R v Musolino

R v MUSOLINO
[2003] SASC 203
Court of Criminal Appeal: Duggan, Debelle and Lander JJ

DUGGAN J. I agree with the reasons of Lander J in relation to the evidentiary question raised in the second ground of appeal.
I make the following comments on the directions given to the jury by the trial judge on the cross-admissibility issue.
The trial judge told the jury that counts 4, 6 and 11 to 16 in the information “relate to conduct of a similar nature”. He then gave the direction which is set out in the judgment of Lander J.
The evidence concerning these counts was cross-admissible within the group of counts referred to above because of its tendency to establish a systematic course of fraudulent conduct. This, in turn, was relevant to proof of the intention of the appellant and in order to rebut the different explanations advanced by him as to why he had been entrusted with the monies given to him by the complainants and what he had done with those funds on each occasion.
In the course of argument our attention was drawn to The Queen v Hayes (1986) 128 LSJS 460 and Gibbs v The Queen (1990) 58 SASR 347. In each case the accused was charged with a series of fraud offences and the adequacy of directions on similar fact evidence was considered on appeal. The directions in each case were held to be adequate.
It is important to note, however, that the directions in these cases went beyond the bare instruction which was given in the present case that evidence of such conduct is admissible to supply evidence of intent.
In Gibbs the trial judge said (350):
“Evidence of similar conduct on other occasions, either before or after the particular incident with which the accused is charged and you are considering, is admissible in order to supply evidence of the required intention on his part; that is to say, for the purpose of showing a dishonest intent, or a guilty state of mind accompanying the transaction which forms the basis of that particular charge. Evidence of conduct on other occasions (that is, other counts) may be given in order to establish a formulated plan or system, to establish that the accused has done similar things, on other occasions, as part of a system practised by him and according to a plan. Evidence of that kind may be brought in aid to support the case for the prosecution on the issue of the accused’s intention to defraud, and to discredit a defence that he had no such intention, a defence that he had a mistaken or innocent purpose, or a reasonable or honest motive, in carrying the particular transaction into effect. But, before you can take those other transactions, or that evidence of similar conduct on other occasions, into your deliberations, you must be satisfied that the facts, which are alleged to constitute each of those transactions, are proved upon the evidence; in other words, that the facts required to be proved in relation to each transaction have been proved.
If those facts are proved, then you may consider whether the evidence, relating to the transactions on which each separate charge is based, shows that it was part of a plan or scheme designed by the accused, or to which he was a party, for the purpose of obtaining money deceitfully. You may ask yourselves whether there is a peculiarity, similarity, or repetition of the circumstances of each transaction; whether there is some kind of nexus or connection which binds the alleged crimes together; whether the evidence shows that there was such a unity of character about all of the transactions as to indicate that they were all part of one dishonest expedition, and that each transaction was accompanied by a guilty mind on the part of the accused.
If you are satisfied that any particular transaction charged was part of a plan, scheme or system adopted by the accused in order to obtain, or attempt to obtain, the property from the various persons concerned (referred to in the eight counts) by the making of false pretences with regard to these cheques, then that circumstance may be taken into consideration in determining whether the accused had a guilty mind and an intent to defraud in respect of each transaction alleged.
Remember, however, that a plan or system is not necessarily criminal. Conduct of a similar character, taken alone, may be innocent, as the accused would have you, here, accept that his conduct was (that he had no awareness of the theft of these cheques and the fact that they were invalid orders); conduct, as I say, of a similar character, taken alone, may be innocent, but, if repeated in all essential elements and details, you may well infer that the conduct was designed and intentional and motivated by no other purpose or desire than dishonestly to benefit the doer of the act, or some other person, to the loss or detriment of another person (that is, the people parting with the cash). But I stress, again, that each count must be considered separately and that the evidence of other alleged offences charged as the basis of the separate counts can only be taken into consideration if those acts have been proved to your satisfaction to be criminal, and the evidence as a whole discloses what may be called a formulated plan or system on the part of the accused. It does not suffice merely that the evidence in support one charge makes it more comfortable to convict on the other charges. It must be evidence with respect to each separate count which satisfies you of the accused’s guilt beyond reasonable doubt.”
In Hayes at 468 the trial judge told the jury that similar facts may be admissible:
“In order to supply evidence of the required intent on his part that is to say, for the purpose of showing a dishonest intent or a guilty state of mind, accompanying the transaction which forms the basis of the particular charge. Evidence of conduct on other occasions may be given in order to establish a formulated plan or system, that the accused has done similar things on other occasions as part of a system practiced by him and according to a plan … If those facts are proved, then you may consider whether the evidence, relating to the transaction on which each separate charge is based, shows that is was part of a plan or scheme designed by the accused for the purpose of obtaining money dishonestly… But I stress, that each count must be considered separately and that the evidence of other acts charged as a basis of the separate counts can only be taken into consideration if those acts have been proved to your satisfaction, and the evidence as a whole discloses what may be called a formulated plan or system on the part of the accused. I also stress that it does not suffice merely that the evidence and support of one charge makes it more comfortable to convict on the other charges. It must be evidence with respect to each separate count which ill bring home the guilt of the accused to a reasonable mind with sure conviction, that is, convinces you of his guilt beyond reasonable doubt.”
See also R v Zoneff [2001] SASC 443 at [127].
In my view, the direction to the jury on this issue in the present case was inadequate. There was no explanation as to how similar conduct on other occasions was relevant to intent. The shorthand reference to similar conduct being relevant to supply evidence of a dishonest intent is well known to lawyers, but further explanation is required in order to explain the concept adequately to jurors. As I have said, the relevance of the evidence lay in its tendency to establish a fraudulent plan or system and in its further tendency to rebut the appellant’s claim of innocent dealing in each instance. This was not explained to the jury.
The question remains whether these inadequacies in the summing-up might have led to a miscarriage of justice. Later in his summing-up in a passage which is also set out in the judgment of Lander J the trial judge gave an adequate warning to the jury not to infer guilt on one charge simply because of the finding of guilt on another charge.
In the end result, I am of the view that, whereas the permissible use of the evidence was not satisfactorily explained to the jury, there was no danger of impermissible reasoning. In these circumstances there was not a real risk of a miscarriage of justice and the appeal should be dismissed.
