Goldsmith v Sandilands

Goldsmith v Sandilands - [2002] HCA 31 - HCA 2002 case summary — Zoe

[8]

GLEESON CJ. It sometimes happens, in the course of litigation, that counsel will start a hare. The response of the opposing counsel may be to pursue it. One of the duties of a trial judge is to control the proceedings, to exclude irrelevancy, and to maintain proper limits upon the extent to which the parties and their lawyers will be permitted to raise and investigate matters that are of only marginal significance.
The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial"[1]. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding[2]. The general rule that relevant evidence will be received is qualified by other rules based upon considerations of justice, or practicality. One such qualification limits investigation of collateral matters.
Collateral facts were described by Latham CJ in Piddington v Bennett and Wood Pty Ltd[3] as "facts not constituting the matters directly in dispute between the parties". An example of a collateral fact is one affecting the credibility of a witness. As a general rule, itself subject to exceptions, a cross-examiner is bound by the answer to a question that goes only to credit. The cross-examiner is bound in the sense that he or she will not be permitted to lead evidence to contradict the answer of the witness. This rule is based on the desirability of avoiding a multiplicity of issues[4]. It is an example of the law's pragmatism. The adversarial system of civil litigation would collapse if the adversaries were permitted to lead evidence about every matter of contention that arises in the course of proceedings. The case of Piddington provides a strong (and perhaps controversial) illustration of the rule. Dixon J, who was in the majority, characterised the evidence in question as having no tendency other than to discredit a particular witness[5]. It would not have been admissible if the witness had not given evidence. It could not be called to contradict the testimony of the witness. In Palmer v The Queen[6], McHugh J pointed out that it is sometimes difficult to maintain a rigid distinction between evidence which goes only to the credit of a witness, and evidence otherwise relevant to a fact in issue. Questions of degree arise, both as to relevance, and as to whether a fact is collateral[7]. And whether a fact has a bearing upon the credit of a witness will often depend upon exactly what the witness has represented to the court. The present case provides an example.
The appellant and the first respondent were, in June 1993, members of the police force in Western Australia. The appellant sued the respondents in negligence for damages for personal injuries, alleging that he had injured his back and neck while a passenger in a car being driven by the first respondent on 26 June 1993. It was part of the case for the respondents that the appellant's injuries had been suffered, not on 26 June 1993, but in the course of an indoor cricket match on 22 June 1993. In support of that allegation, the respondents relied upon admissions allegedly made by the appellant. It was part of the first respondent's case that, on 22 June 1993, the first respondent, by previous arrangement, had collected the appellant after a game of indoor cricket and that, as the appellant entered the car, he said: "I've stuffed my back … playing cricket." In due course, the first respondent gave evidence to that effect.
Thus, a fact in issue was whether the appellant had injured his back on 26 June 1993. A fact relevant to the fact in issue was whether the appellant had injured his back playing indoor cricket on 22 June 1993. (Proof that he had injured his back on 22 June did not establish that he had not also injured it on 26 June but, together with other evidence in the case, it could rationally affect the probabilities as to whether the events of 26 June were a cause of his injuries.) The evidence upon which the respondents relied to establish the fact relevant to the fact in issue included evidence of an admission by the appellant to the first respondent. The making of the admission was denied. However, it was not in dispute that the appellant was an indoor cricket player. He played indoor cricket at Strikers indoor cricket arena, which was situated at Belmont. He conceded that he might have played there on 22 June 1993.
When the first respondent, in the course of his case, came to give evidence of the alleged admission, he was uncertain in his recollection about the location of the indoor cricket arena. He said he could not remember the name of the street. After stating that he was only guessing, he gave a brief description of the street. He said it was a short cul-de-sac. He said that, in the intervening years, he had once attempted to find the street. He went back to a street named President Street, but he could not be sure that was the street in which he had collected the appellant.
Bearing in mind the first respondent's uncertainty as to the location of the indoor cricket arena, of which trial counsel was presumably aware when he cross-examined the appellant, and which he must have known when he examined the first respondent, and bearing also in mind that there was only one Strikers indoor cricket arena, that it was in Belmont, and that the appellant was prepared to accept that he may have played there on 22 June 1993, it is surprising that trial counsel for the first respondent decided to embark upon an investigation of the precise location and physical surroundings of the indoor cricket arena at which the appellant played. It was a subject about which the appellant was prepared to concede all that mattered, and about which his own client professed no clear recollection. And any question as to the address of Strikers could presumably have been settled by looking at a telephone directory.
In cross-examining the appellant, counsel for the first respondent elicited admissions that the appellant was an indoor cricket player, that he used to play at Strikers at Belmont, and that he might have been playing cricket on 22 June 1993. That was all he needed. But he went further. He suggested to the appellant, without objection, that the arena was at President Street. The appellant agreed. The suggestion, he said, had rung a bell. But the suggestion was erroneous. President Street is not in Belmont; it is in Welshpool, which we were told is three kilometres from Belmont.
Having thus, in cross-examination, and without objection, put a misleading suggestion, and elicited from the appellant the erroneous information that Strikers was in President Street, counsel for the first respondent, again without objection, pursued the matter with his own client, when he called him as a witness. Despite the first respondent's protestations that he could not remember, and that he was only guessing, counsel pressed his client on the subject, and finally obtained from him some rather tentative evidence that President Street appeared to be, or was similar to, the street in which the indoor cricket arena from which he had collected the appellant was located. Counsel for the appellant cross-examined the first respondent on the subject. The cross-examination demonstrated what the first respondent had said in the first place: he was extremely uncertain as to the location of the arena. He agreed that there was no indoor cricket arena in President Street. He repeated that he was guessing. It was put to him that Strikers was in Esther Street, Belmont. He said he had no idea.
The name and description of the street in which the indoor cricket arena was located was a collateral fact. It was a circumstantial detail relating to the evidence of the alleged admission. And, having regard to what the appellant had conceded in his evidence, it was of negligible significance. It is possible that, if there had been a dispute about whether the appellant had ever played indoor cricket, then the details about the location of the arena, if seriously in contest, might have had some real bearing on the credit of the first respondent. Even in that circumstance, it would have been collateral.
Trial judges have the power, and the duty, to control the pursuit of irrelevancies, or collateral matters. But it is understandable that a judge may be cautious about cutting off a line of examination or cross-examination where no objection is taken. Counsel usually know more about their respective cases than the judge, and it is sometimes unfair to compel them to indicate where questions are heading.
The opportunity for Commissioner Reynolds, who presided, to give this supposed issue its quietus, arose, not from an objection to a question, but from an application made by counsel. Counsel for the appellant, after cross-examining the first respondent, asked for leave to re-open his case by re-calling the appellant to prove the location of the Strikers indoor cricket arena, and by leading evidence about the differences between Esther Street, Belmont, and President Street, Welshpool. Commissioner Reynolds refused such leave. That refusal is the principal subject of the present appeal. (We were informed by all counsel that, under Western Australian practice, it is very unusual for a plaintiff to have a case in reply; hence the application to re-open.)
Commissioner Reynolds' ruling was correct. The circumstance that the subject of the location and surroundings of the indoor cricket arena at which the appellant was said by the first respondent to have been playing, and at which the appellant accepted he might have been playing, on 22 June 1993 was raised by counsel for the first respondent, did not mean that counsel for the appellant was entitled to pursue the subject to its conclusion. Presumably counsel for the first respondent was trying to make the first respondent's evidence as to the admission more credible by pressing for as much circumstantial detail as possible. And counsel for the appellant's cross-examination of the first respondent's evidence on the issue was aimed at attacking his credibility. Even if the evidence could reasonably have been regarded as bearing on the credit of the first respondent, the matter was collateral. Furthermore, having regard to the first respondent's disclaimers as to his recollection, the proposed further evidence did not even bear significantly on his credit. This is reflected in the ultimate reasons for judgment given by Commissioner Reynolds, who said:

[13]

In cross-examination, the first defendant said that he remembered that "there were some bollards at the end of this street". Shown a sketch, the first defendant said that there "were some bollards around the end of this cul-de-sac area" and that they were "white". He said that he was not "entirely sure" that President Street was the place where he had been on 22 June 1993. He said that he did not know whether that was the street, but it looked the same. He could not "recall the premises" and conceded that there was no indoor cricket centre in President Street when he had gone out there with his counsel two or three weeks before the trial had commenced in April 1998. Asked how he selected President Street, he said that he knew the street was in the area. One night he "patrolled around those streets, found a street that looked familiar and that's how it was selected". He agreed that, from the evidence he had heard, Strikers was in Belmont and that President Street was in Welshpool, which was about three kilometres from Belmont. However, the first defendant said that he could not say whether it was Strikers that he "went to" that night. Asked whether Strikers was in Esther Street, Belmont, the first defendant said that he had "no idea".
During cross-examination, counsel for the plaintiff also sought to question the first defendant concerning photographs of President Street, taken a few weeks before. However, the Commissioner disallowed such questions on the ground that the photographs had been taken five years after the event.
A little later, counsel for the plaintiff said that he proposed to cross-examine the first defendant on some recent photographs of Esther Street, Belmont where Strikers was located. The object of putting the photographs to the first defendant was "to see if that helps refresh his memory". Counsel for the plaintiff said that the first defendant "could look at these photographs and it may well be … his position will change in relation to the matter". The plaintiff's counsel also applied for leave to re-open his case to call the plaintiff who had taken the photographs of Esther Street.
The Commissioner rejected the use of photographs of Esther Street. He said "the reasons I expressed in relation to the previous set of photographs apply equally in relation to this set of photographs". The Commissioner also rejected the plaintiff's application to re-open his case, saying:

[27]

