Carter v Rosedale Sawmill & Anor [1995] QCA 441

Court of Appeal (Qld)|1995-10-03|Before: Before Pincus J, Thomas J, Williams J, Pincus JA, Gummow J

I have read the reasons of G N Williams J in which the issues which arise in this application are set out.

The application is for an extension of time and is based on evidence from a witness who gave evidence against the plaintiff at the trial. That witness has sworn that her evidence at the trial was false and given an explanation as to how it came about that she gave that evidence. As G N Williams J says, although all that is before us is an application for an extension of time, we have heard argument as if on an appeal; so that the application should be granted only if it is proposed to allow the appeal. The grounds of appeal are all based on the recantation I have mentioned.

The relevant facts are analysed in detail in the reasons of G N Williams J. We have only the recanting witness' word for it that what she said at the trial was false. I cannot see how one could be positively satisfied that the witness gave false evidence at the trial and that her latest story is true, or vice versa; we have seen none of the witnesses. Mr K F Boulton said for the applicant that he did not seek to establish that fraud had occurred, but sought a new trial on the ground of fresh evidence; he added that because the application was based on the ground of fresh evidence of fraud, this Court did not have to be satisfied that, if the fresh evidence had been given at the trial, a different result would have ensued.

The initial question is what has to be shown when a new trial is sought on the ground that the judgment has been procured by fraud - and more specifically, on the ground that a witness has been guilty of perjury at the trial. In some instances the importance of the allegedly perjured evidence would be a question for discussion, but here it is plain that the recanting witness' evidence at the trial was important.

The recent decision in Monroe v. Schneider Associates (Inc.) v. No. 1 Raberem Pty Ltd [1992] FCA 367; (1992) 37 F.C.R. 234 concerned a suit to set aside a judgment of the Federal Court on the ground that a potential witness had been intimidated and that there had been perjury at the trial. The matter came before the Full Court of that Court on an interlocutory appeal, in the course of which consideration was given to what had to be shown in order to justify setting aside a judgment on such grounds; it seems possible that the reasons include material written by Gummow J. Here, the proceeding seeking a new trial is an appeal, not a fresh suit as in Monroe v. Schneider. One would perhaps expect that it should be no easier to upset a judgment on the ground of perjury in one type of proceeding rather than in another and in the Federal Court case it seems to have been assumed that the tests applicable on appeal are used where there is an action to set aside a judgment for fraud (242).

But there is certainly authority suggesting the contrary - i.e. that the task facing the dissatisfied litigant bringing a fresh suit to attack a judgment differs from that which an appellant seeking a new trial on the same ground has to fulfil: McDonald v. McDonald [1965] HCA 45; (1965) 113 C.L.R. 529.

Some of the statements made in McDonald v. McDonald imply that it is only in a case of the former kind that it is essential, in order to obtain a setting aside of the judgment, that it be proved that the judgment was obtained by fraud and that in an appeal alleging fraud such proof is unnecessary. Those statements are to be found in particular in the judgments of Barwick CJ at 533.1, " . . . the fresh evidence may tend to support the conclusion that the verdict was obtained by fraud . . . ", and at 533.5, "does tend to establish that the verdict was obtained by fraud . . . ", and at 536.7 per Taylor J (emphasis added). It does not appear to me, with respect, to be correct that an appellate court can grant a new trial on the ground of fraud only if it holds that the fraud has been proved; that was stated in Nicholls v. Carpenter [1974] 1 N.S.W.L.R. 369 at 374, 375 and see also Cabassi v. Vila (1940) 164 C.L.R. 130 at 147.

One possible way of reconciling the two doctrines just referred to is to say that there is a difference between what an applicant has to prove, if she bases her appeal on the ground of fresh evidence, although such evidence tends to show fraud, and what has to be proved if the ground is fraud (shown of course, by fresh evidence); but such a distinction would make little sense. It is better to recognise that the weight of authority favours the view that a new trial can be obtained on appeal, on ordinary "fresh evidence" principles, whether or not the fresh evidence proves fraud. I have not overlooked that as is emphasised in Monro v. Schneider at p. 241 and 242 and in other cases - see McDonald v. McDonald at 544 - it is said to be exceptionally difficult to obtain a new trial on the ground of perjury. But a distinction between the rule as to fraud amounting to perjury and that as to fraud not so amounting is difficult to justify logically, or indeed practically. As to the latter, one can hardly conceive of a judgment obtained in a contested hearing being obtained by fraud where the fraud does not involve perjury.

In the present case it does not matter whether the fact that the species of fraud alleged is perjury imposes an extra burden on an applicant or not, for the grounds put forward on behalf of the applicant cannot in my view succeed, in any event.

Although one cannot now say whether the first story or the second story told by the recanting witness is true, the applicant is entitled to a new trial if the ordinary "fresh evidence" principles can be satisfied. Statements of them are collected in Monro v. Schneider at pp. 237, 238 and in the most recent, Commonwealth Bank v. Quade (1991) 178 C.L.R. 134 at 141 the cogency requirement is stated as follows: ". . . it is reasonably clear that the fresh evidence would have produced an opposite verdict".

