stop the respondent from running over his father again. Jamie was himself run over in the process.

18. The respondent denied that there were two or more forward movements of the vehicle once she stopped in the driveway. The respondent said that she panicked because of the appellant’s aggressive behaviour and then Jamie suddenly appeared, and punched the windscreen and pulled out the driver’s side window. Jamie’s actions frightened her and caused her to panic further so she tried to escape the area. The respondent intended to reverse out of the driveway, but accidentally selected first gear instead of reverse. The vehicle went forward striking the appellant. Still panicking, the respondent said that she reversed and left the premises. The respondent stated that the movement forward and backwards were the only movements of the vehicle in the driveway. That is, she only moved the vehicle forward once and that was only after Jamie’s unexpected actions. Jamie’s unexpected actions, and her response to them, were central to both the appellant’s and respondent’s case.

19. The police were called and attended the premises. Photographs were taken and some measurements made. The police located and photographed tyre marks on the western grass verge of the footpath, and tyre marks on the concrete driveway. Also located were two large pieces of glass which were accepted, at trial, to have come from the driver’s side window pulled out by Jamie. There were numerous small pieces of glass surrounding the two larger pieces of glass (“the glass deposits”). As mentioned, shoeprints on the rear and side of the vehicle were observed and photographed.

20. The appellant gave evidence at trial. He called Jamie and Taylor. He also called Daniel, who did not witness the entire event. The appellant called Mr Hall, a qualified engineer and an expert on accident reconstruction.

21. The respondent gave evidence. She called Mr Griffith, a qualified engineer and an expert on accident reconstruction.

    Findings of the trial Judge

22. The trial Judge accepted the evidence of the respondent. The trial Judge largely rejected the evidence of the appellant, Jamie and Taylor, unless supported by other evidence she was prepared to accept.[1]

    [1]     Hutchinson v Van Den Berg [2022] SASC 90 at [115], [308], [325], [444].

23. The trial Judge stated:[2]

    I am satisfied [the appellant] kicked the front passenger door, walked in front of and stood in the front of the Mazda. [The respondent] did not owe [the appellant] a duty of care once he had kicked the car, punched the driver’s side vision mirror, behaved aggressively and intimidatingly at the driver’s side window and then at the front of the Mazda preventing [the respondent] from driving forward.

    [2]     Hutchinson v Van Den Berg [2022] SASC 90 at [592].

24. The trial Judge found that Jamie unexpectedly and violently smashed the windscreen and pulled out the driver’s side window, causing the respondent to panic and select the wrong gear on the vehicle. Her selection of the wrong gear meant that instead of reversing, she moved forward up the driveway, striking and injuring the appellant. The trial Judge found that in the circumstances of the appellant’s aggressive behaviour, the respondent did not owe him a duty of care and dismissed the appellant’s claim.

25. Given the way the appeal was conducted, it is convenient initially to deal with Grounds 4 and 6.

    Grounds 4 and 6

26. Grounds 4 and 6 relate to the fact-finding process adopted by the trial Judge and her reasoning (and her reasons) based on that process. There is considerable overlap between these grounds, and it is therefore convenient to deal with them together.

27. The particulars supplied on Ground 4 are, strictly speaking, separate grounds of appeal. Whilst they are interrelated, a failure to give sufficient reasons is a different issue to a submission that a trial judge fragmented the fact-finding process. An error in the fact-finding process may lead to a failure to give sufficient reasons. The parties have addressed all three issues: no prejudice results from treating them as a combined ground of appeal.

28. In relation to the appellant’s case, the trial Judge made adverse findings on credibility and reliability against him, and those witnesses called to support his case (apart from the expert evidence). As stated, the trial Judge accepted the respondent’s evidence.

29. The thrust of the appellant’s submissions on these two grounds is that the trial Judge erred in her approach to fact-finding on the issues of credibility and reliability. The appellant submitted that the trial Judge fragmented her fact-finding task by assessing the reliability and credibility of the lay witnesses in isolation from the other evidence in the case and, in particular, in isolation from the independent physical evidence located at the scene. Having approached the evidence of the eyewitnesses in that manner, the trial Judge then assessed the physical evidence and the expert’s explanation of the physical evidence through the prism of her credibility findings. The trial Judge impermissibly impeached the probative force of the independent evidence by using her credibility findings to assess the evidence of a particular witness, rather than considering all of the evidence.

30. The appellant relied on the structure of the trial Judge’s reasons to support his submission that the trial Judge erred in the fact-finding process. That is, he submitted, the fragmented approach to the fact-finding task is apparent on the face of the reasons. The appellant also submitted, relying on specific examples, that the erroneous approach to the fact-finding exercise is clear from the way in which the trial Judge dealt with the objective (physical) evidence. The appellant also submitted that the trial Judge failed to have regard to evidence consistent with the appellant’s case and inconsistent with the respondent’s case before making her credibility findings.

31. Intertwined with this complaint is the appellant’s submission that the reasons of the trial Judge are inadequate. The appellant submitted that the trial Judge failed to deal adequately, or in some respects, at all, with aspects of the appellant’s case.

32. The respondent submitted that the trial Judge did not approach the fact-finding task as the appellant submitted. The trial Judge was faced with a case of conflicting eyewitness evidence in the context of an acrimonious marital breakdown. The events leading to the appellant’s injuries were chaotic and there was little objective evidence located at the scene against which the witnesses’ evidence could be tested. The credibility and reliability of the witnesses were issues central to the fact-finding exercise and courtroom presentation was an essential feature. The respondent submitted that a proper reading of the trial Judge’s reasons does not demonstrate error in her fact-finding approach.

33. The respondent submitted that the trial Judge made clear findings in favour of the respondent and that her findings were adequately explained.

    Legal principles

    Fact finding

34. When considering the question of the adequacy of the trial Judge’s reasons, it is necessary to determine whether, as contended, there was error in the fact-finding process. As Hayne J observed in Waterways Authority v Fitzgibbon:[3]

    Reference was made in argument to the “sufficiency” of the primary judge’s reasons. When it is said that a judge did not give “sufficient” reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer “to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision”. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.

    In the present case, however, reference to the “sufficiency” of the primary judge’s reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.

    (citations omitted)

    [3] (2005) 79 ALJR 1816 at [129]-[130].

1. Most trials involve contested facts. The credibility and reliability of witnesses are often issues central to the final determination of the case. A trial judge can have regard to demeanour when assessing the credibility and reliability of that witness’s evidence. The appellant did not argue to the contrary.