DEBELLE J. I have read the draft reasons of Lander J. I agree with his conclusions. I agree that the appeal should be dismissed.
LANDER J. This is an appeal against conviction. The appellant was charged with 16 counts of fraudulent conversion which were alleged to have been committed between 1 June 1999 and 1 March 2000.
He pleaded not guilty but was convicted of 15 of the counts. The jury acquitted him of count 5. It reached unanimous verdicts on all other counts except counts 1, 3 and 8 upon which it reached majority verdicts.
The applicant sought to obtain leave to appeal against conviction and leave was granted on the following grounds 2 and 4:
2The trial Judge erred in ruling that in ruling that the evidence of the 16 counts with which the appellant was charged was “cross admissible” and further or in the alternative His Honour’s directions [summing up pp 31-34] were erroneous in that they;
2.1failed to indicate the limits of permissible use;
2.2failed to indicate impermissible use and warn against propensity reasoning, that the appellant was a person likely to commit the offences or that he was a person of bad character.
2.3failed to instruct the jury as to the alleged “similar conduct on occasions” [summing up p 32] that would entitle the jury to consider other counts as “similar fact evidence”;
2.4failed to indicate or identify for the jury which “group of charges” they were entitled to consider in relation to which other group or charges.
3...
4The trial Judge erred in refusing to allow evidence to be called in the defence case [transcript pp 962] showing that the witness Nick Assiotis had made a statement inconsistent with his evidence [transcript pp 276] and also going to his credit.
The Barnacle Bill restaurants are franchises. The franchisor is BBSA Pty Ltd.
Steve and Nick Assiotis conducted two Barnacle Bill franchises, one at Elizabeth and one at Salisbury through a company Barcorp Trading Pty Ltd.
The prosecution case was that from time to time the Assiotis brothers had disagreements with the franchisor. Almost invariably they dealt with George Leonida.
The Assiotis brothers believed Mr Leonida to be difficult and a nuisance. They thought it was in their interest to put Mr Leonida out of business. Mr Leonida had become bankrupt in 1999 and prior to his bankruptcy he was the proprietor of the business name Barnacle Bills and owned the trademarks. Before he became bankrupt he sold the trademarks to BBSA Pty Ltd.
Mr Nick Assiotis knew the directors of BBSA Pty Ltd who, he believed, were close friends of Mr Leonida. It was Mr Assiotis’s view that Mr Leonida had transferred the assets which he had owned prior to his bankruptcy to BBSA Pty Ltd to avoid the assets vesting in Mr Leonida’s trustee in bankruptcy.
Mr Assiotis only ever dealt with Mr Leonida and not the directors of BBSA Pty Ltd and therefore reached the conclusion that in fact it was Mr Leonida, a bankrupt, who was behind BBSA Pty Ltd.
Mr Assiotis made his thoughts known to a person by the name of Karl Reinboth, who introduced him to the appellant, describing the appellant as a person who may be able to assist Mr Assiotis.
The appellant had told Mr Reinboth that he worked for the Commonwealth Government as an auditor, but was on leave for 12 months.
The appellant was introduced to Mr Nick Assiotis in April 1999 at Mr Assiotis’s restaurant at Elizabeth. The appellant introduced himself as a manager of the Audit Investigation Branch for the Commonwealth Government. That representation on the prosecution case was false. The appellant did not ever work for the Australian National Audit Office. In fact he had these cards printed by a printer at Thebarton.
Mr Assiotis told the appellant that he believed that Mr Leonida was in fact the driving force behind BBSA Pty Ltd. He told the appellant that he believed it was in his interests to expose Mr Leonida because of the ramifications in his bankruptcy.
The appellant told Mr Assiotis that, subject to the agreement of his employer, he would look into the matter. It would mean making inquiries with the Australian Securities And Investment Commission, obtaining documents relevant to Mr Leonida’s bankruptcy and undertaking surveillance of Mr Leonida.
He told Mr Assiotis that he would need money transferred to his account to pay for those inquiries and that surveillance. He told Mr Assiotis there would be little change out of $20,000.
Mr Assiotis was also persuaded to invest money with the appellant. Mr Assiotis was told that the appellant could obtain a high return. Mr Nick Assiotis gave Mr Karl Reinboth a cheque for $4,000 in April 1999 which was to be invested over a short period for which he was to obtain an interest return of $1,500.
In fact when Mr Nick Assiotis next met the appellant, the appellant paid him $5,500 as he had represented he would.
At that same meeting the appellant told Mr Assiotis that he had obtained information relating to Mr Leonida’s bankruptcy and had commenced surveillance. On the next day Mr Nick Assiotis transferred to the appellant the sum of $3,965 for the purpose of financing the surveillance and investigation into Mr Leonida’s affairs.
Further sums were advanced from time to time for the same purpose and they comprise other counts.
A little later the appellant suggested to Mr Assiotis that Mr Assiotis should buy Mr Leonida’s debts in bankruptcy. He told Mr Assiotis that all the debts could be bought for about $90,000-$100,000.
Mr Nick Assiotis said he did not have that sort of money. A meeting was arranged with Mr Nick Assiotis’s brother, Steve, his brother-in-law, Jim Dimitrious, Mr Karl Reinboth and the appellant.
At that meeting the appellant explained why it was in Mr Assiotis’s interest to buy Mr Leonida’s debts. Two reasons were put forward. First, if the debts were purchased Mr Assiotis could instruct or influence the trustee in bankruptcy to act in a particular way. Secondly, if in due course the Barnacle Bill assets vested in the trustee in bankruptcy, there was a prospect of making a profit on those debts.
No decision was made at that meeting. Whilst those present thought that the idea had some merit they all wished to speak to a Mr Michael Nicolaou, Mr Jim Dimitrious’s brother-in-law. Eventually a further meeting was held at which all of those at the first meeting were present and Mr Michael Nicolaou.
At this second meeting a further tactic was discussed. It was suggested that perhaps the people present at the meeting could buy shares in BBSA Pty Ltd itself. It was decided, that each of those present, except Mr Nick Assiotis, would contribute $30,000. Mr Nick Assiotis would contribute only $10,000 because he had already spent $15,000 to $20,000 on the investigation.
The money was to be given to the appellant and he was to set up a company NJSMK Pty Ltd which would purchase the shares in BBSA Pty Ltd.
