McLellan v Bowyer [1961] HCA 49;

McLellan v Bowyer [1961] HCA 49; - HCA 1961 case summary — Zoe

[12]

4. Briefly, the evidence shows that the respondent, with his son as a passenger, drove a baker's van in an easterly direction along Warringah Road towards a point where the road appears to fork. In fact, the right-hand prong of this fork, as the respondent was proceeding, is a continuation of Warringah Road and the left-hand prong is Cornish Avenue. When he was in the vicinity of the junction of these two roads the respondent pulled his vehicle to the side of the road and there stopped. Then he left the van and within a very short space of time proceeded to cross, again in the vicinity of the junction, to the southern side of Warringah Road. Subtended by Warringah Road and Cornish Avenue is a small triangular piece of vacant land and there may be some doubt upon the evidence whether, in crossing towards the southern side of Warringah Road, the respondent actually crossed over this piece of land. But however this may be, it seems that when he had proceeded to a position either just to the south of this triangular piece of land or, perhaps, to a corresponding position a little more westerly, he was struck by the appellant's car as it came from the west. The respondent remembers nothing of the impact but he says that before he made any move at all to cross the road he looked to his right where he had a clear view for about two hundred yards and there was no sign of any approaching traffic. The bare facts of the appellant's case were that when some two hundred feet back from the road junction he saw an open van with a light in it in Cornish Avenue. It was stationary and there were two men at the rear of it. One man left the van and commenced to go to the south whilst the other man closed the doors of the van. The appellant continued on at a speed of about twenty to twenty-five miles an hour along Warringah Road then made a slight right-hand turn into the continuation of that road, and just as he was abreast of the triangular piece of land previously referred to he saw a man who appeared to be running from it into the path of his car. This, of course, was the respondent and according to the appellant he had no chance of avoiding him. (at p100)

[15]

7. As to the first of these contentions it is necessary only to compare the substance of the statement with the substance of the evidence as hereinbefore set out. Indeed, one might be pardoned for assuming that it was because of the substance of the statement that Bowyer junior was not called as a witness in the plaintiff's case. The second point raises problems of a wider nature but it should be said immediately that the question whether in any particular circumstances leave should be given to treat a witness as hostile, or adverse, is a matter peculiarly for the discretion of the trial judge. Indeed, in a case where leave had been refused by the trial judge it was said on a motion for a new trial that the appellate court had no jurisdiction to review his decision (Rice v. Howard (1886) 16 QBD 681 and this statement of the law was accepted by the Full Court of the Supreme Court of New South Wales in Harris v. Minister for Public Works (1912) 12 SR (NSW) 149; 29 WN 33 . Nevertheless, the members of that court were at some pains to point out that in their view the trial judge had exercised his discretion rightly in refusing leave. But, however this may be, where no grounds exist which are capable of justifying leave to treat a witness as hostile and leave is granted on entirely wrong principles the result may well be that evidence which should have been excluded will be placed before the jury and in such circumstances we can see no reason why, in a proper case, a new trial should not be ordered (cf. Reed v. King (1858) 30 LT 290 ). Nor, by parity of reasoning, do we see why if leave has been refused on entirely wrong principles a new trial should not be ordered if the refusal has resulted in the exclusion of material evidence. It is clear, however, that it is no part of our function to substitute our discretion for that of the trial judge and, accordingly, the respondent must fail on this point unless it appears clearly that his Honour misconceived the principles by which he should have been guided. Further, in order to justify a new trial it is insufficient for the respondent to show, merely, that his Honour acted upon wrong principles if, in fact, the circumstances were such that the application of the appropriate principles would have led to leave being granted. In other words, it is nothing to the point to complain that the learned trial judge acted upon some wrong principle if in fact it appears that the witness was hostile and that, applying the correct principle, leave should have been granted. (at p103)

[16]

