Simon-Beecroft v Proprietors 'Top of the Mark' BUP No 3410
[1996] QCA 239
•19/07/1996
| IN THE COURT OF APPEAL | [1996] QCA 239 |
| SUPREME COURT OF QUEENSLAND |
Appeal No 258 of 1995
Brisbane
[Simon-Beecroft v. The Proprietors "Top of the Mark" & Anor]
BETWEEN:
ANTHONY WILLIAM SIMON-BEECROFT
(Plaintiff) Appellant
AND:
THE PROPRIETORS "TOP OF THE MARK"
BUILDING UNITS PLAN NO 3410
(First Defendant)
First Respondent
AND:
THE DAVIS HEATHER GROUP PTY LTD
(Second Defendant)
Second Respondent
Fitzgerald P
Davies JAWilliams J
Judgment delivered 19/07/1996
Separate reasons of each member of the Court, all concurring as to the orders made.
APPEAL DISMISSED WITH COSTS.
CATCHWORDS: EVIDENCE - PRIOR INCONSISTENT STATEMENTS -
ADMISSIONS
Personal injury - a prior inconsistent
statement made by one witness to a second
witness may be proved and then used to prove
an admission made by a party to the
proceedings to the first witness and the
weight given by a trial judge to that
admission is determined in light of all the
circumstances of the particular case ss. 18,
101, 102 Evidence Act 1974.
R v. Hall (1986) 1 Qd. R. 462
R v. Perera (1986) 2 Qd. R. 431
EVIDENCE - FRESH EVIDENCE
Personal injury - fresh evidence provided by
unreliable witnesses not sufficient to
justify a new trial.
Orr v. Holmes (1948) 76 CLR 632
Carter v. Rosedale Sawmill Pty Ltd and GinGin Sawmill Pty Ltd
EVIDENCE - FRESH EVIDENCE
Personal injury - where there are allegations
of fabrication, of evidence it is quite
acceptable for a trial judge to scrutinise
the evidence with more particularity thanusual.
| Counsel: | Mr K Flemming QC, Mr R Myers and Mr SJ Given for the appellant. Mr W Sofronoff QC and Mr AJ Williams for first and second respondents. |
Solicitors: Messrs Gall Standfield and Smith for
appellant.
Messrs Minter Ellison Morris Fletcher for thefirst and second respondents.
Hearing Date: 30 May 1996
IN THE COURT OF APPEAL
| SUPREME COURT OF QUEENSLAND | Appeal No. 258 of 1995 |
| Brisbane | |
| Before | Fitzgerald P. |
Davies J.A. Williams J.
[Simon-Beecroft v. Proprietors “Top of the Mark” BUP No.
3410 & anor.]
BETWEEN:
ANTHONY WILLIAM SIMON-BEECROFT
(Plaintiff) Appellant
AND:
THE PROPRIETORS “TOP OF THE MARK” BUILDING
UNITS PLAN NO. 3410
(First Defendant) First Respondent
AND:
THE DAVIS HEATHER GROUP PTY LTD
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 19/07/1996
The circumstances giving rise to this appeal are set out in the reasons for judgment of Williams J.
The appellant’s case was founded squarely on the premise that, on 23 December 1983, he “bumped against ... the balustrading” on “the common property balcony/thoroughfare on Level G on the southern side of ‘Top of the Mark’”, a building on the Gold Coast “in the vicinity of a flight of stairs”, and “fell over the balustrading down several levels.” He was seriously injured by the fall, which he claims occurred because the balustrade was too low. That remained his case even if he is not held to particulars which he provided which alleged that his hip and knee “came into contact with the balustrading” when he “stepped or moved out of their path and in the general direction of the balustrading” “in order to avoid a group of persons approaching” him, or if he is permitted to reintroduce an allegation, which his particulars abandoned, that he “slipped on the floor and slid into ... and fell over the balustrading ...”.
The trial did not start until almost 12 years later, 25 September 1995, and occupied an astonishing 17 sitting days.
Not one person who saw the appellant fall, including none
of “the group” out of whose path the appellant “stepped or
moved ... in order to avoid [them]” was called as a witness.
And the appellant, who alone gave evidence concerning how
he came to fall, distinguished himself by the variety of
versions which he had given over the years and in the
witness box. In the absence of some demonstrated error of
approach by the trial judge, there is not the slightest
basis for interfering with his findings on credibility or
that the appellant had failed to discharge his burden of
proof concerning the cause of his injuries.