It was agreed that the appellant would obtain 5 per cent of the shareholding in exchange for his involvement in the negotiations to purchase the shares.
It was proposed that the appellant would approach Mr Arezina, a director of BBSA Pty Ltd, and tell him that the appellant’s syndicate was aware of the transfer by Mr Leonida of his interest in Barnacle Bills to BBSA Pty Ltd. The intention was to induce him to sell his shares to the syndicate. It was suggested that he would be frightened by the information and he would be keen to sell his shares.
It was explained to the participants that if they purchased the shares in BBSA Pty Ltd and Mr Leonida’s debt, they would become entitled to the Barnacle Bill assets whatever happened. If the trustee in bankruptcy did not move to set aside the transfer from Mr Leonida to BBSA Pty Ltd then they would become entitled to those assets as the shareholders of that company. If, on the other hand, the trustee did so move then they would become entitled to those assets as the creditors of Mr Leonida.
Within days of that meeting all of the participants agreed to put in $30,000 and Mr Nick Assiotis was instructed to instruct his lawyer to have documents drafted for the transfer of shares. It was proposed that Mr Jim Dimitrious accept the transfer.
A share transfer form was presented to Mr Arezina by the appellant which had apparently Mr Arezina’s signature on it. The transfer form suggested that $35,000 would be paid to Mr Arezina for those shares.
Mr Dimitrious was told by the appellant that he would become the sole director and the sole shareholder of BBSA Pty Ltd and would thereby control the franchises. Mr Nick Assiotis was present when Mr Jim Dimitrious signed the document as transferee.
The appellant took the forms away for the purpose of registering them with the relevant statutory authorities. At the same time the appellant told Mr Nick Assiotis that because the franchise was now owned by a company controlled by Mr Dimitrious it was no longer necessary for Mr Assiotis’s company to pay the franchise fee of 8 per cent.
Sometime later Mr Nick Assiotis received a demand from Mr Arezina in relation to Mr Assiotis’s failure to pay the franchise fee.
Mr Arezina gave evidence that he had never signed a share transfer or a share sale agreement and he had not sold those shares to Mr Jim Dimitrious.
It was the prosecution case that the appellant knew that Mr Arezina had not signed the documents but that he had nevertheless presented them to Mr Dimitrious.
Counts 1, 2, 3 and 5 related to sums advanced by Nick Assiotis to finance the investigation of the transfer of the franchise licence from Mr Leonida to BBSA Pty Ltd. Counts 7-10 related to money paid to the appellant so that the appellant could purchase Mr Leonida’s debts and purchase the shares of BBSA Pty Ltd from Mr Arezina.
Counts 4 and 6 and 11-16 related to sums advanced by Steve Assiotis, Nick Assiotis, Anthony Sirocco, Anna Rassias, Perry Lance Schaedel, Sherry Lee Morcom and Romolo Maturo to be invested by the appellant on behalf of those persons. Counts 14 and 15 related to monies advanced for a particular form of investment, namely the purchase of creditors’ debts.
The defence case was that the appellant had no intention to defraud any of the parties in respect of any of the counts. The appellant offered different explanations in respect of the different counts as to the purpose for which money was paid him and how the money was used. In respect of some of the counts the appellant’s case was that the monies were used to pay surveillance fees for an inquiry agent whom he had instructed and for his expenses in carrying out his investigations. In respect of other counts the appellant’s case was that those monies were payment of his fees for the work he carried out.
In respect of some other of the counts he said the money was loaned to him. In respect of one count he said the money was paid to him in repayment or part payment of a loan which he previously made. In respect of other counts he said he used the money to purchase debts.
In respect of some other counts he said he applied the monies in investments as he was required to do.
As I have said the thrust of the appellant’s case was that whilst he had received the individual sums mentioned in the complaint he had not intended to defraud any of the persons who had paid him those sums and had applied the moneys received as he was instructed or entitled.
At the conclusion of the evidence the trial Judge raised with counsel the question of cross admissibility of the evidence on the various counts. He directed counsel’s attention to The Queen v Hayes (1986) 128 LSJS 460 and Gibbs v The Queen (1992) 58 SASR 347. He invited submissions from the parties on the directions which needed to be given to the jury on cross admissibility. In the two cases to which His Honour referred, which concerned charges which included the element of an intention to defraud, the Court held that evidence of similar conduct on other occasions whether earlier or later in time is admissible for the purpose of showing a dishonest intention or a guilty state of mind accompanying the transaction which forms the basis of the particular charge. The Court held in those cases that the evidence of similar conduct was admissible to show that the appellant had a plan or system. The evidence was therefore relevant and admissible to prove the accused’s dishonest intention by establishing a plan or system.

If the evidence discloses that the particular counts showed a formulated plan or system which showed that the accused had done similar things on other occasions the evidence becomes admissible. In The Queen v Hayes (supra) at 464 King CJ said:
“The learned trial Judge directed the jury that the evidence in relation to other counts could not be resorted to as proof of a count under consideration subject only to the qualification that the evidence was relevant to and should be considered on the issue as to intent to defraud. He referred particularly to the capacity of such evidence to indicate the existence of a fraudulent plan or system. He warned them that they must consider each count separately. He did not warn the jury specifically against using the evidence by way of indicating a propensity to commit crime or crimes of the type in question. Generally speaking where evidence, which would not otherwise be admissible, is admitted for a limited purpose, it is the duty of the judge to warn the jury against impermissible uses of the evidence. The omission would have been important if the evidence admitted to prove intent was proved or admitted previous bad conduct which would not otherwise have been before the jury. The omission is much less serious where, as here, the evidence is properly before the jury in relation to the other counts and the conduct relied upon is itself disputed conduct. It is difficult, looking at the matter realistically, to suppose that a jury could reason by way of propensity from evidence as to transactions which are as much in dispute as the transaction under consideration. I do not think that there was any real danger and that the warning given, though not ideal, was sufficient in the circumstances.”
The trial Judge, in this case, directed the jury that counts 4, 6, 11, 12, 13, 14, 15 and 16 related to conduct of a similar nature. There is no dispute that the conduct was of a similar nature; indeed, clearly it was.
On each of those counts the prosecution case was that the appellant was entrusted with money for the purpose of investing that money and in each case he fraudulently converted it to his own use or benefit.