Here the fresh evidence, being the recantation, would obviously have been likely to lead to the rejection of the evidence of the recanting witness, as her credit would have been destroyed. And depending on the view the Court took of the fresh evidence, it might also have led to the rejection of the evidence of the witness' mother, which is summarised in the reasons of G N Williams J. The difficulty for the applicant is that the trial judge used the evidence now impugned not to form, but to confirm, his "very unfavourable impression" of the plaintiff. That is, the case is one in which the judge was, apart from the evidence of the recanting witness and her mother, not inclined to accept the plaintiff, for reasons his Honour explained. At best for the applicant one might say that the judge, despite his reservations about the plaintiff's credibility, could well have accepted his version of events, if the fresh evidence had been called before him; that does not satisfy the criterion adopted in Quade.

I confess to some uneasiness about the use of the Quade test in all cases of this kind, for one can imagine an appeal in which highly suspicious circumstances are shown, suggestive of a conspiracy to defraud the Court, but (as here) it is not possible to find fraud positively, nor to conclude that the new evidence would reasonably clearly have reversed the result below. Perhaps a procedure could then be found, so that the matter could be thoroughly gone into, at the appellate level, producing a definite determination as to whether or not there has been a fraudulently obtained judgment. But here, all that we have is an important recanting witness and, at least where there is evidence to support the judgment apart from that of the witness in question, that circumstance does not ordinarily justify a new trial.

This Court must consider the effect of evidence aimed at obtaining an order setting aside a judgment obtained in December 1992 and an order for retrial. Specifically the allegation is that a material witness gave perjured evidence at that trial and has now recanted.

Such an obligation affords an instance and perhaps a sub-class of cases that deal with entitlement to new trial on the basis of evidence not given at the original trial. That subject has a long history with a surprising consistency on the major points that need to be shown before the Court will make such an order. The practice in Chancery was to refuse applications for fresh proceedings based on the discovery of new evidence unless the evidence could not with reasonable diligence have been discovered sooner, and unless it was of a character that if it had been brought forward at the hearing "it would probably have altered the judgment" (Hosking v. Terry [1862] EngR 903; (1862) 15 Moore P.C. 493; 15 E.R. 581; cf. Daniells Chancery Practice (1901) Vol.2 p.1286). Various formulations have been made since then as to the necessary level of cogency required of such evidence and of the likely effect that the fresh evidence should have upon the result before a new trial should be ordered (cf. Orr v. Homes [1948] HCA 16; (1948) 76 C.L.R. 632; McCann v. Parsons [1954] HCA 70; (1954) 93 C.L.R. 418, 428; Greater Wollongong Corporation v. Cowan [1955] HCA 16; (1955) 93 C.L.R. 435; MacDonald v. MacDonald [1965] HCA 45; (1965) 113 C.L.R. 529, 533, 541-543; Commonwealth Bank of Australia v. Quade (1991) 178 C.L.R. 134, 141-143). The cases have been canvassed in the judgments of Williams J and Pincus JA and there is no purpose in my revisiting any of them except Quade.

The justification for a stringent rule in what is regarded as the "ordinary class of case" was acknowledged in Quade above (p.141). The so-called ordinary class of case does not include trials which have miscarried through legal error, or cases where an erroneous result is induced by surprise, malpractice or fraud. The general rule in the ordinary case is that a new trial will be ordered on the ground of fresh evidence only if it is "almost certain" (Orr v. Homes above, p.640) or "reasonably clear" (Greater Wollongong Corporation v. Cowan above, p.444) that the opposite result would have ensued if the evidence had been available at the first trial (Quade, p.142). Powerful reasons of justice and public interest (including the need for finality in litigation) justify such stringent tests (Quade pp.141-142). A less stringent requirement is recognised as appropriate where the opposite party's misconduct (as for example by failing to make proper discovery of relevant documents) has deprived the other party from obtaining relevant evidence at the trial. A stringent test in such a case would assist the successful party to retain "the spoils of his own default".

It is not suggested in the present matter that the alleged untrue evidence of the two defence witnesses was procured through any misconduct on the part of the defendants or their agents. It is not a case of alleged miscarriage by surprise, malpractice or fraud to which the successful party was privy. It would therefore seem appropriate that the test to be applied in the present case is whether it is "reasonably clear" that there would have been a different result if the fresh evidence (i.e. the recantation) had been available at the first trial. That test (the Greater Wollongong test) seems slightly less rigorous from an applicant's viewpoint than the Orr v. Homes test.

I propose to canvass briefly the arguments to the effect that a different result would now be likely. It is unnecessary to repeat the comprehensive statement of facts in the judgment of Williams J. I shall refer to the daughter as Skinnerty and to her mother as Harwood. It will be remembered that Harwood was formerly in a de facto relationship with the plaintiff's brother Phillip Carter. Mr K. Boulton for the appellant submitted that a different result would be likely because not only would Skinnerty's evidence against the appellant be discredited, so too would the evidence of Harwood. He referred to various weaknesses in the evidence of these two witnesses at the trial. These included a discrepancy in the times when the appellant was alleged to have been overheard planning to fabricate his evidence; contradictions as to whether Harwood was "really bitter" against Phillip Carter; inconsistency as to whether she was expecting to be telephoned by the insurance assessor who eventually asked for a statement; evidence that the two women had been interviewed together; and the circumstance that their story was told to defence representatives only two weeks before the trial.

