Trimen v Janes

[1988] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S26 of 1988

B e t w e e n -

GLORIA JEAN TRIMEN

Applicant

and

HARRY JANES

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J

TOOHEY J

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MR A.W. STREET:	May it please the Court, I appear for the

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 1988, AT 2.04 PM

Copyright in the High Court of Australia

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applicant. (instructed by Thomson Rich O'Connor)

MR W.R. NICHOLAS, QC: If the Court pleases, I appear with my

learned friend, MR R.A. GRAY, for the respondent.

(instructed by Ebsworth & Ebsworth)

MASON CJ:	Mr Street.
MR STREET:	There are four errors of principle, Your Honours,

that we seek to attack in the judgment of the Court

of Appeal.

MASON CJ: 

You might identify those errors of principle.

MR STREET: 

If Your Honour pleases. The first is that the

applicant must establish that the trial judge could
not rationally accept the evidence given by the
witness. That test, we respectfully submit, does not

accord with what fell from this Court in BRUNSKILL V

SOVEREIGN MARINE.

The second error of principle that we seek to develop is that the Court of Appeal did not apply a

test on the balance of probabilities and has taken

out of context the observations that no appellate
intervention should be made where the mere probabilities

revealed by the material before the trial judge were -

I withdraw that - the second point is that the Court

of Appeal did not apply the full context of the
observations relating to appellate intervention on the

mere balance of probabilities upon the material before

the trial judge and that what Their Honours failed to
take into consideration was that the statement of those

principles simply emphasize that one must also include

the findings of the trial judge as well as the material
before the judge in determining the probabilities.

The third error of principle that we seek to

develop is that in any event the Court of Appeal erred

in assuming an advantage in the trial judge flowing from

his position as such in so far as the demeanour of a

witness is concerned as to his powersof observation

being the critical fact in issue in the present case.

The fourth matter which the applicant seeks to

develop as the error of principle is that the Court of

Appeal did not, in any event, consider the probabilities

in the absence of any rival possibility. Your Honours,
in the applicant's respectful submission, each of those

principles are ones which, of themselves, are matters

of importance in appellate intervention on findings of

fact.

IL l could s~~~ L0 J~v~l0~ further the proposition

relating to the test applied on the balance of

probabilities. If I could hand up to Your Honours

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additional material, being the judgment in "P. CALAND"

of the House of Lords and the judgment of the House

of Lords in HONTESTROOM and I would seek to take

Your Honours briefly first to the decision of the

House of Lords in "P. CALAND", (1893) AC 207,and the

passage in the Lord Chancellor's judgment to which I

seek to take the Court appears at page 215 at about

point 2 where His Honour says:

Now,I quite agree with what has been said in

this House in previous cases as to the importance

of not disturbing a mere finding of fact in

which both the Courts below have concurred.

I think such a step ought only to be taken when

it can be clearly demonstrated that the finding

was erroneous. In the present case, although

I might probably myself have come to a different

conclusion, I cannot say that any cardinal fact

was disregarded or unduly estimated by the

Courts below. I can lay hold of nothing as

turning the balance decisively the one way

rather than the other. I think the decision

of the question of fact at issue depends upon

which way the balance of probability inclines, and I am not prepared to advise your Lordships

that it is so unequivocally inclines in the

opposite direction to that indicated in the

judgments of the Courts below - - -

MASON CJ:  Do the findings of fact turn on credibility in that

case?

MR STREET:  Your Honour, it is my understanding that it did

in so far as the question of what the master said as

to the lights which were on, but Your Honour, that is

my understanding of it. But, Your Honours, the

proposition which I seek to extract is simply that the

appellate intervention is one which still depends upon

the balance of probabilities and that the reasoning

adopted by Mr Justice McHugh takes further the

proposition that has earlier been cited relating to

mere probabilities on the evidence and applies it in the

present case and in ISKANDERIAN to a rule that no matter

what the probabilities, that is not sufficient for

appellate intervention.

Your Honours, the same subject-matter was - - -

MASON CJ:  I am not sure how you are using this. Let us assume

a case in which the primary judge gives a decision and

that decision is a reflection of his acceptance of the

evidence of a particular witness. What are you then saying in relation to the Court of Appeal's power to reject the primary judge's acceptance of the evidence

of that witness?

MR STREET:  That the Court of Appeal can, and should, interfere

where the probabilities upon both the material before

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the trial judge and the reasons of the trial judge

lay in favour of one fact or another.

MASON CJ:	Now, let us assume that you cannot say of the witness' evidence that it is glaringly improbable
though you can say that it is, to some extent, opposed
to the balance of probabilities.