The trial Judge said in his charge to the jury:
“Sometimes, as in this case, the evidence of similar conduct on occasions, other than the occasion the subject of the particular charge under consideration, is admissible in order to supply evidence of a dishonest intent in relation to the transaction which forms the basis of the particular charge under consideration. If, on the evidence, you are satisfied beyond reasonable doubt that the accused was guilty of similar conduct on other occasions involving other transactions, you may take that into account in your deliberations on the particular charge under consideration.
So, if you reach the stage where you are satisfied beyond reasonable doubt about the guilt of the accused in respect of one of the charges in the group of charges I have just mentioned to you, you are entitled to take that finding of guilt into account when you are considering each of the other charges in that group. The finding of guilt in relation to one of the charges in the group becomes a piece of circumstantial evidence in relation to the other charges in the group.”
The appellant complained that the use of a phrase “the evidence of similar conduct on other occasions” was inappropriate. It was submitted that “conduct of a similar nature” is an attribute of joinder, not of cross admissibility.
There is nothing in that contention. The trial Judge identified the counts which he said could give rise to cross admissibility by number. He then described them as counts which, on the prosecution case, involved similar conduct. That was a perfectly appropriate description of the counts. Indeed, as I have said, it is not contended that the conduct was not similar.
The appellant further complained of that aspect of the summing up that the trial Judge did not restrict use of the evidence on any one count to proof of a dishonest intent on the other counts.
I reject that submission. I think that the introduction to that part of the summing up makes it clear that the evidence of similar conduct on other occasions is only admissible in order to supply evidence of a dishonest intention in relation to any other count and, in particular, in this case, only those counts to which the Judge referred. It might have been better if the Judge had repeated, later in his summing up, that the evidence could only be used for the purpose of the prosecution proving a dishonest intention by establishing a fraudulent plan or system but, in my opinion, that is a counsel of perfection.
I think the direction is clear enough as to the use to which the evidence could be put.
Next the appellant complained that the trial Judge should have warned the jury against using the evidence as showing that the appellant was a person who was likely to commit offences or that he was a person of bad character; in other words he should have warned them against propensity reasoning.
Later, in his summing up, the trial Judge said this:
“It is important for you to understand, however, that it would be wrong for you to take into account in considering any of the charges in the group I have just mentioned, a finding of guilt in relation to any other charge on the information; that is, a charge not included in that particular group. The same thing applies so far as a finding of guilt is concerned in relation to a charge in this particular group: it would be quite wrong for you to take that into account in considering a charge not contained in that group.
Having said that, let me repeat the warning I have given to you: it would be wrong for you to reason that, because you might be satisfied beyond reasonable doubt that the accused is guilty of one of the charges in the information, that he is, therefore, guilty of any of the other charges. I repeat that you should consider each charge separately and, having reached your conclusion in relation to that charge, then move to a consideration of another charge.”
Before embarking on this topic His Honour warned the jury that the jury had to consider each charge separately and reach a verdict in relation to each charge. He also told the jury that it would be quite wrong to find the accused guilty of any of the charges on the information because the jury was satisfied that he was guilty of any other charge.
In those circumstances, it seems to me, that the jury have been properly instructed as to the limits to which the evidence on any one charge can be used in relation to another charge.
The jury had been told in clear enough terms that they were to consider each charge separately; that they were not to reason that because the accused was guilty on one charge that he must be guilty of another; and that they were only to take into account in this limited group of charges a finding of guilt as circumstantial evidence in relation to another charge within the group for the purpose of considering whether the prosecution had proved beyond reasonable doubt a dishonest intent.
Moreover, in this case, like in The Queen v Hayes (supra) the evidence was before the jury in any event. It was disputed conduct and the jury had to form an opinion as to whether the prosecution had proved the facts and circumstances beyond reasonable doubt. The dictum which I have cited from King CJ’s decision in the Full Court in The Queen v Hayes (supra) is relevant to this case. In my opinion, the directions were adequate and ground two must fail.
The second ground of appeal for which leave was given related to the use to which the appellant was entitled to put an affidavit, purportedly sworn by Nick Assiotis, in proceedings in the Family Court Of Australia between the appellant and his former wife.
Evidence was given by Mr Nick Assiotis that a meeting occurred between the appellant and himself, his brother-in-law, Jim Dimitrious and two friends, who he named, and one further gentleman. He said that when he and those persons he had named arrived for the meeting at the appellant’s house they found the appellant on the ground. He had been apparently bashed by two other men who were still present. The appellant appeared badly hurt.
He and the persons who were accompanying him then took all of the appellant’s property, except his bed.
The appellant signed an authority at the time for these people to remove the furniture. He also, so Mr Assiotis said in his evidence in chief, apologised for his conduct. The appellant, so Mr Assiotis said, was in tears. The appellant also offered his car to Mr Assiotis. The appellant pawned the vehicle which Mr Assiotis recovered and kept.
The thrust of the evidence was that the appellant had admitted these offences both by his words and by his conduct. [TX 196-203]
The appellant’s evidence was that he was assaulted by two persons who were unknown to him and that shortly after, whilst Mr Nick Assiotis was present, Mr Dimitrious assaulted him with a baseball bat.
During his cross examination the cross-examiner put to Mr Assiotis an affidavit which was purportedly sworn by him on 12 November 1999 and filed in the Family Court Of Australia.
The affidavit contains the following:
“8.Our family confronted the husband about what he did. He signed paperwork allowing us to repossess the car that he had bought with our money.
9.I have reported this matter to police who will be coming to see me in due course to take a statement.
10.I saw the husband on the 1^st of November 1999. He has since been assaulted by one of his creditors.
11.I have been told by one of the husband’s creditors who I am frightened to name, that he and some associates concerned (sic) the husband in a room and threatened him and Nicholas if he did not pay them back the TWENTY THOUSAND DOLLARS ($20,000.00) he owed them.”
The evidence contained in the affidavit, it was said, tended to contradict Mr Assiotis’s evidence in a number of respects. First his knowledge as to who committed the assault. In paragraph 10 it is asserted that one of the appellant’s creditors committed the assault. Secondly, the matters in paragraph 11 are said to be inconsistent with his evidence.