As against this it is to be noted that although Skinnerty has recanted her evidence of the appellant planning to make up and tell a false story, she has not recanted her evidence of the strenuous physical activity which she saw the plaintiff perform at times when he has sworn to have been seriously disabled. Her evidence which describes him doing a good deal of strenuous work is entirely at odds with the case presented on behalf of the plaintiff. It is also the case that no eye-witness was called on behalf of the plaintiff to the alleged work incident, and on the plaintiff's version there must have been a number of men present when he allegedly fell. In relation to the suggestion that Skinnerty was coached by her mother to tell a false story is concerned, it is to be noted that Skinnerty's evidence in most respects contains more detail than that of her mother. Harwood apparently adheres to her story. If she is accepted Skinnerty has simply presented a false recantation.

Having regard to the sequence of events there is a very strong possibility that Skinnerty simply baulked at giving evidence on behalf of the prosecution in a criminal trial against a person with whose brother she had strong ties. Her present explanation for giving an incriminating statement to Detective Gooley in the first instance, and then retracting it at the criminal committal was "I had no idea until the subpoena was served on me why the statement was taken from me". There were significant changes in her family situation between the time of trial and the time of recantation. She had fallen out with her mother, and her half-sister was living with Phillip Carter who had for a time been a kind of stepfather to her. Indeed she had formerly accused Phillip Carter of rape, and was later convicted of making a false complaint when she recanted that allegation. She gave more than a hint during her cross-examination at the original trial that the original allegation was true and that it was the recantation that was false. This certainly does not promote confidence in the truth of the present recantation.

In my view it is far from reasonably clear that a different result would now be produced if the fresh evidence were given. The appeal must be dismissed.

At the end of a three day trial in the Bundaberg District Court the learned trial judge on 2 December 1992 dismissed the plaintiff's action with costs. The plaintiff had sued for damages for personal injury allegedly arising out of an incident which occurred at his place of employment on 7 November 1983. The reasons for the decision will be examined in more detail later. A witness at that trial, Lorie Desley Harwood (Skinnerty), gave evidence on oath in the Magistrates Court at Bundaberg in May 1995, and in the course of doing so swore that some of her evidence given at the trial in the District Court was false. Based on that the plaintiff in the action has now sought from this Court an extension of time in which to appeal on the ground of fresh evidence. In addition to that application a Notice of Appeal has been filed and in the circumstances the Court decided to hear a full argument on the appeal before deciding whether or not to extend time.

In the action the applicant claimed that on 7 November 1983 he was employed on the number two saw bench at the sawmill owned and operated by either or both of the respondents. His evidence was to the effect that on the morning in question an unusually large piece of timber came through the saw; because it was very heavy he was required to walk quickly backwards along a platform which was about four inches high and some nineteen feet long. According to his evidence he unexpectedly stepped off the platform and suffered a severe injury to his back. In broad terms his case at trial was that he was totally and permanently unemployable as a result of what happened on that date.

The learned trial judge said in his reasons for judgment:

"The case depends essentially upon the credibility of the plaintiff. He gives evidence of what was a highly unusual occurrence, so far as he was concerned. ... If I accepted the plaintiff's version of events, I would have no hesitation in finding the defendants guilty of negligence."

Only one doctor, Doctor Van der Walt, gave oral evidence, but numerous other medical reports were tendered. The following extracts from the reasons of the learned trial judge are of relevance for present purposes:

"Some of the reports suggest the plaintiff may have been exaggerating his symptoms. Further, it is clear that some of the plaintiff's persistent complaints of pain are not supported by any medical evidence. ... Doctor Van der Walt ... considered there was some functional overlay present. ... For the most part, the plaintiff has not worked for some nine years. ... The medical evidence does not support this very long absence from work. I thought the plaintiff was evasive in cross examination. ... The heavy work he admitted to doing in cross examination was very difficult to reconcile with his persistent complaints of pain and disability."

Then the learned trial judge went on to consider the evidence given by a mother and daughter, Desley Joan Carter (Harwood) and Lorie Skinnerty. It will be necessary to say more about the historical background later, but it should be noted at this stage that around November 1983 Desley Carter was residing in a de facto relationship with the applicant's brother, Phillip Carter. The learned trial judge dealt with the evidence from these two women as follows:

"It is urged on behalf of the plaintiff that both these women have for various reasons some hostility to the plaintiff and his brother, Phillip Carter. I take that into account. However, their evidence confirms the very unfavourable impression I formed of the plaintiff. I considered both these ladies were reliable witnesses. I'm satisfied that the plaintiff shortly before the alleged incident suffered a fall from a ladder at his residence at Maryborough Street. It is not possible to fix the date of this. I think it probable that the plaintiff suffered some injury to his back in that fall. It is not possible to form any view as to the severity of that injury. I'm satisfied from their evidence that the plaintiff did discuss with his brother before the alleged accident making a fraudulent claim on the Worker's Compensation Board. I'm satisfied from the evidence of Desley Carter and Lorie Skinnerty that the plaintiff on numerous occasions performed quite heavy work but that can not be reconciled with the plaintiff's complaints of persistent pain and disability."

His Honour then went on to reject the evidence of the Phillip Carter, saying that he was "satisfied he was not a reliable witness". He also described the plaintiff as "a most unreliable witness" who was "exaggerating his symptoms and has done so for the last nine years." Finally he concluded:

"I'm not satisfied the plaintiff was involved in any accident at work on 7 November 1983. I am not satisfied the plaintiff suffered any injury at work on 7 November 1983."