I propose to add to only one aspect of what Williams J. has said in his reasons for rejecting the appellant’s attempt to obtain an opportunity to adduce further evidence and dismissing the appeal. As his Honour has pointed out, the appellant’s wife denied in her evidence that she had told a friend, Mrs Kenyon, of statements adverse to his interest which the appellant had made to her (his wife) when she first saw him in hospital following his injuries. Mrs Kenyon was allowed to give evidence of what the appellant’s wife told her he had said, both to challenge the credibility of the appellant’s wife (Evidence Act 1977, sub-s. 18(1)) and as evidence of the appellant’s “admissions” to his wife (Evidence Act, s.101).
The latter use of Mrs Kenyon’s evidence of what she was told by the appellant’s wife was said to be an error, but, as Williams J. has pointed out, both the literal terms of s. 101 and prior decisions support the admissibility and use of that evidence for the purposes to which it was put by the trial judge. While I do not disagree with the trial judge’s exercise of his discretions with respect to admissibility (Evidence Act, s.98 - and in criminal cases see also s. 130) and probative value (Evidence Act, s.102) in this instance, those discretions are of considerable importance and merit emphasis. Section 101 has no counterpart in most Australian States and Territories,[1] New Zealand or Canada. It is easy to perceive how fabricated evidence of alleged admissions could be introduced into evidence with an appearance of credibility - because allegedly said out of court when there was no apparent reason to lie - by the use of s.101; the problems associated with the use of s.101 in a criminal trial were noted by Deane, Toohey and Gaudron JJ. in Morris v. R. (1987) 163 C.L.R. 454, at pp. 468-469, and other relevant decisions are referred to by Williams J.
However, it is unnecessary to say more on the legitimate use of s.101 on this occasion, when it was properly relied on by the trial judge.
I have nothing further to add to the reasons of Williams J.
I agree with his Honour that the appeal must be dismissed,
with costs to be taxed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 258 of 1995
Brisbane
| Before | Fitzgerald P. Davies J.A. Williams J. |
[Simon-Beecroft v. Prop. "Top of the Mark" Building Units Plan No.3410 & Anor.]
BETWEEN:
ANTHONY WILLIAM SIMON-BEECROFT
(Plaintiff) Appellant
AND:
THE PROPRIETORS "TOP OF THE MARK"
BUILDING UNITS PLAN NO. 3410
(First Defendant) First Respondent
AND:
THE DAVIS HEATHER GROUP PTY. LIMITED
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered the 19th day of July 1996
I have read the reasons for judgment of Williams J. and of the President. I agree with the
reasons of Williams J.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No 258 of 1995
Brisbane
Before Fitzgerald P
Davies JA
Williams J
[Simon-Beecroft v. The Proprietors "Top of the Mark" & Anor]
BETWEEN:
ANTHONY WILLIAM SIMON-BEECROFT
(Plaintiff) Appellant
AND:
THE PROPRIETORS "TOP OF THE MARK"
BUILDING UNITS PLAN NO 3410
(First Defendant)
First Respondent
AND:
THE DAVIS HEATHER GROUP PTY LTD
(Second Defendant)
Second Respondent
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered the 19th day of July 1996
The appellant claimed in the action that on 23 December 1983 he was rendered paraplegic as a result of negligence on the part of either or both of the respondents. After a trial which lasted from 25 September to 11 October 1995 the learned trial judge gave judgment on 1 November 1995 in favour of the respondents. His reasons for so deciding are encapsulated in a passage to be found in his reasons for judgment at the end of the section dealing with negligence:
"I am really unpersuaded upon the whole of the evidence as to just how the plaintiff suffered his injury. I do not accept his evidence on the issue of causation and it is only by going through various statements which he made of the events leading to his injury - all of which he denied on oath - that it is possible to attempt to make out any case for him on the issue of causation. He did not attempt to make out such a case himself, which indeed would have been inconsistent with his evidence as to the circumstances in which he sustained his injury.
Upon the whole of the evidence of the plaintiff and upon all his inconsistent out of court statements proved against him, he has failed to satisfy me on the balance of probabilities just what were the events which led to his falling to his injury, whether he fell from the balcony floor near the stairs or from the top of the stairs near that floor to the ground below. To the extent that any one of the versions he gave to his wife or to Mr and Mrs Kenyon or to Mr Crothall is correct, I take the view that the version he gave to his wife is most likely to be true and that when the plaintiff was hit by the bouncer, the bouncer was on the balcony at the top of the stairs and the plaintiff was on the stairs near the top: if that was the way in which he suffered his injury the inadequate height of the balustrade railing on the balcony to which the evidence in this case was directed was not a cause of that injury."