The purpose of cross-examining Mr Assiotis on this affidavit was to show that he was untruthful in his evidence of the circumstances surrounding the assault and therefore it would be argued that he was an unreliable witness whose evidence should be rejected.
The witness was asked whether he remembered making an affidavit for filing in the Family Court in relation to a dispute concerning the appellant’s child and he answered that he thought he had. He was shown a copy of the affidavit and asked whether that was the affidavit which he had sworn. He said the signature appearing on the affidavit was not his. A number of matters were put to him and again he said, in answer to a question from the cross examiner, that he was quite certain that he did not sign an affidavit.
The cross examiner then attempted to put the contents of the affidavit to the witness but the trial Judge intervened pointing out that the witness said he had not signed that document.
However later the contents of the affidavit were put to the witness in cross examination. He was asked whether he had told a solicitor of the various matters in paragraphs 8, 9, 10 and 11 [TX 312]. Mr Assiotis denied the matters in paragraph 8. He could not recall whether he said what was asserted in paragraph 10. He denied that he told a solicitor the matters asserted in paragraph 11.
He was asked whether he was asked to give evidence in the matrimonial proceedings and he agreed that he was called to give evidence in court but he said that the appellant did not turn up and his time was wasted.
He denied that he had ever received a document from a solicitor in the post for him to sign.
The appellant’s counsel opened in some detail. In his opening he said that he intended to call a handwriting expert, Mr Gangell, who would say that he had compared the handwriting on the affidavit put to Mr Nick Assiotis with other signatures and that he was of the view that they were from one and the same person. The appellant’s counsel said, in his opening, talking of Mr Gangell’s evidence:
“He has come to the conclusion that Mr Assiotis was telling lies in relation to other matters and that certain other things did happen which throw a different light on the matter here before you.”
Whatever evidence any handwriting expert could give certainly did not include evidence that he had concluded that Mr Assiotis was telling lies. However neither the prosecutor nor the Judge took issue with the appellant’s counsel about that statement.
The appellant gave his evidence. Shortly before Mr Gangell was due to be called the prosecutor objected to Mr Gangell’s evidence upon the basis that it was evidence directed to a collateral issue and therefore not admissible.
During the argument which followed the appellant’s counsel sought to contend that the handwriting expert’s evidence was relevant to establish that Mr Assiotis had sworn the affidavit. In that way the contents of the affidavit would be proved and the contents were relevant to facts in issue in the case.
The trial Judge asked appellant’s counsel to call another witness while he considered the matter. In due course he ruled that Mr Gangell could not be called because his evidence related to a collateral issue and was therefore inadmissible.
Counsel for the appellant sought to prove the signature on the affidavit in order to contradict the evidence given by Mr Assiotis that the signature was not his. Counsel also sought to prove the contents of the affidavit as a prior statement of the witness that was inconsistent with his evidence in chief.
The question of whether or not Mr Assiotis put his signature to the affidavit, regarded in isolation, is a matter that is entirely collateral. Proving that Mr Assiotis lied about whether or not he signed an affidavit could only have had an impact on the jury’s perception of Mr Assiotis’s credibility as a witness.
Similarly, any inconsistencies between the affidavit (if proved) and Mr Assiotis’s evidence in chief were not relevant to the matters in issue in the case but were relevant only to the witness’s reliability.
The first inconsistency alleged was that in the affidavit it is implicitly suggested that Mr Assiotis was not present at the appellant’s home on the day on which the appellant was assaulted, while Mr Assiotis’s evidence in chief was that he was present after the assault had taken place. It is clear, from the evidence in chief of Mr Assiotis and Mr Dimitrious that Mr Assiotis was present after the assault took place. However the author of the affidavit does not expressly deny that Nick Assiotis was present on the day the assault took place.
The only possible relevance of the alleged inconsistency to matters in issue is that Mr Assiotis’s presence or otherwise on that day might impact on his evidence regarding admissions made by the appellant on that occasion. However, the affidavit was not drawn in respect of the proceedings currently in issue. It does not deal with the relevant events in as much detail or with the same particularity as the evidence in chief.
In any event the affidavit acknowledges a confrontation between Mr Assiotis’s “family” and the appellant. It also acknowledges that on this occasion, the appellant gave Mr Assiotis and his companions paperwork authorising them to repossess “the car that he had bought with our money”. These matters are not inconsistent with the evidence of Mr Assiotis.
The fact that the affidavit fails to refer to other admissions made on the same occasion, or to the appellant having been assaulted that day does not give rise to any material inconsistencies. In fact, the evidence given at trial of the assault could only have assisted the appellant’s case in circumstances where the admissions were alleged to have been made shortly after such an assault.
Secondly, it was argued that the affidavit suggests that Mr Assiotis knew, at the time of the trial, the identity of a person who had threatened the appellant in an attempt to recover $20,000.00. In Mr Assiotis’s evidence in chief, he claims not to have known, as at the date of the trial, the identities of the men he saw leaving the appellant’s home when he attended to assist in the repossession of the appellant’s property. The link between the assault identified in the affidavit, and that described in the evidence in chief is confused. It is unclear whether the affidavit alleges a separate assault, or simply fails to connect the assault with the occasion during which the appellant’s possessions were repossessed. In any event, whether or not Mr Assiotis knew the identity of persons who had assaulted the appellant is not relevant to facts in issue.
Again, the only relevance that could be constructed centres around the admissions alleged to have been made by the appellant to Mr Assiotis and his companions.
However, the affidavit does not suggest any association between the appellant’s assailants and Mr Assiotis, but merely knowledge on the part of Mr Assiotis of the identity of the assailants. Whether or not Mr Assiotis knew the identity of the assailants is a collateral matter. Mr Assiotis confronted the appellant about the use to which his money had been put. The appellant had just been assaulted. The question of whether or not Mr Assiotis knew the identity of those perpetrators does not add anything to the appellant’s state of mind at the time admissions were alleged to have been made by him. The issue of the identity of the assailants, in light of the other evidence in the case, is entirely collateral.
In my opinion, there is no doubt that the cross examination related only to matters of credit. Whether or not Mr Assiotis had signed this affidavit was not relevant to any fact in issue in the trial. Nor were the contents of the affidavit relevant to any facts in issue. The affidavit and its contents are not relevant to the subject matter in the trial but are only relevant to the credit of the witness, Nick Assiotis.