Before discussing the circumstances of the recantation, and the legal principles relevant in a situation such as this, it is desirable to say a little more about the evidence given at the trial, particularly by Lorie Harwood and her mother.

At the trial the mother was the first of the two to give evidence. She spoke of an occasion when she went to the applicant's house and saw him "laying on the ground". She saw Phillip Carter and her daughter approach the applicant but she did not hear any conversation. She noticed a ladder up against the side of the house. She then gave evidence that on a subsequent date she heard Phillip and David Carter "discussing how David would go to work and step back off what he was working on". Under cross-examination she admitted that the first time she had told that story to anyone was about two weeks before the trial when she received a phone call from a person who would appear to be a loss adjuster or other investigator engaged by the defence. She was cross-examined at length about her recollection of what she saw and heard with respect to the matters mentioned above. She was also cross-examined at some length about her relationship with Phillip Carter which she admitted came to an end towards the end of May 1992. She claimed that she and her children had been abused by him and that he had "sexually abused one of my daughters". She specifically denied making up the story in order to get even with Phillip or his brother.

Further, it should be noted that in her evidence she gave some details of heavy work that she had seen the applicant do after November 1983. She was cross-examined extensively on that but maintained the accuracy of her evidence-in-chief.

It is not necessary for present purposes to record more of the cross-examination which seriously challenged her veracity. The learned trial judge would have been in a more advantageous position than I to evaluate her credibility in the light of the issues raised with her.

Lorie Harwood (Skinnerty) was born on 7 July 1969 and was thus aged fourteen when she allegedly witnessed the matters of which she gave evidence at the trial, and was aged twenty-three when she gave evidence at the trial. It does not appear that her date of birth emerged at the trial, but her relevant ages, at least in broad terms, would have been obvious to the learned trial judge.

When asked if she could remember the time when the applicant injured his back she replied: "Vaguely, yes." She said that was "late '83". She conceded that the recollection of the time was prompted by another mentioning that date to her. Relevantly, her evidence went on:

"When we got there we saw that well, I had seen David laying on the ground and I went over to him and he said he had just fallen off - I asked him what had happened. He said he had just fallen off the ladder and he had hurt his back."

She saw a ladder on the side of the house. She also said that at the time the applicant said that "his back was sore". She then gave evidence that on a later occasion she "heard David and Phillip talking about a time when he had fallen out of a tree when he was a child". Then on a later date she heard a conversation:

"Well, David had said to Phillip that he was going to go to work and step off backwards off a pallet of timber and he was going go writhe around in pain and put in a compo claim for his back."

Finally, it should also be noted that in her evidence-in-chief she gave, with some particularity, evidence of the applicant doing heavy work after November 1983.

She was very vigorously cross-examined and again the learned trial judge was in the best position to evaluate the impact it had on her credibility. It was put to her, and she readily agreed, that she had some considerable ill feeling towards Phillip Carter. Some years ago she had made a complaint of rape against him. She was aged about seventeen at the time and following the complaint a charge was laid. She denied that she subsequently told the police the intercourse was with consent, but she did accept that she "dropped the charges". She also accepted that subsequently she was "charged with making a false complaint" and "was given community service for it". After agreeing that since then she had been "quite hostile towards Phillip Carter" the following exchange occurred:

Q. And I suggest to you that you would really take any opportunity that came your way to, in fact, harm him or people closely associated with him? - A. No

There is no need to refer in detail here to other parts of the cross-examination. However, it should be said that a careful analysis of the evidence of mother and daughter shows some discrepancies between the evidence each gave.

Apparently, as a result of the judgment given at the trial the Worker's Compensation Board referred the conduct of Edward Carter to the police for further investigation, particularly with respect to whether he had committed perjury at the trial. Desley Joan Harwood provided a statement to the investigating police on 15 July 1994 in which she maintained that the evidence she had given at the trial was true. Lorie Harwood gave a statement to those investigating police officers on 17 November 1994 in which she also maintained that everything she had said as a witness at the trial was true. Both of those statements were sworn to be true pursuant to the provisions of the Oaths Act 1867-1988.

On 16 December 1994 a complaint was laid against the applicant charging him with two counts of perjury. The committal hearing took place in the Bundaberg Magistrates Court on 19 May 1995. On that occasion Desley Joan Harwood gave evidence to the effect that her evidence at the trial was true. She did say that she had not heard from her daughter Lorie since June 1993. Under cross-examination her relationship with Phillip Carter was explored at some length, and it was expressly put to her that she had manufactured her evidence at the trial to get even with Phillip. It is not necessary to set out that cross-examination in detail.

On the day before she was to give evidence at the committal hearing Lorie Harwood made an affidavit, witnessed by her solicitor, in which he said that some of the evidence she had given at the trial was untrue. In that document she swore that some time in 1992 she was approached by her mother about the applicant's litigation in which he was claiming damages for personal injury; it goes on:

"She told me that she had a story worked out and wanted me to back it up to give it more credence. The story was to the effect that she, Phillip Carter, myself and my half-brother and half-sister showed up at David's house at Maryborough Street, immediately after he had fallen off a ladder, injuring himself. The story further went that I was supposed to have overheard a conversation between David and Phillip, whereby David said that he was going to start work at Rosedale Sawmill and that he would work there for a couple of weeks and then fall off a pallet of timber and roll around in agony as though he had injured himself.

