Kettlewell v Bootle

[1994] HCATrans 416

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S189 of 1993

B e t w e e n -

MAUREEN KETTLEWELL

Applicant

and

JOCK BOOTLE, ELAINE BOOTLE and

MALCOLM BOOTLE

Respondents

Application for special leave

to appeal

MASON CJ
GAUDRON J

MCHUGH J

Kettlewell 1 8/8/94

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 8 AUGUST 1994, AT 10.45 AM

Copyright in the High Court of Australia

MR B.S. ROBISON: If the Court pleases, I appear for the

applicant. (instructed by Bull Son & Schmidt)

MR D.F. JACKSON, OC: If the Court pleases, I appear for the

respondent. (instructed by G.M. Meadows, Government

Insurance Office of New South Wales)

MR ROBISON:  Your Honours, this is only a very short point

as far as the special question	is concerned, and it
relates to the manner in which	the New South Wales
Court of Appeal considered the	well established
principles in Jones v Dunkel.	The facts of the
case were very simple.

Two people were travelling in a motor car that

crashed into a bridge, early hours of a Sunday

morning, going from Sydney to Orange or Mudgee.

The issue was as to who was the driver in the car

at the scene of the accident. The appellant was

found behind the driver's seat and in a semi-
comatose state - there is some issue as to what

extent. The authorities arrived and she made an admission to the effect that she was the driver.

At the scene the other person said he was the passenger. Subsequently, the other person and the plaintiff, the two people, made statements to the police that they were in fact the - she being the

driver and he was the passenger.

About four or five days later at a party the

male person said that he had lied to the

authorities and she took him to the police station

and he recanted his story and signed a statement to

the effect that in fact he was the driver and not

the passenger at the time of the accident.

Her evidence at the trial was that she

remembers being asleep with her head resting on the

passenger's side of the car, an old P76 motor car,

before it had crashed into the bridge. She does

not recall the accident. The trial judge was

confronted with a classic example of who to be
believed. We say that the defendant remained in
court physically for about four or five days for
the duration of the trial and not once went into

the witness box, and I made the obvious submission

about Jones v Dunkel.

Now, what I was concerned about in

Their Honours' judgment is this point: that though

the authorities say that Jones v Dunkel codifies

quite clearly, and it was subsequently applied,

there are circumstances which suddenly call upon a

need for a witness to be called and an explanation

to be given. Their Honours, particularly the

Kettlewell 2 8/8/94

judgment of Mr Justice Mahoney, said there are

circumstances which would explain why a person does

not give evidence, and they would be logical things

like somebody had died or they had had a subsequent

accident and things of that nature.

What I am concerned about is that though the

law is - I accept the law as being that there can

be circumstances where there is no need for a

defendant to explain why the defendant did not go

into the witness-box, the court cannot speculate on

a whole variety of reasons why he did not go into

the witness-box. It may speculate on rational

grounds - I should not use the word "speculate" -

it can come to some conclusion on rational grounds
why a defendant did not go into the witness-box, or

a witness did not go into the witness-box - - -

GAUDRON J: was that matter of any consequence in the

ultimate decision because what happened, in effect,

was that - - -

MR ROBISON: That is my stumbling block, as is - if I may

use the expression - Jones v Dunkel does not save

the day, but the fact is - - -

GAUDRON J: The Court of Appeal assumed that had the

evidence been given it would have been to the

effect that that man was the driver - - -

MR ROBISON: That is so.

GAUDRON J:  - - - so he made all the assumptions in your

favour that Jones v Dunkel would allow to be made.

MR ROBISON:  I realize that was my biggest hurdle, one of my

many hurdles, but I am only concerned that a

principle has emerged from this decision that where you have two people have some 'sort of relationship,

there is no need to ever give an explanation. It

can be left up to the trial judge to speculate a

variety of reasons, and one of them there says he

might not want to go to the witness-box to be

cross-examined. It is the principle that emerges

from this case that creates the problem, is my

special question really.

GAUDRON J: But it does not take you the distance.

MR ROBISON:  It does not guarantee success, ultimate success

in the appeal, I suppose, is what it comes down to

it.

GAUDRON J:	Yes •
MR ROBISON:	That is the thrust of my argument,

Your Honours.

Kettlewell 8/8/94

MASON CJ:  The Court need not trouble you, Mr Jackson. The

Court is of opinion that the decision of the

Court of Appeal is not attended with sufficient

doubt to justify the grant of special leave to

appeal.

·MR JACKSON:	I ask for costs in the application.
MASON CJ:	You do not oppose costs do you, Mr Robison?

MR ROBISON: Nothing I can say; Your Honour.

MASON CJ:  The application is refused with costs.

AT 10.51 AM THE MATTER WAS ADJOURNED SINE DIE

Kettlewell 4 8/8/94