MASTRONARDI v STATE OF NEW SOUTH WALES

Crown Proceedings Act 1988 (NSW) LEGISLATION CITED: Dust Diseases Tribunal Act 1989 (NSW) Supreme Court Act 1970 (NSW), s 75A Supreme Court Rules 1970 (NSW), Pt 51, r 23

Balenzuela v De Gail (1959) 101 CLR 226 Bujdoso v New South Wales (2004) 151 A Crim R 235 Eade v The King (1924) 34 CLR 154 Edwards v The Queen (1993) 178 CLR 193 Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 Fox v Percy (2003) 214 CLR 118 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Hadid v Redpath [2001] NSWCA 416, (2001) 35 MVR 152 HTW Valuers (Central Qld) Pty Ltd v Aston Land Pty Ltd (2004) 217 CLR 640 Krivoshev v RSPCA Inc [2005] NSWCA 76 CASES CITED: Monie v Commonwealth of Australia (2005) 63 NSWLR 729 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 80 ALJR 367 New South Wales v Bujdoso [2005] HCA 76, (2005) 80 ALJR 236 Oshlack v Richmond River Council (1998) 193 CLR 72 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Stead v State Government Insurance Commission (1986) 161 CLR 141 Tory v Megna [2007] NSWCA 13 Walshe v Prest [2005] NSWCA 333 Weiss v The Queen (2005) 224 CLR 300 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598

PARTIES: Fabian Mastronardi - Appellant State of New South Wales - Respondent

COUNSEL: B. Gross QC/K. Ryan - Appellant D. Davies SC/S.C. Finnane - Respondent

SOLICITORS: Thurlow Fisher, Bankstown - Appellant Crown Solicitors Office - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40411/06 DC 4009/01

IPP JA BASTEN JA CAMPBELL JA

21 March 2007 MASTRONARDI v STATE OF NEW SOUTH WALES On 29 November 1998 Mr Mastronardi, who was a prisoner in the Metropolitan Remand and Reception Centre, Silverwater, was seriously assaulted in his cell by a number of fellow prisoners. He gave evidence at trial that he had been assaulted because he was recognised as a former security guard. Mr Mastronardi brought proceedings in negligence against the State of New South Wales for the negligence of prison officers in failing to provide protection against a threat of physical attack.

The trial commenced in 28 February 2005, concluding on 4 March 2005. Written submissions were exchanged with the final document being filed on 29 April 2005. Judgment was handed down on 9 June 2006 and the trial judge rejected Mr Mastronardi's claim. He appealed from this decision.

(i) whether the trial judge erred in not accepting that the plaintiff had put the prison officers on notice that he was under threat before the final assault;

(ii) whether a finding of judicial error was more supportable because of the significant delay in delivering judgment;

(iii) whether some substantial wrong or miscarriage had thereby been occasioned to allow for the ordering of a new trial pursuant to Supreme Court Rules Part 51 Rule 23.

The Court set aside the judgment below and ordered a new trial.

1. His Honour made a number of factual errors in reaching the conclusion that he could not be satisfied of the accuracy and truth of the evidence given by the plaintiff that he had put the prison officers on notice that he was under threat before the final assault, to the extent that it was uncorroborated: at [35], [37], [38] & [53].

2. It was a matter for the trial judge to consider what was sufficient 'corroboration' for him to be satisfied as to the truth or otherwise of the plaintiff's evidence. However, having expressed serious doubts about the evidence of the defence witnesses, his Honour erred in not following through the implications of his concerns when those implications were material to the conclusion he reached in respect of the plaintiff's credibility in important respects: at [58].

1. In the present case, delay, in combination with other factors, led to the following conclusions: (a) to the extent that the trial judge summarised evidence inaccurately, it should not be assumed that the inaccuracy was due to carelessness of expression and that he had an accurate recollection of the evidence actually given,

(b) to the extent that he gave reasons for reaching a particular view about the lack of credibility of the plaintiff, which reasons involved errors, it should not be assumed that they were merely examples of conclusions for which his Honour had other more persuasive explanations, and

(c) to the extent that he raised difficulties with the defendant's evidence, without firmly identifying the conclusions he reached or how they might have affected the credibility of the plaintiff, it should not be assumed that he nevertheless undertook an unarticulated balancing process. NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367; Monie v Commonwealth of Australia (2005) 63 NSWLR 729; Hadid v Redpath (2001) 35 MVR 152, considered.

2. There is always a risk that an appellate court may seek to pick holes in the reasoning of a trial judge after the event, without fully appreciating the flavour of the case as presented at trial. However, a delay of a year or more may support an inference that the trial judgement did not omit some consideration, or work on a basis not immediately apparent from the written record, due to reliance on the manner in which the issues were presented or developed at trial. If so, the trial judge should have noted that fact. There was no such indication in the present case: at [70].

3. In combination, the matters were sufficient to establish error on the part of the trial judge in the case of a significantly delayed judgment: at [71].

1. In demeanour-based assessments where the appellate court discerns error, the requirement under the Supreme Court Rules Pt 51 r 23 is that the Court be affirmatively satisfied that "some substantial wrong or miscarriage" has been occasioned. The relevant miscarriage is a failure to provide a fair trial: at [81]-[82]. Stead v State Government Insurance Commission (1986) 161 CLR 141, applied; Fox v Percy (2003) 214 CLR 118; Balenzuela v De Gail (1959) 101 CLR 226; Tory v Megna [2007] NSWCA 13; Walshe v Prest [2005] NSWCA 333, considered.
2. The Appellant did not have a fair trial according to law, where part of the evidence was misapprehended and part was not relied upon, thereby constituting something other than "a hearing where the evidence given is to be given proper, genuine and realistic consideration in the decision subsequently to be made". That in itself constituted a substantial wrong or miscarriage, a phrase which cannot be limited to an assessment of the ultimate outcome: at [86]-[87]. NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, applied.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40411/06 DC 4009/01

IPP JA BASTEN JA CAMPBELL JA

21 March 2007 MASTRONARDI v STATE OF NEW SOUTH WALES Judgment 1 IPP JA: I agree with Basten JA. 2 BASTEN JA: On 29 November 1998 the Appellant was a prisoner in the Metropolitan Remand and Reception Centre, Silverwater, New South Wales. He was seriously assaulted in his cell by a number of fellow prisoners. He gave evidence at trial that he had been assaulted because he was recognised as a former security officer who may have caused some of the then inmates at Silverwater to be arrested, convicted and incarcerated. It was consistent with explanations given by him immediately after the assault, and that recorded by a nurse at Long Bay Hospital, two days after the assault. 3 The Appellant (as plaintiff in the Court below) did not seek to proceed against his assailants; rather, he brought proceedings in negligence against the State of New South Wales under the Crown Proceedings Act 1988 (NSW) for the negligence of prison officers in failing to provide protection against a threat of physical attack, in accordance with the principles now confirmed in New South Wales v Bujdoso [2005] HCA 76 (2005) 80 ALJR 236; see also in this Court Bujdoso v New South Wales (2004) 151 A Crim R 235. There was no dispute that the State, through its officers and agents, owed the plaintiff a duty to take reasonable care for his safety whilst in custody. The dispute centred on the question of breach, which in turn depended upon whether officers in the prison had, or ought to have had, knowledge of a real and credible threat of physical injury to the plaintiff. Proceedings were commenced in early 2001, but did not come on for trial in the District Court until 2003. The trial aborted, when it was part heard, the trial judge acceding to an application by the plaintiff to disqualify himself. A second trial commenced on 28 February 2005, the hearing concluding after four days of evidence on 4 March 2005. Thereafter, the parties exchanged written submissions, the final submission being filed on 29 April 2005. In a judgment handed down on 9 June 2006, the trial judge rejected the plaintiff's claims.

