CRAINE v AUSTRALIAN

CRAINE v AUSTRALIAN - [1912] HCA 60 - HCA 1912 case summary — Zoe

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e defendant to fix. March as the date of the foaling rather than later date - the only relevant fact being that the foal was born 1891, the precise month, whether March or September, being juite irrelevant. The learned Chief Justice seems to have ght that this inaccuracy in the defendant's evidence destroyed s whole case. That is very much like what the Judges whose ent was appealed from in Khoo Sit Hoh v. Lim Thean yy (1) had done. They thought that the defendants having guilty of falsehood in a particular matter, their whole case discredited. The Judicial Committee pointed out that that an entirely erroneous principle. So much for the undisputed facts. I will now refer to the dence relied upon to fix the date, premising that, so far as in be discovered from the judgment of the learned Chief ice, the integrity and honesty of those witnesses is not dis- uted, and that the worst that can be said is that they may have been mistaken. It is important, as I said, to remember that zater weight should be given to the testimony of witnesses ho depose to matters as to which they are not likely to be aken than to that of those who are likely to be mistaken. 'The first witness to whom I will refer is Walsh. He says that n 2nd July 1890 and 22nd September 1891 he took the ndant's foal to the Maori Chief Hotel, South Melbourne, that e foal was born at Brannigan's, Oatlands, and was about a fort- night old when he took it from there to South Melbourne, from hich place it was taken to the land in question. It is not sug- that he did not take the foal from the one place to the 'The way in which he fixed the date was this: - Up to 2nd July 1890 he had kept an hotel, and on that date he gave it up ind went to live at the Maori Chief Hotel, where he remained intil he was married, which, as shown by his marriage certificate, was on 22nd September 1891. He verifies the date of leaving e hotel he had kept by reference to a book containing a record ofeach day's takings up to the last day. So that, if he is at all ble, there is no doubt that he took the foal to South Mel- une between 2nd July 1890 and 22nd September 1891, which

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house in Washington Street, and Miss McComas says that, f the purpose of the wedding, which took place on 18th July 189 at Miss McComas's house, Mrs. Anderson sent her some chees butter, and crockery across the land from her house. It app clear that at that time there was a vacant piece of land at back of Mrs. Anderson's, Miss McComas's, and the land in qu tion. Miss McComas herself said that the boys at her sel ool used to play cricket just outside the wire fence upon vacant So that when Miss McComas says that the cheese, butter crockery were " brought across the land by the back way" to house, it is obvious that they must have been brought across the land at the back described as vacant land by all the witne! . It is suggested that she meant that, having direct access a that vacant land from Mrs. Anderson's premises, the bearer the goods went out of Mrs. Anderson's front gate, along street, across the land in question and the vacant land at | back of it, and then in at Miss McComas's back gate. That is the only fact Miss McComas relies on to fix the date. It obvious that, if the land at the rear was vacant, there was no necessity to go over the land in question. So that its suppo condition of being unfenced could not have been brought un her notice by the suggested fence. The circumstances on which Miss McComas relies to fix the date are therefore quite irrelev: to the date of the actual fencing. The other witness was Mrs. Anderson, who admits that she a defective memory for dates. She gave evidence which strongly corroborates the fact that the land at the back of the land in dispute and her land was open. She says that she was afr id she would be called upon to pay half the cost of a dividing fence which could only mean that she was the owner of the adjoini land at the back. She has nothing by which to fix the date when the land in dispute was fenced except a conversation about this land, which she said she had with Professor Harper at beginning of 1891, and which turned out to have been not witl him, but with someone else. She thinks the fence was put up in 1893 and also that it was nearly three years after that conver' tion. Nothing could be more vague. She had no interest in th

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a non-suit on the ground that, though there was some tilla of evidence, there was nothing upon which reasonable nought to act. But if the tribunal of first instance, having n and heard the witnesses, comes to a conclusion in favour of party upon whom the burden of proof does not lie, it is it hopeless to try to induce a Court of Appeal to interfere h that finding unless it has clearly proceeded upon a wrong nciple." In respect of the issue of possession the plaintiffs the persons upon whom the burden of proof did not lie, and decision of Madden C.J. was in their favour, In dealing the same question I quoted from the often cited case of loghlan v. Cumberland (1), the following passage, which I will