At the trial, neither party paid attention to whether evidence from or on behalf of the plaintiff concerning the configuration of Esther Street was admissible to rebut the defendant's evidence. The parties seemed to have assumed that it was admissible. So did the learned Commissioner. The Full Court also thought the evidence of the plaintiff concerning the location of Strikers was admissible. Templeman J said that the Commissioner was clearly right in holding that "the matter under consideration was 'a key evidentiary issue'". Templeman J also thought that leave to call the evidence should have been given. His Honour said the plaintiff's application "was not, strictly, an application to re-open his case, but to call evidence in rebuttal in relation to an issue which had taken him by surprise". But in my opinion, the evidence that the plaintiff sought to lead concerning Esther Street was not admissible in rebuttal or in his case, if it was re-opened. The evidence was relevant only to a collateral fact and not to a fact in issue or a fact relevant to a fact in issue. Nor did it come within any of the exceptions to the rule that a witness' evidence concerning a collateral matter is final and cannot be contradicted by other evidence.
Under the common law rules of evidence, evidence is generally admissible only if it tends to prove a fact in issue or a fact relevant to a fact in issue. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact[8]. Whether a fact is a fact in issue depends upon the pleadings and particulars of each party's case. The facts in issue reflect the material facts that constitute the claimant's cause of action - which may be defined as the set of facts to which the law attaches the legal consequences that the claimant asserts[9]. The facts in issue also include those material facts that provide any justification or excuse for, or a defence to, the cause of action.
Evidence concerning collateral facts - facts that are not facts in issue or facts relevant to a fact in issue - is not generally admissible. But that rule has some notable exceptions. The best known is that a witness may be cross-examined about facts affecting his or her credit or credibility. As I pointed out in Palmer v The Queen[10], logically there is no distinction, so far as relevance is concerned, between the credibility of a witness and the facts to which the witness deposes. The reliability of oral testimony cannot be separated from the credibility of its deponent. But the common law has generally refused to act on the basis that there is no distinction between the credibility of a witness and the facts to which the witness testifies. Because the common law regards answers to questions on credit or credibility as going to collateral issues, in most cases the opposing party cannot tender evidence to contradict those answers[11].
But there are exceptions to the rule that ordinarily a witness' answer on a collateral matter is final and cannot be contradicted. Thus, the opposing party may tender evidence to contradict answers relating to the credit of a witness where the witness' answer denies that he or she had been convicted of a crime[12] - at all events if it is a crime affecting the veracity of the witness[13]. And a witness' answer is not final if it denies that the witness has made a previous inconsistent statement[14].
There are other exceptions to the general rule that evidence must be relevant to a fact in issue or a fact relevant to a fact in issue. One exception is that the finality rule concerning collateral matters does not prevent a witness being contradicted as to facts that are immediately connected with the facts in issue or facts relevant to the facts in issue[15]. Thus, whether the opportunity to observe a relevant fact is or is not a collateral matter, the practice of the common law courts has been to admit evidence that shows that a witness did not have an opportunity to make the observation[16]. Common law judges have taken the view that the opportunity to observe an event is so closely connected with the observation that it should not be regarded as a collateral matter falling within the finality rule. So ordinarily a party may contradict an opposing witness' evidence concerning the time, place and lighting of, and distance from, the scene of an event, if the event is itself relevant.
Other exceptions to the finality rule are that a party may prove that a witness is biased[17] or has been corrupted[18] or that his or her evidence is unreliable because of a physical or mental condition[19] or that the witness cannot be believed upon his or her oath[20]. In Lowery v The Queen[21], the Judicial Committee of the Privy Council went so far as to hold that psychiatric evidence was admissible to prove that Lowery's character was such that the co-accused's version of a killing was the more probable version.
Another exception to the finality rule is that sometimes a party may be permitted to tender evidence that a witness has made an earlier statement that is consistent with the witness' evidence. If the evidence of a witness concerning a material fact is attacked on the ground that the witness has recently invented or reconstructed the evidence, the party calling the witness may tender evidence proving a previous consistent statement of the witness[22].
Speaking generally, however, evidence concerning collateral matters cannot be contradicted. The rationale for the common law distinguishing between evidence concerning the issue and evidence concerning collateral matters is not rooted in logic, but in policy[23]. In Toohey v Metropolitan Police Commissioner[24], Lord Pearce said that "[m]any controversies which might … obliquely throw some light on the issues must in practice be discarded because there is not an infinity of time, money and mental comprehension available to make use of them". The Full Court of the Federal Court has said that the finality rule concerning evidence on collateral matters "is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness"[25].
The need for finality of answers on collateral matters is greatest when those matters go to facts that discredit the witness. In Attorney-General v Hitchcock[26], Mr Baron Alderson referred to "the inconvenience that would arise from the witness being called upon to answer to particular acts of his life, which he might have been able to explain, if he had had reasonable notice to do so". His Lordship said[27] that it would only be "justice to allow the witness to call other evidence in support of the testimony he has given, and as those witnesses might be cross-examined as to their conduct, such a course would be productive of endless collateral issues".
Despite the longevity of the finality rule, it has increasingly come to be regarded more as a flexible standard than a fixed rule of law[28]. Starke J recognised this in Piddington v Bennett and Wood Pty Ltd[29] when he said that the finality rule was "a rule of convenience, and not of principle". Similarly, in Natta v Canham[30], the Full Court of the Federal Court said that the rule should be regarded "as a well-established guide to the exercise of judicial regulation of the litigation process". In Natta, the Full Court held that, where a person claimed that she had been injured in a car accident, evidence was admissible to contradict her denial that she had asked another person to stage a car accident so that she could claim compensation. The Full Court said[31] that "[a] trial judge should not be precluded from determining in an appropriate case that the matter on which a witness' credit is tested is sufficiently relevant to that credit as it bears upon issues in the case that such evidence may be admitted".
The need for flexibility in applying the finality rule is supported by the difficulty that courts often find in determining whether the evidence concerns a collateral matter or a fact in issue or a fact relevant to a fact in issue. A well-known example is Piddington v Bennett and Wood Pty Ltd[32] where this Court divided 3-2 in holding that the defendant could not call evidence that indirectly tended to prove that a witness was not at the scene of an accident. In cross-examination, the witness had said that he was at the scene because he had just been to a nearby bank probably to draw out or pay in money on behalf of a Major Jarvie. This Court held that the bank manager could not give evidence that on that day there had been no transactions on Major Jarvie's account. Latham CJ, dissenting, said[33] that the evidence was admissible because "whether he went to the bank or not for Major Jarvie was accordingly a fact which had a bearing upon the probability or improbability of the truth of his evidence as to his presence at the place of the accident". Starke J, also dissenting, said[34] that it was not denied that whether the witness was present was a fact relevant to a fact in issue. His Honour held[35] that it was not necessary that the absence of the witness be proved directly; it could "be proved indirectly, that is, inferred from other facts". In contrast, Dixon J said[36] that the bank manager's evidence had "no natural tendency to show that [the witness] was absent from the scene of the accident. All it does is to discredit the account he gave under cross-examination". Evatt J said[37] that the evidence "went merely to prove that [the witness'] general recollection or memory or credibility was not to be relied upon". And McTiernan J said[38] that the evidence "could discredit the witness, but it was incapable of contradicting any fact upon which proof of the opportunity which the witness had of observing the accident depended".
English courts have also had difficulty in distinguishing between facts that are in issue or relevant to an issue and facts that are collateral to the issue. In Busby[39], the English Court of Appeal recognised the difficulty saying[40] that "[i]t is not always easy to determine when a question relates to facts which are collateral only, and therefore to be treated as final, and when it is relevant to the issue which has to be tried". In Busby, police officers gave evidence of admissions by the accused that he had committed burglaries. The officers denied that they had fabricated the admissions or that they had threatened a witness whom they had interviewed while making inquiries concerning the burglaries. The Court of Appeal held that the trial judge had wrongly rejected evidence given by the witness that the officers had threatened him. The Court held, wrongly in my opinion, that the threat went to a fact in issue - whether the officers concerned "were prepared to go to improper lengths in order to secure the accused's conviction"[41]. With respect, it seems impossible to justify this decision if the distinction between collateral facts and facts in issue is to be maintained. Whether the officers had threatened the witness threw no direct light on whether the accused had made the admissions. The evidence simply showed that they were of bad character and willing to break the law. Moreover, the decision is irreconcilable with Harris v Tippett[42], which held that evidence could not be called to contradict the denial of a witness that he had tried to dissuade a witness for the other side from giving evidence. Cases in the English courts since Busby also appear to have blurred the distinction between collateral facts and facts in issue[43].