Issues 4 The primary issue on appeal was whether the trial judge erred in not accepting that the plaintiff had complained that he was in danger, before the assault took place. This in turn depended on whether the trial judge erred in failing to accept relevant aspects of the plaintiff's own evidence. Thus, the Appellant's argument centred squarely upon a number of factual errors identified in key paragraphs of his Honour's reasons in which he had concluded, in effect, that he could not be satisfied of the accuracy and truth of the evidence given by the plaintiff, to the extent that it was uncorroborated: Judgment at [56]. 5 A subsidiary issue arose in relation to the correct approach to be taken by this Court to the reasons for judgment of the trial judge. The Appellant argued that, if there were doubt as to whether the matter had been correctly addressed below, that doubt should be resolved in favour of the Appellant because of the significant delay in delivering judgment. 6 Finally, if his Honour erred in the manner, and to the extent contended for by the Appellant, a question will arise as to whether there has been "some substantial wrong or miscarriage" thereby occasioned: Supreme Court Rules, Pt 51, r 23. Satisfaction in that regard is a pre-condition to ordering a new trial.

Factual background 7 The plaintiff was first taken into custody at Silverwater prison on 9 November 1998. Some five or six years earlier, he had obtained a licence as a security officer, Class 1AB and had a "fire arms accreditation". He said that he worked for some four years with a security firm in various shopping centres in the west and south-west of Sydney. Unfortunately, he became involved with illegal drugs. By 1995, he was addicted to heroin and by the time of his incarceration, was also a regular user of cocaine. This pattern of drug usage led him into involvement in a robbery which in turn led to his incarceration on 9 November 1998. 8 On the evening of 9 November he was interviewed by two officers in the Department of Corrective Services, of whom the first was Ms Janne Mumford, an "intake screener" whose responsibility was to undertake "a full psycho-social assessment of all inmates being received into custody": Tcpt, 3 March 2005, p 341. The form she completed that evening included the following items under the heading "Crisis Assessment": "How do you think you will cope in a correctional centre: States good. Do you have any concerns: Says no. … Are you requesting protection this sentence: No. Do you want protection explained to you: Yes."

The last two answers were given by ticking boxes. Ms Mumford gave the following further evidence-in-chief (Tcpt, p 343): "Q. Did you discuss protection issues with Mr Mastronardi? A. I have to discuss protection issues with everyone coming into custody. Q. What's your routine? What do you tell them? A. I ask them do they know what protection is. And from reading my screening form, I could see that Mr Mastronardi was a first-time offender, so I have to go into it in depth and explain what protection is all about. I explain that some people, be they unaware, but they need protection because they have certain charges where they're at risk, or they can sometimes owe money for drugs, and then they may have an association problem as a result of that. Some people present intellectually disabled and I can automatically sign people, have them signed onto to protection if they fall into certain categories, like sex offenders, paedophiles, people that are intellectually delayed, people that are gay. And sometimes there's other reasons that they may disclose to me and I put them onto protection. Q. Thank you. Do you tell how they go about getting onto protection? A. Yes, I do. I do. 9 It may be seen that Ms Mumford was speaking about general practice, rather than a particular conversation she recalled having with the plaintiff. She then gave similar evidence with respect to explaining the availability of a "red knock-up button" available on the wall of each cell. Her evidence included a routine explanation that "if ever at any time you feel you need protection, you … hit the button … tell the officer when they respond immediately that you require protection". She continued: "Or should you be in another location, like out in the main, or in the yard, or anywhere and you feel you are being threatened for some reason and you are feeling unsafe, just go to the nearest custodial officer. I explain, just in case they don't know, 'that's the person in the blue shirt', and tell them you need to sign on to protection immediately and it will happen." 10 There was no significant cross-examination of Ms Mumford: it appears to have been common ground that the plaintiff did not seek protection at that stage. 11 The next officer he spoke with, on the same evening, was Ms Christine Muller, a nurse employed in the Corrections Health Service. She completed a form headed "Clinical Reception Assessment" which included under the heading Employment History, "Type of work - Security". She had no independent recollection of interviewing the plaintiff, but confirmed the notes she had taken at the time. She gave no evidence as to whether she would have seen any significance in his prior employment in "security"; there was no significant cross-examination of her. 12 The next relevant evidence was the testimony of the plaintiff in relation to certain threats made whilst he was being detained in an area known as POD 13 in the Silverwater complex in a building known as Goldsmith. The building was of two storeys with a floor plan having two connecting diamonds. Each diamond was split transversely across the point of connection, giving rise to four separate triangular areas. Each area had approximately 40 cells, 20 on each level, with an office used by the prison officers alongside a metal gate which allowed access between two areas and to a common exercise yard. The area next to that in which the plaintiff was detained was known as POD 14. 13 In his evidence-in-chief, the plaintiff asserted that a number of threats had been made to him, prior to the first assault. The timing was somewhat unclear. His initial evidence was as follows (Tcpt, 28 February 2005, p 6-7): "Q. After you had been there a short time, did a prisoner say something to you about your previous occupation? A. Yes, he did. Q. OK. Did you know that prisoner? A. No I didn't. Q. Where did this conversation take place? A. … This conversation took place through my window which led out to the yard. Q. You are saying, are you, that you were in a cell on the perimeter of POD 13 which had a window out into this joint exercise yard? A. That's correct. Q. What did this prisoner say to you? A. 'Sir, I know who you are. You're a dog.' Q. Can you take it slowly and clearly? A. 'I know who you are' he said, 'You're a dog and we're going to kill you. We're going to get you.' … Q. In respect of this first threat to you, did you tell anyone about it, did you do anything about it? A. Yes, I did. … Q. What did you do in relation to the threat that had been made to you? A. I approached the POD office, the POD desk. … I approached the desk, told them I'd been threatened. … I said, 'Someone knows me here. I'm in trouble. I'm in danger, I need your help. I need to get out of this POD. I'm going to have dramas.' Q. Now, when you had first been accommodated, put into POD 13, had you told the officers that you'd previously been a security agent? A. Yes. Q. What was the response from the officers' desk when you relayed this threat to them? A. Their response was no concern, 'You'll be right, we'll keep an eye on you.'" 14 The reference to the earlier communication that he had been a security agent was somewhat obscure. It may have been a reference to information given to Ms Muller, as recorded in her crisis assessment sheet under "Employment", or something else may have been intended. The point was not clarified. However, in re-examination with respect to his induction, he stated (Tcpt, 1 March 2005, p 162-3): "Q. Was there any discussion at that time about the fact that you'd been a security agent? A. At that time, yes. Q. OK. Do you remember who you were talking to at the time? A. No, I don't. Q. What did you say at the time? A. I told him about my previous employment in a related field of law enforcement and that if I had any troubles, could they be approached? No problem. Q. And what was the response from the officer? A. 'Yep, no worries.' They said, 'If you need anything, see the officers.'" 15 Given that the time referred to was the time of his initial induction, and that he disclaimed recollection of the person to whom he was talking, little weight could be placed upon the use of "him": he was probably recounting a conversation with Ms Mumford or Ms Muller. That is consistent with him being advised, in the case of a problem, to "see the officers". Similarly, although this appears to be the recounting of his question, namely "could they be approached", the conversation only makes sense if that is a reference to officers rather than the earlier employer. 16 In relation to the first threat, two points are significant: first that it occurred whilst he was in his cell and was being spoken to by a person in the exercise yard. If the inmates of POD 13 were in their cell area, it seems likely that the people in the exercise yard were from POD 14. However, the request which accompanied his report to the officers, apparently included the statement that he needed to "get out of this POD". Given the lapse of more than six years between the date of the incident and the trial, it is probably unrealistic to place any emphasis on the precise language used in his evidence. Nevertheless, one of several gaps in the evidence called for the plaintiff at trial concerned the degree of possible communication between inmates in POD 13 and those in POD 14. 17 A second threat and assault occurred at a time which was also somewhat unclear, due to the imprecise leading of the evidence (Tcpt, 28 February 2005, p 8): "Q. Did something further happen of a similar nature - that is, a threat - on that day, or the next day, or a couple of days later or something? A. Yes."