2. On the question of the term ‘demeanour’, Kirk JA in Mt Pleasant Stud Farm Pty Ltd v McCormick observed:[4]

   The impressions formed by seeing and hearing a witness are not limited to impressions of demeanour in some narrow sense of what is observed. What is heard, and the context of the evidence, is also important: note further, generally, White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 at [104]-[109] per Bell P, [155]-[156] per White JA. The tone in which evidence was given may be important. Sarcasm, arrogance, humour or humility may not be conveyed to a subsequent reader of the transcript. Such a reader may not appreciate that an answer was given angrily in response to some provocation, such that its significance is not what might appear from the page. Nor may such a reader understand the impression formed by any pauses in answering a question. Pauses themselves might communicate a diligent care for truthfulness on the one hand, or a crafty search for a path through landmines on the other. Here, for instance, Mt Pleasant sought to rely on claimed concessions made by Mr Hamilton, but a transcript may not fully reveal the courtroom atmosphere which may affect whether a statement against interest is understood as a volunteered concession or a reluctantly forced admission.

   [4]     Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191 at [58] (White JA and Brereton JA in agreeance).

3. What weight a trial judge gives to the demeanour of a witness has been the subject of much judicial comment. The demeanour of a witness can be an important factor when considering whether the witness is credible and reliable. An appeal court, when reviewing factual findings made by a trial judge, must place weight on the trial Judge’s credibility findings based on demeanour as the trial Judge had the “advantage” of seeing and hearing the witnesses.[5]

   [5]     Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186.

4. In Devries v Australian National Railways Commission, Brennan, Gauddron and McHugh JJ observed: ^[6]

   More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against—even strongly against—that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his (or her) advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

   (citations omitted; emphasis added)

   [6]     Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

5. While a trial judge can have regard to demeanour, conclusions as to credibility and reliability of a witness should, as far as possible, be determined on the basis of contemporary materials, objectively established facts and the apparent logic of events. Credibility is a larger concept than demeanour, and demeanour should not be overemphasised in considering credibility.[7]

   [7]     Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277 at [103] (Bell CJ).

6. In Fox v Percy Gleeson CJ, Gummow and Kirby JJ observed:[8]

   It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d’Advances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”):

   ... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

   Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell the truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

   (citations omitted; emphasis added)

   [8]     Fox v Percy (2003) 214 CLR 118 at [30]-[31].

7. The High Court has restated the principles established in Fox v Percy on many occasions.

8. There is no rule of law or practice that states that an adverse finding on any aspect of the evidence of a witness means that the whole of that witness's evidence must be rejected. A finding, however, that a witness has lied about a matter may affect the degree of satisfaction of the existence (or otherwise) of a fact in issue to which the witness’s evidence was directed.

9. If, for example, on some issues a trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter.[9] To put that differently, what is significant is not the mere fact of untruthfulness, but its relevance to the issues in dispute.[10]

   [9]     See Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; Saravinovska v Saravinovski (No 6) [2016] NSWSC 964.

   [10]   Kazal v Thunder Studios Inc [2023] FCAFC 174 at [272].

10. A sound conclusion on the credibility and reliability of a witness’s testimonial account of disputed events cannot be made on the testimony of that witness alone and in isolation. It is in the very nature of the fact-finding exercise that the competing testimonial accounts must be evaluated alongside each other and tested against the accepted circumstantial evidence found at the place(s) in question and on the participants.

11. A judge is required to consider all the evidence and assess the capacity of the individual items of evidence to circumstantially increase (or decrease) the probability of material facts. The rational resolution of an issue involving the credibility and reliability of a witness requires every item of evidence in the case to be judged and weighed. No single item of evidence can have its proper significance considered if it is assessed disengaged from the circumstances of time, place and behaviour supplied by all the evidence. If evidence supports or is consistent with a witness’s evidence, the judge must take it into account before a conclusion is reached on that witnesses’ credibility and reliability as the evidence may tend to make it more likely that the asserted fact is true. That is, assessing the credibility and reliability of a witness requires reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.[11] A judge’s fact-finding exercise should not be approached in a segmented way.[12]

    [11]   Camden v McKenzie [2008] 1 Qd R 39 at [34].

    [12]   Alubaid v Kilani (2022) 100 MVR 282 at [88]; Ngyuen v Tran (2018) 86 MVR 16 at [44]-[54]; Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [66].

12. This is not to say that a judge must accept supportive or consistent evidence as true or probable. The supportive or consistent evidence may be impeached. But unless impeached, it should not be ignored. Importantly, in the process of reasoning, a judge must not ignore the supportive evidence in deciding whether the evidence of a witness was true or probable and then use that conclusion to impeach the supportive or consistent evidence.[13]

    Adequacy of reasons

    [13]   Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424.

13. The duty of a judge to give reasons is a necessary incident of the judicial process. Failure to provide sufficient or adequate reasons can promote a sense of grievance and may deny the fact and the appearance of justice having been done. The judicial obligation to give reasons is directed, in part, to facilitating the exercise of a party’s right of appeal, in addition to promoting public accountability as to how and why a judge has made a particular decision.

14. It is not necessary for a judge to give extensive and elaborate reasons. However, an appellate court should not have to guess or speculate as to what a trial judge may or may not have meant, particularly on an important issue. The adequacy of a judge’s reasons will depend on the circumstances of each case. What constitutes ‘adequate’ reasons is informed by the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.[14] Reasons for decision are to be read fairly and in the context of the way the trial was conducted. Reasons may appear by necessary inference from what is stated expressly.

    [14]   DL v The Queen (2018) 266 CLR 1.

15. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. The function of the appellate court is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of the judicial power.

16. Justice Heydon observed in AK v Western Australia:[15] 

    ... Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed. …

    (citations omitted)

    [15] (2008) 232 CLR 438 at [85].

17. This passage was cited with approval in DL v The Queen.[16]

    [16] (2018) 266 CLR 1 at [33].

18. As Gummow and Hayne JJ observed in AK v Western Australia: [17] 

    ...  The principles of law that are relevant will be identified by reference to the issues in the case. Usually, then, a trial judge will be obliged to identify and record in the reasons what are the elements of the offence in question and which of those elements were in issue. Resolution of the issues in the case will then require not only statement in the reasons of both the principles of law that are applied and the findings of fact the judge makes, but also statement of “the reasoning process linking them and justifying the [findings of fact] and, ultimately, the verdict that is reached”.

    [17] (2008) 232 CLR 438 at [44].

19. When considering a complaint of inadequate reasons on appeal, the majority of the High Court in DL v The Queen explained: [18]

    Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.

    (citations omitted; emphasis added)

    [18]   DL v The Queen (2018) 266 CLR 1 at [33].