This was not true as I never attended the house and the story put to me by my mother never occurred. She said that I had to back her up or I would lose my son over it. At the time, I'd separated from my husband and there was conflict over custody and access to our son."

In the affidavit she also referred to the fact that her mother had broken up with Phillip Carter and returned to live with her natural father, George Harwood.

When called the following day in the committal proceedings she was shown her statement dated 17 November 1994 and said that the contents of it were not true and correct. In the course of her oral evidence on that occasion she said "everything I said about David is false".

She was then extensively questioned by the police prosecutor and conceded that there was no hold over her in 1994 when she made the statement to the police. However, she claims that she was then still protecting her mother. She also acknowledged that from time to time over many months prior to May 1995 she had been working with Phillip Carter.

Undoubtedly as a result of the evidence given by Lorie Harwood the Magistrate dismissed the complaint and did not commit the applicant for trial.

In her affidavit in support of the present application Lorie Harwood gave the following account of what led to her alleged false evidence at the trial:

"To the best of my recollection, it was in November 1992 that my mother called at my flat at Marsh Street accompanied by my father, George Harwood, and her son Gregory Kunst. My mother said to me, words to the effect that she wanted to get even with Phillip Carter, and that the only way she could do that was through his family. She said that David Carter had a court case coming up against Petersen Sawmill for personal injuries. She told me she had a story worked out and that she wanted me to back her up. The story was to the effect that, before David Carter began working at the sawmill, my mother, Phillip Carter, my half-brother and half-sister and I had gone to David Carter's house at Maryborough Street, and found him lying on the ground. He was supposed to have fallen from ladder a little while before and injured his back. My mother told me to say that I had later overheard a conversation at our residence at 18 Scotland Street, Bundaberg between David and Phillip Carter, in which David Carter said he was going to start work at the Petersen Sawmill, that he would work there for a couple of weeks, and then fall off something he was working on and roll around in agony as though he had injured himself. I was supposed to have heard that conversation after I had gone to bed in the bedroom near the dining room. David and Phillip Carter were supposed to have been sitting at the dining table."

"None of what my mother suggested I say in relation to David Carter was true. I'd never been aware that David Carter had injured his back in a fall from a ladder, and I was not a witness to any conversation between David Carter and his brother Phillip about inventing an accident at his place of work."

She also conceded that she had had a falling out with her mother some time in 1993 and there had not been any contact between the two since then. She also agreed that since the first week of December 1994 she had been in regular contact with Phillip Carter.

Finally, it should be noted that Lorie Harwood does not expressly say that the evidence that she gave at the trial as to seeing the applicant do heavy work after November 1983 was false. She does not allege that she was told by her mother to say that, and she gives no explanation for her detailed evidence in that regard.

The first ground stated in the Notice of Appeal is:

"That on or about 19 May 1995, the Appellant, for the first time, became aware of evidence ("the fresh evidence") that the testimony at the trial of this action given by Desley Joan Harwood and Lorie Desley Harwood (Skinnerty) was false and was given pursuant to a conspiracy between them to give false evidence against the Appellant."

Later grounds assert that the fresh evidence was not available at the time of trial and had it been available was likely to be determinative of the issues because in fact the result reached by the learned trial judge was dependent upon his acceptance of the evidence of Desley Joan Harwood and Lorie Desley Harwood (Skinnerty).

In his written outline counsel for the applicant adverted to the recent decision of the Court of Appeal in R. v. Bryer [1994] QCA 547; (1994) 75 A.Crim.R. 456, a recantation case in the criminal jurisdiction. Counsel did acknowledge that the approach adopted in the criminal cases does not transpose readily to the civil arena; in determining whether or not there has been a miscarriage of justice the Court adopts a more liberal approach in favour of the subject whose liberty is at stake. But, largely derived from the reasoning in Bryer counsel formulated the applicable principle in his written outline as follows:

"It is submitted that the court will, in a recantation matter, act to prevent the possibility of a serious miscarriage of justice. In approaching the task, the court will consider all of the circumstances and the evidence, including the recantation. If the witness' new version of events is sufficiently relevant, cogent and plausible then, subject to discretionary matters, the Court will set aside a judgment and order a new trial in order to avoid the substantial possibility of a serious miscarriage of justice."

During the course of his oral argument counsel lent more heavily towards the reasoning in McCann v. Parsons [1954] HCA 70; (1954) 93 C.L.R. 418, and treated this as but another instance of the application of the "fresh evidence" principle.

In reviewing the relevant authorities in Bryer I did say that the "approach of appellate courts is to regard the retraction of evidence after conviction as a species of fresh evidence", but I went on to say that "some special considerations apply in that situation" (472). The criminal cases which were reviewed by the Court in Bryer clearly establish that a mere retraction of evidence, that is evidence of perjury, does not automatically result in a new trial being ordered. The High Court in Davies and Cody [1937] HCA 27; (1937) 57 C.L.R. 170 at 183 said:

"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence." (my emphasis)

To similar effect is the observation of Widgery J. in delivering the judgment of the Court of Criminal Appeal in R. v. Flower (1966) 1 Q.B. 147 at 150-1:

" ... in our view there is no general requirement for a new trial merely because the witness's account in this Court differs from that given in the Court below."

Following the approach adopted by this Court in Bryer relying on the various authorities discussed therein, the appellate court must consider and decide upon the credibility and cogency of the recantation, and evaluate it in the light of all the evidence given at the trial.