[29]

In my opinion, the Commissioner did not err in refusing to permit the plaintiff to re-open his case. The evidence that the plaintiff wished to call concerning Esther Street was not admissible. It did not tend to prove that the plaintiff had not told the first defendant that he had hurt his back or neck while playing cricket. Evidence that proved that the plaintiff had made no such admission was unquestionably admissible. But evidence that the first defendant was wrong in asserting that the cricket centre's street had "some bollards around the end of this cul-de-sac area" and that they were "white" did not prove that the plaintiff had not said that he injured his back or neck while playing cricket. The evidence concerning the physical features of Esther Street could only discredit the first defendant's recollection or assertion of those physical features. It could not prove or disprove any fact relevant to a fact in issue.
The evidence that the plaintiff wished to call was further removed from the issues in the case than the evidence rejected by this Court in Piddington. Like the evidence in that case, the Esther Street evidence did not go to a fact in issue or a fact relevant to a fact in issue. At best it discredited part of the first defendant's evidence. Nor did the evidence that the plaintiff wished to call point so powerfully to the first defendant's account of the admission being false that it should be admitted by a flexible application of the finality rule. Unlike the evidence considered by the Full Court of the Federal Court in Natta[44], evidence that the first defendant was wrong in his description of parts of Esther Street did not strongly support the plaintiff's case that he had not made the alleged admission. In Natta, on the other hand, evidence that the plaintiff had previously suggested faking a car accident strongly supported the first defendant's case that the present claim had been faked.
Accordingly, the evidence concerning Esther Street was inadmissible. The Commissioner did not err in refusing to allow the plaintiff to call this evidence.

[32]

The appellant's case at trial was that he had suffered a serious injury to his cervical spine on the night of 25-26 June 1993 in the course of his service as a police constable. The injury was said to have happened whilst he was a passenger in a police vehicle driven by Constable Sandilands and insured by the fourth respondent. The respondents' case was ultimately that the cause of any disabilities suffered by the appellant was an injury that he had sustained whilst playing a game of indoor cricket on 22 June 1993, ie three days before the high speed chase to which the appellant attributed them. The Commissioner of the District Court, having heard much evidence of lay and expert medical witnesses, over nine days or so in April and July 1998, made adverse findings about the credibility of the appellant. He preferred the truthfulness of Constable Sandilands who had given evidence that the appellant had made an admission to him about the indoor cricket injury which the appellant denied[46].
Ordinarily, that would have been an end of the matter. Every day, trial courts throughout Australia must resolve contested issues of fact and conflicting testimony. By repeated decision of this Court[47], appellate courts in this country are cautioned against interfering with decisions of the tribunal of fact in matters such as this[48], save in very limited circumstances where the conclusion reached is incompatible with evidence that is objectively demonstrated, has been reached by an erroneous process of reasoning or is otherwise "glaringly improbable"[49]. Reasons of legal authority support this rule of appellate restraint. So do reasons of legal policy that recognise the problematic nature of eliciting objective truth in any trial setting, the several advantages enjoyed by trial judges over appellate judges in matters of fact finding and the need to bring contested questions to finality, given the costs and other disadvantages of appeals and retrials and the burdens which litigation places upon the parties, witnesses and the courts.
The appellant acknowledged all of the foregoing. However, he submitted that a threshold mistake had occurred in the conduct of the trial. He argued that the primary decision-maker had erred in two important respects with the result that the appellant had been denied the opportunity of rebutting the critical evidence of Constable Sandilands. In support of his argument, the appellant relied upon two critical findings made by the Full Court. These were that the primary decision-maker had erred in the exercise of his discretion at trial in refusing to permit the appellant to reopen his case, or otherwise to adduce evidence in rebuttal:

[37]