8. When the statement of Bowyer junior is examined it will be seen that the facts briefly related in it were such as would, if proved, have supported the appellant's case strongly and it is only too clear in the circumstances of the case, that there were substantial grounds for concluding that the witness had resolved that he would, if possible, say nothing that would damage the respondent's case. There can be no doubt that this was the view which the learned trial judge took but the point is made that his Honour formed his opinion upon a consideration of the statement alone and was not in any way influenced by the demeanour of the witness in the box. But it has been settled for many years that although hostility, or adverseness, may appear from the demeanour of the witness, this is not the only factor to which a court may have regard. In particular, it may have regard to previous inconsistent statements made to a party (Dear v. Knight [1859] EngR 24; (1859) 1 F & F 433 (175 ER 796) and Russell v. Dalton (1883) 4 LR (NSW) 261 ) or to a party's attorney (Faulkner v. Brine [1858] EngR 28; (1858) 1 F & F 254 (175 ER 715) or upon oath in a court of bankruptcy (Pound v. Wilson (1865) 4 F & F 301 (176 ER 574) ) or to an officer of police (Reg. v. Hunter [1956] VicLawRp 5; (1955) ALR 786 ). In some of the cases there seems to be implicit the notion that leave may be granted when the party calling the witness is, by reason of the earlier statement, entitled to assume that the witness will, upon being called, testify in accordance with his statement. This, of course, tends to treat the character and circumstances of the earlier statement as a matter of vital importance and we mention it because it was pointed out in argument that the statement of Bowyer junior was not made to the respondent or his representative. Consequently it is asserted that in the circumstances it was not calculated to, and that it did not, in fact, mislead the respondent. But although it must be conceded that not every witness who testifies inconsistently with an earlier statement can properly be regarded as hostile, or adverse, it is clear that the existence of an earlier inconsistent statement, in whatever circumstances it may have been made, will always be a material matter and, when taken into consideration with other features of the case, may furnish grounds for concluding that the witness is hostile. Whether he is or not is, of course, an objective question of fact, and that being so, it is not essential that the previous inconsistent statement should be shown to have been made to a party, or to his attorney, or, for that matter, that it should appear that the party calling the witness has done so in the firm belief that the earlier statement will be adhered to (cf. R. v. Hayden and Slattery [1959] VicRp 18; (1959) VR 102 . Nevertheless, the circumstances in which a statement has been made may well be important for they may be such as to lead strongly to the conclusion that a subsequent departure from its substance can proceed only from hostility. (at p104)

[20]

