Skipper v Boertien

[2000] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S151 of 1999

B e t w e e n -

GREGORY STEPHEN SKIPPER

Applicant

and

FREDERICK BOERTIEN

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 MAY 2000, AT 2.02 PM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:   May it please the Court, I appear with MR L.T. GREY for the appellant.  (instructed by Carroll & Dea)

MR D.F. ROFE, QC:   If your Honours pleases, I appear with my learned friend, MR M.B. WILLIAMS, for the respondent.  (instructed by Malcolm Johns & Company)

GLEESON CJ:   Yes, Mr Gross.

MR GROSS:   Your Honours, this is a simple matter where the trial judge found that the issue of importance was whether or not the plaintiff’s bicycle came out of the driveway to No 137 rather than 141.  He depended entirely for a finding in his favour – that is the plaintiff – on Mr Wilson’s evidence being accepted.

Your Honours, at page 68 of the book, his Honour, in the passages we have extracted, described that issue of importance at line 16, and at line 50 said this in the passage we have extracted:

Mr Wilson’s evidence which was critical to the Plaintiff’s case suffers from the difficulty that he made no mention of the driveway from which the Plaintiff made his entrance to the carriageway either when interviewed by Police immediately after the accident or his signed statement.

The critical is “made no mention of the driveway from which the Plaintiff made his entrance”.  The two statements referred to are on page 66.  Your Honours will see at page 66, line 25, the terse version taken by Sergeant Holliman on the day of the accident and your Honours will see in about the third line of the six-line passage:

I was riding on the footpath on eastern side and Greg was on the footpath on the western side.  I looked over and saw he was trying to cross onto my side.

GLEESON CJ:   Just before you pass from page 68, I had thought it was the preceding paragraph and, in particular, the statement that the evidence of the defendant was corroborated by Mr Leijen, that was regarded as important by the trial judge.

MR GROSS:   Your Honour, it is clear there is a credibility contest between the defendant on the one hand and Mrs Leijen supporting the defendant.  On the other hand, the plaintiff only has Mr Wilson.  What we say is in that credibility contest, the plaintiff’s chances were destroyed because of the impermissible way in which his Honour rejected the evidence of Mr Wilson.  I accept that as being the context your Honour has identified.  I have read your Honours the first statement ‑ ‑ ‑

GAUDRON J:   What is wrong with rejecting, with preferring, in short.  It is not rejecting, it is preferring the evidence of one to another on the ground they are identified.  These factual findings have to be made, and one lot of evidence has to be preferred to another.

MR GROSS:   Your Honour, that is so, but the process of decision making and appeal requires that the reasoning used in such a critical area pass the tests in Earthline.  So if, in fact, the trial judge has two fragile a basis for his finding that the witness is unreliable, reaches an adverse conclusion based on assumptions about the evidence which careful analysis of the record shows to be incorrect, or fails to give consideration to the real strength of the evidence given by Mr Wilson ‑ ‑ ‑

GAUDRON J:   But here there were competing versions of the facts.  Competing.  There was evidence for one and perhaps for the other, except that the only evidence for the other, really, in substance, was that of Mr Wilson, was it?

MR GROSS:   Yes, your Honour.

GAUDRON J:   And, as against that, there was a body of other evidence.  What is wrong in saying, “Well, he did not refer to it before, thus I prefer the evidence of the others”?

MR GROSS:   Well, your Honour, because the underlying reasoning has to be in such an approach that there is an inconsistent version of events given by Mr Wilson ‑ ‑ ‑

GAUDRON J:   It does not have to be.  It would have been sufficient if the trial judge had said, “I prefer the evidence of the defendant to that of Mr Wilson”.

MR GROSS:   Yes, but your Honour ‑ ‑ ‑

GAUDRON J:   Without giving any reason.

MR GROSS:   Well, we look at what he did rather than what he might have done, and an appellate review requires examination of the validity of the judge’s process of rejection when he is given reasons.  The only reason which he gives in the end, your Honour, is that – and sure it is in the context of a contest between two sides – if your Honours go to page 17, line 20:

Mr Wilson’s evidence, which was critical to the plaintiff’s case, suffers from the difficulty that he made no mention of the driveway from which the plaintiff made his entrance -

Is that a difficulty that has any legitimate affect ‑ ‑ ‑

GAUDRON J:   There has to be some evidence of the driveway from which he came, right, in this case?