20. Thus, a trial judge will ordinarily be expected to expose their reasoning on points critical to the contest between the parties. This expectation applies to both evidence and argument. Ultimately, the reasons must be more than a bare statement of the principles of law applied and the findings of fact made; there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. Reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.

21. The failure to give adequate reasons constitutes an error of law. Where such an error is found, the appeal must be allowed unless the Court is of the view that there has been no substantial miscarriage of justice.

    Structure of the trial Judge’s reasons

22. The trial Judge’s reasons were lengthy. The trial Judge set out, in detail, the examination-in-chief and cross-examination of each witness. The trial Judge stated:[19]

    I have endeavoured to set out a complete account of the evidence I heard. I have done so to demonstrate I have considered all the evidence, to assist in explaining why I have rejected certain evidence and why I prefer one witness’s account over another’s. As a result, my reasons are lengthy and recourse to the exhibits is needed to understand the evidence regarding positions of the Mazda, [the appellant] and Jamie during the events that unfolded on 18 April 2014.

    [19]  Hutchinson v Van Den Berg [2022] SASC 90 at [25].

23. On appeal, the appellant accepted the accuracy of the trial Judge’s evidence summary. The appellant challenged the trial Judge’s approach to fact-finding.

24. The trial Judge, having set out the evidence, then considered whether each witness was reliable and credible. This involved an assessment of the credibility of each witness, informed by admitted or proved inconsistencies in their evidence and an assessment of their demeanour while giving evidence. The trial Judge gave reasons for each assessment by reference to the testimony of that witness alone. The assessment was conducted with little reference to other witnesses’ evidence, and without any analysis of the physical evidence.

25. A trial judge’s written reasons do not always reflect the precise sequence of their reasoning, or indeed the entirety of that reasoning. Findings or conclusions may be mentioned prior to some of the evidence or reasoning relied upon in reaching those findings or conclusions. However, in the present case, it is apparent from her Honour’s reasons as a whole that the trial Judge’s conclusions in relation to the witnesses’ credit were reached separately from, and prior to, any detailed consideration of the balance of the evidence in relation to the key areas of dispute.

26. In relation to her assessment of the appellant’s evidence and each eyewitness he called, the trial Judge concluded with the comment that she ultimately did not accept that witness’s evidence unless supported “by other evidence I accept”.[20]

    [20]   Hutchinson v Van Den Berg [2022] SASC 90 at [115], [234], [308], [325].

27. In relation to her assessment of the respondent’s evidence, despite having some “reservations” about the evidence, the trial Judge found that the respondent gave “a clear account of what she recalled of the collision, was not evasive and did not waiver under cross examination.” Indeed, her Honour then effectively addressed the ultimate issue, adding “I accept [the respondent’s] evidence that she did not collide with [the appellant] intentionally.”

28. Having made findings on reliability and credibility, including in relation to the respondent, the trial Judge then turned to consider the circumstantial evidence of accident reconstruction. As stated, both the appellant and respondent called qualified engineers to speak to this evidence.

29. Having set out, in detail, the examination and cross-examination of both experts, the trial Judge embarked on an assessment of their evidence, having regard also to aspects of the physical evidence. The trial Judge concluded her assessment of the expert evidence by stating that due to the state of the evidence she was not able to accept Mr Hall’s opinion, and that she preferred Mr Griffiths’ opinion, on the key issue of whether the physical evidence was indicative of more than one forward movement of the vehicle in the driveway. The trial Judge observed that “the physical evidence is at least consistent with the manoeuvres [the respondent] gave evidence about.”

30. The trial Judge then made ultimate findings in line with her credibility and reliability findings, having accepted the respondent’s evidence. This included a finding that the appellant had not discharged his onus of establishing that the respondent drove at him intentionally.

31. A proper reading of the trial Judge’s reasons demonstrates that she assessed the credibility and reliability of each witness without regard to the whole of the evidence. While observing that she could not accept the evidence of the appellant or the eyewitnesses he called unless supported by other evidence she accepted, the trial Judge conducted no such assessment of the evidence of any witness called by the appellant, or any of the physical evidence. That is the trial Judge did not analyse their evidence by reference to any other witness’s evidence or the objective evidence called at trial.

32. To put that another way, the trial Judge failed to assess the capacity of the evidence, in particular the physical evidence, to circumstantially increase (or decrease) the probability of the existence of material facts bearing upon the important issues and eventually the ultimate issue.

33. The trial Judge did consider the physical evidence when assessing the expert evidence, but her reasons disclose that she assessed the expert evidence through the prism of her credibility findings. The trial Judge’s reasons demonstrate that she did not reassess the credibility or reliability of the appellant’s evidence or the other eyewitnesses using the objective physical evidence or the expert opinion evidence. Rather her reasons disclose that she impeached the relevance of the physical evidence using her previously concluded credibility findings.

34. In addition to this overarching flaw in the trial Judge’s reasoning process, the appellant relied upon several examples of instances where that process miscarried. These included the failure to adequately address:

    ·the consistencies between the appellant’s witnesses;

    ·the apparent inconsistency between the location of the glass deposits and the appellant’s evidence of only one forward movement in the driveway;

    ·the difficulty in explaining Jamie’s unexpected actions in punching the windscreen and pulling out the driver’s window;

    ·the difficulty in explaining the appellant’s left-hand steer and selection of first gear; and

    ·the inability to explain the appellant’s shoeprint on the rear of the vehicle on the respondent’s evidence.

35. It is appropriate to address each of these in turn.

    Consistencies between the appellant’s witnesses

36. The trial Judge, in her reasons, considered the internal inconsistencies she found established in the testimony of the appellant and each witness called by him. They were proper matters for her to consider when assessing the credibility and reliability of each of these witnesses. Indeed, the appellant accepted that there were inconsistencies in his evidence and inconsistencies between his evidence and the witnesses he called. The appellant on appeal accepted that some of the inconsistencies were not minor. However, the appellant submitted that between the witnesses, there were external consistencies in the evidence which the trial Judge did not consider when assessing the credibility and reliability of the individual witnesses.