Thereafter the learned trial judge considered the question
of quantum and he arrived at a total figure of $641,506.40.
The appeal has raised for consideration by this court questions as to the correctness of the findings and reasoning of the learned trial judge on the issue of negligence, particularly causation, and also the correctness of his assessment of damages. In addition the appellant contends that since the trial "fresh evidence" has become available to him such as would require this court to order a retrial.
The notice of appeal was filed within 28 days of the judgment, but not served within that time. The respondents raised that failure to comply with the rules as a preliminary point, but counsel for the respondents did not press it during argument. In consequence during oral argument the court intimated that the necessary extension of time would be granted.
It is convenient to deal firstly with the contention that the appellant should have a retrial because of the existence of "fresh evidence".
The appellant's case as initially pleaded was that he fell from the balcony of a building owned by the first respondent and landed heavily on concrete a significant distance below. On this version there was no one else in the immediate vicinity and the cause of his going over the railing was largely unexplained although slippery shoes were mentioned as a possible explanation. The second respondent, a firm of architects, had designed the building and supervised its construction. The learned trial judge held there was "little doubt upon the whole of the evidence that the height of the balustrade was inadequate to protect people from inadvertently falling from the balcony and that the defendants would be liable to persons injured by falling from it if the inadequate height was shown to be a cause of that injury." It was the appellant's case as pleaded and as opened at the trial that the fall was due to the inadequate height of that balustrading around the balcony. But for such a finding to be made it was necessary for the appellant's evidence to be accepted; as the learned trial judged noted, there was "no independent evidence to show that the inadequate height of the balustrade was a cause of injuries he suffered on 23 December 1983. The only direct evidence on this issue is his."
Those responsible for conducting the defence became aware prior to trial of statements allegedly made by the appellant to the effect that he had been punched or otherwise manhandled by a bouncer at a nearby nightclub and that it was as a direct consequence of that action that he went over the balcony. Defence enquiries into those issues came to a head in about June 1995 and both the evidence and the findings of the learned trial judge establish that the appellant was aware from about then that the defence was going to contend that the bouncer was responsible for the fall and consequent injuries sustained by the appellant.
Those enquiries also ascertained that the appellant had said the bouncer's name was Hall. Subsequently formal amendments were made to the pleadings by the respondents to allege that the appellant's injuries were caused by the willed act of Hall.
The appellant's solicitors became aware of that proposed amendment to the pleadings in about July 1995 and shortly thereafter they made some enquiries "in relation to the whereabouts of Malcolm Lindsay Hall". In August 1995 they ascertained that Hall was released from custody by the Queensland Corrective Services Commission in or about 1992 and that the Commission "had no knowledge of the current whereabouts" of Hall. No further enquiries were made by the appellant's solicitors because they believed that the respondents would have to call Hall in order to contradict the appellant's evidence that no incident such as alleged by the respondents occurred.
At the trial the respondents were able to prove in evidence statements made by the appellant strongly suggesting that he had been hit by a bouncer and that had resulted in the fall, and that he knew the bouncer's name was Hall. The evidence was overwhelming that the appellant had discussed over many years the events of the night in question with his friends and that in the course of such discussions regular mention was made of the actions of the bouncer Hall on that night. True it may well be that many of the references to Hall related to an incident inside Twains Nightclub some time prior to the fall. The appellant's associate, Crothall, was also able to speak in telephone conversations on 19 and 28 June 1995 of the incident in the nightclub involving Bev McCracken (naming her) which led to the intervention of the bouncer.
As part of the defence case evidence was called from an immigration official establishing that Hall had left Australia in November 1993 for New Zealand and had not returned.
The learned trial judge made no specific finding as to what occurred on the evening of 23 December 1983. It was sufficient for him to find that as a result of the conflicting evidence he was not satisfied that the fall occurred because of the inadequate height of the balustrade.
However, a reading of the judgment strongly suggests that his Honour favoured the view that it was a punch from the bouncer which caused the appellant to go over the balustrade; at least the evidence supporting that contention was so strong that he could not make a positive finding to the contrary.