12. The next matter for consideration is whether the admission into evidence of the statement made by the appellant to Constable Robertson at the scene of the accident justified an order for a new trial. In fact, the statement was admitted with some minor deletions which are indicated by the italics in the following transcription: "I am a married man 54 years of age, a ganger on the Manly Council and reside at Tristram Road, Beacon Hill. I am the holder of license No. A 87359 and have been driving for approximately 20 years. At about 7.55 p.m. on this date I was driving my utility No. OF 151 east along Roseville Road, Beacon Hill at a speed of about 20-25 m.p.h. and when near the intersection of Cornish Avenue I saw a shadow on the road and the next thing I knew I struck a man. He appeared from nowhere. I applied the brakes immediately and went back and found a man lying on the ground injured and a bystander rang the Police and Ambulance. At the time of the accident the lights on my ute. were working well and the brakes were good. At the scene of the accident there is a right hand bend which I had just completed and my lights were shining ahead". As already appears the parties have agreed that this document was wrongly admitted and in order to avoid a new trial the appellant must show that its admission could not have influenced the jury's verdict (Balenzuela v. De Gail [1959] HCA 1; (1959) 101 CLR 226 ). This question, of course, is not to be resolved by an appellate court "assuming the province of the jury" (per Parke B. in Crease v. Barrett (1835) 1 CM & R, at p 933 (149 ER, at p 1359) ), but this is not what the appellant asks us to do; he asserts that, in the circumstances of the case, it would be quite unreasonable to suppose that the jury could have been influenced in any way by the admission of the document. First of all, it is said that, except in one minor particular, the appellant's evidence in chief tended to establish every fact set out in the statement. He swore that between 7.30 p.m. and 8 p.m. on 15th July 1955 he was driving his utility truck, or van, in an easterly direction along Warringah Road, that, as he approached the junction of that road and Cornish Avenue, he was travelling at about twenty to twenty-five miles per hour, that just as he had rounded the right-hand curve at the junction he suddenly saw a man near the front of his truck, that he applied his brakes and, having pulled up, went back and found the injured man lying in the roadway. The lights of his van were shining and his vehicle was in good mechanical condition. This evidence, it is said, placed before the jury for their consideration every fact mentioned in the statement. But the matter did not stop there for counsel for the respondent cross-examined the appellant and, having obtained an admission that he had made a statement to the police officer, then proceeded to elicit substantially all of its somewhat sparse contents. He obtained from the appellant an admission that his statement contained the following passages: ". . . and when near the intersection of Cornish Avenue I saw a shadow on the road"; ". . . the next thing I knew I struck him"; and ". . . he appeared from nowhere. I applied the brakes immediately and went back and found the man lying on the ground". But the real purpose of counsel for the respondent was to contrast the brief statement with the respondent's more detailed evidence and to point out that some of the matters mentioned by the respondent in his evidence were not mentioned in his statement. These variations were specified by counsel in the following successive questions:

[50]

16. The first contention for the appellant was that this cross-examination made the small sketch plan admissible. The suggestion implicit in the questions asked was, it was said, that there was nothing in the plan or report to enable the witness to refresh his recollection as to the position of the respondent's vehicle. In his first and second answers, it is contended, the witness made it clear that he relied entirely upon the sketch plan and then counsel disparagingly attempted to dispose of the witness's answers by his third question - "Is this little bit here - this little thing here - what you call the sketch plan?". According to the appellant the suggestion was that the small sketch plan was quite inadequate for the purpose of refreshing his recollection and the further suggestion was made by the following questions that there was nothing in any part of the document which would assist the witness. If this suggestion was being made - and to us it seems not unreasonable to conclude that it was - then clearly the plan was admissible. In any event, however, it was a matter which might have been cleared up when the sketch plan was tendered; if then counsel for the respondent had refused to disclaim any such suggestion it would, in our opinion, have been proper to admit it. However, we prefer to dispose of the point on the ground that it is clear that the verdict of the jury could not have been influenced by its admission. First of all, it is clear beyond doubt that the jury had in front of it a photograph and a plan rightly admitted upon each of which was marked the position of the respondent's vehicle at the time when Constable Robertson came on the scene. It is true that neither of these documents bore a dotted line intended to represent the respondent's course after he left his vehicle. But this was of no importance for it was common ground that his course would have followed naturally from the position where the vehicle was parked at the time when he left it. And it should be observed that there was nothing in the evidence to indicate that it was parked at that time in the position shown either by the small sketch plan or upon the other documents which were marked by the witness. Bowyer junior, it will be recalled, said that after his father left the vehicle he drove it a little further along Cornish Avenue and then stopped when he heard his father call out. This, of course, was before Constable Robertson arrived at the scene of the accident. Then Constable Robertson was quite frank in admitting that he could not mark the position of the vehicle "within twenty feet . . . or a little longer". It was for the jury upon the whole of the evidence to determine how the casualty came about and in view of the fact that two exhibits had already been marked by the witness, for what it was worth, consideration of the small sketch plan itself could not have influenced their ultimate decision in any way. (at p110)

At a glance

Court

Decision date

Before

Source

Judgment (53 paragraphs)

McLellan v Bowyer [1961] HCA 49; (1961) 106 CLR 95 (11 August 1961)

Parties

Cases Cited (3)