The questioning continued: "Q. Where did the threat come from on the next occasion? A. It was in my cell. I was struck through the bars from the yard. I was punched in the face. Q. Were you able to see who'd done that to you? A. I couldn't really see. There was a few people out there. Q. What did you do about that? A. The same as I did before. Q. What was that? A. I approached the POD desk, told them I'm going to have problems, I'm in danger, my life's in threat, I need to get out of there." 18 The plaintiff then gave evidence of what appears to have been a third threat or perception of threat from people outside in the yard, which caused him to approach the desk for a third time. Both the incident involving a punch through the bars, the third perceived threat and the serious attack appear all to have taken place, on this account, on the same day, being Sunday, 29 November. His account of the further assault was given substantially in the following passage of evidence (at Tcpt 10-12): "Q. OK. Just going back to the time of this incident in the morning - we'll say around about half past 10 - what happened after that? A. I went back to my cell feeling uneasy. I was standing a little way outside my cell door. I noticed an officer opening the door connecting the yard to the POD, which I didn't see that much because we're not usually allowed to go from POD to POD. … These gentlemen came in. I seen them running from my cell. They've come around the staircase and a couple around the other way towards me. I backed up into the cell and then I was assaulted. … From what I can remember, I was kicked and punched and I was hit with a kettle, and all sorts of things, until I fell to the ground, and then they just stood around and just kept kicking me in the head and the body. Then they ran back out. I tried to drag myself up and they were gone. And some other gentlemen came in and had their turn. … They also assaulted me - kicked me, punched me, called me a dog, this and that. … Q. What did you do after you were assaulted? A. After I was assaulted, I got to my feet, threw some water on my face, just tried to get my bearings. I dragged myself out into a seated area, like closer to the POD desk, sat there. … Q. Were the officers still at their desk? A. Did nothing. Q. No, were they still at their desk? A. Yes. Q. Did either of those come to your assistance, talk to you at all? A. No, they took - I got eye contact with one of them. Just looked at me and put his head down." 19 He then gave evidence that he was approached by one of the prisoners, a sweeper (Tcpt, p 12): "A. He said, 'You'd better get out of here because they're going to stab you next.' … Q. Did you tell this third officer, or new or different officer, what the sweeper had said to you? A. I just said, 'Get me out of here.' He helped me up, walked me out." 20 He gave evidence that the assault had occurred before the lunch muster and that he had collected his lunch and returned to his seat, when the sweeper spoke to him. 21 In cross-examination, he was pressed on his account of reporting the threats made prior to the assault (at Tcpt, 28 February 2005, p 38): "Q. You said that the threats were made to you on the day of the assault; is that correct? A. That's correct. Q. So no one threatened you before that day; is that right? A. No, I'd been threatened before that. Q. I see. Before that day? A. Yes. Q. When was that before 29 November? A. I can't recall - maybe a day before, or something." 22 He then confirmed the first conversation through his cell window with the person in the exercise yard and confirmed the inference that the people in the yard were from POD 14. He agreed that he had not been threatened by anyone in POD 13. There was then a somewhat confusing passage in the cross-examination, although I do not think that it should be read as derogating from what had come before. At Tcpt, p 39, the following exchange took place: "Q. But then what you've just told us about that was the day before the 29th, when you were assaulted; is that right? A. That's right. Q. So the only evidence that you've given his Honour about going up to the POD officers was on the day of the assault; that's correct isn't it? A. That's right. Q. So you didn't go up to the POD officers on the first day and tell them that you feared for your life? A. I said I was going to have troubles. I didn't say I feared for my life at that stage. Q. You're saying you went up and spoke to them about the threats the day before? A. No, no, not the day before, no."

The cross-examiner then moved on to the events of 29 November. 23 The second question set out in the last paragraph was not consistent with the evidence he had given that he had approached the officers on the day of the first threat, which appears to have been the day before the assault. The third question somewhat confusingly referred to "the first day", which is certainly not the day of the assault and was presumably intended to be the day of the first threat. The answer affirms that some complaint, although not the complaint put to him, was made on that day. The last question and answer are also ambiguous: it is not clear whether he was disagreeing with the suggestion that he had reported the threats of the day before at all, or that he had only reported them on the following day. 24 Two consequences of that cross-examination which are clear are that the first threat occurred on the day before the assault and that it related to inmates from POD 14, and not from POD 13. One possible inference to be drawn from that evidence was that the plaintiff was not at immediate risk whilst he remained in POD 13. 25 The cross-examination continued in relation to the first incident which occurred on the day of the major assault, namely the allegation that he was punched through the window of his cell. In relation to the report to the prison officers, which he said he had made immediately following the incident, he was cross-examined to establish that he did not tell them he had been punched. Again, there were a number of questions put as to whether this was the first time he had told the officers he was in danger, although the sequence of the questioning left it unclear as to whether his attention was being directed to that day, or to any time prior to that assault. At Tcpt, p 40, the following evidence was given: "Q. Well, you were punched; is that right? A. Through the bars, yeah. Q. When did you first speak to the POD officers about being threatened? A. Right then. Q. In relation to that incident? A. Straight away, after it happened. Q. Was that the first occasion that you spoke to them? A. That's correct." 26 It was suggested to him both that the incident in which he was punched did not occur and that he did not have a conversation with the officers about it. That aspect of the cross-examination concluded with the following exchange (at Tcpt, p 44): "Q. What you've told his Honour about reporting and seeking to be removed on these three occasions is a complete fabrication? A. I've pleaded guilty to bigger things in my time, but, no, I'm not going to lie about things like this, OK? There's no lies here." 27 He was then cross-examined about the detail of the attack which gave rise to the injuries the subject of these proceedings. Because the undisputed medical evidence demonstrated that the attack did take place (there was never any suggestion that the injuries were incurred in any other fashion) the substance of the cross-examination had limited relevance for present purposes. It was suggested that he had given different descriptions at different times (which was undoubtedly the case) and it was suggested that his description significantly exaggerated the seriousness of the assaults. Two aspects of the cross-examination were however directly relevant and significant. First, it appears to have been established that after the major assault the plaintiff did not complain to the prison officers on duty, but went and sat on a seat in front of the office, from which he was clearly visible to the officers. His evidence was that they ignored him and, it would seem, deliberately ignored his injuries even when the roll call was taken for the lunchtime muster at which stage the officers were required to "eyeball" each inmate, which appears to have involved looking them in the face for the purposes of identification. One inference sought to be drawn from this evidence was that if the plaintiff did not complain about the major assault, it is unlikely that he complained of the threats on the earlier occasions. That is perhaps a possible inference, but it is by no means the only inference which might be drawn by a trial judge from that evidence. 28 Secondly, the evidence of the assault involved two stages. The plaintiff said that the first stage occurred when he saw inmates from POD 14 come through the gate into POD 13. It seems likely that that could only have occurred with the connivance of the officers on the gate. The second wave of the assault occurred when, as the first group left, a second group from POD 13 entered his cell and continued the bashing. The significance of this evidence, if accepted, was that it was consistent with his claims that the threats came from inmates in POD 14. It does not, of course, explain the second wave of the attack by people in POD 13, though there may have been an inference that, if the men in POD 13 saw others come into the area, with the apparent connivance of the prison officers, they thought it appropriate and safe to join the fracas. 29 The prison officers on duty gave evidence that they knew nothing about the assault when it occurred, did not recall the plaintiff and had no recollection of any incident, claims for protection or any aspect relevant to his claim.