As noted above the reasons for judgment were handed down on 1 November 1995. Thereafter those acting for the appellant instructed a firm of enquiry agents in New Zealand on 10 November to take steps to locate Hall. The firm so engaged had little difficulty in locating Hall; by 16 November details of his whereabouts were known by the appellant's legal representatives in Australia. Steps were then taken to obtain an affidavit from Hall dealing with his knowledge of relevant events. An affidavit was sworn by Hall in New Zealand on 8 January 1995. It commences by his saying that he is "making this affidavit in relation to incident involving Mr Beecroft at Twains Nightclub, Surfers Paradise, on 22 December 1983." He then goes on to say that on that night he had been working "the nightshift at Fishermans' Wharf Main Beach as Supervisor for Security".
He says he was working there with a person by the name of Don. He says that an arrangement was made that he would meet Don at Twains after he had finished his shift. All that he then says of relevance is that he "met Don inside Twains, and recall him telling me something." The implication appears to be that he was told something about a person falling from the balcony. He specifically says that he "did not on the occasion referred to herein or on any other occasion have any encounter of any kind with Mr Beecroft."
Having obtained that information from Hall the
appellant's solicitors set about locating the person Don.
They were quickly successful and an affidavit was obtained
from Don Anthony on 13 December 1995. So far as is relevant
Anthony states in his affidavit:
"1. I do not recall the exact date nor the year however I remember an incident where I witnessed a man fall over the balcony railing outside the entrance to Twains Nightclub. I do recall that the incident would have occurred approximately twelve years ago.
2. At the time I was the Manager of Security at
Fishermans' Wharf Hotel complex, Main Beach.I believe at that time also working there
with me was Malcolm Hall ...
3. Security staff usually finished work at Fishermans' Wharf at 12.30am after which we would usually ... go to the Twains Nightclub, Surfers Paradise as a group ...
...
5. On the night in question I believe I was in company with two other male persons and a female person when the incident in question occurred. I now know that the female with me on that morning was Diane Mills ... In particular I do not remember Malcolm Hall being with me on this occasion although it may well have been that he joined the group at a later time in Twains Nightclub.
6. I was standing on the balcony area which provides access from the top of stairs leading from the Orchid Avenue footpath to Twains Nightclub when I saw a male person come from the entrance to Twains Nightclub and walk towards the balustrade erected around the balcony. That person appeared to me to be drunk by the way his body was moving.
...
8. ... I am unable to identify the male person as being the person I observed on this particular night. However, I could say the male person in the photographs is not inconsistent with the persons I saw on the night in question.
9. As the male person approached the balustrade he appeared to have built up momentum as he might descending a flight of stairs. He then appeared as though he went to sit down and then in what appeared to be one movement kept on going backwards as if in slow motion and he did a backwards flip. There was no one else with the male person nor did I notice anybody leaving Twains Nightclub at the time that he did.
...
12. I do not recall specifically what I did after that but I know that I went into Twains at some stage. ..."
An affidavit was also obtained from Diane Lisbeth Mills, and it was sworn on 14 December 1995. The relevant parts of her affidavit are as follows:
"1. I recall an incident which occurred approximately twelve years ago. I do not remember the exact date ...
2. That day I had finished work at approximately 12.30am and then had made my way to Surfers Paradise so that I could meet up with other fellow workmates and friends for a few drinks.
3. On occasions with Fishermans' Wharf staff at that time we met near the entrance to Twains Nightclub ...
4. On this occasion I recall waiting with Don Anthony. I don't recall anyone else being there nor do I recall who we were waiting for. Don and I were standing close to the entrance to Twains Nightclub within five feet of the doorway.
5. I noticed a fellow come out of the entrance from Twains. I formed the impression that he may have been drunk because of the way he walked. ...
6. The fellow was only in my view for a few seconds but to the best of my recollection he was of solid build and from medium to tall in height. ...
...
8. I am unable to identify the male person in the three photographs as the fellow I saw come out of the entrance of Twains Nightclub on this evening however I am able to say that his appearance is not inconsistent with the person I saw. ...
9. The fellow did appear to be moving quickly but not running. He appeared as if he had built up momentum coming down the stairs from Twains Nightclub. There did not appear to be anybody following him or coming down the stairs with him. He moved from the entrance to Twains directly across to the balustrade and he appeared to turn, in our direction, as if to lean against or sit on the balustrade but at that point he toppled over it all in the one motion."