Evidence in reply or rebuttal: Subject to any applicable legislation (and none was suggested in this case)[52], three general legal principles govern the resolution of the issues argued in this appeal. The first involves a reminder that the trial process in an Australian court involves adherence to the principle of procedural fairness. Whether this is inherent in the Constitution that creates, or envisages, the integrated Judicature of the nation or whether it is a rule of the common law matters not for present purposes[53]. In different parts of Australia and in different courts, statutes, court rules and local practice and tradition have influenced the conduct of trials and the procedures observed in them. However, the obligation to accord procedures fair to both sides, and to be impartial as between them, are common requirements of the trial process in courts everywhere in this country.
In some Australian jurisdictions[54] a party in the position of the appellant has a case in reply which follows the close of the respondent's case. That party is entitled, in reply, to call evidence that arises directly in answer to any evidence that may have been called by that party's opponents. There, evidence in reply is not tendered during an opponent's case but is marked for identification and tendered only in the party's own case, either in chief or (where applicable) in reply.
In most parts of Australia (and specifically in Western Australia where the present trial was conducted[55]) this procedure is not followed. There, each party has its own case. Each is expected, in that case, to tender the entirety of its evidence. Any evidence that is not tendered during the party's case can then only be received if that party is given leave by the court to reopen its case and to tender items of evidence that were earlier overlooked or that only became relevant as a result of the conduct of the opponent's case.
The differences between these procedures, which are substantially the products of legal history or local legislation, court rules and practices, should not be exaggerated. Each of them is designed to ensure that a party normally presents all of its evidence before its opponent is called upon to respond. Each restricts late additions to the evidence where it could have the effect of surprising an opponent, foreclosing its opportunities to respond and extending needlessly the length of a trial and the pursuit of side issues of limited relevance to the matters for decision[56].
In criminal trials throughout Australia, the common law restrains the Crown from "splitting its case"[57] and calling a witness after the close of the defence case. However, even in criminal trials, where the risks of procedural injustice are large and their consequences most serious, this Court has resisted the notion of a "rigid formula". It has done so having regard to the almost infinite variety of difficulties that can arise in a trial. Accordingly, the law has recognised that the judge retains a discretion to permit the prosecution to adduce evidence in reply, although it has insisted that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all of its evidence before the accused is obliged to present his or her defence[58]. The strict rule can be adapted ex improviso. This means no more than "unexpectedly" or "suddenly" but in circumstances "which no human ingenuity can foresee"[59].
The reasons that exist in criminal trials to sustain such an "extremely strict rule"[60] do not exist, at least to the same degree, in civil trials in Australia. Subject to any exceptions provided by or under statute, it is fundamental that the criminal trial is accusatorial in character[61]. But civil trials are adversarial and not accusatorial in character. Moreover, in most parts of Australia, civil trials are today normally conducted by a judicial officer sitting alone, without a jury[62]. In such a trial greater latitude is reserved to the trial judge, where leave is necessary, to permit a party to adduce evidence in reply or rebuttal and to admit such evidence, if appropriate, upon condition that an issue that is reopened should be properly but economically explored to conclusion, with both sides having a fair facility to place relevant evidence (especially documentary evidence) before the court before the end of the trial.
The guiding principle for the grant or refusal of leave to call evidence in response to the evidence of another party, where this is sought by a party, is, ultimately, what the justice of the case - including procedural fairness - requires. That principle should not become unduly entangled in precedents or procedural rules.
Whilst efficiency and economy in the conduct of civil trials are important requirements of the contemporary trial process, those objectives are valid only as they contribute to just outcomes[63]. Once the trial process is under way, rigidity should be avoided, certainly at a time before the evidence has been closed and before the decision foreshadowed or announced. To exclude relevant evidence during a trial, in response to evidence tendered by another party in its case, simply because it could, or should, have been adduced earlier may, in particular circumstances, deny the party tendering such evidence the fair opportunity to present its case. It may render that party unjustly hostage to the defective perception, imagination and industry of its legal representatives. This is why a large discretion is reserved to the trial judge in civil trials to admit or reject evidence in rebuttal or reply. In an appeal, the exercise of the judge's discretion in such matters is subject to the usual restraints upon appellate disturbance of discretionary decisions[64].
Error and miscarriage of justice: The second principle, also one of procedural fairness, concerns the consequence that follows where the appellate court considers that the discretion at trial has miscarried. Given that in every trial many rulings on the admission of evidence must be made, some insignificant and others of great importance, it is not every incorrect decision upon such a matter that will attract an appellate order for a retrial. To adopt such a rule would be unduly inflexible. It would permit technical slips of little or no consequence to overwhelm substantive merit, ignoring the mistakes and imperfections to which any human system of justice is prone.
Commonly, legislation or rules of court will involve the requirement, both in criminal[65] and civil appeals[66], that an error in a ruling on evidence must produce a miscarriage of justice or substantial wrong before appellate intervention is warranted. Within such limits, the ordering of a new trial for any such error is a discretionary remedy. It follows that it is not every erroneous ruling permitting evidence to be received, or excluding it, that will justify an order setting aside the judgment entered at trial and ordering a new trial.
Specifically in the context of decisions affecting the reception of evidence relevant to the evaluation of the credibility of a witness, a rule of vigilance has been adopted by appellate courts. The foundation for this rule is an appreciation of the fact that decisions about credibility are often complex ones in which the decision-maker must take into account a variety of evidentiary indicators pointing respectively to acceptance or rejection of the contested testimony. Until the evidence at the trial is concluded and the last word spoken in argument, our legal system requires the decision-maker to keep an open mind about the significance of particular evidence as it may cast light on the truthfulness or falsehood of the assertions of a party or other witness[67]. In the well-known words of Denning LJ, "[n]o cause is lost until the judge has found it so; and he cannot find it without a fair trial"[68].
However, even in such a matter the common law retains its sense of proportion. It is not every departure from procedural fairness concerning the reception or rejection of evidence relevant to the credibility of a party or witness that will entitle the aggrieved party to a new trial. In Stead v State Government Insurance Commission[69], this Court pointed to the cases where established error in this regard would not warrant an order for a retrial. However, it also emphasised that it "is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference" where the issue is whether the testimony of a particular witness would be accepted[70].
In Stead, this Court set a very high standard where credibility was the issue. When evidence relevant to that point has been erroneously excluded the only basis for refusing a retrial is where the appellate court can affirmatively conclude that the error "could have had no bearing on the outcome of the trial of an issue of fact"[71]. The reason for this stringent rule is that the law accepts that credibility assessment can sometimes be crucial to the outcome of a case - as it was in this case. And the final conclusion on whether or not a witness is to be believed may depend upon evaluating all of the relevant testimony viewed in relation to all of the evidence in the case.
Credibility and collateral evidence: The third principle governs the extent to which a party will be entitled to cross-examine a witness as to credit and to adduce evidence to show that the witness has been untruthful in some aspect of the evidence which he or she has given.
In some Australian jurisdictions where the Uniform Evidence Acts apply, this subject is now governed by statutory provisions that control the admission of evidence relevant to credibility[72] and that limit cross-examination as to credibility[73]. These provisions followed reports of the Australian Law Reform Commission that were critical of the common law as it had developed on this subject[74].
The Australian Law Reform Commission concluded that the law in question was full of inconsistencies, uncertainties and other defects[75]. This conclusion is, with respect, fully warranted if regard is had to the analysis of the decision of this Court in Piddington v Bennett and Wood Pty Ltd[76], set out in the reasons of Callinan J[77]. There this Court was closely divided. The judges in the majority did not express a single or consistent principle for holding that the evidence in question in that case was inadmissible. The dissenting opinions are highly persuasive. The majority severally express themselves in terms that permit exceptions and qualifications to the principles that they respectively accept[78]. At least in some circumstances, where a witness has "garnished his account … with associated details designed to give verisimilitude"[79] to that witness' evidence, a power in the trial judge is recognised to permit a subject, opened up by evidence on one side, to be answered by the other so as to preserve both the actuality and appearance of even-handed justice.
In Natta v Canham[80], before the Evidence Act came into force in federal courts, the Full Court of the Federal Court, after referring to Piddington, said, correctly in my view:

[52]

Constable Sandilands was himself uncertain, and said so, about the precise address of the indoor cricket facility. The details of the address had been introduced in large part by questions asked by his trial counsel.
- What was ultimately crucial was whether the appellant's admission was made or not. As such, the exact address where the alleged admission was made was not critical to that point. Even if the introduction of the place and its features was false, and intended to add verisimilitude, that fact of itself would not necessarily establish that the actual evidence of the admission was false. Honest people sometimes elaborate their testimony, especially if mistakenly led into doing so in a trial by questions from their legal representatives.
- The absence of reference to the alleged admission by the appellant from the police report signed by Constable Sandilands in August 1993 was comparatively unimportant. That report was substantially addressed to the criminal features of the chase in the police car and not, as such, to the injury to the appellant.
- The Commissioner of the District Court placed no reliance on the specific features of the street in which the indoor cricket venue allegedly existed. In this sense the case was different from Stead[87]. There a major cause for justifiable complaint was that the primary judge, despite earlier indications to the contrary, had relied explicitly on evidence that a party had not had a fair opportunity to answer.
- The evidence of Constable Sandilands did not stand alone. It was supported by the evidence of Detective Sergeants Harmer and Cross. They also deposed that the appellant had made admissions to them of an indoor cricket injury. It is true that Detective Sergeant Harmer had spoken of his evidence in this regard being the product of an "inference". However in its context, this was merely a cautious way of saying that this was how the witness understood the appellant, piecing together a conversation that would not have been of any real importance to Detective Sergeant Harmer at the time. Neither of the Detective Sergeants Harmer or Cross was affected in any direct way by the evidence concerning the address of the indoor cricket facility. To overcome their evidence, the appellant had, in effect, to postulate a conspiracy among them with Constable Sandilands to protect the latter's position. As neither of the Detective Sergeants Harmer or Cross were ever at any personal risk, nor believed they were at risk in the matter, it is difficult to accept the thesis of such deliberate falsehood against a person who was at the time a fellow officer. It is not an impossible proposition - but it requires a very damning view of the evidence of those officers which the Commissioner did not accept[88]. As such, the propounded evidence would not therefore have helped the appellant to overcome the impact of the testimony of the other two officers which was accepted by the Commissioner and confirmed that of Constable Sandilands. The appellant relied on the decision of this Court in McKinney v The Queen[89] to establish that the evidence of the three police officers was inherently suspect. However, that case was concerned with the special dangers to a criminal accused vulnerable when in police custody. It has no application, as such, to a case like the present one involving work colleagues, where there was no similar vulnerability to false police testimony.

[53]