A consideration of the authorities on the civil side suggests that a party seeking to obtain a retrial because of alleged perjury at the earlier trial faces an even greater hurdle than an appellant in similar circumstances in the criminal jurisdiction. Whilst it is not wrong to categorise evidence of

a recantation as a species of fresh evidence there are differences between a true fresh evidence case (such as McCann v. Parsons where a person who was not a witness at the trial is located subsequently and that person can give material evidence) and the situation where the alleged fresh evidence is merely to the effect that a witness committed perjury at the trial; those differences are highlighted by the reasoning of the High Court in McDonald v. McDonald [1965] HCA 45; (1965) 113 C.L.R. 529 (see also Monroe Schneider Associates Inc v. Raberem Pty Ltd (No 2) [1992] FCA 367; (1992) 37 F.C.R. 234 Full Court of the Federal Court). Perjury is but a particular instance of fraud and fraud is a recognised ground for setting aside a judgment.

McCann v. Parsons involved an action brought by a female, Mrs Parsons, against a male, McCann, for damages for personal injury arising out of a single motor vehicle accident. At the trial the plaintiff gave evidence that she remembered that the defendant was driving the car on the gravel road at the time but that she did not know what happened; her next memory was of being in hospital. The plaintiff called a sergeant of police who gave evidence that at the scene McCann told him that he was driving, that the car got out of control, and turned over a couple of times. The jury found that McCann was driving negligently at the time and assessed damages. From that verdict the defendant appealed against quantum only. Before that appeal was heard the insurer of the vehicle received information to the effect that at the time it was being driven by a female and not a male. Further investigations led to a statement being obtained from a nine year old boy who was riding in a sulky which was overtaken by the vehicle shortly before it ran off the road. That boy was prepared to say positively that it was a woman and not a man who was driving at that time. That statement was subsequently put to McCann by detectives and he then admitted that he had been giving the female plaintiff driving lessons at the time in question. He said that he had previously said he was driving the car only because the plaintiff did not have a licence. Subsequently McCann sought to retract those statements, alleging that they were extracted from him as a result of improper threats and pressure from the investigating police. McCann was indicted on a charge of false pretences arising out of the incident but was acquitted. The application for a new trial with respect to quantum then came before the appellate court, and the licensed insurer, in the name of McCann, asked that the Notice of Appeal be amended to include the ground of discovery of fresh evidence.

It must be stressed that McCann v. Parsons was not a recantation case. There was no suggestion the plaintiff intended changing her evidence. McCann did not give evidence at the trial and in consequence his alleged subsequent change of story did not constitute a recantation or a perjury with respect to evidence given at the first trial. What the appellant was contending was that it had attained fresh evidence (the evidence of the boy) which was credible, not reasonably available at the time of the first trial, and likely to affect the outcome. Counsel for the plaintiff, the respondent to the appeal, sought to rely on Jonesco v. Beard (1930) A.C. 298 so that the appellant would have had to prove fraud before the judgment at first instance could be set aside. The Court at 426 distinguished Jonesco because in it the House of Lords was concerned with "fraud as distinguished from the discovery of new evidence". Later on that page the Court said:

"But if an application for a new trial is based upon the discovery of fresh evidence showing or tending to show that the plaintiff has in truth no cause of action it can be no objection that it also shows or tends to show that at the first trial the plaintiff put forward a false case and knew it. Indeed there was never any hesitation at common law to use the power to grant a new trial, once it appeared from further evidence that the verdict had been obtained by putting forward a false case."

From at least the decision of the Court of Appeal in Flower v. Lloyd (1878) 10 Ch. D. 327 it has been recognised that perjury alone, even if substantiated, will not of itself justify the granting of a retrial of a civil matter. The Privy Council in Hip Foong Hong v. H. Neotia & Company [1918] UKPC 65; (1918) A.C. 888 referred to the difference between fresh evidence generally and fresh evidence establishing the judgment sought to be set aside was procured by fraud. A retrial was sought on the basis that the defendant's case, successful at trial, was so tainted with fraud and dishonesty that, in the interests of justice, the appellants were entitled to have the matter re-heard. In the course of delivering the judgment Lord Buckmaster observed at 893:

"A man who says one thing on oath at a trial and contradicts it by his bare oath subsequently on an affidavit cannot expect much credence will be given to the latter assertion which proves that his former evidence was false."

Ultimately the Judicial Committee was not persuaded that there was sufficient material to establish that the proven dishonesty had any effect upon the result. It was pointed out at 894 that the case was not one of fresh evidence in the general sense becoming available after the initial trial. The judgment pointed out that in the fresh evidence cases the applicant must establish that the fresh evidence was of a such a character that it would have formed a determining factor in the result. But it was pointed that such:

"... considerations do not apply to questions of surprise, and still less to questions of fraud. A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail; but in the present case their Lordships are unable to say that such a case has been established. ... They have only to add that, where a new trial is sought upon the ground of fraud, procedure by motion and affidavit is not the most satisfactory and convenient method of determining the dispute. The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, when the whole of the issue can be properly defined, fought out, and determined, though a motion for a new trial is also an available weapon and in some cases may be more convenient."

Lord Buckmaster was also a member of the House which decided Jonesco. As his reasons at 300 make clear the sole question before the House was whether or not the judgment at first instance should be set aside because of allegations of fraud, as distinct from a consideration of questions of fresh evidence. He said:

"It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires."

