Eaton v Nominal Defendant

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

The appellant plaintiff brought an action against the Nominal Defendant (Queensland) claiming that in 1988 an unidentified vehicle forced the motor cycle which he was riding off the road. In consequence, he alleged, the plaintiff suffered personal injury. The trial judge was not persuaded by the evidence that there was an unidentified motor vehicle which caused the plaintiff's accident. In this appeal the plaintiff contends that the judge erred in that he excluded evidence of a Mr and Mrs Schmidtke which would if admitted have assisted his case.

Mr Schmidtke said that on the day in question he was driving along in a vehicle, accompanied by his wife, when they noticed a person lying on the side of the road and waving his helmet. The Schmidtkes stopped to help him and during the time when Mr Schmidtke was with the person "he was doing a lot of swearing, going crook at the fellow that run him off the road ". Mrs Schmidtke gave evidence to rather similar effect. The person the Schmidtkes assisted was identified in court by Mr Schmidtke as the plaintiff. The trial judge heard all the Schmidtkes' evidence, reserving its admissibility and dealt with that question in his reasons for judgment.

Relying upon the decision of the High Court in Vocisano v. Vocisano (1974) 130 C.L.R. 267 the judge held that the statements made to the Schmidtkes did not constitute part of the res gestae and were therefore not admissible. As will appear, it seems to me reasonably clear that, insofar as his Honour decided that the statements in question were not admissible as part of the res gestae, that was correct. But Mr Griffin Q.C., who appeared for the plaintiff in this Court, advanced an alternative basis on which the evidence might have been admitted which I shall call, simply to label it rather than to indicate its scope, the "recent fabrication" ground. It appears that the primary judge was not asked to consider whether the evidence could be admitted in that way; that is the recollection of Mr Barbeler, who appeared for the defendant here and below, and it is supported by the circumstance that the subject of recent fabrication is not mentioned by the primary judge in his reasons. The scope of this exception to the rule against admission of prior statements consistent with evidence in court is less well settled than is the res gestae doctrine.

The Schmidtkes were not present when the plaintiff had his accident and they gave no evidence which could assist in determining the length of time between the accident and their encounter with the plaintiff. When asked about the subject, the plaintiff said in effect that after the accident he lay where he had fallen "at a guess ... probably ... for about 5 minutes", that he then got to the edge of the road and that "my guess is approximately 10 minutes after the collision a vehicle stopped and gave me assistance".

As I have mentioned, the judge relied upon Vocisano in reaching his decision, but it was submitted that what was said on the subject there was obiter and, as I understood the contention, that we should not now follow it. In Vocisano a plaintiff sued his brother for damages arising from a motor vehicle accident, the allegation being that the brother was driving the vehicle at the relevant time. That was supported by the defendant, in his evidence. The defendant's own counsel then obtained leave, under s. 60 of the Evidence Ordinance 1971 (A.C.T.), to cross-examine him on the basis of his having made prior inconsistent statements; that is a provision which corresponds to s. 17 of Evidence Act 1977 (Qld). The cross-examiner, it appears, put to the defendant inconsistent oral statements said to have been made to witnesses who came to the scene of the accident shortly after it occurred, to the effect that it was the plaintiff who had been driving, not the defendant.

The High Court held that the judge should not have allowed cross-examination of the defendant by his own counsel, under the relevant statutory provision; but the Court, in reasons written by Barwick CJ, (with whom the other members of the Court agreed) went on to consider whether the prior inconsistent statements should, apart from the Ordinance, have been admitted as evidence of the facts to which they related. It was held that they should not, and Barwick CJ (at 273) remarked:

" A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable : but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility. "

Barwick CJ held that there was not sufficient contemporaneity in the case before him and added, apparently as an additional reason for rejection of the evidence, that the statements made "were in the nature of a historical account rather than in the nature of a statement made as part and parcel of the occurrence".