MR GROSS:   Yes.

GAUDRON J:   And the plaintiff bore the onus of proof.

MR GROSS:   That is so.

GAUDRON J:   And the only evidence in the plaintiff’s case, indeed the only evidence that he came from the driveway of ‑ ‑ ‑

MR GROSS:   Is the evidence of Mr Wilson.

GAUDRON J:   That is the right.  And there was nothing to corroborate it?

MR GROSS:   There was other evidence which was consistent to such an approach.  There was expert evidence consistent that the bike came head-on into the vehicle as distinct from coming up ‑ ‑ ‑

GAUDRON J:   Yes, but that evidence was consistent with it coming either way.

MR GROSS:   In the end there was conflicting evidence there.  But the basis in legal principle, which of course is what this Court is concerned with, upon which there is such a rejection of the witness is essentially one of three principles:  either there is an inconsistent version of events because he has not said it in the earlier statements; secondly, that he is silent on the point and that is indicative of some falsehood or consciousness of a false position, or thirdly that his Honour has given more weight to the witnesses who get in first with a detailed prior consistent statement and discounted those who do not have that advantage because the defendant had given such a statement.

So in terms of principle, we say the error is that identified by Professor McCormick in the passage which we have summarised and extracted at page 71.  If your Honours would just go to that.  At page 71, McCormick on Evidence, is dealing with the question of what is a prior inconsistency in the context of partial silence.  Six lines up from the bottom of that quote, at around about line 45:

The language of some of the cases seemed overstrict in suggesting that a contradiction must be found, and under the more widely accepted view any material variance between the testimony and the previous statement will suffice.  Accordingly, if the former statement failed to mention a material circumstance presently testified to, which it would have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent.

So then what you have to really look at is whether or not the omission is one where the fact would have been natural to mention in the context of the prior statement.

GAUDRON J:   You may have to in certain contexts, but here the trial judge was faced with a preference.  It was as simple as that.  He had to accept one or the other.

MR GROSS:   That is the nature of trial decisions when there is conflict.

GAUDRON J:   That is right.

MR GROSS:   But, your Honour ‑ ‑ ‑

GAUDRON J:   And in terms of the onus-bearing party, he said, “Well, the only evidence that the onus-bearing party has, the only evidence as distinct from a greater body of evidence – a greater quantity at least, forget about weight on the other side – is this person who gives this detail for the first time in his – when?

MR GROSS:   That, in our submission, is the error.

GAUDRON J:   Yes, but I do not see that it is an error at all.  It is much more satisfactory, I should have thought in terms of legal reasoning, for the trial judge to say what he did than to say, “Well I prefer the evidence of the defendant”.

MR GROSS:   Yes, but the reasoning given comes down to this, that Mr Wilson does not come into the witness box blessed by being preceded by a handsome and detailed prior consistent statement to which he is still sticking.  So, your Honour, when we look at the statements that are obtained, one cannot treat that as being an inconsistency in a relevant sense ‑ ‑ ‑

GAUDRON J:   The trial judge did not treat it as an inconsistency.  He said, “I prefer this body of evidence”, or “I prefer the evidence of the defendant which is corroborated in detail by Mrs Leijen, to that of the only witness for the plaintiff, who bore the onus of proof, who in fact did not mention this at earlier times”.

MR GROSS:   Your Honour is describing the outcome of the credibility contest at a point where our only warrior in the field has been wounded by an improper analysis of the weight to be attached to his silence on earlier occasions.  Your Honours, it is not legitimate to mark down a witness because on earlier occasions others have not recorded an event, or alternatively, where for their own reasons ‑ ‑ ‑

GAUDRON J:   I am not too sure.  One is forming a view about credibility.  That is all one is doing.  Certainly there are occasions when you can say an appellate court will intervene because there are clear deficiencies of the kind that was looked at in State Rail, but there are no rules, surely, about the process by which a trial judge gives greater credibility to one witness than to another.