MR STREET: Well, Your Honour, the submission that I would seek

to develop is one that the test enunciated in

BRUNSKILL as to "glaringly improbable" would, as a

matter of logic, be reduced to simply a question of

being either probable or improbable in the application

and that the observations made by Mr Justice Walshe

in EDWARDS V NOBLE as to the utility of the adverb

"clearly" in so far as "wrong" is concerned is

equally- applicable to the adverb "glaringly". It is

either, in my respectful submission, a case one

finds that the probabilities, having taken into account

all the material before the trial judge and the trial
judge's findings weigh in the favour of a finding,

such as the appellant contends for in the present case,

or they do not and one has an onus which is that

civil onus and no higher, in my respectful submission~

The same comment in relation to the use of the word
"clearly" was made by, I think it was, Lord Wright

in a passage in OSTENTON & CO V JOHNSTON, (1942) AC at

page 138 where, again, he was considering the use of

the adverb "clearly" and what he said in that regard

was that one must not act on a mere measuring cast or

a bare balance.

Your Honours, the applicant respectfully submits

that the Court of Appeal has taken the matter one step

further. Can I take Your Honours to the actual judgment

which I have not sought to do at this stage? At

page 36, the test applied by His Honour Mr Justice McHugh,

at about point 13 on the page:

The burden of Mr Caldwell's submissions was

that on the whole of the evidence his Honour

could not rationally accept the evidence of

Mr Forster.

That, in my respectful submission, is not the test

that one finds laid down in BRUNSKILL. The application

of that test is repeated at page 39 in the judgment
at point 17 where His Honour says:

Strong as the arguments are in favour of the reef being the object with which

Battle Star collided, it is not such an

admitted or incontrovertible fact that

this Court can say that the trial judge

could not rationally accept the

evidence of Mr Fo:c.si..t::r.

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MASON CJ:  But that is only another way of saying that the

evidence is glaringly improbable.

MR STREET: Well, Your Honours, in my respectful submission

that must be taken together with the passage that

one finds at page 37 which is lifted out of

ISKANDERIAN V ISKANDERIAN where His Honour says

at about point 5:

"A finding of fact, depending in whole or
in part on the credibility of a witness or
witnesses cannot be set aside merely
because the probabilities strongly point

to the opposite conclusion.

Now, Your Honours, what I was seeking to take

Your Honours to was that that statement of principle extracted by Mr Justice McHugh is one which goes

further than the observations found in the judgments

by Lord Wright, Lord Sumner and Lord Herschell in

the English decisions dealing with the findings on

credibility. What Their Honours said in each of

those cases was that a finding on mere probabilities

upon the material before the trial judge is not

sufficient and they go on to say that what one must

take into account is the actual judgment of the trial

judge in determining whether the probabilities then

warrant appellate intereference. And in the applicant's respectful submission, what His Honour Mr Justice McHugh

has said at page 37 point 4 and following in the passage

from ISKANDERIAN plainly shows that His Honour has

developed the proposition to a point where no longer
is the application of the balance of probabilities
the test at which the Court of Appeal was applying in

reviewing the finding of fact by the trial judge.

Your Honours, that, in my respectful submission,

is also supported by what one finds in the judgment

at page 39 at about point 10 after referring to the

fact that other than the reef at "Sow and Pigs" there

was not a scintilla of evidence which would support

any of these matters being as possible causes and

no other suggestion of any other possible cause.

His Honour Mr Justice McHugh said:

It is a very powerful point that, on the

face of the evidence, the highly probable

cause of the collision was the reef.

Taking that passage together with his earlier reference in ISKANDERIAN, in my respectful submission, His Honour

was applying a test that was not one supported by the

reasoning found in the English cases to which he refers,

and he does, in ISKANDERIAN, set out those cases.

MASON CJ:  But come back to BKUN'SKILL because, after all, BRUNSKILL

is a decision of this Court. Now, it seems to me that

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what was said in BRUNSKILL is necessarily inconsistent
with a proposition that you can discard the evidence

of a witness whose evidence the primary judge has

accepted merely because that evidence is inconsistent

with the probabilities.

MR STREET:  Your Honours, in my respectful submission, the

principle that Your Honours laid down in BRUNSKILL

goes no further than applying and requiring an

appellate court to apply a test of being satisfied

that the finding was wrong on the probabilities and

in so far as the use of the adverb "glaringly" is

concerned, it does not impose a higher onus upon the

appellant. It simply emphasizes that a mere balance

is not sufficient and that is what Lord Herschell was

saying, in my respectful submission, in "P. CALAND".

And, Your Honours, I do not seek to attack BRUNSKILL,

what I seek to say, its logical application is one

in which the Court of Appeal must apply a test of

probabilities. It is either improbable or probable.

Whether you describe it as "clearly" or "glaringly",

in my respectful submission, does not advance or

detract the test to be applied.

MASON CJ:	I can understand that one might say "I won't accept the evidence of witness X because it's improbable"
but once having taken into account his evidence against
one's prima facie feeling that it might be improbable
it seems to me you are then confronted with a real
difficulty.

