Evidence - Witness - Leave to treat as hostile - Hostility not determinable only on demeanour - Prior inconsistent statement - Not essential to have been made to party or attorney - Interest - Sympathy - Discretion of trial judge - Grounds upon &which appellate court will interfere.

New trial - Evidence - Wrongful admission - Not such as to influence jury - New trial refused.

Negligence - Contributory negligence - "Last opportunity" - Running-down case - Direction to jury.

The following written judgment was delivered:-

DIXON C.J., KITTO AND TAYLOR JJ. This is an appeal from an order of the Full

Court of the Supreme Court of New South Wales by which, on the motion of the present respondent, an order was made for the new trial of an action in which he was the plaintiff and the appellant was the defendant. The claim made in the action was for damages for personal injury sustained by the respondent when he was run down by a vehicle which the appellant was driving at night-time near the junction of Warringah Road and Cornish Avenue in French's Forest and upon the trial the jury returned a verdict for the defendant. (at p99)

2. So far as they are now material the grounds upon which an order for a new trial was sought in the Supreme Court were, in effect, that: [1952] HCA 3; (1952) 85 CLR 437 the trial judge had wrongly permitted cross-examination of the respondent's son as a hostile, or adverse, witness; (2) the trial judge had erroneously admitted in evidence - (a) a written statement made by the appellant at the time of the accident; and (b) a small sketch plan of the immediate locality purporting to show the position where the respondent had left his van before proceeding across the road, and, also the path which he took when he proceeded to cross the road; and (3) his Honour should have instructed the jury that this was a case where the so-called last opportunity rule should be applied. All of the learned members of the Full Court were of the opinion that grounds (1) and (3) could not be sustained and they were also unanimous that the documents referred to in (2) were wrongly admitted. But they disagreed upon the question whether, in the circumstances, there should be a new trial. However, by a majority an order for a new trial was made. (at p99)

3. Before us it was contended on behalf of the appellant that the admission of the evidence referred to in (2) above could not in any way have influenced the result of the trial and it is conceded that the admission of the appellant's statement was erroneous. No such concession is, however, made with respect to the sketch plan. These contentions are disputed by the respondent who seeks to uphold his order for a new trial not only upon the grounds upon which he succeeded below but also upon the grounds referred to in (1) and (3) above. (at p100)

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)

5. At the trial the respondent's son was not called to give evidence in support of the plaintiff's case. The reason for this, no doubt, was, as appeared, that he had made a damaging statement to Constable Robertson who arrived at the scene of the accident some little time after it had occurred. The substance of what he told Constable Robertson was written down by the constable in his note-book and thereafter Bowyer junior subscribed his name to the writing. Knowing of the contents of the statement, counsel for the appellant called him as a witness in the defendant's case. In evidence he said that he was a passenger in his father's van on the occasion in question and that they arrived at the road junction at about 7.30 p.m. His father parked the vehicle in Warringah Road close to the "approach to Cornish Avenue". Thereupon his father alighted and went to the rear of the van where he remained for what might have been as much as a minute. Then the witness drove the van a little further along Cornish Avenue. He did not see where his father went but after he had driven about two carlengths he heard his father call out to him to shut the doors. Thereupon he stopped the van and commenced to get out of the driving seat but before he had alighted he saw his father struck by the appellant's car. He seems to have placed the point of impact a little to the west of the westernmost point of the triangular piece of land mentioned previously, and his father, he says, was struck by the radiator of the car. It was at this stage that counsel for the appellant, in the absence of the jury, produced to the learned trial judge the statement in question which had already been identified and sought leave to treat him as a hostile witness. The fact that leave was then granted was one of the grounds of appeal to the Full Court and it is, of course, a matter which must be considered on this appeal. (at p101)

6. The statement which Bowyer junior had signed was in the following terms: "I am a married man 29 years of age and reside at Roseville Road Beacon Hill. At about 7.55 p.m. this date I was helping my father Leonard, deliver bread and we had the panel van parked in Cornish Avenue, near Roseville Road. Dad got out of the van and got some bread and he said you had better lock the door but watch this car coming down. He then ran over Cornish Ave. into Roseville Road directly in front of utility No. OF 151. Dad thought the vehicle was going to continue in to Cornish Ave. I am of the opinion that the driver of the utility had no chance at all to avoid Dad as he ran straight in front of him". From the ruling of the learned trial judge on the application of the appellant's counsel it is apparent that his Honour formed the view that he should grant the application if satisfied that the witness was not prepared "to tell the whole truth for the advancement of justice". This expression he took from the reasons of Sholl J. in R. v. Hayden and Slattery [1959] VicRp 18; (1959) VR 102 . But it is now said that there was no material inconsistency between the evidence given by Bowyer junior at the trial and the statement which he had made shortly after the accident. Furthermore, it is said that it was not permissible for the learned trial judge to allow the witness to be treated as hostile unless his hostility was demonstrated by his demeanour in the witness box. (at p102)

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)

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)

9. In the present case the statement was made to an officer of police in the course of his enquiries at the scene of an accident and shortly after its occurrence. It is in writing and its substance, if proved, would, as we have already said, have strongly supported the appellant's case. Naturally enough, his sympathy was, no doubt, with the respondent but his statement was such that he could not safely have been called in the respondent's case. Such interest as he had in the case would have been served by the respondent's success in the action and, in all the circumstances, it was not unreasonable to conclude that his interest and sympathy in the matter constituted a reason for his inconsistent testimony. That being so, there can be no doubt that the learned trial judge was right in granting leave to the appellant's counsel to treat him as a hostile, or adverse, witness. (at p104)