Reasoning of trial judge: plaintiff's evidence 30 The judgment below commenced with a recitation of the plaintiff's case and a statement of the issues as pleaded. His Honour considered separately each of the witnesses called by the defendant, including the documents for which each was responsible. His Honour noted that although the fact of the assault and its physical consequences were not significantly in dispute, a number of questions remained which he identified as follows at [40]: "On the question of liability, these include, the nature and frequency of complaints, if any, made by the plaintiff to prison officers of threats which had been made by other inmates; the entry of POD 14 inmates into POD 13 immediately before the assault on the plaintiff and the role of prison officers in facilitating that entry; and the extent to which the officers on duty in POD 13 were in a position to see and/or hear the assault while it was happening."

His Honour then proceeded to deal with the defendant's witnesses at [42]-[46]. 31 Next, his Honour referred to the plaintiff's criminal and custodial history before turning to his evidence. He dealt with his evidence under headings taken from the particulars of negligence in the statement of claim. However, the critical passages for present purpose are dealt with under the first heading, namely "Failure to place plaintiff in protective custody". 32 As his Honour noted, this allegation required that the plaintiff establish that prison officers were on notice, prior to the assault, of material which would, in the exercise of reasonable care for the safety of the plaintiff, require that he be placed in protective custody. The discussion in the judgment below commenced by noting the evidence in this regard in the following terms (at [53]): "The plaintiff's evidence before me was that he had made repeated reports to prison officers, in particular those on duty in POD 13, of his fears that, because of his work as a security officer other inmates had recognised him, he was a marked man." 33 As will be seen from the evidence given by the plaintiff, set out above, this was a paraphrase of the reported fears. At least in his evidence in chief, the reports went well beyond merely informing the prison authorities that he had been employed as a security officer. 34 The next sentence of his Honour's judgment, at [53], read as follows: "Although his evidence before me did not extend to anything said by the plaintiff when he was admitted to MRRC Silverwater, the history given to Dr Jonathon Phillips, Consultant Psychiatrist, in a report prepared for the Crown Solicitor's Office and dated 10 December 2001, was that the plaintiff had notified prison officers of his previous work as a security guard when he entered the prison. There was no record of such information in the assessment prepared by Ms Mumford … ." 35 The first part of this statement was incorrect: the evidence, set out at [14] above, did refer to his previous work as a security guard. Secondly, although it is true that the information in Ms Mumford's report did not record his earlier employment, it was recorded by Ms Muller: see [11] above. Of course, if the plaintiff had relied on this reporting as significant in his claim of knowledge on the part of the defendant, one might have expected it to be in the report prepared by Ms Mumford. However, the tenor of this passage in his Honour's judgment was that the statement to Dr Phillips was unsupported either by his own testimony or by departmental records. That implication is wrong in both respects. 36 That this is the relevant implication, and an important one in his Honour's reasoning, is apparent from the two subsequent paragraphs in his judgment. At [54] he identified a "pervasive problem" with the plaintiff's evidence, namely that there were a number of versions of events given by the plaintiff in court proceedings, to doctors and in other places. After conceding the need to make allowances for lapses in memory over time, the effect of his head injuries and a subsequent psychiatric illness, his Honour concluded: "However, given the central importance of the plaintiff's account of relevant events, significant inconsistencies cannot be ignored." 37 In the following paragraph, [55] his Honour then returned to the question of employment stating: "The only record of any report by the plaintiff to a person in a position of authority at Silverwater of his employment as a security guard prior to his arrest is in Mr Chesney's memorandum to the Governor containing Mr Chesney's report of the assault."

Were it not for the context, this statement might be treated as of little significance. Nevertheless, for the reason already noted, it is factually wrong and its context indicates that his Honour considered it significant. 38 The judgment continued immediately in the following terms: "Another aspect of the evidence which raises doubts about the level and frequency of complaint made by the plaintiff to prison officers prior to his assault is the fact that on his own evidence he made no complaint to them either following the earlier assault on him through the bars of his cell window or the ultimate attack on 29 November 1998."

The opening words of this sentence indicate that the previous sentence was treated as significant in relation to the complaints made to prison officers. On that critical issue, his Honour's comment is at best incomplete, and possibly inaccurate. The plaintiff's evidence in chief, as set out at [17] above, did involve a report of his fears after being punched through the bars of his cell window. Part of the challenge made by the defendant was that he had not actually told the prison officers, on his own evidence, of the punch, but merely of his fears. It may be that his Honour was intending to make that point, but it is not entirely clear why that omission casts doubt on the making of the complaint, being the issue in question. 39 The second limb of the evidence concerned the failure to complain after the ultimate attack. The judgment continued: "The evidence is that the only reason the plaintiff was taken to the Area Manager's office following the assault was because a fellow inmate, most likely the sweeper Faulkner had spoken to Mr Barber who in turn had reported to Mr Katiele the possibility that the plaintiff was in danger. It is very difficult to accept that a person who showed such reluctance to speak to the prison officers even when he had been assaulted would have made repeated complaints and requests for protection as a consequence of mere threats."