MR STREET: Well, Your Honours, the answer that we seek to make

in that regard is to call in aid the observations by

Lord Brandon of Oakbrook in the RHESA SHIPPING case,

(1983) 1 WLR 948 and there Lord Brandon quoted a

passage from Sir Arthur Conan Doyle by his character

Sherlock Holmes to Dr Watson at page 955 where he said:

"How often have I said to you that, when

you have eliminated the impossible,

whatever remains, however improbable,

must be the truth?"

Three qualifications His Lordship then proceeded to

develop and it is the third of which I would seek to

emphasize; the first being that a trial judge may not

be satisfied one way or the other; the second being

that the circumstances may not be all known and for that reason one cannot apply the proposition put.by

Sherlock Holmes. The third though, and this is the

one which the applicant respectfully submits supports

the contention, at page 956, about point C:

The third reason is that the legal concept

of proof of a c9-~e .. on a b?,l_ance_ of. probabilities

must be applied with common sense.

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In my respectful submission, in the absence of any rival theory to support the proposition that there was some other thing that the vessel hit, it could not be said that the application in the present case

of the balance of probabilities has been applied , with respect to the Court of Appeal or the learned

submission, once one gets to the position that there	trial judge,with conrrnon sense. In my respectful
is not a scintilla of evidence to support any other
rival cause it becomes somewhat difficult for the
respondent to justify the finding of the trial judge.

DAWSON J: What you are really saying, are you not, is that the

trial judge should have rejected the evidence of Mr Forster because it was so improbable, because

unless you say that you do not get to the conclusion

that you seek?

MR STREET: Well, Your Honours, that is the bald proposition

of the ramifications of the issue we seek to develop

in so far as that would be the logical consequence

but the error of principle we say is that waat

ISKANDERIAN says and what His Honour Mr Justice McHugh

said in this case plainly goes further than the

question of probabilities as being the test applied.

DAWSON J: Well, it does not, really, because once you accept

the evidence of Mr Forster the probabilities change

they must.

MR STREET:  Your Honour, in my respectful submission there is

a further answer to the acceptance of Mr Forster which
would, in any event, be a question of principle that
would warrant this Court looking at the matter and

that is that the mere acceptance of a witness as being a credible witness does not of itself then prevent appellate interference in so far as the

relevant issue of fact is concerned if that issue of

fact is one that is not directly touched by

credibility. Here, in my respectful submission, the

critical question was the powers of observation of

Mr Forster. It could not be said, in my respectful

submission, that the appearance and demeanour of a

witness in the witness box could lead the .....

judge to have an advantage over the Court of Appeal

or an appellate court in assessing whether or not the

powers of observation of that witness were ones that
prevented interference because of the finding of

credibility.

DAWSON J:  But this is the proposition, really: you say even

if Mr Forster was the most truthful man	in the world,
what he was saying just could not be.	That is what
you are saying, is it not?

MR STREET:  Yout' Honour, I do put it thA.t way but I seek t:o put

it in the light of the approach by the Court of Appeal

being one where they have failed to assess the

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relevance of the credibility to the fact in issue

and, Your Honours, as to whether or not credibility

prevents appellate interference except where it is

glaringly improbable, in my respectful submission,

one must weigh the nature of the fact in issue so

as to ascertain what the effect of the finding of

credibility would have. Here, it could not be said,

in my respectful submission, that the Delphic powers

of observation of the trial judge as to demeanour

could advance any finding that the witness was one

whose own powers of observation were infallible and,

in my respectful submission, there is no advantage in

such a fact in issue that would prevent an appellate

court approaching the matter on an approach where such

a finding of fact does not preclude intervention.

DAWSON J: Well, I understand that. I mean, if the most truthful

honest witness expresses mistakenly the view that black

is white, it does not make black white, does it?

:MR STREET:  No, Your Honour, but one, in my respectful submission,

must look at what it was that His Honour Mr Justice McHugh

said in this regard and that appears at page 41 at

about point 3 where His Honour, in looking at the

evidence given by Mr Forster, said:

He had the advantage which is denied to

this Court of making some assessment of

his intelligence and general powers of

observation.

Well, in my respectful submission, strong, indeed, would be the advantage of the trial judge if he is

able, from demeanour, to ascertain a witness' powers

of observation and, in my respectful submission,

that would fall within the fiction referred to by

Lord Atkin in LECK V MATTHEWS.

Your Honours, it is not a case such as was

considered by His Honour Mr Justice Isaacs

where there are competing potential causes which may

be weighed by the probabilities and His Honour

Mr Justice Isaacs, in COFIELD V WATERLOO COMPANY

LIMITED, (1924) 34 CLR 363, cited a passage by

Lord Loreburn that:

'Courts .... like individuals, habitually act

upon a balance or probabilities'; and it

was within the province of the jury to
estimate the comparative degrees of
probability ascribable to the rival

explanations advanced by the parties.