It is the contention of the appellant that the evidence of Hall, Anthony and Mills is "fresh evidence" which could not with reasonable diligence have been ascertained before the trial. It is then contended that it is sufficiently credible and was likely to have such an important influence on the result of the litigation that in the circumstances a new trial should be ordered. The principles on which a new trial will be ordered because of the emergence of "fresh evidence" were laid down by the High Court in Orr v. Holmes (1948) 76 CLR 632 and the principles as therein stated have been consistently applied since. This court in Carter v.
Rosedale Sawmill Pty Ltd and Gin Gin Sawmill Pty Ltd
(unreported, CA No 172 of 1995, judgment delivered 3 October 1995) reviewed a number of the relevant authorities on this topic and there is no need in this case to do so again. It is sufficient to say that the party seeking the new trial must establish that the evidence in question could not have been obtained if reasonable diligence had been exercised to procure the evidence prior to the first trial. Further, the evidence must be credible, leading to their being at least a real possibility that an opposite result would have been produced if the evidence had been led at the first trial.
Counsel for the respondents submitted that the
appellant failed to satisfy any of those requirements.
Evidence was placed before this court by the respondents
relevant to that contention. They secured another affidavit
from Hall in which he said that he worked as a security
officer at Twains Nightclub "during 1984 for a period of
months". He also said that for some two years prior to
December 1995 he has used premises at 466 Karangahape Road,
Auckland, as his address. He owns a motorcycle with respect
to which that address is shown on registration papers.
So far as Anthony and Mills are concerned the respondents contend that this court should place no reliance at all on each affidavit because each deponent is devoid of credibility.
In an affidavit dated 11 March 1996, and prepared by her own independently retained solicitor, Mills refers to her earlier affidavit and says:
"Having considered the matters set out in that said document and acting upon the advice of my legal advisors I decline to answer any questions arising out of the same on the grounds that any such answers might tend to incriminate me."
It is central to the acceptance of Anthony's account of his seeing the appellant fall over the balcony that he, Anthony, was at the subject premises with a group of workmates from Fishermans' Wharf after working there in a security capacity. The respondents rely heavily on an affidavit by BJA Moore, an employee of the Worker's Compensation Board, in contending that no reliance should be placed on Anthony's affidavit. Moore's affidavit establishes that Anthony was in receipt of workers' compensation from 7 March 1983 until 22 November 1985 and that on numerous occasions throughout that period he made statements and signed declarations to the effect that he was not working in any capacity. Indeed in a statement dated 10 October 1985 (signed by Anthony and declared by him to be true and correct) he says: "I was certainly not ever employed by Fishermans' Wharf or Twains". Those statements are confirmed in an affidavit sworn by Anthony in answer to certain interrogatories delivered to him in litigation in which he was suing an earlier employer for negligence causing personal injury. In those answers, sworn 10 December 1987, Anthony said that he did not work at all in the year 1 July 1983 to 30 June 1984. He swore to receiving workers' compensation payments totalling $10,533 during that period.
Anthony also has convictions for dishonesty. In the District Court at Southport on 27 November 1995 he was convicted of the offence that on the sixth day of June 1994 at the Gold Coast he received certain property, namely $5,000, upon an agreement that he would withhold evidence of a crime then lately committed. He pleaded guilty and was fined. A conviction for such an offence hardly engenders confidence in the veracity of Anthony. Also on 27 November 1995 in the Southport District Court he pleaded guilty to two charges of having unlawful possession of a motor vehicle and one charge of stealing a motor vehicle. Again he was fined on each count.
The submissions by each side in this court included the proposition that one or more of the witnesses on the other side was guilty of perjury. Thus it is not surprising that the learned trial judge concluded that much of the evidence, particularly that given by the appellant and his wife, was "deliberately untruthful". His Honour spoke of "the common purpose of misleading the court as to the circumstances in which the plaintiff suffered his injury".
Particularly in those circumstances it would take more than the evidence of a person already convicted of tampering with evidence, and the evidence of a person not willing to answer further questions on the ground of self- incrimination, in order to upset the actual findings made by the learned trial judge, in particular the finding that he was not satisfied on the evidence that the incident occurred in the way alleged by the appellant in the pleadings.
I am by no means satisfied that the appellant has established that the evidence of Anthony and Mills could not with reasonable diligence have been ascertained before trial; but even if one assumes that in his favour, the "fresh evidence" from those witnesses is so inherently unreliable as to fail the test referred to above.