As noted at [27] above, it is by no means clear by what process of logic his Honour sought to rely on that fact to demonstrate the unlikelihood that he had complained on earlier occasions. 40 There were two other matters relied upon by the trial judge in rejecting the claim that the plaintiff had put prison officers on notice that he was under threat from fellow inmates. The first was described as bearing on the "general question of the plaintiff's reliability as a historian": at [56]. It concerned the time at which he said he was struck on the head with a kettle. In a set of particulars prepared for his solicitors on 10 July 2001, he described an incident, prior to the main assault, when he was called to his cell by one inmate and then, when he entered was called to the window. Rather than being punched through the window (as he asserted in his evidence), he said that he was struck from behind by the first inmate with a kettle. There was apparently a person at the window and, on when he asked what he had done, "they said I would be bashed as I was a security guard (a dog)". 41 The history recorded by Dr Edwards was brief, but contained the following history: "He said that while in jail he was initially punched in the face through the bars of a cell. Immediately after another man entered his cell from behind and hit him with a kettle. Mr Mastronardi said he immediately went to the guard and reported the matter. He had more threats from inmates of violence and he reported these to the guards. He said eight or nine prisoners came into the area where he was being held, forced him into a cell and assaulted him. He said he was punched and kicked and hit with a kettle. He recalls his head and face hitting the shower recess." 42 The thrust of the cross-examination on this point was, apparently, that the allegation of being punched in the face through the bars was a recent invention. It was put to him that he had not told the Court at the first trial "anything about being punched in the head through the bars": Tcpt, 1 March 2005, p 105. He said he could not recall. It was also put to him that he did not give evidence at the first trial of being bashed over the head with a kettle when he was called to the window of his cell: p 106-7. He said he "failed to mention that". The cross-examiner continued: "Q. I mean, you failed to mention it because it's difficult to remember lies, isn't it? You have got to have a good memory to be a good liar, don't you? A. You need to have a good memory to be a good liar. But I was still doing it to the best of my memory and I still maintain that I'm telling the truth. The things that I've forgotten is a fault in my memory." 43 The conclusion the trial judge reached in relation to this material at [56] was expressed in the following terms: "Even if the plaintiff was genuinely confused in separating events in which he was exposed to physical violence, it becomes very difficult to place reliance on his uncorroborated evidence." 44 If it were critical to know which events happened on which occasion, that would undoubtedly be true. However, confusion of the elements of physical assaults, which occurred 30 minutes apart on a morning several years before, do not necessarily cast doubt upon the truthfulness of the witness in stating that he reported the first event to the prison officers. At least on one view, the critical elements of the first incident on the morning of 29 November were that he was put in fear and reported that fear immediately and, secondly, that at least one source of his fear came from an inmate outside his window who must have come from POD 14. At least on those matters his claims remained reasonably consistent. 45 At [57]-[58] his Honour turned to the question of "fabrication" and the possibility that the plaintiff had "engaged in a degree of reconstruction of events in order to implicate the defendant". In this regard, he referred to a statement made in an affidavit sworn by the Appellant in relation to proceedings before the Court of Criminal Appeal on 23 August 2004. The affidavit, dated 30 June 2004, set out his circumstances whilst in custody on his then current sentence. He noted that, after being sentenced, he went to Parklea and was placed on Protection. He continued: "I was in Protection because when I first went to gaol in 1998 I was attacked by a few inmates and ended up in hospital for 3-4 weeks and was granted bail from hospital. I was attacked by ten inmates because I wouldn't let one of them take my cigarettes. … The worst thing about Protection is the stigma. You're seen to be a 'dog' by both other inmates and officers. You wear this for life." 46 This was, of course, an entirely different reason for the attack from that which he relied upon in the present proceedings. His Honour commented at [58]: "No adequate explanation was forthcoming in the course of the plaintiff's cross-examination of this earlier version of events, primarily because the plaintiff refused to answer questions on grounds of self-incrimination. Notwithstanding such refusal, some explanation was forthcoming to the effect that the plaintiff did not want the solicitor he was instructing at the time to know the truth because he saw some advantage in keeping the evidence in the criminal proceedings separate from that in his civil claim. Such explanation defies commonsense, possibly because it remains incomplete. Whatever actually happened, both accounts cannot be true. If the real reason for the hostility between the plaintiff and other prisoners was as stated in his Supreme Court affidavit, this substantially weakens his case, particularly with regard to his claims of repeated complaints to prison officers concerning the alleged threats to his safety because of his identity as a security guard. An incident over cigarettes would be much more likely to produce immediate retaliation than protracted threats over some days." 47 It is necessary to consider the manner in which this evidence was presented. The plaintiff's attention was drawn to this material in the affidavit in cross-examination and the following exchange took place (Tcpt, 1 March 2005, p 114): "*Q. So the assault occurred because you wouldn't hand over your cigarettes, is that right? *A. That was said there, but I didn't feel that the solicitor needed to know why I was attacked. I didn't feel he needed to know that information. Q. This a document that you completed on oath for the Court of Criminal Appeal? A. I didn't complete it in writing. Q. Are you saying that that information about the reason for the attack is false? Finnane [Counsel for the defendant]: Your Honour, perhaps he should be warned about that." 48 He was then warned, asked if he could refuse to answer the question was told that he could and did so. The document was then tendered and an examination was conducted on the voir dire, in relation to admissibility. After re-examination, counsel for the defendant was given leave to ask some further questions about the affidavit. After the questions set out above with an asterisk were re-read, counsel continued: "Q. Why didn't you think he needed to know that information? A. Because at the time this case … was still pending and I thought the fact that I'm taking action against the Corrective Services that this could in some way jeopardise my appeal and I didn't think that this answer would affect my appeal. … Q. Why did you think it would jeopardise these current proceedings …? A. These proceedings and the fact that I'm suing the Government would affect my chances of a hearing at appeal. Q. Well, firstly, was that answer that you gave, 'I was attacked by 10 inmates because I wouldn't let one of them take my cigarettes', was that a truthful account of why you were attacked?" 49 At this stage his Honour intervened again in relation to the privilege against self-incrimination and the possibility that he could issue a certificate in order to protect him against prosecution, if he had that concern. After further discussion, his Honour said: "Q. If you are asked any further questions about the statement in your affidavit concerning the cigarettes, do you wish to answer that question - or those questions if there's more than one - even if such answers might expose you to a criminal charge and, if that is the case, do you wish me to issue a certificate to protect you from any such prosecution so that you can answer the question? Now, do you understand what I'm putting to you? A. Yes, sir. Q. Right. Well, what do you want to do. A. I don't wish to answer any further questions regarding that. His Honour: Alright. That's the end of that." 50 There are two aspects of this evidence which require attention. The first is that if the plaintiff's true explanation of the attack on him related to an incident over cigarettes, the present civil proceedings must fail. It appears from the last sentence in the judgment quoted at [46] above that his Honour took the view that this explanation was more likely than that now relied upon. However the reasoning is a trifle obscure. The likelihood of a serious bashing occurring over the sharing of cigarettes on one occasion is something about which the Court might need further evidence. But the alternative was not "retaliation" in relation to "protracted threats over some days". The alternative was retaliation for activities undertaken as a security officer, which may have resulted in persons being put in gaol. 51 Secondly, the Appellant did give an explanation for what he must assert was a false statement in his affidavit. The explanation was that he feared his criminal appeal against the severity of his sentence would be less likely to succeed if the Court of Criminal Appeal knew that he was suing the Department. There are steps in the process of reasoning underlying that explanation which might lead to its rejection, but an intention to give a bland explanation which would not lead to further inquiry is at least tenable. 52 More importantly, the suggestion that the 2004 affidavit gave the true reason for the attack cannot be accepted without explanation of the following matters. First, it means that the Appellant fabricated the reason he gave to Senior Assistant Superintendent Chesney within about an hour of the attack occurring. Mr Chesney's report stated: "Mastronandi [sic] informed me that he was a security guard at Bankstown area about 5 years ago and was recognised by some prisoners in POD 13."