However it was the appellant’s counsel’s contention on this appeal that the trial Judge wrongly refused to allow proof of the affidavit by the handwriting expert.
The appellant’s counsel contended that the appellant was entitled to prove the document and the witness’s signature so as to show the witness’s unreliability.
In support of that contention he relied on s 29 of the Evidence Act which is in the following terms:
“A witness may be cross examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without the writing being shown to him; but if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that the judge, at any time during the trial, may require the production of the writing for his inspection; and may thereupon make such use of it, for the purposes of the trial, as he thinks fit.”
The purpose of s 29 is to allow a cross examiner to avoid the consequences of the rule in The Queen’s Case (1820) 129 ER 976.
In that case the judges were asked to rule upon certain matters of evidence in the proceedings against Queen Caroline. The judges ruled inter alia that if a cross examiner wished to cross examine a witness about a previous statement made in writing, the witness must be shown the document before any questions could be asked upon it. If the witness admitted making the statement the statement could be read as part of the cross examiner’s case. If the witness denied making the statement another witness could be called to prove it was the witness’s statement and then read it as part of the cross examiner’s case.

The rule in The Queen’s Case (supra) created a number of forensic disadvantages for a cross examiner, the most important of which was that it required the cross examiner to read, as part of his or her party’s case, the document before cross examining upon it.
Section 29 allows a cross examiner to cross examine as to previous statements made by the witness, in writing, without the document being shown to the witness. Thus if the witness admits the existence of the previous written statement the witness may be cross examined without the statement being shown to the witness. If, however, the cross examiner wishes to challenge the witness by the document the witness’s attention must be drawn to those parts of the document which are said to contradict the witness’s evidence before the document can be proved and tendered.
In my opinion, s 29 does not make any document which was previously not admissible, admissible. It merely provides a procedure which a cross examiner may adopt to avoid having to tender a document before cross examining that witness.
If this affidavit was admissible it was not admissible by reason of s 29 of the Evidence Act. Section 29 is not concerned with admissibility.
In any event s 29 is only concerned with previous statements “relative to the subject matter of the cause”. In my opinion, ‘relative’ means ‘relevant’ and s 29 only abrogates the rule in The Queen’s Case in relation to any previous statement relevant to the subject matter of the litigation or the indictment: Reg v Hart (1958) 42 Cr App R. 47 at 50; R v Funderburk (1990) 2 All E.R. 482; Regina v Trotter [1977] TAS.S.R. 133.
The words ‘relative to the subject matter of the cause’ have been expressly included because it was understood that the finality rule, which prevents a witness being contradicted on issues relevant only to the witness’s credit, applies.
In any event s 29 has no application because the tender of the affidavit was not refused because it could not be proved but because what was sought to be done infringed the finality rule. Generally a witness may not be contradicted on an answer given in evidence where the subject matter is only relevant to the witness’s credit. A witness’s answers to questions put in cross examination on questions of credit must be treated as final. The rule was stated by Lawrence J in Harris v Tippett (1811) 2 Camp 637; 170 ER 1277. In that case a defendant’s witness was asked in cross examination whether the witness had attempted to dissuade a witness to be called by the plaintiff from attending the trial. The defendant’s witness swore positively that he had not.
Plaintiff’s counsel then announced that he would call back his witness to contradict the defendant’s witness and establish that the defendant’s witness had attempted to dissuade the witness from attending the trial. Lawrence J said:
“Had this been a matter in issue, I would have allowed you to call witnesses to contradict what the last witness has sworn; but it is entirely collateral, and you must take his answer. I will permit questions to be put to a witness as to any improper conduct of which he may have been guilty, for the purpose of trying his credit; but, when these questions are irrelevant to issue on the record, you cannot call other witnesses to contradict the answers he gives. No witness can be prepared to support his character as to particular facts, and such collateral inquiries would lead to endless confusion.”
The rule was more recently stated by Latham CJ in Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 545:
“Any witness may be cross-examined for the purpose of discrediting him. But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness’s answers cannot be contradicted by other evidence except in certain exceptional cases. Exceptions to the rule at common law are that after cross-examination of his opponent’s witnesses a party may give evidence to show that they are notorious liars, or have given their testimony from a corrupt or other wrong motive, or that they have previously made statements inconsistent with their evidence. A statutory exemption allows proof of convictions where such convictions have been denied by a witness.”
Latham CJ said that by way of exception to the common law finality rule a party could contradict a witness after cross examination by proving a prior statement made by that witness that is inconsistent with the witness’s evidence. He did not limit that exception to matters relevant to the facts in issue or ‘relative to the subject matter of the cause’ and indeed one would have thought that limitation could not be implied if this be a true exception because, in the passage cited, Latham CJ was only considering contradicting a witness after cross examination on matters of credit.
I will return to that matter.
In AG v Hitchcock (1847) 1 Exch 91 at 99; 154 ER 38 Pollock CB said:
“[T]he test, whether the matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your part to prove in evidence - if it have such a connection with the issue, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him.”
On this appeal, counsel for the appellant submitted that by calling evidence to prove the signature and/or the affidavit, the credibility of Mr Assiotis as a witness would have been shaken significantly. The evidence so called would thereby be pertinent to a resolution of the issues in dispute and would be relevant and admissible.
He argued that the finality rule was not inflexible and that the appellant should have been allowed to prove Mr Assiotis’s signature even if the matter only went to credit.
In support of this submission, the appellant referred to the judgment of McHugh J in Palmer v R (1998) 193 CLR 1 at 22 [51]-[52]:
“The line between evidence relevant to credit and evidence relevant to a fact-in-issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly. Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent. Zuckerman has correctly described the distinction between evidence as to the credibility of witnesses and evidence as to facts-in-issue as productive of absurdity. Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them.
The rationale behind the credit and facts-in-issue distinction does not depend on logic. It “is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness”. It is rooted in the need for “case management” rules.”
Later he said at 23 [53]:
“That being so, the evidentiary rules based on the distinction between issues of credit and facts-in-issue should not be regarded as hard and fast rules of law but should instead be seen “as a well-established guide to the exercise of judicial regulation of the litigation process”. This view is consistent with the statement of that formidable advocate and judge, Sir Hayden Starke, in this Court in Piddington v Bennett and Wood Pty Ltd, where he accepted that the finality rule is “a rule of convenience, and not of principle”. To elevate the finality rule and the prohibition on bolstering to fixed rules of law rather than rules of convenience would be a mistake, particularly as the finality rule has been strongly criticised.”