After referring to Flower v. Lloyd and Hip Foong Hong he noted at 301 that "there is jurisdiction in special cases to set aside a judgment for fraud on a motion for a new trial". But, as he clearly pointed out, "the necessity for stating the particulars of the fraud and the burden of proof are no whit abated and all the strict rules of evidence apply."

Those English cases, and the principles therein discussed, were considered by the High Court in Cabassi v. Vila [1940] HCA 41; (1940) 64 C.L.R. 130, a fairly similar case to the present. A sued B for damages for assault, and C and D gave evidence for the defence. The evidence of B, C and D was accepted and the action was dismissed. An appeal to the Supreme Court of Queensland was unsuccessful. Subsequently A commenced an action against B, C and D alleging therein that B, C and D had conspired to commit perjury, had in fact committed perjury, and that in consequence of those and other allegations A had suffered loss and damage. In the action A sought, inter alia, a declaration that the judgments in the initial action, both at first instance and on appeal, were obtained by fraud, and consequential orders setting aside those judgments. The following observations by members of the High Court are relevant for present purposes. Rich A.C.J. said at 138-9:

"If the judgment was obtained, as is contended, by fraud and perjury, the plaintiff has ample remedy by law. The Court which rendered the judgment, upon proof of those allegations, would be bound to grant a new trial, so that, upon a further investigation, justice might be done." (My emphasis)

Starke J. observed at 141 that "great difficulties" would confront A in seeking to have the judgment set aside on the ground of fraud; he referred in support, inter alia, to Flower v. Lloyd. Williams J. dealt with the question at slightly greater length, saying at 147-8:

"In actions based on fraud the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires. The only fraud alleged in the statement of claim is the conspiracy to cheat and defraud the appellant by committing perjury before the Magistrate. A judgment which is procured by fraud is tainted and vitiated throughout. If the fraud is clearly proved the party defrauded is entitled to have the judgment set aside in the action. (Hip Foong Hong v. H. Neotia & Co.; Jonesco v. Beard_. ..._ I have been unable to find any case in which a judgment has been set aside where the only fraud alleged was that the defendant or a witness or witnesses alone or in concert had committed perjury. In fact the Court has said that except in very exceptional cases perjury is not a sufficient ground for setting aside a judgment (see Flower v. Lloyd; Baker v. Wadsworth (1898) 67 L.J.Q.B. 301), but in view of the allegation in the statement of claim that the evidence did deceive and fraudulently mislead the Court I shall assume that the plaintiff could establish such special circumstances." (my emphasis)

That leads to McDonald, another appeal from Queensland. In that case X had brought an action claiming damages for defamation and assault against Y. Y called Z as part of his case, and Z's evidence was favourable to Y on the issue of assault. It was central to Z's evidence that he was on the scene at a material time. Relevantly at the trial the jury found that, in assaulting X, Y did no more than was reasonably necessary for his own protection. X applied to the Full Court of the Supreme Court of Queensland for a new trial, inter alia, on the ground that fresh evidence had been discovered to the effect that Z was not in fact a witness to the events in question. Evidence of that alleged new fact came from W. The Full Court ordered a new trial and from that order Y appealed to the High Court. It will immediately be obvious that this was not a recantation case; rather it was a case where a fresh witness had come forward who could give evidence which would tend to establish that a witness at the trial had committed perjury. The High Court was of the view that the alleged fresh evidence did not satisfy the requirements for granting a new trial on that ground of fresh evidence (applying the settled law established by Orr v. Holmes [1948] HCA 16; (1948) 76 C.L.R. 632) but granted special leave to appeal so that the Court could comment on the principles applicable where a new trial was sought on the ground of fraud as compared to the principles applicable where the new trial was sought on the ground that discovery of fresh evidence which, if believed, would tend to the conclusion that the original verdict was obtained by fraud.

Barwick C.J. {with whom Kitto J.agreed) said at 532-3:

"The discovery subsequent to verdict of admissible credible evidence, which could not have been sooner discovered by the exercise of reasonable diligence in the circumstances, and which is of such probative value and significance that, taken with the evidence already given at the trial, it will in all probability be decisive of the issues between the parties in a sense opposite to that of the verdict, is a ground for the granting of a new trial. If the court is satisfied the fresh evidence fulfils these requirements it will generally conclude that, therefore, the interests of justice demand that the issues be tried afresh. In that event, the circumstances that the fresh evidence may tend to support the conclusion that the verdict was obtained by fraud, or by surprise, or by subornation of witnesses will not prevent the grant of a new trial on the ground on the discovery of fresh evidence, or require the court to satisfy itself of the fraud, surprise or subornation of witnesses as the case may be: McCann v. Parsons. Nor in my opinion, does that circumstance lessen in any respect the stringency of any of the rules which apply to the grant of a new trial upon the discovery of fresh evidence. The fresh evidence, though it suggests fraud, surprise or subornation of witnesses, must yet fully satisfy all the criteria laid down with respect to fresh evidence warranting a new trial although it may be that, in some cases, the tendency of the evidence to show fraud may make it more likely to be conclusive. In my opinion, it would be a misreading of Lord Buckmaster's speech in Hip Foong Hong v. H. Neotia & Company to conclude otherwise.