In cross-examination, the Appellant suggested that Mr Chesney was in error in implying that the prisoners who recognised him were from POD 13, saying that the information he had given was that he was assaulted in POD 13. Nevertheless, that statement must otherwise have been a fabrication if the assault had nothing to do with his work as a security guard. Similarly, the statement to the nurse at Long Bay Hospital, which records him ascribing a similar cause to the assault, must also have been a fabrication. The same conclusion must be reached about his explanation to numerous medical officers, the statement in the particulars prepared on 10 July 2001 and the evidence given at the first trial. None of this was put to him in cross-examination in these terms. It is not inherently plausible. 53 It remains the fact that the plaintiff had demonstrated a willingness to lie on oath which must have seriously undermined his credibility on the critical issue, namely whether he reported his fears to prison officers prior to the serious assault which took place on 29 November. However, his Honour appears to have taken the further step of preferring the later inconsistent explanation, which step was not, in my view, open in all the circumstances.

Reasoning with respect to defendant's evidence 54 The trial judge considered the evidence of the prison officers troubling. He stated at one point that "there is good reason to suspect that each of the officers independently chose to erase the events of that day from his mind": at [43]. Of Mr Chesney, a senior Assistant Superintendent, who was the area manager of Goldsmith on the day in question, his Honour said that his evidence "disclosed an attitude to events of the kind in which the plaintiff was involved which ensured from the outset that relevant contemporaneous evidence was not investigated and was therefore lost over time". 55 These findings invited consideration of their significance in the scheme of the evidence available to the Court. If there were "good reason to suspect" that each of the officers "chose to erase the events" from his memory, arguably his Honour should have considered whether they did in fact take that step. If they did, it may have indicated a consciousness of wrong-doing on their part. As his Honour noted at [42]: "Failure of the part of prison officers to protect a prisoner from violent attack at the hands of fellow inmates is a serious matter and there is no doubt that the prison officers concerned would be aware of the consequences to them should such a dereliction of duty be established. Mr Katiele acknowledged this."

(Mr Katiele was the senior officer on duty in POD 13 on the morning in question.) 56 There was also some lack of clarity as to precisely what inference his Honour drew in relation to the evidence of the defendant's witnesses. Indeed, it seems that he was loath to draw any firm conclusion and contented himself with expressing doubts. Thus he also said that "it is difficult to accept that every one of the officers involved was unable to bring to bear any recollection of the events of 29 November 1998, independently of the written record": at [43]. He continued, however: "It is not necessary to reach a finding of any collusion between the witnesses." 57 The latter statement was, of course, correct, even for the purposes of the plaintiff's case. If the prison officers were guilty of misconduct, it is possible that each independently 'forgot' the events which might, if truthfully recounted, demonstrate dereliction of duty. However, it was important to determine what had happened. How does a person "choose to erase" events from his or her memory? In the context of the difficulty of accepting that they were "unable to bring to bear any recollection of the events", it would seem that in a somewhat indirect way, his Honour had at least formed a suspicion that they were lying. However, it was important to make a finding in that regard given the view he took of the plaintiff's evidence, namely that to be accepted, it required corroboration: at [56]. 58 In this context, "corroboration" was not said to be a formal requirement, but rather a matter of practical necessity, if the plaintiff were to succeed on his claim. However, in the absence of any other indication, it may be inferred that his Honour was referring to corroboration in the sense that it is understood according to principles of evidence law. In that context, deliberately untruthful evidence can constitute corroboration because it can demonstrate a consciousness that the truth is damaging to the speaker's case: see, eg, Eade v The King (1924) 34 CLR 154. It is true that care must be taken in drawing an adverse inference from a proven lie, especially in the case of a prosecution for a criminal offence: see Edwards v The Queen (1993) 178 CLR 193. The principles underlying the operation of lies as corroboration in a criminal case are based on commonsense and will have relevance in a civil case. They may not, however, need to be applied with the same rigour. It was a matter for the trial judge to consider what was sufficient 'corroboration' for him to be satisfied as to the truth or otherwise of the plaintiff's evidence. The difficulty for present purposes is that, having expressed serious doubts about the evidence of the defence witnesses, his Honour appears to have treated it as unnecessary to follow through the implication of his concerns. Those implications were material to the conclusion he reached in respect of the plaintiff's credibility in important respects. 59 There were other circumstances which could have been taken into account in assessing credibility. If the attack was as extensive as the plaintiff claimed, it would seem surprising that, within a relatively confined area, the prison officers were not aware of it occurring. Further, there appears to have been reasonably sophisticated electronic surveillance equipment, the detail of which was considered sufficiently confidential for the defendant to seek and obtain a non-publication order regarding that evidence in the course of the aborted trial and the taking of the evidence in the absence of the plaintiff, before the trial judge in the matter now under appeal. His Honour noted that "the sensitivity of information concerning the details of video surveillance was made clear": at [44]. His Honour noted the evidence of Mr Katiele that the incident would not necessarily have been recorded, perhaps because it took place inside the cell. But the plaintiff's description of how persons entered his cell, and in significant numbers, might have been recorded, so that the recording might support or undermine his account. His Honour stated: "However, it was Mr Chesney's evidence before me that he had not even taken the trouble to look at what was on the video."

Despite that, Mr Chesney's report named three inmates who were described as "suspected Assailants".