So far as Hall is concerned the appellant has not satisfied the requirement of showing that the evidence could not with reasonable diligence have been ascertained prior to trial. The appellant knew from the date of the fall that Hall had been in the nightclub that night and there had been some incident involving the two shortly before the fall.
Within a few days of making a genuine attempt to locate Hall his legal advisers in fact did so. The failure to contact him prior to reasons for judgment being delivered was no doubt largely due to the hope that the learned trial judge would accept the version of events as originally pleaded by the appellant. Further, I am not satisfied that, given all of the matters referred to by the learned trial judge with respect to the conflicting accounts of what happened, Hall's evidence as revealed by his affidavit would mean that there was any possibility of the opposite result being reached.
In all the circumstances Hall's credibility would, at least, be suspect.
As a final fallback position counsel for the appellant referred to an observation by Lord Wilberforce in Mulholland v. Mitchell (1971) AC 666 at 680 that courts would allow fresh evidence "when to refuse it would affront commonsense". It is not necessary to decide whether or not that creates a discrete ground on which courts can allow fresh evidence; it is sufficient to say that an application of commonsense to the alleged "fresh evidence" in this case would result in the conclusion that it was devoid of credibility.
In the circumstances the appellants have not made out a case for a new trial based on the existence of "fresh evidence".
It is true, as submitted by counsel for the appellant, that the learned trial judge was influenced in arriving at the conclusion he did by his acceptance of evidence given by Mr and Mrs Kenyon. Based on an acceptance of the "fresh evidence" counsel for the appellant then mounted an attack on the credit of the Kenyons, going so far as to submit that it was they who "conspired to present a false story". When the alleged "fresh evidence" is discarded as being devoid of credibility, that attack on the Kenyons loses much, if not all, of its force.
A significant attack was mounted on findings of fact
made by the learned trial judge, most of which were
consequential upon his findings with respect to credibility.
As already noted throughout the trial there was allegation
and counter-allegation of fabrication of evidence. Suffice
it to say that in such a trial the advantage the trial judge
had of seeing and hearing the witnesses was of even greater
significance than usual. Most of the witnesses were cross-
examined at considerable length, and the demeanour of each
when responding to allegations of fabrication of evidence
would have been of significance. There is nothing in the
material before this court which clearly demonstrates an
error on the part of the learned trial judge in making his
findings as to credibility.
It was also submitted that the learned trial judge erred in adopting too stringent an attitude in dissecting the evidence of the appellant with respect to the fall. It is true that the critical events would have taken only seconds, but that in itself does not mean that in an appropriate case the evidence should not be subjected to careful scrutiny. By the end of the trial it was obvious that there was a body of evidence which strongly suggested that the appellant had been party to fabricating evidence (at least in the sense of arranging with others what evidence would be given), and had on many occasions denied making statements which could be conclusively proved against him. Against that background, if the plaintiff was to succeed, it was necessary for his evidence in chief to stand up to careful scrutiny. Analysis by the learned trial judge of the appellant's evidence in chief convinced him that there were at least two versions put forward at that stage.
That certainly did not help the appellant's cause in the
light of the other material.
In all the circumstances there was nothing wrong with the approach adopted by the learned trial judge, and it cannot be said that the conclusions he reached after his careful scrutiny of the appellant's evidence were not justified.
A more specific challenge to the reasoning of the learned trial judge was made with respect to his reliance on s.101 of the Evidence Act 1977 with respect to evidence given by the witnesses Crothall and Mrs Kenyon.
In order to establish their contention that a bouncer (allegedly Hall) was responsible for the appellant's fall from the balcony the respondents at trial sought to rely on statements made out of court by the appellant to that effect. It was put to the appellant in cross-examination that he had made statements over the years between the incident occurring and trial to, in particular, his wife, Crothall, Mr Kenyon and Mrs Kenyon, to the effect that (putting it in broad terms) a bouncer was involved in the incident. The appellant denied all such propositions put to him.
It is clear that, applying the ordinary rules of evidence, the appellant's wife, Crothall, Mr Kenyon and Mrs Kenyon could have been asked (either in chief if called by the respondents or during cross-examination) whether the appellant had made such a statement. Such evidence would not be caught by the hearsay rule because it was a statement against interest, an admission.