The trend of the submissions made on behalf of the plaintiff before us was to suggest that a broader view is or should now be taken as to the scope of the doctrine which permits admissibility of statements of this kind as part of the res gestae; Vocisano was decided 21 years ago. The reasons of the Chief Justice in that case referred to Ratten [1971] UKPC 23; [1972] A.C. 378, in which Lord Wilberforce expressed himself in favour of the view that such a statement may be admitted:

" . . . providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion . . . " (391)

Excluding mere possibilities is always a difficult task and one must take it that what the judge meant was that the circumstances must be such as to make concoction very unlikely. That condition is not satisfied here. The plaintiff's case was that his motorcycle left the road while he was overtaking another vehicle. Assuming that to be so, it is not absurd to suppose that when explaining what happened to others fairly shortly after the event, the plaintiff might have given an exaggerated or untrue version which placed the entire blame for the incident on the driver of the other vehicle. That might have been done, not with a view to bringing proceedings, but because of the tendency which people sometimes have to justify themselves in the eyes of others. The version of events given to the Schmidtkes was succinct and general, that the other vehicle had "run him off the road". It did not include what appears to be the most striking feature of the version given in court, namely that the driver of the other vehicle veered out while being overtaken and actually struck the motor cycle with his vehicle.

We were also referred to Andrews [1987] 1 A.C. 281, where again emphasis was laid on "the possibility of concoction or distortion". There, the question which must be answered was posed in such a way as to exclude, in my opinion, the present circumstances. It was said that the judge must:

". . . satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection" : per Lord Ackner at 301.

These English decisions attain importance for present purposes because of the critical remarks made in Walton [1989] HCA 9; (1989) 166 C.L.R. 283 at 295, by Mason CJ, about Vocisano. But in the present case it would have made no difference to the result if the judge had ignored Vocisano and followed the House of Lords; on the tests proposed in Ratten and Andrews the result must have been the same, for the possibility of concoction could not in any reasonable sense be said to have been excluded and the circumstances did not resemble those described by Lord Ackner in Andrews.

I should add that in my opinion the trial judge was quite right to follow Vocisano; whether or not what was said there about the res gestae doctrine was obiter (and I think it was not) it would have been an odd course for his Honour to disregard the views, expressed in detail and with deliberation, of a unanimous High Court. Further, Vocisano is consistent with the High Court's earlier decision in Brown [1913] HCA 70; (1913) 17 C.L.R. 570 at 582, 597.

As I have mentioned, we were told that the question of recent fabrication was not argued below and we do not have the benefit of the trial judge's views on the subject; the Privy Council has suggested that the application of the relevant rule "must be, within limits, a matter of discretion": Fox v. General Medical Council (1960) 1 W.L.R. 1017 at 1025. If that were the law a variety of circumstances might have to be considered, to determine whether the evidence of a prior consistent statement had special weight - such as whether the statement was made soon after the events to which it related, whether it contained enough detail to commit the maker to a set of facts which could not easily be modified to accommodate further information, whether it included facts which the maker could hardly have known if the version given was untrue and whether the making of the statement was supported by strongly credible evidence.

Perhaps the discretionary element would particularly relate to the nature of the attack made on the witness under challenge, which was a subject of some debate before us. There was nothing remarkable in the present case about the mode of cross-examination of the plaintiff, given that the cross-examining counsel necessarily had no instructions as to whether or not the evidence the plaintiff gave about the way his accident happened was true. Counsel certainly made it plain that the plaintiff's account was not accepted and cross-examined him as to credit, but no suggestion was made that the plaintiff's version of events given in court was first thought up on a particular occasion or during a particular period; nor indeed was it by any means plain that counsel was suggesting that the evidence was deliberately fabricated.

Mr Griffin QC for the plaintiff emphasised that in two respects the Schmidtkes evidence had particular value: first, they had no discernible reason to wish to assist the plaintiff, being complete strangers to him before the accident; secondly, there was nothing to suggest that the plaintiff had given his account to the Schmidtkes to lay a foundation for getting such evidence in, since it was necessary for the plaintiff's solicitor to find the Schmidtkes by advertisements, the plaintiff not having troubled to take their names. If, as Fox suggests, there is a discretionary element, then these circumstances should be taken into account in favour of the plaintiff. But it cannot be right merely to hold that there is the discretion to let in prior consistent statements, as that would leave the law on the subject in too uncertain a state. Mr Griffin QC argued for a considerable extension of the doctrine of recent fabrication as understood to date, in the direction of holding that evidence of a prior consistent statement of a witness whose credit is challenged is generally admissible, at least if the prior statement is made in such circumstances as strongly to buttress the witnesses' credit.