1. The appellant pointed to the following consistent evidence between the appellant and his witnesses:

   ·that the respondent pulled up to a position to the east of the driveway of 13 Fairway Street near the skip bin;

   ·that the respondent was yelling loudly and was angry about her things being thrown out and threatened the appellant;

   ·the respondent moved the vehicle to the west of the driveway parallel with the kerb;

   ·the respondent reversed the vehicle, mounting the kerb when the appellant was on the grass verge;

   ·the respondent reversed into a position on the roadway angled towards 13 Fairway Street;

   ·the respondent was revving the engine;

   ·the vehicle travelled forward and collided with the appellant near the western edge of the driveway of 13 Fairway Street;

   ·the appellant was pushed up the driveway;

   ·the respondent then reversed the vehicle a short distance;

   ·although Jamie has no recollection of it, both the appellant and Taylor say the respondent drove forward and into a second collision with the appellant on the driveway;

   ·the position of Jamie and the timing of the smashing of the windscreen and removal of the driver’s window;

   ·the respondent hit and injured Jamie while reversing the vehicle;

   ·the respondent reversed out onto the roadway; and

   ·the respondent was angry and yelling throughout the incident.

2. The trial Judge found that the appellant and his witnesses were unreliable and lacked credit. However, she did so without any reference to the consistencies between the witnesses’ evidence. Her Honour’s failure to do so demonstrates a segmented approach to her credit findings. It was incumbent on the trial Judge to consider the consistencies between the witnesses, or at least explain why the consistencies in their evidence did not support their credibility and reliability.

3. For example, all of the appellant’s witnesses gave evidence that the respondent was angry and yelling abuse. While there was a variation in what the respondent was alleged to have said, the fact that the respondent was angry when she arrived at the premises, and remained so during the incident, was evidence consistently given by the appellant and the eyewitnesses. This was important evidence when considering the respondent’s actions, and why Jamie may have acted in such an unusual manner in punching the windscreen and removing the driver’s side window.

4. That the evidence from multiple witnesses was consistent was a matter the trial Judge needed to consider during the fact-finding process, particularly given that there was no suggestion of concoction. The trial Judge’s fragmented approach of determining credit in advance of, and to the apparent exclusion of, weighing all the evidence, resulted in insufficient weight being attached to the potentially supportive effect of the evidence of each of these witnesses.

   The objective/physical evidence

5. The trial Judge also failed to consider the objective physical evidence before concluding that the appellant and his witnesses were unreliable and lacked credit. She only considered this evidence when assessing the expert evidence.

6. The physical evidence before the trial Judge comprised photographs of the scene depicting tyre marks on the grass verge, tyre marks on the concrete driveway (“the skid mark”), and photographs of pieces of broken glass located adjacent to the driveway. It was common ground that the larger pieces of glass located to the west of the driveway came from the driver’s side window that Jamie had dropped or threw after removing it. It was also agreed that the skid mark was made by right front wheel of the vehicle. The distance from the beginning of the skid mark to where the pieces of glass were located was important.

7. Senior Constable Castle prepared a plan of the scene (not to scale) and this was tendered by agreement.[21] Senior Constable Castle took several measurements in relation to the physical evidence, and these were noted in the tendered plan. The location of the physical evidence was not in issue but what inferences could or should be drawn from the evidence was disputed.

   [21]   Exhibit A5.

8. Senior Constable Castle measured the distance of the skid mark from the western edge of the driveway. He also recorded the distance of the pieces of glass Jamie removed from the vehicle from the western edge of the driveway. To assist in understanding the measurements, Senior Constable Castle placed yellow markers on the driveway and took various photographs of the items of physical evidence and the markers. He placed marker 2 alongside the beginning of the skid mark. Importantly, the recorded distance from marker 2, which indicates the beginning of the skid mark to the edge of the driveway, is 1.8 m. That was common ground. The distance from the western edge of the driveway directly to the glass was 15 cm. The driveway is not consistently the same width; it is wider adjacent to the beginning of the skid mark, than it is at the edge nearer the glass. The distance of the glass pieces from the northern end of the driveway or the kerb was not measured.

   Relevance of the glass deposits and tyre marks

9. Turning to the tyre mark located on the concrete driveway (the skid mark), as discussed earlier it was common ground at trial that this skid mark was caused by the right front wheel of the vehicle and was consistent with the heavy acceleration of the vehicle when moving in a southerly direction. The evidence established that the skid mark began at the northern edge of the driveway. It was also common ground that the change in direction of the skid mark demonstrated that the change in the direction of the vehicle very shortly after moving south was caused by the respondent turning the steering wheel anti-clockwise (referred to as left-hand steer).

10. Pivotal to both the appellant and respondent’s cases were the unusual actions of Jamie in smashing the windscreen of the vehicle and removing the driver’s side window and then dropping or throwing the glass he removed to the ground (“Jamie’s actions”).

11. The respondent gave evidence that after reversing her vehicle over the kerb, she ended up with the vehicle facing south up the driveway. She planned to then reverse out of the drive so that the rear faced west, and she could drive off to the east from where she had come. The respondent was clear that she only moved once in a forward direction on the driveway. She testified that this movement only occurred after Jamie’s actions. His actions caused her to panic, select the wrong gear of her vehicle (first gear rather than reverse) and drive forward in a southerly direction up the driveway. On the respondent’s testimony that there was only one movement of the vehicle up the driveway, the skid mark must have been left on the driveway after Jamie’s actions.

12. The appellant’s case was that the respondent drove and struck the appellant before Jamie’s actions. Jamie’s actions were in response to seeing his father struck by the vehicle, and his effort to stop the respondent from what he anticipated was another attempt to run the appellant over. The physical evidence, on the appellant’s case, demonstrated that Jamie’s actions did not occur while the right front wheel of the vehicle was at the beginning of the skid mark but when it was nearer to the location of the piece of glass. To put that another way, the appellant submitted that Jamie’s actions were not the precursor to the laying of the skid mark. If that submission is correct, the skid mark must have occurred separately from Jamie’s actions; the vehicle must have moved twice up the driveway. If the respondent did drive up the driveway twice, this would support the appellant’s case that the respondent drove at him deliberately.

13. To understand the importance of the physical evidence to the reliability and credibility of Jamie’s evidence, it is necessary to briefly refer to his evidence on this issue.

    Jamie’s actions

14. Having seen the vehicle hit his father, Jamie said that he went to the driver’s side of the vehicle and tried to stop it. Referring to the driver’s side window when giving evidence-in-chief, he said he “pulled [the window] out”. He pulled it towards him and shook it, and it “just popped out”. He then smashed the windscreen so the respondent “couldn’t see”. The vehicle was stationary at this time. After Jamie punched the windscreen, the respondent “started revving it heaps loud” and then she “put a full lock left and ran [Jamie] straight over”. As mentioned, that Jamie’s actions occurred was common ground.