Mr and Mrs Kenyon were called as part of the respondents' case and each gave evidence which at least in part was probative of the fact that the appellant had made such an admission in their presence. It was not contended on the appeal that such evidence was not admissible. The learned trial judge accepted the evidence of the Kenyons that such statements were made by the appellant.
The appellant's wife and Crothall gave evidence as part of the appellant's case and were cross-examined as to statements alleged by the respondents to have been made by the appellant to each of them, which statements (if made) would have amounted to admissions along the lines referred to above. Each of Mrs Beecroft and Crothall denied that the appellant ever made such an admission.
So far as Mrs Beecroft is concerned it was then put to her during cross-examination that at a nominated time and place she had made a statement to Mrs Kenyon that the appellant had informed her that a bouncer had been involved in the incident, and that a punch from the bouncer was the direct cause of the fall. Full details of the statement allegedly made on the prior occasion by Mrs Beecroft to Mrs Kenyon was put to the former in cross-examination. She denied ever making such a statement. Then as part of the case for the respondents Mrs Kenyon was called as a witness.
Relying on s.18(1) of the Evidence Act which is in these
terms:
"If a witness upon cross-examination as to a former statement made by the witness relevant to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it."
evidence was led as to the prior inconsistent statement made by Mrs Beecroft. The critical evidence as recorded by the learned trial judge in his reasons is as follows:
"The bouncer asked him to leave. He subsequently left, the bouncer stood at the top of the stairs, put his hands on his shoulders and said "on your way mate". Tony stumbled down the stairs. He got down there and in his drunken stupor he decided the bouncer wasn't going to do this to him so he came back up the stairs, went to take a swing at the bouncer, the bouncer king hit him and sent him over the railing."
It is clear from a perusal of the record, and the reasons of the learned trial judge that such evidence was admitted pursuant to s.18. It of course was relevant to the issue of Mrs Beecroft's credibility, but it also had a wider significance. The learned trial judge, relying on s.101 of the Evidence Act, treated it as evidence of the fact that such an admission had been made by the appellant to his wife. Section 101, so far as is relevant, is in these terms:
"(1) Where in any proceeding -
(a) a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of s.17, 18 or 19; or
...
that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible."
The submission made by counsel for the appellant was that the contents of a statement (admission) made by a party to another, and then repeated to a third party (witness) cannot be a statement of the type referred to in the section as it was not an inconsistent statement made directly by the party to the witness. However, in my view, a careful reading of the section indicates that it may be used as was done here by the learned trial judge. Mrs Beecroft could have given direct oral evidence of an admission to her by the appellant. Her prior inconsistent statement to the effect that such an admission had in fact been made was proved and the section says that the contents thereof are "admissible as evidence of any fact stated therein of which direct oral evidence" by Mrs Beecroft would be admissible.
It matters not whether the prior inconsistent statement be oral or in writing.
The section has been considered in a number of cases and the authorities appear to support the approach adopted by the learned trial judge. The change to the previous law affected by s.101 was recognised by the Full Court in Savanoff v. Re-Car Pty Ltd (1983) 2 Qd. R. 219 at 225 and 231. It also applies to a criminal trial and its effect in those circumstances was considered by the Court of Criminal Appeal in R v. Hall (1986) 1 Qd. R. 462 especially at 464 and R v. Perera (1986) 2 Qd. R. 431. In the latter case I said (with the concurrence of Connolly and Moynihan JJ) at 436:
"Wilson's evidence as to that prior inconsistent statement, if accepted as truthful by the jury, became, by virtue of s.101, "admissible as evidence of any fact stated therein of which direct oral evidence ... would have been admissible"; in other words if the jury accepted Wilson to be a witness of truth then the statement by Limbach that the appellant had not made any admissions became evidence at the trial of the fact that no admissions were in fact made by the appellant."
Special leave to appeal to the High Court was sought, with the applicant relying heavily on s.101, but leave was refused (The Legal Reporter vol 8, 25 June 1987). Other examples of the operation of s.101 can be seen in R v. Mursic (1980) Qd. R. 482, R v. Neville (1985) 2 Qd. R. 398, R v. Siedofsky (1989) 1 Qd. R. 655, R v. Son Hoang Nguyen (1989) 2 Qd. R. 72, and R v. Parkinson (1990) 1 Qd. R. 382.
Whilst there seems little doubt that the contents of a prior inconsistent statement made by a witness and properly admitted pursuant to s.18 can be used as evidence of any fact stated therein, the critical issue in most cases will be as to the weight, if any, which should be attached in all the circumstances to that evidence. The trial judge must always direct his mind to ss.98 and 102 of the Evidence Act.