He concluded at 23/24 [55]-[56]:
“No doubt considerations of case management require that not all evidence going to the credibility of a witness should be admissible. Much of it, while relevant to the issues in a logical sense, has so little probative value with respect to those issues that it is impracticable to admit it. For reasons of convenience, it is necessary to maintain the rule that independent evidence rebutting the witness’s denials on matters going to credibility is not ordinarily admissible. In this, as in other areas of the law of evidence, a distinction exists between what is relevant and what is admissible. In general, evidence of a relevant fact is excluded only when it infringes some policy of the law, one of which (even in civil cases) is that evidence of a relevant fact is not admissible if the probative value of that fact is so low that it cannot justify the time, convenience and cost of litigating its proof. If evidence going to credibility has real probative value with respect to the facts-in-issue, however, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts-in-issue.
The rigid distinction between credit and facts-in-issue and the rules predicated on that distinction should therefore be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts-in-issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes. The credibility of evidence is locked to the credibility of its deponent. The truth of that proposition is in reality recognised by the rule that a witness can be cross-examined as to matters of credit. Because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts-in-issue.”
There is support in McHugh J’s judgment for the proposition that the ‘rule of convenience’, as he would describe it, should be applied more flexibly and should be relaxed when the credibility of the witness is probative of the facts in issue.
Nevertheless McHugh J accepts that the rule remains.
Counsel’s submission was that the importance of this witness’s credit was such that no rigid distinction should be drawn in this case.
The question of collateral matters and the nature of credit evidence was considered by the High Court more recently in Goldsmith v Sandilands & Ors (2002) 190 ALR 370. In that case, the decision of McHugh J in Palmer v R (supra) was considered in more detail. Gleeson CJ said at 372 [3]:
“Collateral facts were described by Latham CJ in Piddington v Bennett and Wood Pty Ltd as “facts not constituting the matters directly in dispute between the parties”. An example of a collateral fact is one affecting the credibility of a witness. As a general rule, itself subject to exceptions, a cross-examiner is bound by the answer to a question that goes only to credit. The cross-examiner is bound in the sense that he or she will not be permitted to lead evidence to contradict the answer of the witness. This rule is based on the desirability of avoiding multiplicity of issues. It is an example of the law’s pragmatism. The adversarial system of civil litigation would collapse if the adversaries were permitted to lead evidence about every matter of contention that arises in the course of proceedings. The case of Piddington provides a strong (and perhaps controversial) illustration of the rule. Dixon J, who was in the majority, characterised the evidence in question as having no tendency other than to discredit a particular witness. It would not have been admissible if the witness had not given evidence. It could not be called to contradict the testimony of the witness. In Palmer v R, McHugh J pointed out that it is sometimes difficult to maintain a rigid distinction between evidence which goes only to the credit of a witness, and evidence otherwise relevant to a fact in issue. Questions of degree arise, both as to relevance, and as to whether a fact is collateral. And whether a fact has a bearing upon the credit of a witness will often depend upon exactly what the witness has represented to the court. The present case provides and example.”
That the rule still exists is not, in Gleeson CJ’s view, in doubt. The reason for its existence remains; namely the law’s pragmatism. There are, however, difficulties in the application of the rule and, in particular, in determining whether a fact is collateral and/or whether it is relevant.
In Goldsmith v Sandilands & Ors (supra), McHugh J took up his judgment in Palmer v R (supra) in the context of a civil trial. He discussed the question of relevant facts and collateral facts and cross examination on matters of credit. He acknowledged the finality rule but then discussed the exceptions.
At 378 McHugh J said:
“[33] But there are exceptions to the rule that ordinarily a witness’ answer on a collateral matter is final and cannot be contradicted. Thus, the opposing party may tender evidence to contradict answers relating to the credit of a witness where the witness’ answer denies that he or she had been convicted of a crime - at all events if it is a crime affecting the veracity of the witness. And a witness’s answer is not final if it denies that the witness has made a previous inconsistent statement.
In support of the last proposition McHugh J by way of footnote refers to Crowley v Page (1837) 7 Car & P.789: 173 ER 344. The footnote goes on to say:
“The admissibility of such statements is now governed by legislation based on ss 4 and 5 of the Criminal Procedure Act 1865 (UK).”
The exception there referred to is the same exception to which Latham CJ referred in Piddington v Bennett & Wood Pty Ltd (supra) at 545. Again, like Latham CJ, McHugh J was referring to an exception to the finality rule insofar as it applies to collateral issues or matters going only to credit. It does not appear on the face of it that McHugh J limited the exception to contradicting a witness on a previous inconsistent statement as to a matter relative to the subject matter of the cause. However in Crowley v Page (supra) (which is the authority McHugh J relies upon) Parke B said:
“Evidence of statements made by witnesses on other occasions relevant to the matter at issue, and inconsistent with the testimony being given by them on the trial, is always admissible in order to impeach the value of that testimony; but it is only such statements as are relevant that are admissible...”
Parke B limited the cross examiner’s right to contradict the witness by proving a prior inconsistent statement to proof of statements that are “relevant to the matter at issue”.
Moreover, as I have pointed out, in the footnote, McHugh J said that the admissibility of such statements is now governed by legislation based on s 4 and s 5 of the Criminal Procedure Act 1865 (UK). Those sections are the equivalent of s 28 and s 29 of the Evidence Act in this state.
I think it follows that McHugh J’s reference to a previous inconsistent statement is a reference to an inconsistent statement which is relative to the subject matter of the cause. In other words the common law always provided that the right to contradict a witness in relation to an inconsistent statement for the purpose of impeaching the witness’s credit was limited to the use of an inconsistent statement which was relative to the subject matter of the cause.