The principal authority is The Nominal Defendant v. Clements [1960] HCA 39; (1960) 104 C.L.R. 476. There, the cross-examination of the plaintiff went further than in the present case as:

" The plaintiff was cross-examined for the purpose of showing that he had no memory of the accident and that his account of it was the result of coaching by his father who had written out answers for him to learn". (478)

To rebut that, a statement which the plaintiff made to a policeman two months after the accident and therefore well before the date of the alleged coaching was tendered. The suggestion which was made in cross-examination was that the evidence of the plaintiff, given in December 1958, was based "upon a story that he had learnt between June and October 1958" (483) the accident having occurred in 1954. The case was plainly a recent fabrication one, unlike the present; the judges who decided it did not need to deal with the admissibility of prior consistent statements in any other context than that of recent fabrication. Dixon CJ remarked:

"But although upon the evidence as recorded it is difficult to feel assured that a foundation had been laid for an attack upon the boy's story as a late reconstruction it was, I think, fairly open to the judge at the trial to conclude that the defendant would set up a case that the plaintiff's story was the result of the father's coaching and represented no antecedent memory of the events, and that is perhaps enough". (480)

Menzies J and Windeyer J each wrote a judgment dealing more or less elaborately with the authorities, but it cannot be assumed, as was to some extent assumed in argument before us, that all the statements of principle quoted, particularly by Menzies J, were approved. The most pertinent passages for present purposes are I think the following:

" . . . it is now firmly established that an earlier statement is not admissible merely as confirmation of the evidence given by the witness; furthermore, if there be nothing more than that the evidence of a witness has been attacked in the course of cross-examination, that does not of itself render admissible earlier statements by the witness consonant with his evidence. " (Menzies J at 485)

" I regard evidence of an earlier consistent statement as admissible in accordance with this exception only when the Court itself considers that the evidence of a witness has been impeached as a later contrivance and this has been done by the opposite party in the conduct of the case, whether by the cross-examination of the witness, or by eliciting evidence of the fabrication from another witness, or in some other positive way. " (Menzies J at 490)

" Accusations or suggestions, made in cross-examination or by independent evidence, that what a witness says in the box is a recent fabrication are the commonest way of charging such a design to misrepresent. " (Windeyer J at 493)

" The kind of imputations and allegations that - if sufficiently clearly made - will let in prior consistent statements are: First, that the witness's testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. " (Windeyer J at 494)

" But the evidence is only to be let in when the grounds for doing so clearly exist. It is not enough that a witness has been cross-examined as to credit, however much his credibility may appear to have been shaken . . . There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him. " (Windeyer J at 495)

In the judgments of the other three judges, Dixon CJ, McTiernan J and Kitto J, one does not find statements which appear intended to define the doctrine more broadly than was necessary for the purposes of the instant case in which, as I have pointed out, what was sought to be rebutted was a suggestion that in a period not long before the trial, but well after the accident, the plaintiff had been taught his story. But the judgments of the other three judges are nevertheless unhelpful to the plaintiff here, because they assume that the question was whether or not the defendant had advanced the case that the plaintiff's account was, to use the expression of Dixon CJ, a "recently invented, devised or reconstructed story" (480). Reading the case as a whole, it is in my view authority for the proposition that the recent fabrication doctrine is, at least primarily, intended to justify the admission of evidence in support of an argument of this kind: "How could this witness have got his or her story together at the time or in the circumstances the other side suggests? The witness told the story too early for that suggestion to be right".

If one were to accept the suggestion that the matter is at bottom discretionary, then that would apply I suppose to criminal as well as civil cases. It would be an unusual proceeding, as it seems to me, to let in evidence even from credible sources of prior consistent statements made by a prosecution witness, whether early or late, merely because the defence did not accept, but rather challenged, the witness's veracity.

Mr Griffin QC, although he made commendable efforts to do so, was I thought unable to frame a plausible statement of principle, derivable from the authorities and justifying admission of the Schmidtkes' evidence. But it appears to me that the principle implicitly advocated is that to which I have referred, that prior consistent statements may ordinarily be proved to meet a case that a witness' evidence is not true, as long as the statements are proved by credible witnesses, or otherwise strongly buttress the witness' credit. This principle contains no requirement as to time; nor does it include the element which seems to have been regarded in Clements as being ordinarily required, that a specific suggestion made, that a witness' story has been invented at a certain time or in a certain way, is hard to reconcile with the fact that the story has been told by the witness on an occasion earlier than that on which it is alleged to have been invented.