But if the fresh evidence does not satisfy all these requirements so that a new trial could not be ordered on the basis of the discovery of fresh evidence, but does tend to establish that the verdict was obtained by fraud or by surprise or that there has been subornation of witnesses, the court may grant a new trial upon a motion therefore, though a separate proceeding is clearly the preferable course, if the court itself, on a trial of such issues, finds the fact of the fraud, the surprise or the subornation of witnesses, as the case may be, to be proved to its reasonable satisfaction: Hip Foong Hong v. H. Neotia & Company; Jonesco v. Beard. It is not necessary in that event that the evidence of the fraud, the surprise or the subornation, though it should be "fresh", should be evidence which would be admissibleon the issues between the parties and the action; or that it should be found to be probably conclusive of those issues. The court's conclusion upon the fresh evidence before it that the verdict was obtained by fraud, by surprise or that witnesses were suborned, is sufficient to justify setting aside the verdict and ordering a new trial. Whether or not the court does so must finally depend on the court's view as to whether or not the interests of justice, either particularly or in relation to the parties or generally in relation to the administration of justice, require such a course." (my emphasis)

On the next page his Honour clearly indicated that there must be a finding of fraud, as distinct from evidence of fraud, before there could be the grant of a new trial where the Orr v. Holmes test was not fully satisfied. Taylor J. said at 535 that "a judgment will be set aside on the ground of fraud only after an affirmative finding of the fraud alleged"; he cited in supported Flower v. Lloyd and Jonesco v. Beard. He went on:

"Indeed, an application to set aside a judgment on the ground of fraud is not, in substance, an appeal in the strict sense at all but an independent proceeding in which the party complaining carries the onus of establishing the fraud alleged and he will fail unless this onus is discharged (Cabassi v. Vila)" (my emphasis)

To similar effect is the statement of Menzies J. at 540:

"A judgment can be set aside on the ground that it was obtained by fraud, but only when the fraud has been definitely alleged and proved: Hip Foong Hong v. H. Neotia & Company. The Full Court's order was not, I think, made on the ground of proved fraud but, if it were, it obviously could not be supported. The Full Court heard only Mrs Platt and could not, upon her evidence, find fraud affirmatively." (my emphasis)

See also his reasoning at 542-3. Windeyer J. reasoned to same effect at 544. He simply said, "Fraud was not proved; and the case was not one for disturbing a judgment on the ground of fresh evidence having been discovered." He went to cite with approval the passage from Williams J. in Cabassi v. Vila quoted above.

The facts and circumstances of this case must now be assessed in the light of the principles derived from those cases to which I have referred. It is clear that this is not a fresh evidence case merely calling into play the approach established by Orr v. Holmes, McCann v. Parsons and Commonwealth Bank of Australia v. Quade (1991) 178 C.L.R. 134. There is no new witness and the only new evidence comes from a witness at the original trial; that person merely says she lied on a previous occasion. This is a case of perjury or nothing; in those circumstances a new trial can only be ordered if fraud (perjury) is established to the satisfaction of this Court. This Court cannot meaningfully consider whether the recantation could have been discovered sooner with reasonable diligence. All that can be said is that the admission of perjury has only recently been made.

If the applicant is to succeed then he must establish that the evidence given by Lorie Harwood at the District Court trial was perjured so that the judgment in favour of the defendant was obtained by fraud. The only way in which the applicant sought to do that was by relying on her affidavit in which she asserts that such is in fact the case. No attempt was made by the applicant to call her to give evidence before this court so that some assessment of her credibility could be made. To adopt the words of Lord Buckmaster quoted above, one cannot give much credence to evidence contained in an affidavit to the effect that the deponent gave false evidence on oath on an earlier occasion. What makes the task of this court more difficult is that Lorie Harwood admits that on one other occasion after the trial, namely on 17 November 1994, she provided investigating police officers with a statement on oath confirming the truthfulness of evidence she had given at the trial. Her recantation only comes after a breakdown in relations between she and her mother, after the re-establishment of reasonably close links between herself and Phillip Carter, and after she would have realised the consequences of Edward Carter being convicted of perjury.

So far as the material before this court is concerned the evidence given by Lorie Harwood at the District Court trial on oath, and her statement of 17 November 1994 on oath, are consistent with the sworn testimony of Desley Joan Harwood at the trial, and the sworn statement of Desley Joan Harwood of 15 July 1994 given to the investigating police. Without more, it is impossible, in my view, for this court to conclude that it has been proved that Lorie Harwood committed perjury at the District Court trial and that such special circumstances exist as would, in light of the principles discussed in the authorities referred to above, justify this court in setting aside the judgment of the District Court and ordering a new trial.

Even adopting the formulation of the applicable principle by counsel for the applicant quoted above I would nevertheless conclude that a proper basis had not been made out for ordering a new trial. In all the circumstances the "new version" put forward by Lorie Harwood is not sufficiently cogent and plausible to establish the substantial possibility of a serious miscarriage of justice warranting a new trial. The reliance placed by the trial judge on the now impugned evidence does not necessitate a contrary conclusion.

Should my analysis of the relevant cases be incorrect resulting in the approach I have adopted being unjustified, I would agree with Pincus JA and Thomas J that the applicant had not satisfied the test for obtaining a new trial according to the test derived from Orr v. Holmes, McCann v. Parsons and Commonwealth Bank v. Quade.

For all of the above reasons the application for an extension of time within which to appeal should be refused with costs.

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