Effect of delay 60 The matters set out above demonstrate that there are real difficulties with almost all of the specific factual matters addressed by his Honour in concluding that it is very difficult to place reliance on the uncorroborated evidence of the Appellant and, accordingly, that his Honour was not satisfied that he had put prison officers on notice that he was under threat from fellow inmates, before the final assault. In some respects, the matters relied upon appear not to have been so significant as other aspects of the evidence to which his Honour did not refer. The Respondent says that the Court should take these matters into account in diminution of the seriousness of the challenges made by the Appellant, should some force be seen in those challenges. The difficulty with that response is that, at least in determining the existence of error, the Court should accept the stated reasons of the trial judge as indicating the real basis on which he reached his conclusions. 61 Apart from clear errors, the Appellant says there are other respects in which the reasoning is open to doubt and the doubts should be resolved in his favour. He draws attention to the chronology set out at [3] above, which involved the lapse of a period of some 15 months between the date on which the trial judge heard the contested evidence and the date on which he delivered judgment, dependent on an assessment of the plaintiff's credibility. 62 In Monie v Commonwealth of Australia (2005) 63 NSWLR 729, this Court set out a number of principles relating to the relevance of delay on the part of a trial judge in giving judgment, with respect to appellate review: see, particularly, per Hunt AJA at [43]. (See also Giles JA at [3] citing his own earlier judgment in Krivoshev v RSPCA Inc [2005] NSWCA 76 at [123] and [124].) Further exploration of those principles was provided subsequently, in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 80 ALJR 367 by the High Court in relation to an inordinately delayed decision of the Refugee Review Tribunal. 63 A complaint about prolonged or inordinate delay in delivering reasons has gained some popularity in recent years, although it does not threaten the popularity of the challenge based on the inadequacy of reasons. However, it does share some of the uncertainty as to its basis in principle. It is well-established that delay will not constitute a ground of appeal in its own right in civil proceedings, but the manner in which it may affect appellate review can vary from case to case. For present purposes, an understanding of the operation of the principle may commence with the judgment of Heydon JA in this Court in Hadid v Redpath [2001] NSWCA 416, (2001) 35 MVR 152. In that case, involving a motor vehicle accident, the evidence of the plaintiff and the defendant was given more than 18 months before judgment was reserved and there was a gap some six months between their evidence and the evidence of two other significant witnesses. In the event, the question of delay was not determinative, because the trial judge had failed to explain in reasons for judgment why she had preferred the evidence of the defendant over that of the plaintiff. 64 Heydon JA also noted at [53] in a passage which has resonance for the difficulty identified at [58] above: "Before this court, the defendant contended that once the trial judge had rejected the plaintiff as a witness, it was simply unnecessary to deal with the defendant, or, alternatively, that there was less need to give detailed reasons for accepting the defendant. The difficulty with these contentions is that there was an inversely proportional relationship between the parties in point of credit worthiness. Even if, considered by himself, the plaintiff might be thought to lack credit in some ways, that conclusion could be overcome if the defendant was not capable of acceptance, because that circumstance would of itself tend to strengthen the plaintiff. To 'prefer' one item over another is to reach a comparative conclusion after the weighing the merits and demerits of each. An evaluation of the merits of a conclusion of preference depends on what reasons it rested on. … There were ways of resolving these difficulties compatibly with the trial judge's conclusion, but it is not possible to be sure that the trial judge was conscious of the difficulties or, if she was, which way she chose to resolve them." 65 NAIS was concerned with the identification of jurisdictional error on the part of an administrative tribunal, in circumstances where there had been a delay of three and a half years between the first stage of the oral hearings undertaken by the tribunal and a second round of hearings, with a further 13 months passing before the decision was handed down. The majority in the High Court accepted that the extraordinary delay led to a contravention of the requirement that the proceedings be "fair". As explained by Gleeson CJ at [9]: "A procedure that depends significantly upon the Tribunal's assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal's capacity to make such an assessment is impaired." 66 Kirby J adopted a similar approach at [85]. In a statement of principles expressly related to the operation of the judicial process, his Honour noted the dangers which delay can impose, albeit unconsciously, on the judge by making more attractive the easiest decision, a danger which increases with the length of the delay and the pressure to reach a result: see also Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 at [74] referred to by Kirby J at [87]. His Honour continued at [88]: "Where there is a possibility that the forgoing might have occurred, it is incumbent upon a court, reviewing the impugned decision in an appeal or on judicial review, to approach its task with vigilance. Where the decision-maker reaches a decision in reliance upon considerations of the credibility of parties or witnesses, significant delay undermines the acceptability of such assessments." 67 The other members of the majority, Callinan and Heydon JJ, explained the difficulty which could arise in relation to a finding based on demeanour and credibility in the following terms at [169]: "The appellants undertook the task of persuading the Tribunal that they did hold well-founded fears of persecution. That in respect of some of the abuses they claimed to have suffered, they admitted fabrication, or were unable to deny collusion, provides no answer to their entitlement to have their other claims and their applications assessed in a comprehensive, unattenuated and not excessively delayed process. Unlike the majority of the Full Court in the Federal Court we are unable to regard the possibility, indeed, even the likelihood if that be the case, of the consultation of contemporaneous notes and tape recordings of the proceedings, as a satisfactory substitute for the observation and formation of impressions of persons in the flesh, and the timely personal commitment of these to paper as part of the process of making a decision in the light of the materials supplied to the Tribunal and all the arguments advanced to it." 68 As their Honours noted at [171] it was accepted by the Minister in that case that the statutory duty to conduct a review involved an obligation to arrive at a decision "within a reasonable time". It also involved a hearing "where the evidence given is to be given proper, genuine and realistic consideration in the decision subsequently to be made". In short, in the circumstances of the case, the Court held that the extensive delay had led to a lack of procedural fairness and thus to jurisdictional error. 69 In the present case, delay, in combination with other factors, leads to the following conclusions:

(1) to the extent that the trial judge summarised evidence inaccurately, it should not be assumed that the inaccuracy was due to carelessness of expression and that he had an accurate recollection of the evidence actually given;

(2) to the extent that he gave reasons for reaching a particular view about the lack of credibility of the plaintiff, which reasons involved errors, it should not be assumed that they were merely examples of conclusions for which his Honour had other more persuasive explanations, and

(3) to the extent that he raised difficulties with the defendant's evidence, without firmly identifying the conclusions he reached or how they might have affected the credibility of the plaintiff, it should not be assumed that he nevertheless undertook an unarticulated balancing process. 70 There is always a risk that an appellate court (and indeed appellate counsel) may seek to pick holes in the reasoning of a trial judge after the event, without fully appreciating the flavour of the case as presented at trial. The dangers of reconstruction on appeal were noted in Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [3] (Gleeson CJ, McHugh and Gummow JJ). Matters of emphasis cannot readily be gleaned from a reading of the transcript, nor is it always practicable (or sometimes even possible) for the appellate court to read the whole transcript of argument. However, a delay of a year or more may support an inference that the trial judge did not omit some consideration, or work on a basis not immediately apparent from the written record, due to reliance on the manner in which the issues were presented or developed at trial. The demanding work load of trial judges, which is the usual cause of delay, militate against any ready recollection of such matters over a lengthy period. As indicated in Hadid, if a trial judge has such a recollection and relies upon it in preparing a belated judgment, he or she should note that fact. There was no such indication in the present case. 71 In combination, the matters set out above are sufficient to establish error on the part of the trial judge in the case of a significantly delayed judgment.