15. Under cross-examination, Jamie said the window was open about 100 mm when he grabbed it with two hands. He said he thought he did not pull out the entire window. While he initially said that he threw the window straight down, he agreed under cross-examination that when dropping or throwing it to the ground he had to “clear” his body so that the glass missed his legs. Counsel for the respondent questioned Jamie as to whether the pieces of glass might have travelled 1 m - 2 m away from the driver’s side window. Having been shown a photograph[22] Jamie stated, “So I didn’t even throw it that far, I literally dropped it by my side. Probably within—it probably went a metre.” That he remained close to the vehicle after pulling out the window is demonstrated by the fact that after he pulled the window out, the vehicle ran over him.

    [22]   Hutchinson v Van Den Berg [2022] SASC 90, Annexure 13.

16. There were no further questions on the topic. It was not put to Jamie that his evidence “it probably went a metre” was wrong.

    Analysis of Jamie’s actions and the glass deposits

17. The important issue is how the two larger pieces of glass, accepted to have been from the driver’s side window, and dropped or thrown by Jamie, came to be in the position where they were subsequently located.

18. The starting point for analysis is the skid mark and its position on the driveway. The photographs establish that the skid mark commences at its northern edge, the very beginning of the driveway. On the respondent’s version of events, as there was only one movement of the vehicle up the driveway, the beginning of the skid mark identifies the position of her vehicle during Jamie’s actions. As the skid mark was caused by the right front wheel of the vehicle, the driver’s side window must have been no closer to the pieces of glass. When performing his unusual actions, Jamie must have been, initially at least, further north than the right front wheel to be in a position to pull out the driver’s side window. That is, Jamie could not have been standing on the driveway when he pulled out the driver’s side window; he must have been in the gutter or possibly even on the roadway.

19. As the trial Judge observed, care needs to be taken attempting to estimate distances from a two-dimensional photograph. However, it is clear from the photographs and the known measurements that the glass pieces must be at least 1.8 m (and most probably more than 1.8 m) from the front right wheel of the vehicle at the beginning of the skid mark. Self-evidently, the driver’s side window is further back than the right front window, in this case further north. For Jamie to have pulled the window out when the right front wheel was at the beginning of the skid mark, he must have been further north than the beginning of the skid mark. Based on the triangulation of those locations, Jamie must have been at least approximately 2 m - 3 m from where the glass pieces were found, assuming the respondent’s version of events is correct. While, as the trial Judge noted in her reasons, there was no direct measurement of the distance from the kerb to the location of the glass pieces, inferences as to approximate distances are available on the evidence.

20. The trial Judge was required to assess Jamie’s evidence in relation to the location of the physical evidence. The position of the glass pieces was highly relevant to the question of whether Jamie pulled the window out when the right front wheel of the vehicle was at the beginning of the skid mark. Jamie’s evidence that he dropped or threw the glass from the window no more than a metre is inconsistent with the respondent’s case that he did so when the vehicle was at the beginning of the skid mark. To put the issue another way, if Jamie pulled out the window when the vehicle was in a different position to that established by the skid mark, then the skid mark must have been made at a different time. Thus, the vehicle must have moved forward more than once—contrary to her evidence and consistent with the evidence of the appellant and his witnesses. Their evidence was thus consistent with the physical evidence.

21. We have earlier in these reasons set out in detail Jamie’s evidence on this topic. Having given evidence-in-chief that he just dropped the glass by his side, he conceded in cross-examination that it may have gone 1 m but not 2 m - 3 m. His evidence on this issue was not challenged.

22. Jamie’s evidence was not only highly relevant to his credibility on this topic it was also highly relevant to the respondent’s credibility and reliability. For the respondent’s evidence to be correct, Jamie must have pulled the window out and thrown the pieces 2 m - 3 m away from where he was standing. If Jamie was unbalanced and took some steps to recover his balance having pulled the window backwards, it is difficult to explain how he was run over by the vehicle.

23. Analysis of this issue was fundamental to the appellant’s case. The credibility and reliability of the appellant, as well as Jamie’s and Taylor’s evidence, needed to be assessed against the location of the physical evidence and Jamie’s actions. As can be seen from the trial Judge’s reasons, she addressed the issue of the relevance of the physical evidence only when dealing with the expert evidence, and after she had made her assessment of the reliability and credibility of Jamie’s evidence. The trial Judge appears to have considered that a decision as to which expert she preferred meant she did not have to consider the physical evidence further. The trial Judge was in error in adopting that approach.

    The trial Judge’s approach to the expert evidence

24. There was much common ground between the experts. A minor difference about the degree of acceleration that occurred when the vehicle reversed over the kerb was of no moment in the trial or on appeal.

25. The main dispute between the experts was whether the physical evidence taken alone could establish that the respondent’s version of events (only one forward movement in the driveway) was not correct.

26. The appellant’s case, supported by Mr Hall’s evidence, was that the two pieces of glass were located too far from where, on the respondent’s case, Jamie pulled out the window and smashed the windscreen. Mr Hall relied upon the absence of glass near the beginning of the skid mark, together with a “trail” of glass pieces closer to where the two pieces of glass were located. Mr Hall opined that the combination of the absence of glass near the skid mark and the later trail, along with the distance between where the respondent said Jamie pulled out the window and the resting place of the two glass pieces, demonstrated that Jamie’s actions did not occur adjacent to the beginning of the skid mark. Mr Hall opined that Jamie’s actions occurred nearer the location of the two glass pieces. This meant the skid mark was made at a different time, and not connected to Jamie’s actions in the way the respondent claimed.

27. Mr Griffiths, the expert called by the respondent, agreed that when Jamie pulled out the window (and it shattered), it was possible that glass may have fallen straight down into the area that it had smashed. He agreed that there was no glass detected near the beginning of the skid mark. However, he said not much could be made of the absence of glass particles in the area.

28. Mr Griffiths disputed Mr Hall’s opinion that Jamie’s actions would have left a trail of glass, and in any event he did not consider that the photographs of the area demonstrated that such a trail existed. Mr Griffiths opined that there were too many “variables” to draw any particular inference from the resting position of the glass pieces and the position of the vehicle when the glass was removed. In particular, Mr Griffiths opined that a person, when pulling the window out, may become unbalanced and therefore take a step or two before dropping the glass.

29. When considering the evidence of Mr Hall, the trial Judge observed that she could not make a finding about whether the glass was removed proximate to where the glass pieces were located as there were no “scale measurements, in particular the distance of the pieces of glass from the kerb”. The trial Judge found that the state of the evidence was such that she was not able “to accept Mr Hall’s opinion that the location of the pieces of glass indicated there were additional motions of the Mazda to those indicate[d] by the tyre mark on the driveway”. The trial Judge accepted Mr Griffiths’ opinion that the rest position of the glass pieces could not be used as a determinant of vehicle movement.