We were referred to the rather brief treatment of the element of recency in Wentworth v. Rogers (No. 10) (1987) 8 N.S.W.L.R. 398 at 401. I am inclined to agree that it is not essential that the fabrication suggested be recent; recency is commonly mentioned because, I suppose, it often happens that an invented story has been made up, or at least polished, close to the time at which it has to be sworn to.

I note that on the basis of the Commonwealth and New South Wales Evidence Acts 1995 the evidence of the Schmidtkes would have been admitted if "the occurrence of the asserted fact was fresh in the memory of" the plaintiff when he spoke to them: see s. 64(3) as to civil proceedings and s. 66(2) as to criminal proceedings. One may be permitted to notice that this factor of "freshness" is only one of the matters which would rationally bear on assessment of the weight to be given to such a statement, and not always a particularly important one. But the wisdom of adopting, in Queensland, such a rule as is set out in these provisions must be left to the consideration of the legislature.

I have the advantage of having read the judgments of Pincus JA and Williams J and have little to add.

I agree generally with Williams J's analysis of the authorities concerning the admission of res gestae evidence. The most recent authoritative discussion of the subject is that of the majority (Wilson, Dawson and Toohey JJ) in Walton [1989] HCA 9; (1989) 166 C.L.R. 283, 304. Their Honours there recognised the continuing authority of Vocisano (1974) 130 C.L.R. 267.

Like Williams J, I consider that the circumstances of the making of the appellant's statement after the accident are such as to make the prospect of concoction very unlikely. If spontaneity was of itself a sufficient criterion I should be disposed to admit the evidence. But as Wilson, Dawson and Toohey JJ pointed out in Walton, the unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible. The evidence in question fails to qualify for admission on part of the res gestae on three points which are perhaps different ways of saying the same thing. It was not truly a part of the res (or accident), it was not virtually contemporaneous, and it is more fairly described as a narrative afterwards than as part of the incident. It therefore fails to meet the requirements that have been recognised in Vocisano and in earlier High Court judgments, including Brown v. The King [1913] HCA 70; (1913) 17 C.L.R. 570 and Adelaide Chemical and Fertiliser Co v. Carlyle (1940) 64 C.L.R. 515, 531-533.

Reference has been made to the fact that Evidence Acts introduced this year in the Commonwealth and in New South Wales have made inroads into the hearsay rule and that in consequence a statement such as the one relied on in this case would be rendered admissible. (Evidence Act 1995 (Cwth) Ss. 64(2), 64(3), 66(2), 72). I would not wish to be thought to support the introduction of such a provision. It may bring benefit in some cases, but it also brings a potential for the introduction of potentially unreliable evidence and the proliferation of self-serving statements. Wherever the cut-off line may be placed, there will always be a hard case just outside it. The present rule at least has the advantage of an anchor-point, namely the transaction or incident itself to which the remark must be spontaneously connected and with which there must be contemporaneity or virtual contemporaneity. Once that is removed, an undesirable amount of judicial discretion will need to be called upon. The period when an asserted fact remains "fresh in the memory" might arguably be considerable. The right to produce suitable self-serving statements over an extended period might permit entrepreneurial practitioners to bring back trial by a mutated form of compurgation. I do not understand any member of this Court to be suggesting that the law should be changed in this way.

In relation to the alternative argument that the evidence should have been admitted in order to rebut recent invention, I agree with the reasons of Pincus JA with one possible qualification. When a Trial Judge rules upon such a point, considerable weight is given to the Judge's opinion by the appellate court (Nominal Defendant v. Clements [1960] HCA 39; (1960) 104 C.L.R. 476, 479). To the extent that the Judge exercises a discretion, the rules are now fairly well established (Nominal Defendant v. Clements above; Wentworth v. Rogers (No. 10) (1987) 18 S.W.L.R. 398, 401; cf. Cross on Evidence, Australian Ed. para. 17305), and of course a failure to apply recognised principles will lead to reversal. However the approach of an Appeal Court to such a finding is of no assistance in the present case. The learned Trial Judge was not asked to decide the point and did not turn his mind to it. That makes the upholding of an appeal on such a point additionally difficult. In any event I agree with Pincus JA that having regard to the limited nature of the cross-examination the point was not fairly open.

The background to the question raised on this appeal appears from the reasons for judgment of Pincus JA which I have had the advantage of reading. In consequence it is not necessary for me to set out the facts in any detail.