Appropriate relief: retrial 72 The present appeal is by way of rehearing, but the Appellant accepts that, if its case of error is made out, the only relief available to him is a retrial. Just as matters of demeanour and impression are not readily reviewable on appeal, where an appeal succeeds partly because the trial judge himself or herself has put those matters beyond adequate recall, it will follow that no assessment of the evidence can effectively be made by this Court. However, the power of the Court to order a retrial is constrained by the requirement of Pt 51 r 23 of the Supreme Court Rules that it appears to the Court that "some substantial wrong or miscarriage has been thereby occasioned". 73 Historically, this constraint appears to have arisen out of respect for verdicts of juries and an unwillingness to set aside a verdict, albeit the trial has been tainted by some error, unless it can be demonstrated that a substantial wrong or miscarriage has occurred. That history is reflected in the reference in r 23(a) to "misdirection" and "non-direction", terms which have no immediate operation in relation to a trial by judge alone. The same flavour is obtained from par (b), dealing with improper admission or rejection of evidence. Paragraph (c) is directed only to a circumstance where there has been a trial before a jury. 74 The powers of the Court on an appeal are those relevantly provided in s 75A of the Supreme Court Act 1970 (NSW) which do not apply to an appeal arising out of a trial with a jury: s 75A(2). Whether the constraint imposed by r 23 is consistent with the breadth of statutory power granted under s 75A(10) might be doubted. Unlike s 76 of the Supreme Court Act which, before its repeal, provided an unfettered discretion with respect to costs, but rendered the power subject not only to the Act, but also to the rules, s 75A contains no such qualification. Doubts about the scope and operation (and indeed validity) of Pt 51 r 23(1) were raised by Kirby J in a dissenting judgment in Whisprun Pty Ltd v Dixon at [113]. In Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Kirby and Callinan JJ referred to the predecessor to Pt 51 r 23 and stated at [53]: "It is not absolutely clear that the rule refers to orders for a new trial in the District Court."

(See also doubts expressed as to the operation of the rule in relation to appeals under the Dust Diseases Tribunal Act 1989 (NSW) in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [167].) 75 These doubts should be put to one side, for two reasons. The first is that no question of validity was raised in the present case. The second and more important reason is that there are unlikely to be practical consequences. 76 As was explained by this Court in Tory v Megna [2007] NSWCA 13 (Spigelman CJ, with whom Beazley and Bryson JJA agreed) Pt 51 r 23, and its predecessors, reflected the common law principles applicable in relation to civil jury trials, explained by Dixon CJ in Balenzuela v De Gail (1959) 101 CLR 226 at 232-233 and 235. 77 These principles have been applied in relation to a trial by judge alone. As this Court noted in Walshe v Prest [2005] NSWCA 333, an appeal in relation to an assessment of damages may be dismissed where an error was shown to have given rise to no injustice, because the difference in damages which should have been awarded was "insufficiently substantial to suggest that the trial judge's verdict was out of line with what the overall justice of the case called for": see HTW Valuers (Central Qld) Pty Ltd v Aston Land Pty Ltd (2004) 217 CLR 640 at [56]. 78 Nevertheless, differences of emphasis appear in cases dealing with different kinds of proceeding and different kinds of error. As noted in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at [24]: "Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons." 79 These considerations have relevance to the discussion in Tory v Megna, of the approach to be adopted in criminal cases when applying the statutory proviso set out in Weiss v The Queen (2005) 224 CLR 300: Tory at [45]. Similarly, it is clear that comments relevant to the effect of the rejection or admission of particular pieces of evidence may require a different kind of assessment to the assessment of credibility findings of the kind in issue in the present case. 80 The requirement that, for an appeal to succeed, actual injustice must be demonstrated is not inconsistent with the broad power conferred on the Court by s 75A. The general principle can apply, just as the 'costs follow the event' principle applies in relation to the unfettered discretion to award costs, so long as it does not become a rigid rule to be applied in the absence of some special circumstances indicating otherwise: see Oshlack v Richmond River Council (1998) 193 CLR 72. 81 Given the requirement under Pt 51 r 23 for a court to be affirmatively satisfied that "some substantial wrong or miscarriage" has been occasioned, it is possible that a different result could obtain in demeanour-based assessments where the appellate court discerns error, but is unable to say whether a correct assessment could or would have led to a different result. That is precisely the kind of case where a new trial is a relevant option. It would mean that a new trial could rarely be obtained if the question of injustice is to be assessed by reference to the ultimate outcome of the case. 82 That dilemma can be avoided by identifying the relevant miscarriage as a failure to provide a trial in which, in a significant respect, the assessment of the evidence was not flawed. The important distinction between a trial with a jury and a trial with judge alone is that in the former case the error said to justify intervention will usually arise outside the process of assessing the evidence. The question of injustice or miscarriage then requires an evaluation of the effect of the error on the assessment process. (The principal exception, in a criminal case, arises where it is said that a verdict is "unreasonable, or cannot be supported, having regard to the evidence" - a claim which identifies an error in the actual assessment process, although that process is opaque, by comparing the evidence with the outcome.) 83 In a trial with a judge alone, the assessment process is not opaque, but is (or should be) exposed in reasons for judgment. If a relevant and material error is revealed, as with an unreasonable criminal verdict, there will be little room for the operation of the constraint relating to a substantial miscarriage of justice. In such a case the Court should apply the principle established in Stead v State Government Insurance Commission (1986) 161 CLR 141, referred to in Walshe at [28]. As the High Court noted in Stead, "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial": p 145. After noting that the appellant had been deprived of an opportunity to make submissions on a particular issue of fact, and after reference to the nature of the appeal being by way of rehearing, their Honours continued: "However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy its denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial. … We do not see how the Full Court, denied the important advantage of seeing and assessing the witnesses, could satisfactorily conclude that had the appellant's counsel been given a reasonable opportunity to present submissions on the issue, it could have made no possible difference to the result." 84 Further, their Honours stated at p 147: "Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. There is nothing in Balenzuela v De Gail (1959) 101 CLR 226 which compels us to a different conclusion. Indeed there is much in that case that reinforces what we have said: see the judgment of Dixon CJ (1959 101 CLR at pp 232 et seq, esp at 235." 85 It follows that this conclusion must be consistent with the approach of this Court recently adopted in Tory v Megna [2007] NSWCA 13, applying the same passages of Dixon CJ in Balenzuela at [35]-[37] (Spigelman CJ, Beazley and Bryson JJA agreeing). 86 In the present case, as in NAIS, it may properly be said that the Appellant did not have a fair trial according to law. In terms of procedural fairness, as applicable in judicial review proceedings, this was a hearing where part of the evidence was misapprehended and part was not relied upon, thereby constituting something other than "a hearing where the evidence given is to be given proper, genuine and realistic consideration in the decision subsequently to be made": NAIS at [171] (Callinan and Heydon JJ). Adapting the remarks of Gleeson CJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4], albeit in a case where the Tribunal had taken into account material of which the prosecutor was not aware, it is possible that, even if the trial judge had given careful and accurate attention to all of the evidence, he would ultimately have come to the same conclusion. Gleeson CJ continued: "But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive." 87 The Appellant's evidence as to prior complaint to prison officers was open to strenuous and legitimate criticism. On the other hand, the defendant's evidence was, as the trial judge noted, also open to serious criticism. Because the Appellant did not have a trial untainted by material factual errors, he can properly complain that he has not had his case considered according to law. That in itself constitutes a substantial miscarriage of justice, a phrase which cannot be limited to an assessment of the ultimate outcome, particularly where it is not in the power of this Court to make that assessment for itself. In my view the Appellant is entitled to a retrial. 88 Accordingly, I would propose the following orders:

(1) Allow the appeal and set aside the judgment of the District Court delivered on 9 June 2006. (2) Remit the matter for a new trial in the District Court on all issues. (3) Order the Respondent to pay the Appellant's costs of the appeal. (4) Order that the costs of the trial in the District Court be remitted for consideration of that Court on the new trial. 89 CAMPBELL JA: I agree with Basten JA. **********

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