KENYON -v- SABATINO [2013] WASC 76 (15 March 2013)

KENYON -v- SABATINO [2013] WASC 76 (15 March 2013) - WASC 2013 case summary — Zoe

[58]

[165] Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard.

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[166] Lord Mansfield's dictum in Blatch v Archer that '[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted' is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for 'it would have been very improper to have called' the person whose account of events was not available to the court.

[167] This court's decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her own behalf and on behalf of the deceased driver's dependants. The plaintiff's case depended upon demonstration that the other driver's negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant's vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the court held 'that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence'.

[74]

40 That inference arises from the following facts. Mr Magro knew and had a working relationship with the defendants. They were fellow councillors at the City. Mr Magro supplied Mr Sabatino with a copy of the CCTV surveillance tapes. Mr Magro asked Mr Sabatino to table his letter of 23 November 2009 to Mr Sabatino along with the surveillance tapes at a council meeting, and requested that copies be given to, and/or provided to, council members or committee members. Mr Magro supplied the surveillance tapes from which the photographs in the CCC Submission were taken. It appears from the opening words of the Executive Summary which Mr Magro gave to Mr Cordingley that it was a document prepared as a summary for other persons of the submission that had been made by the defendants to the Corruption and Crime Commission, or that it was a draft or working document that was to be incorporated into a revised submission to be made to the Commission. There is no evidence that anyone other than the defendants and Mr Magro were in possession of, or had access to, that summary or draft or working document. The copy of the Executive Summary which Mr Magro gave to Mr Cordingley was a draft of the executive summary that was subsequently incorporated into the revised submission sent by the defendants to the Commission on 6 January 2010. The most likely explanation for Mr Magro being in possession of a draft of that sort is that it was supplied to him by the defendants, or that he and the defendants jointly produced it or the printed or electronic document from which it was copied or printed. Mr Magro was in possession of not only a copy of the CCC Submission and the Executive Summary, but an unsigned copy of Mr Anderton and Mr Sabatino's letter of 17 December 2009 to the Commission. The most likely explanation for Mr Magro being in possession of an unsigned copy of the letter is that it was supplied to him by the defendants, or that he and the defendants jointly produced it, or the printed or electronic document from which it was copied or printed.

[77]

43 The conditions for the application of the principle in Jones v Dunkel apply in this case. There is no explanation for the failure of Mr Sabatino and Mr Anderton to give evidence. Evidence was led by the plaintiff which requires an explanation. Mr Magro was in possession of an unsigned copy of a letter and submission document apparently produced by the defendants for submission to the Corruption and Crime Commission and others. Mr Magro was also in possession of a summary of the submission for the use of persons other than the Commission, or a draft or working document apparently produced by the defendants for incorporation into a further report to the Commission. The evidence gives rise to the inference that the defendants supplied the documents to Mr Magro, or that Mr Magro had access to an electronic copy of the documents with the knowledge and consent of the defendants. Mr Magro and the defendants were, or had been, councillors of the City at the same time. Mr Magro had given a copy of the surveillance tapes to Mr Sabatino. Mr Magro requested that Mr Sabatino table his letter of 23 November 2009 to Mr Sabatino along with the surveillance tapes at a council meeting and requested that copies be given to or provided to council members or committee members. Photographs taken from the surveillance tapes supplied by Mr Magro to Mr Sabatino formed a central part of the CCC Submission. There is no evidence that Mr Magro had any relationship with or dealings with anyone else who had a copy of the CCC Submission. There is no evidence that anyone other than Mr Magro or the defendants had a copy of or access to the copy of the Executive Summary which Mr Magro gave to Mr Cordingley. The evidence of the defendants would have elucidated how Mr Magro came to be in possession of the documents, or might have proved that he did not obtain them from the defendants. The evidence of the defendants would have elucidated whether they acted in concert with Mr Magro or authorised him to provide a copy of the CCC Submission and Executive Summary to Mr Cordingley, The Sunday Times or other media outlets. The defendants had knowledge of how the CCC Submission, the Executive Summary and letters from Mr Sabatino and Mr Anderton to the Commission were produced, what copies were made or retained and whether they were retained electronically, in hard copy or otherwise and what copies they distributed to persons or organisations other than the Corruption and Crime Commission.

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KENYON -v- SABATINO [2013] WASC 76 (15 March 2013)

Cases Cited (8)