It is clear from the record, and conceded on the hearing of the appeal, that the only basis for admissibility of the evidence from Mr and Mrs Schmidtke raised before the learned trial Judge was that it formed part of the res gestae. Ultimately, applying Vocisano v. Vocisano (1974) 130 C.L.R. 267 the learned trial Judge rejected that evidence. Relevantly Barwick CJ (with whom the other members of the Court, Stephen and Jacobs JJ agreed) said at 272-3:

"The question of whether statements form part of a res gestae is fraught with difficulty at any time. In the present case, the learned trial Judge relied upon the views expressed by the Privy Council when giving its advice in Ratten v. The Queen [1971] UKPC 23; (1972) A.C. 378. This is not an appropriate occasion, it seems to me, to discuss whether any change in the established law, and if so its precise extent, was intended by their Lordship in expressing their views in that case. A reason for the doctrine of statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might be reliable; but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility." (my emphasis)

Though the Court did not refer to Brown v. The King [1913] HCA 70; (1913) 17 C.L.R. 570, the reasoning in Vocisano was in accord with that in Brown. In that earlier case the Court held that a statement by a mortally wounded person who had walked the distance of 25 yards from where he was shot was made after such "an appreciable period" that it lacked the necessary degree of connection with the transaction (the shooting) to be admissible as part of the res gestae (see per Barton ACJ at 582). Isaacs and Powers JJ at 597 agreed that the statement was inadmissible as part of the res gestae, saying:

"But where there is no natural connection by continuance - which may have liberal connotation - and there is a distinct and appreciable break of time and place, it would in our opinion be going beyond the limit of authority to admit evidence, which is in substance and reality a mere narration respecting a concluded event, a narration not naturally or spontaneously emanating from or growing out of the main transaction, but arising as an independent and additional transaction."

The critical passages in Ratten are at 389 and 391 where Lord Wilberforce said:

"The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion and is probably the real test which Judges in fact apply. In their Lordship's opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some part of the event or transaction. This may often be difficult to establish: Such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the Judge, by preliminary ruling, to satisfy himself the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded." (my emphasis)

"Those authorities show that there is ample support for the principle that hearsay evidence may be admitted of the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused."

Clearly these statements of principle are not consistent with the formulation of it in Brown and Vocisano where contemporaneity and being part of the transaction were regarded as essential elements.

The House of Lords adopted the Ratten approach in R. v. Andrews (1987) 1 A.C. 281. There Lord Ackner (with the concurrence of Lord Bridge, Lord Brandon, Lord Griffiths, and Lord Mackay) said:

"Lord Wilberforce clarified the basis of the res gestae exception and isolated the matters of which the trial Judge, by preliminary ruling, must satisfy himself before admitting the statement. I respectfully accept the accuracy and value of this clarification." (300)

On the next page of the judgment he went on to say:

"In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the Judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

The authorities to which I have referred were all considered and mentioned in the judgments of the High Court in Walton v. The Queen [1989] HCA 9; (1989) 166 C.L.R. 283. Mason CJ at 295 quoted the test formulated by Lord Wilberforce in Ratten, namely that what was required was that the statement be made "in such conditions (always those of approximate but not exact contemporaneity) of involvement ... as to exclude the possibility of concoction" and said that he agreed with it. He then went on to say:

"However, it does not accord with the subsequent statements of Barwick CJ (with whom Stephens and Jacobs JJ agreed in Vocisano v. Vocisano. The Chief Justice in that case expressed the view that statements made on an occasion when they are unlikely to be concocted are not for that reason admissible, and went on to emphasise the need for contemporaneity rather than "spontaneity or involvement" for the purposes of the res gestae doctrine. His Honour sought to explain the decision in Ratten in these terms, despite the statements of Lord Wilberforce quoted above. However, the Chief Justice's comments were clearly obiter and prefaced by the remark that the case in question was not an appropriate occasion to discuss whether the Privy Council had intended to change the established law. It was thus logical to seek to explain the decision in Ratten in terms of the law as it had been previously understood but this does not prevent this Court from considering the issues suggested by Ratten on an appropriate occasion. Accordingly, Vocisano is not compelling authority to the contrary of the views which I have expressed."