Where, Your Honour, in this case, is there a rival

exr1lanation? In my respectful submission, that, of

itself, means that in assessing Lhe proLaliiliLies wiLh

common sense the absence of a rival explanation and the

absence, of any attention being addressed in that regard

by the Court of Appeal would warrant intervention.

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DAWSON J:  But Mr Forster gave a rival explanation.

MR STREET: Well, Your Honours, in my respectful submission,

the evidence given by Mr Forster in so far as it

goes does not leave any rival explanation. He simply

says he hit some unidentified object. Your Honour,

the possibilities of that occurring needs some

explanation as to what it was. Neither the Court of

Appeal nor the trial judge was able to point to any

other possible cause and that is the reason for the reference, in my respectful submission, to what was said by Sherlock Holmes, what possible cause can

there be? In my respectful submission, the possible

cause, once one takes into account the surrounding circumstances of the vessel being in a race trying

to go as close as it could to "Sow and Pigs", the

line that it was taking across from South Head down

towards Chowder Bay near Clifton Gardens and the

defendant's own evidence is one where it becomes, in

my respectful submission, clear that the only possible

cause was the reef.

Your Honours, in so far as the Court of Appeal

took the matter, the test applied by Mr Justice McHugh,

in my respectful submission, as to whether one could

rationally accept the evidence takes much higher than

is appropriate the application of "glaringly improbable"

laid down in BRUNSKILL V SOVEREIGN. It means, in essence,

that the consequence of that is an almost glaringly

impossible task for an appellant seeking to challenge

a finding of fact and, in my respectful submission, gone

are the days, as a result of special leave, where one

needed any artificial test to prevent appellate

intervention on findings of fact.

Your Honours, in my respectful submission, the

consequence of the test laid down by Mr Justice McHugh

as to no rational basis and his application as to

the question of highly improbable being irrelevant

even on the whole of the material takes too far the

test so far as the duty of the Court of Appeal flows

from what has earlier been said to interfere.

Your Honours, can I also put it this way: there

is, in my respectful submission, a conflict of opinion

expressed by His Honour,the President, Mr Justice Kirby

and Mr Justice Priestley in the cases to which reference

is made in the affidavit in support of the application.

The decisions in MORAN V McMAHON and CHAMBERS V JOBLING and BRETT V NOMINAL DEFENDANT are ones that it is

difficult to reconcile with the approach adopted by

His Honour Mr Justice McHugh in ISKANDERIAN and that

ISKANDERIAN is a matter of public importance, in my

respectful submission, is one justified by its application

by Mr Justice McHugh in the present case. It is plainly

a test that His Honour is seeking to give effect to in

interfering with findings of fact.

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Your Honours, in my respectful submission,

the consequence of the test sought to be applied

would warrant, of itself, special leave. In so far

as the further submission I put goes, the assessment
of credibility in each case must be made by the

Court of Appeal in weighing whether or not it would

interfere on a finding of fact and that, of itself, is

a matter also, we would respectfully submit, is of public importance. And finally, Your Honours, in so

far as the present case is concerned, I respectfully

submit that this is a case where, in the absence of

any rival explanation as to the possible cause, the

administration of justice itself would warrant

intervention upon the grounds that the decision is, in

my respectful submission, so plainly wrong and there

is an application of a test not laid down by the High

Court as would warrant intervention. If the Court

pleases.

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

Mr Nicholas.

MR NICHOLAS: If the Court pleases.

MASON CJ:  In the Court of Appeal Mr Justice McHugh recognized

that the issues for determination were whether the
decision of the primary judge depended upon the

credibility of oral evidence and, if so, whether the

evidence accepted by the primary judge, that of

Mr Forster, could be rationally accepted or was inconsistent with established facts.

His Honour's approach conformed with what this

Court said in BRUNSKILL V SOVEREIGN MARINE AND GENERAL

INSURANCE COMPANY LIMITED, (1985) 59 ALJR 842 at

page 844, except that His Honour referred to evidence
being "irrationally accepted" rather than the evidence

being "glaringly improbable", the expression used by

the members of this Court in their judgment.

We do not understand His Honour's expression

to present a different test though we think that the

test was correctly and adequately expressed by this

Court in BRUNSKILL. Accordingly, the Court of Appeal

did not err in principle and the application for special

leave is refused.

MR STREET: If the Court pleases.

MR NICHOLAS:	We ask for costs, Your Honour.
MASON CJ:	You do not resist an application for costs, do you,

Mr Street?

MR STREET: Well, I do not consent to it, Your Honour.

MASON CJ: The application is refused with costs.

AT 2.30 PM THE MATTER WAS ADJOURNED SINE DIE

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