    Discussion

30. The trial Judge concluded her analysis by stating, “Having considered all of the evidence, the physical evidence is at least consistent with the manoeuvres [the respondent] gave evidence about”. With respect to the trial Judge, a finding that if she accepted the truth of the respondent’s evidence then the physical evidence was “at least” consistent with her evidence was not the issue to be resolved. The trial Judge was required to consider all the evidence before making an assessment of the credibility and reliability of the witnesses who gave evidence. By accepting the truth of the respondent’s testimony and only looking to see if her evidence was “at least” consistent with the physical evidence, the trial Judge bifurcated the fact-finding process.

31. Further, it is clear from the trial Judge’s reasons that she considered that an acceptance of Mr Griffiths’ opinion meant that she did not need to consider the physical evidence any further. However, Mr Griffiths’ opinion was in a sense a non-opinion to the effect that, without evidence about the many “variables”, no conclusion or no reliable conclusion could be drawn. However, inferences which the trial Judge may have drawn if the force of the circumstantial evidence had not been undermined by premature credibility findings would have replaced some of the unknown variables with known facts.

32. The trial Judge did not analyse Jamie’s evidence about what he did when he pulled out the driver’s side window. Rather, she simply put the physical evidence to one side, having accepted Mr Griffiths’ opinion that there were too many variables to draw a conclusion. Mr Griffiths was not asked to give his opinion assuming the evidence given by Jamie was correct. Even accepting Mr Griffiths’ opinion that there are many “variables”, Jamie’s evidence gave content to the main variable, that is how far away he dropped or threw the pieces of glass having removed the window. As mentioned below, Jamie’s evidence on this issue was not challenged.

33. Determining that she preferred the opinion of Mr Griffiths, which was given in the abstract and not related to the actual evidence, to that of Mr Hall was not the appropriate way to deal with the physical evidence. What was required was that the trial Judge have regard to the physical evidence as it related to each of the witnesses’ evidence, and before she had drawn any conclusion as to the credibility and reliability of each witness. She was in error in not doing so.

34. It is necessary to make some further points.

35. The trial Judge was correct to observe that there was no specific measurement of the distance of the glass pieces to the kerb. The trial Judge stated that because there was no “scale” measurement of the distance between the two glass pieces and the kerb she could not make any finding that that the state of the evidence meant she could not accept Mr Hall’s opinion.

1. Regardless of whether that was a proper basis to reject Mr Hall’s opinion, as mentioned earlier, there were a number of specific measurements available to assist in determining the approximate location of the glass pieces and their distance from the beginning of the skid mark. The trial Judge was required to consider all the evidence, including the specific measurements, when considering Jamie’s evidence (and indeed that of all witnesses). A rejection of Mr Hall’s opinion did not relieve the trial Judge of considering the physical evidence further, and drawing inferences where appropriate.

2. In any event, the trial Judge’s reasons on this topic are inadequate. The trial Judge did not explain why she would reject Jamie’s unchallenged evidence on this topic. We deal later with the issue of Browne v Dunn.[23]

   [23] (1893) 6 R 67 HL.

3. There was other evidence relevant to this topic that the trial Judge did not assess, namely the reason for Jamie’s actions. Jamie’s actions were unexpected and the respondent conceded that she had not known Jamie to be a violent person. And the evidence of his actions on that day also suggested that Jamie had been attempting to calm and restrain his father, rather than acting aggressively himself.

4. The trial Judge said that the state of the evidence did not “permit [her] to make a finding as to what caused Jamie to punch and/or pull out the window and punch the windscreen”. The trial Judge gave no further reason for that conclusion. It appears to be a conclusion based on her assessment of the witnesses without reference to the physical evidence. Whilst the trial Judge mentioned the possibility that Jamie might have seen his father be bumped by the vehicle as it reversed in an arc over the kerb, this was not based on any evidence given by, or put to, Jamie. It involved speculation that was difficult to reconcile with the other evidence as to the appellant’s location at various times.

5. Unexpected behaviours are not uncaused; the causes may be more difficult to discover. But the behaviour of Jamie was particularly unusual. And he gave a plausible explanation.

6. There were two aspects of his explanation which required assessment. First, Jamie said that he saw his father struck by the vehicle before he took the action of smashing the windscreen and pulling out the driver’s side window. This was inconsistent with the respondent’s evidence; she said she ran over the appellant after Jamie’s unexpected actions. The second aspect is the actions he actually took. Jamie said his action in smashing the windscreen was his attempt to block the respondent’s “line of vision” so she could not drive at the appellant again. He said he did not know what else to do and that he was trying to stop the respondent from driving over the appellant again. The question naturally arises as to what it was about the respondent’s behaviour that indicated to Jamie that she would attempt to run over the appellant again? On Jamie’s evidence, and that of the other witnesses, it was the respondent who was the aggressor.

7. Jamie’s explanation for his unexpected actions was unchallenged.

8. Trial counsel for the respondent was in a difficult position as the respondent, in her evidence, denied that her vehicle struck the appellant before Jamie’s unexpected actions. She gave evidence that she had to reverse quickly from the kerb as the appellant was standing in front of the vehicle stopping her from going forward, making it most unlikely that the vehicle could have struck him while reversing. Thus, counsel’s instructions did not allow him to put the positive proposition that the vehicle somehow struck the appellant during the reversing manoeuvre. Counsel understandably tried to elicit such a concession during cross-examination, but Jamie denied it. Jamie maintained that the respondent deliberately ran over the appellant, not that the appellant was simply bumped during the reversing arc. He reacted because she had deliberately run the appellant over. The appellant’s evidence, although somewhat unclear, did not support the respondent’s position, and as mentioned, the respondent denied it.

9. Counsel for the respondent was also in a difficult position on the topic of Jamie’s motive for his unexpected actions. This is particularly so regarding his action in smashing the windscreen which, on the evidence of Mr Griffiths, would have required considerable force. That Jamie felt the need to obscure the respondent’s view supports the appellant’s case that whatever the movements of the vehicle were, Jamie thought that the respondent needed to be stopped from running over the appellant again. Such actions support the appellant’s case that the respondent was acting aggressively. While cross-examining Jamie to the effect that he was somehow mistaken on his need to smash the windscreen might have been met with a negative response, such a proposition should have been put to Jamie to give him an opportunity to comment. With the denial that the vehicle could have struck the appellant while undertaking the reversing manoeuvre, Jamie’s explanation for smashing the windscreen should have been challenged.