The former gives the judge a discretion to reject any statement "if for any reason it appears to be inexpedient in the interests of justice that the statement should be admitted." The latter stipulates that in determining the weight to be attached to a statement "regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement."
For example, in both Son Hoang Nguyen and Parkinson the Court of Criminal Appeal concluded that a jury could not safely reach a guilty verdict where the principal evidence against the accused was derived from statements admitted pursuant to 101 in circumstances where at the trial the maker of the statement swore on oath that the contents of that statement was not true. The approach in those two cases was approved of by the High Court in Chidiac v. The Queen (1991) 171 CLR 432 at 446. But as all the authorities make clear, as do the sections of the Act themselves, the question of weight must be considered in the light of all the circumstances of the particular case.
That is what the learned trial judge in fact did here.
His Honour said in dealing with the weight to be given to
the evidence of Mrs Kenyon: "I will review it in the
context of other evidence". He then went on to refer
specifically to some of the tape-recorded conversations
which contained material corroborating Mrs Kenyon's
evidence. The learned trial judge also had the benefit of a
tape-recorded telephone conversation between Mrs Beecroft
and Mrs Kenyon in determining what weight should be attached
to the latter's evidence. In Mrs Kenyon's evidence in chief
reference was made to that tape but it was not then
introduced into evidence. As the learned trial judge said
in his reasons: "It would hardly have been admissible at
the instance of the defendants having regard to its
content". But during cross-examination counsel for the
appellant called for the tape, had it played to Mrs Kenyon,
and cross-examined her on it. It was in that way that the
tape was introduced into evidence. The learned trial judge
specifically rejected submissions that Mrs Kenyon "did
maliciously or deliberately interfere with the tape", and
the clear inference from his reasoning is that he used that
tape-recorded conversation as one of the relevant factors in
determining that he should reject the evidence of
Mrs Beecroft and rely on and place significant weight on the
evidence of Mrs Kenyon.
It is now necessary to return to the position with Crothall. As already noted he initially denied during cross-examination that the appellant had ever made an admission to him that a bouncer had been responsible for the fall. It was then put to Crothall that he had on prior occasions made statements to the contrary; details of those contradictory statements were put to him but he denied making them. Then, again relying on s.18, defence counsel proved the making of some such statements, in particular statements in phone conversations to which Crothall was a party and which were recorded. I cannot see any basis for distinguishing the situation with Crothall from that relating to Mrs Beecroft and Mrs Kenyon. Again there were the two separate issues; firstly, were the contents of the prior inconsistent statements evidence of facts stated therein pursuant to s.101, and secondly, what weight should be attached to that evidence in the light of s.102. Again the trial judge was in the advantageous position of having recorded details of relevant telephone conversations involving Crothall. In those circumstances significant weight could be attached to the evidence in question notwithstanding that Crothall swore to the contrary whilst in the witness box. The learned trial judge was "quite unimpressed with Crothall as a witness" and he concluded that Crothall "was evasive and deliberately attempted to mislead the Court concerning discussions that he had had with the plaintiff concerning his injury prior to giving evidence."
In all the circumstances I can discern no error in the way in which the learned trial judge treated the evidence of Crothall, Mrs Kenyon, and Mr Kenyon. In the peculiar circumstances of this case he was justified in attaching great significance to the contents of the prior inconsistent statements and I can see no basis for interfering with the conclusions he reached.
The learned trial judge was entitled to find, after giving weight to the admissions proved against the appellant, that the fall did not occur as he alleged in his evidence in chief. It follows logically from that that his Honour was justified in concluding as he did in the passages from his reasons quoted at the outset of this judgment.
It appears that during addresses counsel for the appellant contended that, even if a bouncer was in some way involved, the inadequate height of the balustrade was a cause of the fall and injuries. However it was pointed out in evidence that, depending on the nature of the force used by the bouncer, a rail of proper height may not have prevented the fall. As the appellant gave no evidence as to the force used by the bouncer it was impossible for the trial judge to arrive at a conclusion favourable to the appellant.
As the appeal with respect to the decision on liability is to be dismissed there is no point in this court embarking upon a consideration of the issues raised on appeal with respect to quantum.
The appeal should be dismissed with costs.
Vic., S.A., W.A., A.C.T. and N.T.
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