I think that explanation of the common law’s limitations on contradicting witnesses on collateral issues by use of a previous inconsistent statement is consistent with the judgment of Cox J in Kurgiel v Mitsubishi Motors (Aust) (1990) 54 SASR 125. At 130 Cox J said:
“The general restriction about contradicting on collateral matters applied at common law to compromising statements allegedly made by a witness no less than to his physical actions or states of mind. See, for example, Attorney-General v Hitchcock (1847) 1 Exch 91; 154 ER 38. The rule as to previous inconsistent statements was put into statutory form in England in 1854: Common Law Procedure Act (17 & 18 Vict c 125), s 23. That section was adopted in South Australia by s 17 of the Supreme Court Procedure Act 1855 and is now reproduced in s 28 of the Evidence Act:
“If any witness, upon cross-examination as to a former statement made by him, relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made the statement, proof may be given that he did in fact make it; but before such proof statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.” (sic)
(Section 23 of the English Act of 1854 was repealed and substantially re-enacted, and made applicable to both criminal and civil proceedings, in s 4 of the Criminal Procedure Act 1867.) The words “relative to the subject matter of the cause” - that is, relating to the subject-matter - in s 28 are obviously words of limitation and reflect the common law rule. The section does not authorise a witness to be contradicted as to a previous statement made by him on a topic that is collateral to the subject-matter of the dispute.”
The explanation which I have offered is also consistent with the understanding of academics both in this country and in England.
Mr Ligertwood, in his book, Australian Evidence (3rd ed Butterworths, 1998) at 517, says:
“The final (so called) exception to the finality rule concerns a witness’s previous inconsistent statements about those facts in issue which are the subject of the witness’s testimony. It is the importance of these statements in assessing the credibility of the witness’s testimony about facts and issue which allows their proof.”
In the Laws of Australia Vol 16, (The Law Book Company Ltd, Loose Leaf Service) at 16.4 [204] the authors write:
“An exception permits proof of a previous statement, relevant to an issue in the proceedings, which was made by a witness and is inconsistent with the witness’s testimony: see [202]. At common law, where a witness is cross-examined on a previous inconsistent statement, the collateral fact rule prevents proof of the statement where it is relevant only to the credit of the witness. However, where the statement is “relative” to an issue in the proceedings, legislation in all jurisdictions now permits proof of the statement, at least where the witness “does not distinctly admit” making the statement. If the statement is oral, a witness to it must be called. If the statement is in writing, the document which proves it must be strictly proved. The legislation of the Commonwealth, the Australian Capital Territory and New South Wales does not expressly limit cross-examination to statements “relative” to an issue.”
Gillies in the Law Of Evidence In Australia (2nd Ed Legal Books, Sydney, 1991) refers to the cross examiner’s right to adduce evidence of a prior inconsistent statement to contradict the witness’s evidence as an exception to the finality rule without any further explanation.
In Phipson on Evidence (15th ed. Sweet & Maxwell Ltd, London, 2000), the authors note, at para 11-38 of the text, that:
“The proof of a previous statement under the Criminal Procedure Act 1865, s 4 or s 5, is probably not a true exception to the principle. Each of those sections refers to a statement ‘relative to the subject matter of the indictment or proceeding’, that is, to a matter which is not truly collateral.”
However in Goldsmith v Sandilands & Ors (supra), McHugh J also noted (at 379) that “[d]espite the longevity of the finality rule, it has increasingly come to be regarded more as a flexible standard than a fixed rule of law.”
Kirby J said at 388 [70]:
“This general approach was continued into the Law Reform Commission’s final report on the subject. It is reflected in the legislation that followed. In my view, the eventual provision of the legislation also reflects the common law of Australia as relevant to the present appeal. The primary rule is that evidence that relates only to the credibility of a witness is not admissible to prove that the evidence of the witness should or should not be accepted. However, there are exceptions designed to balance the need for restrictions to prevent trials pursuing collateral or peripheral credibility issues and the need for flexibility to meet unexpected or exceptional evidence that is received in the trial and that a party should be allowed to meet and rebut so as to preserve the actuality and appearance of even-handed justice. Relevantly to the present case, an exception permits evidence in reply or rebuttal in a civil trial that has a substantial probative value in the particular case. This would include evidence that tends to prove that the witness knowingly or recklessly spoke falsely when under an obligation to tell the truth.”

Hayne J said at 394 [83]:
“That rule, although difficult of application, remains important to the proper trial of proceedings. It may be, as McHugh J said in Palmer v R, that the distinction between evidence relevant to credit and evidence relevant to a fact in issue is not only indistinct and unhelpful but is rooted only in the need to prevent trials being burdened with side issues, not in logic. At the least, the application of the distinction will sometimes be very difficult. In this case, however, the evidence that had been given about the address or the appearance of the area where the alleged confession was made related only to the credit of the witness, not to any fact in issue.”
Callinan J, after analysing the various judgment in Piddington v Bennett Wood Pty Ltd (supra) said at 399-400 [103]:
“It follows that questions of degree will always be involved in deciding whether collateral evidence should be admitted. The test propounded by Dixon J of inadvisability is a narrow one and substantially more so than any of the tests applied by the other members of the court in Piddington. The admissibility or otherwise of collateral evidence and evidence in turn to contradict that collateral evidence might also be influenced by the fact that the person giving it is a party.”
The Full Federal Court, in Natta v Canham (1991) 32 FCR 282 at 300 said that “[a] trial judge should not be precluded from determining in an appropriate case that the matter on which a witness’ credit is tested is sufficiently relevant to that credit as it bears upon issues in the case that such evidence may be admitted.”
The later authorities to which I have referred suggest that the finality rule may admit of exceptions and there may be cases where the credit of a witness is so important in a determination of the issues in dispute that matters going only to the credit of that witness may be pursued beyond cross-examination.
There is no need to examine the circumstances in which the finality rule may be more flexibly applied because this is not a case where the credibility of Mr Assiotis’s evidence on facts in issue was locked to his answers regarding the signing of the affidavit and its contents. The trial judge did not err in refusing to allow evidence to prove that Mr Assiotis signed the affidavit, nor evidence to prove that the contents of that affidavit constituted or reflected a prior statement made by Mr Assiotis that was inconsistent with his evidence in chief. Also, as I have explained, the relevant paragraphs of the affidavit, if inconsistent with the evidence of Mr Assiotis at all, are not relevant to facts in issue such that the affidavit could be proved by way of exception to the finality rule as a prior inconsistent statement of that witness.
The appeal should be dismissed.

[2003] SASC 203

1 July 2003