10. In our view, the failure to challenge Jamie on his motivation for his unexpected actions was a breach of the rule in Browne v Dunn. The same comment applies to the failure to challenge Jamie on his evidence that he dropped or threw the glass pieces no more than one metre from where he was standing. The evidence of Jamie on these issues was highly relevant to the appellant’s case.

11. The rule enunciated in Browne v Dunn is one of practice or procedure based upon general principles of fairness. The principles are well known.[24]

    [24]   Reid v Kerr (1974) 9 SASR 367 at 374 (Wells J); Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 70 FLR 447 at 462; Macks v Viscariello (2017) 130 SASR 1 at [461]; Burke v Corruption and Crime Commission (2012) 289 ALR 150 at [180]; Murphy (a pseudonym) v The King [2023] SASCA 107.

12. In Macks v Viscariello[25] the Full Court observed that while the rule is one of practice designed to achieve fairness to witnesses and a fair trial between the parties, it is also relevant to the weight or cogency of the evidence. As a general proposition, evidence which is not inherently incredible and which is unchallenged ought to be accepted. The evidence may, of course, be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection. There is, however, no rule of law that a court must accept unchallenged evidence.[26]

    [25] (2017) 130 SASR 1 at [463].

    [26]   DL v The Queen (2018) 266 CLR 1.

13. Self-evidently, there was no contradictory evidence of Jamie’s motive. It is likely that the trial Judge rejected his evidence on these topics because of her earlier assessment of his credibility and reliability. However, that assessment did not consider the physical evidence. It is an error in the fact-finding process to reject the physical evidence and the evidence of Jamie’s explanation for his unexpected actions because of the earlier, and fragmented, finding as to his credibility and reliability. All the evidence needed to be assessed in its entirety before findings on credibility and reliability were made. Jamie’s actions and the assessment of the physical evidence were matters relevant not just to an assessment of his evidence but also relevant to an assessment of all the appellant’s witnesses. They consistently stated (although to differing degrees) that the respondent was the aggressor. By fragmenting the fact-finding process, the trial Judge failed to consider Jamie’s actions and the fact that his evidence supported the other witnesses on the issue of the respondent’s aggression.

14. The trial Judge did not deal with the objective physical evidence and Jamie’s explanation for his unexpected actions. There was no analysis as to why Jamie’s explanation, taken in conjunction with the undisputed facts that he smashed the windscreen and pulled out the driver’s window, should be rejected. The trial Judge simply found that Jamie’s actions were unexplained. The trial Judge failed to have regard to these matters before reaching an assessment of the reliability and credibility of the appellant, Jamie and Taylor. That is an error in the fact-finding process. Her reasons are also inadequate.

15. Given the lack of challenge to Jamie’s evidence on these topics, the trial Judge was required, given the importance of the issue, to explain why she rejected his evidence.

16. Jamie’s evidence, particularly as to why he felt the need to smash the windscreen, was credible. Jamie’s evidence on these issues, supported by the physical evidence, stood as an obstacle to accepting the respondent’s version. As the Court in Macks v Viscariello observed:[27]

    Reasons are not necessarily adequate because they reveal a chain of reasoning leading to a conclusion. A conclusion is not to be drawn from a collection of convenient facts that lead inevitably to that particular result. What is required is a careful assessment of all of the relevant facts, and where necessary, an explanation as to how the “inconvenient” facts can be put to one side or given little weight. As has often been said a fact does not cease to exist because it is ignored.

    [27]   Macks v Viscariello (2017) 130 SASR 1 at [523].

17. A breach of the rule in Browne v Dunn is of course not fatal to the respondent’s case. The trial Judge did not necessarily have to accept Jamie’s evidence. However, the trial Judge was required to explain why, in the absence of a challenge, she rejected the evidence which on its face was credible and supported by objective evidence. She did not do so; her reasons are inadequate.

    Further physical evidence - left steer and first gear

18. It was common ground between the experts that the skid mark demonstrated that as the vehicle travelled forwards under heavy acceleration it veered to the left. That is, having commenced to travel in south-westerly direction up the driveway, the vehicle quickly veered to travel in an approximately south-easterly direction. The change of direction occurred almost immediately after the respondent selected first gear and then accelerated so that her vehicle commenced to move forward. Both experts agreed that there had to be a conscious (intentional) decision to move the steering wheel (although not necessarily a deliberate act to injure the appellant).

19. Contrary to the objective evidence of the skid mark, and the undisputed expert evidence, the respondent denied ever applying left steer input (turning the steering wheel in an anti-clockwise direction) as she moved forward up the driveway. Indeed, the respondent gave evidence that as she was intending to reverse rather than go forward she was looking behind her. Despite the evidence the trial Judge stated that the change of direction could be steering “away from an obstacle or a reaction to something”. There was no evidence to support that conclusion.

20. The appellant submitted that the application of left-hand steer was important for a number of reasons.

21. First, a left-hand steer was objective evidence consistent with the respondent intentionally steering the vehicle towards the appellant who was on the driveway.

22. Secondly, a left-hand steer was inconsistent with the respondent’s evidence as to her proposed path of travel. The respondent gave evidence that she had just completed a reversing manoeuvre with right-hand steer (turning the steering wheel in a clockwise direction). The respondent said she intended to reverse from the driveway and then travel east on Fairway Street. To complete that manoeuvre the right-hand steer would be maintained.

23. Indeed, in order for the respondent to leave as she said she intended, not only would there have been no need for her to shift from a right-hand steer to a left-hand steer, there would also be no need for her to change gear from the reverse gear. The respondent was not able to explain how she came to mistakenly select first gear when, on her evidence, there was no occasion for her to be changing gear at all.

24. Both the unexplained left-hand steer and selection of first gear were instances of objective evidence that should have been weighed in the assessment of the various witness accounts. They were both consistent with the evidence given by the appellant’s witnesses, and a significant impediment to accepting the respondent’s evidence.

25. The trial Judge, as with the other physical evidence, did not analyse the relevance of the respondent’s change of gear or direction before making her findings on the credibility and reliability of the appellant and his witnesses. Nor did the trial Judge make any clear findings about these matters.

26. The trial Judge did not make any findings about the left-hand steer other than to observe:

    Despite [the respondent’s] denial of any left-hand steer input the forward manoeuvre changed direction to the left. Left-hand steer may have been applied upon [the respondent] realising she was in the wrong gear.     

27. As to how the respondent came to change gears, the trial Judge suggested only that Taylor may have pulled the vehicle out of gear, requiring that the respondent re-engage the gears, despite the respondent denying this and saying that she did not know how the vehicle got out of reverse and into first gear.