MR GROSS:   The Earthline test, we would submit, does recognise that error can be found sufficiently in the fragility of the basis upon which a key witness is rejected as being unreliable.  The assumptions about why he should be rejected attribute to him a power to have that earlier version recorded, which is not there on the evidence.

GLEESON CJ:   The primary reason his evidence was not accepted was that he had two people saying the opposite.

MR GROSS:   Your Honour puts that as being a primary reason.  In the end, he gets weighed in terms of the integrity of his evidence and how it stands up with his prior versions.  That can be a discounting process.  Likewise, the other party, that is the defendant and his witness, get evaluated accordingly.  Then you have a comparison.

GLEESON CJ:   All the judge said is, “I notice that two credible people say the opposite of what Mr Wilson said, and I also note that Mr Wilson said something on an important subject which he did not mention in his earlier statement”.  That is all the judge said.  What is wrong with that?

MR GROSS:   Because you do not have to say it before in order to have it believed in the witness box.  You do not get greater credibility because of ‑ ‑ ‑

GLEESON CJ:   You do not have to but it is a help, is it not?

MR GROSS:   - - - multiplicity of statements.  It is also not appropriate, in our submission, to require that there be completeness of the earlier versions when, in fact, the witness is not the master of the written composition, he merely supplies information.  What you get in the statement is the outcome of the questions you ask.  If the questions are not asked, you are not going to get it in the version.  A 15-year-old boy cannot say, “Hang on, constable, write down a lot more than that.  This could be important”.  The statement has been obtained for purposes that are important to the police officer, and when you look at the terseness of the statement - we all know they tend to be remarkably terse, especially with pedestrian cases – all you have is the bear facts of how he came to be there, the fact that the plaintiff was trying to get across the road.  No one asks, no one records, no one states where he is coming from.  So, in effect, the witness is being marked down by reference to the omissions of others who are controlling the formation of the statement.

Your Honours, can I move off this particular point just to indicate there is, I suppose, a wider question involved.  Trial judges, of course, agonise frequently about how you believe one party rather than the other, but quite commonly you get stratagems or rules of thumb, a pragmatic reference to ease the burden, witnesses not called, questions not asked, and the like.  This is another of that stream of mechanical jurisprudence - another feature - and it is this, that there was an earlier statement and it does not touch upon the subject matter.  To require, in effect, that the witness to be credible has to have said the same sort of thing, or rather have recorded by others the same sort of thing, in advance, is the same sort of irrational approach to who you believe and why.

GAUDRON J:   I do not think it is an irrational approach at all, I am afraid, and I think you do the trial judge a disservice in talking about this in a mechanical way.  The trial judge has approached it; he has had to make a decision; it seems to me it has been made on a perfectly sensible basis.

MR GROSS:   But your Honour, the only basis upon which he describes Mr Wilson’s evidence for the purposes of weighing it – put aside the comparison context which, of course, is implicit and, indeed, stated – is that he suffers from “the difficulty”.  That is not a difficulty and, indeed, witnesses to accidents have no power to have a more detailed version recorded by anyone.  Infant witnesses have even less capacity, so where is the difficulty?  There is no difficulty. 

One has to ask, if there is a difficulty, why should that be a difficulty?  If you look at the underlying reasoning that must be lurking there, it is because he did not say the same thing earlier in a written form

that has been recorded by someone.  We would submit that that is an obvious error.  It is an error which should be, in our submission, dealt with by this Court so as to avoid its recurrence.  Your Honours, it cannot be the first example that your Honours see of this kind of thing but, in our submission, it has a pernicious tendency to create a method of reasoning for discounting witnesses when, in fact, it has no legitimacy as a matter of reason, logic or experience. 

Your Honours, that completes my submissions.

GLEESON CJ:   Thank you, Mr Gross.  We do not need to hear you, Mr Rofe.

The Court is of the view that there are insufficient prospects of success of an appeal in this matter to warrant a grant of special leave and the application is dismissed.

Can you resist an order for costs, Mr Gross?

MR GROSS:   No, your Honour.

GLEESON CJ:   The application is dismissed with costs.

AT 2.22 PM THE MATTER WAS CONCLUDED