When to the actual evidence of police officers Sandilands, Harmer and Cross is added the weight that is properly to be accorded to the intuitive, unexplainable impressions of the Commissioner upon the entire testimony of the trial which he analysed at considerable length, it cannot be said that the Full Court erred in not concluding that the exclusions of evidence ordered at trial caused the trial to miscarry or occasioned a relevant miscarriage in the Commissioner's ultimate decision.
The appeal should therefore be dismissed with costs.
HAYNE J. I agree that this appeal should be dismissed. For the reasons given by other members of the Court, there was no miscarriage of justice that would warrant a new trial.
The facts that give rise to this appeal are not unusual. They are sufficiently described in the reasons of other members of the Court and I need not repeat them. The course of events at trial, again sufficiently described elsewhere, may, however, be thought to have departed from the ordinary in some respects.
The appellant claimed that he had been injured at work. The respondents not only denied that it was in the course of his employment that he had suffered the injury of which he complained, they went so far as to contend that he had suffered it playing indoor cricket. This the respondents sought to establish by adducing evidence of what was said to amount to an admission made by the appellant in conversation with the first respondent. In the ordinary course of events it would be expected that the respondents, in cross‑examining the appellant, would put to him the content of the alleged admission and, if he did not distinctly admit that he had said the words alleged, put sufficient of the circumstances to identify the occasion when it was said to have been made[90]. If the appellant denied making the admission it would be expected that the respondents would call evidence of its making from a person who heard the words spoken - in this case, the first respondent. Where this case took an unusual turn at trial was that counsel for the first respondent, when cross‑examining the appellant, had put to him that the admission was made outside an indoor cricket centre and gave as the address of that centre an entirely wrong address. The appellant, incorrectly, agreed that the address given could be the address of the relevant centre.
In his evidence in chief, the first respondent gave evidence, without objection, of some physical features of the area where the alleged confession was made. He was cross‑examined on that evidence and it eventually emerged that the address of the indoor cricket centre to which the appellant had assented in his evidence was wrong. After the first respondent had given evidence, counsel for the appellant sought leave to recall his client to give further evidence about the location of the indoor cricket centre. That leave was refused and, in my view, rightly refused.
What the first respondent had said in evidence about the physical features of the area where the admission was said to have been made did not bear directly on whether the appellant had made that admission, and it was not relevant to any fact in issue in the case. The fact that the appellant allowed evidence about the physical features of the place of the alleged admission to be led from the first respondent in evidence in chief did not make the evidence relevant to any issue in the case. To demonstrate that the evidence about the physical features of the area was wrong would demonstrate only that the first respondent was not a reliable witness on that matter. A conclusion about his reliability in this aspect of his evidence might be thought to bear upon whether other evidence he had given should be believed. But to pursue the accuracy of what had been said about the address of the centre, or about the physical features of the area, beyond whatever point the cross‑examination of the first respondent took it, would have been to pursue a collateral issue. Accordingly, leave to recall the appellant to give evidence contradicting the evidence the first respondent had given about these matters was rightly refused.
It is as well, however, to say something further about the decision in Piddington v Bennett and Wood Pty Ltd[91]. The division of opinion in Piddington reveals that the distinction between evidence going to an issue and evidence going only to credit (or, I would add, any other collateral issue) may not always be clear cut. And what is said in the reasons in Piddington must, as always, be understood in the context of the facts and circumstances of the case. Hence, I would not understand Dixon J to be intending by his reference to "one indivisible activity, journey or transaction"[92] to formulate any test of general application. Similarly, his Honour's reference[93] to the tendency of the evidence to discredit the witness making the question of the admissibility of the evidence important, must be understood as a comment on the importance of the question of admissibility in deciding whether a retrial should be had, not a suggestion that the evidence was important to the resolution of the issues at the trial. This is not to deny, however, the importance or continued applicability of the general principle which was in issue and applied in Piddington - that evidence should not be received on matters collateral to the issues in a proceeding.
That rule, although difficult of application, remains important to the proper trial of proceedings. It may be, as McHugh J said in Palmer v The Queen[94], that the distinction between evidence relevant to credit and evidence relevant to a fact in issue is not only indistinct and unhelpful but is rooted only in the need to prevent trials being burdened with side issues, not in logic. At the least, the application of the distinction will sometimes be very difficult. In this case, however, the evidence that had been given about the address or the appearance of the area where the alleged confession was made related only to the credit of the witness, not to any fact in issue.
As to the other issue agitated by the appellant, concerning the trial judge's refusal to permit him to call a physiotherapist to give evidence about the effect, or lack of effect, another incident may have had on his condition, I agree with Callinan J.
CALLINAN J. The principal question which this appeal raises is whether a refusal by a trial judge to allow a plaintiff to adduce evidence after the closure of his case on matters going only to his credit resulted in a miscarriage of justice such as to require a retrial.

[74]

A question arises whether the first respondent, by pursuing in his case the collateral matter as to the features of the location of the cricket centre, elevated it to one of such important circumstantial detail as to make it an issue which the appellant should have been entitled to, but was not permitted to address by adducing further evidence. I put the matter in that way because the appellant does not contend in this Court that the Commissioner erred in rejecting his cross‑examination on the photographs and as to the physical features of the correct address of the cricket centre.
The respondents contend that nothing in the end turned upon the rejection of the appellant's application to re-open his case. They submitted that, although the Commissioner was unable to reach a conclusion as to the location of the cricket centre, it was sufficient that he was satisfied that an admission of the kind alleged had been made in the vicinity of a cricket centre from which the first respondent had collected the appellant on a date in about June 1993.
The detail of the location of the cricket centre was a collateral matter. The first respondent was entitled to cross-examine the appellant about it if it went to credit, as I think it did. Within the normal ambit of re-examination the appellant would have been entitled to give evidence about it at that stage had he wished. The occasion for doing so did not, however, arise because of his assent in cross‑examination to the address put to him and his inability to confirm or deny the physical features that the address possessed. The argument of the parties really betrays a misunderstanding of the proper course of a trial and the distinction between what a witness may be asked in chief and what he may be asked in cross-examination. All that a plaintiff need do, and ordinarily should be confined to doing, in chief, is prove his case. A cross-examiner is given much greater latitude. Subject to some statutory and other inhibitions which it is unnecessary to discuss here, a cross-examiner may ask about any matters reasonably going to a witness' credit. Ordinarily, however, the cross-examiner will be bound by the witness' answer. That means that he must accept it. He should not in his case be permitted to go into evidence, as counsel for the first respondent did here, of details of a matter going to credit only, with a view to contradicting the answers that he has received in cross-examination. Furthermore, at that point there was no dispute on the evidence as to the address (to which the appellant had assented) or, indeed, as to any physical aspects of it, because the appellant's response in cross-examination had been simply that he was unable to recall these. The proper course for the appellant would have been to object to the first respondent's evidence about them. Whether he had objected or not, he should, however, have been permitted to cross-examine about them as matters going to the first respondent's credit in the same way as the first respondent had cross-examined the appellant about them. And there seems to be no good reason why the photographs should not have been allowed to be shown to the first respondent, for him to accept or to reject on grounds of subsequent alteration of the scene or otherwise. But, as I have already pointed out, these are not the appellant's complaints.
It may not always be easy to distinguish between collateral and primary issues, as reference to authority will show; but the distinction remains one that the courts must make; otherwise, there will be potential for a miscarriage of justice or unnecessary prolongation of trials.
Reference was made in argument to Piddington v Bennett and Wood Pty Ltd[96]. In that case, a witness for the plaintiff who had suffered injuries in a motor accident gave evidence that he had been in a particular street from which he had observed the accident. In cross-examination, the witness asserted that he had been "doing a message" for another person at a bank a block or two away from the place of the accident. The defendant then called the manager of the bank to give evidence that there had been no operations on the day of the accident on the account of the person for whom the witness claimed to be undertaking the message. An authenticated copy of the relevant bank account was produced by the bank manager. The jury found for the defendant and the verdict was affirmed by the Full Court of the Supreme Court of New South Wales. On appeal, this Court (Dixon, Evatt and McTiernan JJ; Latham CJ and Starke J dissenting) held that the bank manager's evidence was inadmissible and its reception was more than an immaterial error not reasonably capable of affecting the verdict of the jury. It is right to say, however, that even among the majority there was not a universal approach to the question of the admissibility of evidence of the type adduced by the bank manager. Dixon J said[97] that the bank manager's evidence proved no more than that the witness had not paid money into or withdrawn money from the relevant account: it had no natural tendency to show that the witness was absent from the scene of the accident. All that it did was to discredit the account that the witness gave under cross-examination of his movements before the time of the accident: the tendency of the evidence to discredit the witness might make the question of the admissibility of the evidence important, but it did not make the evidence admissible.
With respect, I would have thought that if the admissibility of the evidence was a matter of importance, then that fact itself might provide an indication that, subject to questions of form, the evidence was likely to be of importance to the issues and admissible. Dixon J went on to suggest[98] that it would only be if the witness' movements before the accident were part of "one indivisible activity, journey or transaction" that the evidence might displace or disprove any part of it so as to displace the whole and therefore be admissible.
Evatt J did not propound a test of indivisible or divisible activity. His Honour put the matter this way[99]:

[82]

Starke J, also in dissent, pointed out that the rule denying any right to call evidence to contradict a witness on credit was a rule of convenience and not of principle, and that it did not apply to cases in which the collateral matter brought the witness into a special connexion with a party or the subject of the proceedings[104]. His Honour thought that that test was satisfied in Piddington: the evidence of the bank manager established a fact, slight in itself, but which later with others might afford a solid basis for inferring that the witness was not present at the accident. It was the relative unimportance of the bank manager's evidence, in the opinion of Starke J, that led his Honour to conclude that it was unlikely to have affected the verdict of the jury.
It follows that questions of degree will always be involved in deciding whether collateral evidence should be admitted. The test propounded by Dixon J of indivisibility is a narrow one and substantially more so than any of the tests applied by the other members of the Court in Piddington. The admissibility or otherwise of collateral evidence and evidence in turn to contradict that collateral evidence might also be influenced by the fact that the person giving it is a party.
In this case, in my opinion, the circumstantial details given in evidence in chief by the first respondent should not have been received. They constituted a garniture designed to give verisimilitude to the first respondent's account. The evidence did not satisfy any of the tests propounded in Piddington. But, although the appellant did not object as he should have done, he should not have been denied the opportunity to cross-examine the first respondent about the physical condition of the address of the cricket centre.
To some extent, therefore, the trial did miscarry procedurally but not in the way in which the appellant's grounds of appeal are framed. Whether that miscarriage resulted in a miscarriage of justice is, however, another matter.
In Stead v State Government Insurance Commission, this Court said[105]:

[85]

Having regard to the appellant's assent to the address in cross‑examination, his abstention from dealing with the address and its physical aspect in re-examination, and his failure to object to the "garniture" offered in chief by the first respondent, I do not think that the Commissioner erred in refusing leave to allow a re-opening, even though he should have permitted cross-examination by the appellant. But even if the appellant should have been permitted to re-open his case, I consider that the outcome would not have been different. I am of this opinion because there was no issue that the appellant played cricket at "Strikers" in June 1993, wherever it was located. The Commissioner did not regard the location as a matter of significance to the main issue or to credit. He was, in any event, unable to make a finding about the location on the evidence adduced. Notwithstanding that the appellant was denied an opportunity to re-open his case, he could still make the forensic point at trial, and on appeal, that the first respondent's evidence differed from what he had put in cross-examination of the appellant. Unfortunately for the appellant, however, there were numerous other important respects in which his credit was found wanting.
Notwithstanding the unusual course which was followed in this case, I am unable to conclude that it constituted, on the particular facts of the case and the findings at first instance, such a departure from proper procedure and natural justice as to warrant a new trial. In short, I do not think that either the reception of the first respondent's evidence as to the details or the denial to the appellant of the opportunity to contradict those details of the address could reasonably have affected the decision of the Commissioner either as to the appellant's credit or the outcome of the case itself[107].
Nothing turns in the event, in my opinion, upon the other error made by the Commissioner. He did err in not allowing the appellant to call the physiotherapist to prove that the collision in which the appellant was involved had not caused or exacerbated, to any appreciable degree, any injury that the appellant may have suffered before the collision. Furthermore, the Commissioner gave no satisfactory reason why the appellant should not be permitted to call such evidence. That the trial might last a little longer was certainly not a sufficient reason to deny the appellant an opportunity to call the evidence. But, once again, reception of that evidence could not reasonably have affected the outcome or, indeed, the appellant's credit on the substantial issues because the Commissioner found in favour of the appellant that the collision was of no relevance to the appellant's physical condition.
I would dismiss the appeal with costs.

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