28. The trial Judge’s reasons demonstrate that she did not consider any of the appellant’s submissions about the relevance of the left-hand steer evidence when assessing his evidence and that of his witnesses. The trial Judge’s approach to this aspect of the physical evidence was to accept the respondent’s version of events and then speculate on a possible reason (for which there was no evidence) to account for the left-hand steer of the vehicle. There is a similar difficulty with her reasoning in relation to the change in gear.

29. The trial Judge’s reasons demonstrate an error in her approach to fact-finding.

30. In any event the trial Judge has failed in her reasons to adequately deal with both the evidence and the appellant’s submissions on these issues.

    Shoeprint on the boot of the vehicle

31. Both the appellant and Jamie gave evidence that the respondent initially pulled her vehicle up alongside the skip bin and, after a verbal altercation, the respondent reversed the vehicle towards them at which point the appellant kicked the back of the vehicle leaving a shoeprint.

32. The photographic evidence clearly shows a shoeprint on or near the rear bumper of the vehicle. The presence of the shoeprint was a piece of objective evidence that supported the appellant and Jamie’s version of events as to how the incident began. It was capable of demonstrating that the respondent was aggressive towards the appellant from the beginning of the incident, an allegation which she denied.

33. The appellant was cross-examined about the content of his original insurance claim form. There were a number of issues about the content of the form and counsel for the respondent questioned the inconsistencies between the appellant’s evidence at trial and the version of events contained in the form. Although the form had been filled out by his solicitor at the time, the appellant had signed the form stating its contents were true and correct. On the issue of whether the respondent reversed the vehicle towards him while he and Jamie were by the skip bin, the appellant accepted that this event was not mentioned in the claim form.

34. Counsel for the respondent put to the appellant that the incident was not mentioned in the claim form because it did not happen. The appellant said, “No that’s incorrect”. There was no cross-examination, nor did there need to be, about the presence of a shoeprint on the rear bumper of the vehicle. The respondent gave evidence denying that she drove at the appellant adjacent to the skip bin.

35. As mentioned, Jamie gave evidence that supported the appellant’s evidence that he kicked the back of the vehicle when they were near the skip bin. Jamie was not cross-examined about that aspect of his evidence.

    The trial Judge’s approach

36. The trial Judge stated:

    I am unable to find [the respondent] stopped adjacent to the skip bin, as alleged by [the appellant] and Jamie, and reversed back at them. This allegation is denied by [the respondent], and Taylor’s evidence does not support it. Further it is not referred to by [the appellant] in his description of the collision in the Allianz claim form.

37. In making that finding, the appellant submitted that the trial Judge made no mention about the presence of the shoeprint on the rear bumper bar. This was evidence that needed to be considered and not ignored. The failure to mention the incident in the claim form needed to be considered against the presence of the shoeprint. There was no evidence that could account for the presence of the shoeprint other than what the appellant and Jamie suggested. The respondent reversing her vehicle and the shoeprint on the rear of the vehicle were issues that were inextricably linked.

38. Further, the appellant pointed to the manner in which the trial Judge decided a different issue. An issue at trial was whether the appellant at some later stage during the incident kicked (and dented) the passenger side of the vehicle. He denied doing so despite the presence of a shoeprint on the side of the vehicle. The trial Judge found that the appellant did kick the side of the vehicle. When making that finding the trial Judge stated:

    I do not accept [the appellant’s] evidence about not kicking the side of the Mazda. [The appellant] admits kicking the left rear of the Mazda and the muddy shoe print depicted in the photograph at page 123 of exhibit A10 is the result of that kick. That muddy shoe print appears remarkably similar to what appears to be a muddy shoe print on the front passenger door depicted in the photographs at pages 125 and 127 of exhibit A10.

39. The appellant submitted that in making that finding, the trial Judge used the appellant’s admission that he kicked the rear of the vehicle and the similarity in the footprint on the rear of the vehicle and to that on the side of the vehicle. However, when assessing the appellant (and Jamie’s) credibility and reliability, the trial Judge found that the incident did not occur. The approach of the trial Judge was inconsistent.

40. There was no suggestion, nor evidence, that the appellant could have kicked the rear of the vehicle at any other time.

41. There is an obvious incongruity in the trial Judge’s finding that the incident did not occur but then using the very occurrence of that same incident to make an adverse finding on the later issue. It is another example of the trial Judge failing to properly consider the physical evidence before drawing adverse conclusions on the credibility and reliability of the appellant and his witnesses.

42. In any event, the trial Judge failed to give adequate reasons as to why she rejected the appellant’s (and Jamie’s) evidence about the incident at the skip bin given the presence of the shoeprint on the vehicle.

    Conclusion

43. As discussed, the trial Judge has erred in her fact-finding process. We have approached the discussion of the physical evidence in a piecemeal fashion when demonstrating error. However, it was incumbent on the trial Judge to look at all the issues together before drawing any conclusions as to the credibility and reliability of the appellant and his witnesses. In isolation, all the abovementioned matters demonstrate error, but they gain more force when combined.

44. The reasons of the trial Judge disclose that she erred in her approach by considering the objective evidence through the prism of her premature credibility and reliability findings.

45. The error in her approach has led to her reasons, as discussed, being inadequate. The trial Judge’s reasons do not engage adequately with the case presented by the appellant. The failure of the trial Judge to consider properly the objective evidence that was fundamental to the appellant’s case and indeed critical to the proper determination of the issues involved, has caused a miscarriage of justice.

1. The appeal must be allowed on both Grounds 4 and 6.

2. The question arises as to whether there should be a retrial or whether this Court can make findings itself. As is evident from these reasons, the credibility and reliability of all the witnesses (including the respondent) was crucial to the resolution of the matter. The trial Judge erred in her approach such that it has led to a miscarriage of justice. However, the physical evidence is simply one aspect, although a very important aspect, in the overall assessment of the witnesses’ credibility and reliability. This Court has not had the benefit of seeing and hearing the witnesses; it is not in a position to determine the issues of reliability and credibility.

3. Regrettably, the only course open is to set aside the judgment and remit the matter for trial before another judge.

   Grounds 1, 2, 3 and 5

4. Given the matter is to be retried, there is no utility in deciding the other grounds of appeal. In particular, questions of whether a duty of care was owed and the content of any such duty of care are matters that can only be determined once the facts are decided.

   Notice of Alternative Contentions

5. For the same reasons, there is no occasion or utility in addressing the issues raised on the respondent’s notice of alternative contentions.

   Order

6. The appeal is allowed.

7. The judgment in favour of the respondent is set aside.

8. The matter is remitted for trial before another judge.