- "Even where, as in this case, the appeal turns on a ion of fact, the Court of Appeal has to bear in mind that its y is to re-hear the case, and the Court must reconsider the materials before the Judge with such other materials as it may ave decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully ing and considering it; and not shrinking from overruling if on full consideration the Court comes to the conclusion the judgment is wrong. When, as often happens, much on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is ensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative ibility of witnesses from written depositions; and when the on arises which witness is to be believed rather than no her, and that question turns on manner and demeanour, Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But e may obviously be other circumstances, quite apart from er and demeanour, which may show whether a statement is ible or not ; and these circumstances may warrant the Court iffering from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen." n I said for myself (2): - " An instance of the last mentioned e of affairs would be where, apart from any question of

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1 no reason to distrust as to credit, and who gave evidence On the other hand, the plaintiffs' witnesses were also com- led as being candid and truthful. The point relied on by learned Judge for preferring their recollection is stated to be their reasons for remembering what they swear to were well tablished, and seem natural, and in cross-examination they dily recalled other distant or contemporary occurrences as well hose material. Whether the reasons and contemporary occur- so given have the decisive force assigned to them, is an ence the value of which is as much within the power of this rt to estimate as at the trial. Then the non-production of annigan and Burns and the lad who helped to bring the foal the Maori Chief Hotel is independent of any demeanour or unrecorded event. In some other respects the grounds of conclusions reached by the learned Chief Justice - such as the ing and effect of McKinley's testimony upon that of Clara ne, and the likelihood of the mare being served at the time d to or later - are equally independent of any special \dvantage possessed by the trial Judge. Consequently, when the matter comes to be fully sifted, there is no substantial reason why, consistently with well established iples applicable to appeals, and aided by the learned Judge's statement of the way he arrived at his findings, and the ost photographie presentment of his impressions as to the personal value of the several witnesses, an appellate Court should ot be able to satisfy its own mind as to the merits of this case. e decision cited, the Privy Council said (1) : - * Their Lord- s, after carefully reviewing all the probabilities of the case, e not prepared to say he" (the trial Judge) " was wrong." But indicates, if the probabilities of the case had made a clear contrary impression on their Lordships' minds, their decision Id have been different. the present case there is no doubt that Miss McComas is the support of the learned Judge's finding. Mrs. Anderson, is specially associated with her, admits having a bad for dates, and is not really positive in her statement as

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to 1893, If Miss McComas is not decisive for the plaintiff, no on else is. Now her memory is as to a negative circumsta namely, the absence of a fence. She has no positive fact whi links itself necessarily to the erection of the fence. And it i plain from the evidence - even her own, without saying mor about other evidence placing the fact beyond controversy - thai she relies on a wedding to fix the date. A wedding is a family event and at once impresses itself o1 the mind; and, as a rule, its date is revived yearly. But when another person's fence was erected is a vague circumstance to begin with, and offers no occasion for reminder. 'There is nt circumstance which ties the wedding to the fenced or unfenced condition of the land. Miss McComas does not say the thing must have come over the land in dispute, or could not have cor over if it were fenced. Mrs. Anderson says she does not know which way they came. The football matches, as they are te went on for years before and apparently after 1893. So that tl is no definite landmark which delimits the contested event. On tl other hand, Schrceder deposes to a cireumstance which, assumi honesty, does not easily permit of error, His evidence entirely discarded simply because he spoke of palings and wi After many years, the mind may positively intermingle the wit and posts of the fences in question with the palings of oth fences in close proximity. But the main fact is as to an enclo ing fence at all, and his wife, who died not later than Mare 1900, drew his attention to the fence in 1891 at latest. Cowans, as the learned Judge said, gave their evidence well; M Cowan moved to Grange Road in 1891 and saw the fence ti So did her husband. So did her son Robert, who says he has clear memory of it, and had a special reason for recollecting t date in connection with an infirmity which compelled him to u: a tricycle, and he remembers he could not cross the land with tricycle on account of the fence. But he got rid of the trieye soon after 1891 - needing it no longer. I do not repeat details which have just been stated by the learned Chief Jus but viewing the evidence as a whole, I am clearly of opinion t case made by the defendant greatly preponderates, and that tl

At a glance

Court

Decision date

Before

Source

Judgment (129 paragraphs)

should be allowed as to all but the 2} feet strip of H.C. oF A. 4 1912.

Parties