The majority judgment in that case was delivered by Wilson, Dawson and Toohey JJ; relevantly they said at 304:

"An assertion may be admitted to prove the facts asserted if it is part of the res gestae but it is then an exception of the rule against hearsay ... The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten; R. v. Andrews: ... Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: See Vocisano v. Vocisano." (my emphasis)

Given that passage from the majority judgment it cannot be said, in my view, that "contemporaneity" is no longer an essential prerequisite of the admissibility of a statement of the type in question; nor can it be said that in Walton the High Court overruled its earlier decision in Vocisano. Further, notwithstanding the analysis by Mason CJ, I agree with Pincus JA that this Court cannot conclude that the statement by Barwick CJ quoted above from Vocisano was obiter. It may well be that the High Court acknowledged in Walton that Vocisano will need to be reviewed, and consideration given to the adoption in Australia of the principle derived from Ratten. But it is for the High Court, not this Court, to do that.

The House of Lords in Andrews exorcised the ghost of Bedingfield (1879) 14 Cox C.C. 341 from English jurisprudence, but it still haunts the Courts of Australia and will continue to do so until the High Court takes the necessary action (or the legislature intervenes as it has done, for example, in s. 64(3) of the Commonwealth Evidence Act (1995).

I turn now to the submission in this Court that the evidence was admissible on the basis that it went to rebut a suggestion of recent fabrication.

The leading Australian case is still The Nominal Defendant v. Clements [1960] HCA 39; 1960) 104 C.L.R. 476. Sir Owen Dixon in that case at 479 said:

"The Judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the Judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack."

Such a proposition has been repeated in identical, or similar, terms in a number of Australian cases in which the principle has been applied. In my view it is but another way of expressing what the Privy Council said in Fox v. General Medical Council (1960) 1 W.L.R. 1017 at 1025:

"Plainly the rule that sets up the exception cannot be formulated with any great precision, since its application will depend on the nature of the challenge offered by the course of cross-examination and the relative cogency of the evidence tendered to repel it. Its application must be, within limits, a matter of discretion, and its range can only be measured by the reported instances, not in themselves many, in which it has been successfully invoked."

Here under cross-examination it was suggested to the appellant that the incident occurred without the intervention of an unidentified motor vehicle. The cross-examination was carefully formulated and no specific allegation was made that he had recently fabricated his story to include the presence of the other vehicle. Whether or not that cross-examination was sufficient to establish a basis for admissibility of the prior statement in order to rebut an imputation of recent fabrication was a matter primarily for the trial Judge; it is difficult, if not impossible, for an appellate court to infer from the mere words in the record book the thrust of the cross-examination.

In cases involving The Nominal Defendant there will frequently be at least a suggestion of recent fabrication where it is put to the plaintiff that no unidentified vehicle was involved in the incident. There will always be in such cases a motive for implicating such another vehicle. If the plaintiff did not make reference to the alleged unidentified vehicle at the first available opportunity, then it will usually be contended that in consequence his credibility is questionable. Cross-examination suggesting such other vehicle was not present carries that implication, and that is clearly one of the reasons why that line of cross-examination is usually put to a plaintiff in such cases. Against that background there is much to be said for the proposition that a spontaneous statement as to the existence of the unidentified vehicle made at the first available opportunity should be admissible. The position, it seemed to me, is comparable with the admissibility of evidence of recent complaint in a rape case.

If, either through the overruling of Vocisano or the adoption of legislative provisions, Queensland adopted the test in Ratten and Andrews for the admissibility of evidence under the res gestae principle, there would be no doubt that the evidence in issue here would be admissible without the necessity of establishing an allegation of recent fabrication.

But unless and until that happens trial Judges should in such cases give consideration to whether or not the cross-examination of the plaintiff provides a proper basis for the reception of evidence of this type. Because that particular question was not raised with the learned trial Judge in this case this court cannot conclude that a proper basis had been made out for its reception.

Finally, I should deal with the question whether or not the statements to the Schmidtke's were made in such circumstances as to make concoction unlikely. The statements were made no more than about ten minutes after the incident and to the first persons who stopped at the scene. Whilst recognising that many people in the position of the appellant would seek to explain the event in some way attributing blame to another, I cannot agree with Pincus JA that in this case concoction was so likely as to provide a basis for the rejection of the evidence even on the Ratten and Andrews test. Of course the weight to be attached to the evidence once admitted will always be for the trial Judge. All that I can really say is that having read the evidence of the Schmidtke's, and having regard to the evidence of the appellant relating thereto, I would conclude that the circumstances in which the statement was made were such as to make concoction so unlikely that it could be said that the possibility of concoction had been excluded.

At a glance

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Judgment (67 paragraphs)

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