10. A further subsidiary point is, however, raised by the respondent. In the course of his ruling upon the application his Honour referred in some detail to the observations in R. v. Hayden & Slattery [1959] VicRp 18; (1959) VR 102 and after stating what he considered to be the appropriate test he stated his ultimate conclusion in the following words: "Having regard to the statement made almost contemporaneously with the accident and its complete divergence from the evidence which has been given by the witness in his evidence in chief, I am not satisfied that the witness has shown himself willing to tell the whole truth for the advancement of justice". The point made is that his Honour should not have given leave to treat the witness as hostile unless he came affirmatively to the conclusion that the witness was deliberately withholding material evidence. There is no doubt that upon this particular issue the appellant carried the onus but upon consideration of his Honour's ruling as a whole there can be little doubt that he was so affirmatively satisfied. But, in any event, it is, we think, apparent that the material before his Honour could have led to no other conclusion and it would be idle to direct a new trial on this ground. (at p104)

11. A further point is also raised that the witness's statement which was admitted in evidence contained damaging statements of the witness's opinion. We refer to the passages "Dad thought the vehicle was going to continue into Cornish Avenue" and "I am of the opinion that the driver of the utility had no chance at all to avoid Dad as he ran straight in front of him". But the statement was rightly admitted and the learned trial judge was at pains to explain to the jury both immediately upon its admission and again during the course of his summing-up the limited use which they might properly make of it. In these circumstances this additional point is of no consequence in the case. (at p105)

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:

"Q. You see there are a number of things about it; you did not make any mention of having seen a van? A. No.

Q. You made no mention of having seen two men behind the van? A. No.

Q. And you made no mention of having seen a man move across Cornish Avenue

in a southerly direction from the van? A. Not to the police, no . . ." (at p106)

13. This was not the only way in which the contents of the statement were put before the jury for Constable Robertson had already been cross-examined and in the transcript the following questions and answers appear:

"Q. Is this not so: Mr. McLellan, the defendant here, when you asked him for his version, did he not tell you that he lived at Tristram Road, and that is the road which runs parallel to Warringah Road? A. Yes.

Q. On the north side of it? A. Yes.

Q. And you could get entrance to Tristram Rd. either by Gordon Falls Road,

which is some half mile further west, or at the Cornish Avenue end of Tristram Road? A. Yes.

Q. Somewhere there you go in just west of this intersection? A. Yes.

Q. Did he tell you that he had come from Tristram Rd. that night? A. I

Q. However, he told you that is where he lived? A. Yes.

Q. And it was consistent, having regard to the direction his vehicle was,

that he could have come from Tristram Rd. that night? A. Yes.

Q. From his residence. Did he tell you it was about 7.55 p.m. when he was driving this utility and that when near the intersection of Cornish Av. he saw a shadow on the road? A. Yes.

Q. 'And the next thing I knew I struck a man' - they were his actual words? A. That is right.

Q. 'He appeared from nowhere'? A. Yes.

Q. 'I applied the brakes'? A. Yes.

Q. 'Immediately'? A. Yes.

Q. 'And went back and found a man lying on the ground and injured'? A. Yes.

Q. 'A bystander rang the Police and Ambulance'? A. Yes. Q. He told you

14. In these circumstances, the appellant says that the admission of the written statement itself was inconsequential for the jury were already aware that such a statement had been made by the appellant to Constable Robertson and they had already been acquainted with the substance of its contents. Indeed, it is said, counsel for the respondent himself relied upon the statements made in it in order to discredit the appellant's sworn testimony. We think there is great force in this contention; in effect, the fact that the statement had been made and the substance of its contents had already been proved by secondary evidence and it would, in our view, be quite unreasonable to suppose that the admission of the document itself created a situation which could have influenced the jury in any way. In this respect this aspect of the case differs materially from the situation which presented itself in Balenzuela v. De Gail [1959] HCA 1; (1959) 101 CLR 226 where the evidence which had been rejected had been tendered to prove a fact not otherwise proved or admitted. We should add, before leaving the matter, that in view of the fact that the parties agreed that the document was not admissible we have dealt with this point on that assumption. But this must not be taken to mean that we have formed a firm conclusion as to its admissibility for if that matter had been fully explored it is possible that it would have been found to be admissible. (at p107)

15. The next question is concerned with the admission of the small sketch plan to which reference has already been made. This was a rough sketch plan about 3 1/4" X 2 1/2" drawn by Constable Robertson on the back of a police report form. It purported to indicate the position of the respondent's van parked on the left-hand side of Cornish Avenue just beyond the junction and it bears a dotted line running from that position to what was supposed by Constable Robertson to be the point of impact. This is shown as being immediately south of the triangular piece of land at the junction. The plan became of some interest when Constable Robertson was asked in the course of his examination in chief to mark on one of the several photographs which were already in evidence the position of the respondent's vehicle when he arrived at the scene of the accident. The particular photograph was one taken in an easterly direction from a position a little to the west of the junction. He marked the photograph but pointed out that it was "a bit awkward to say, because the road looked a lot shorter than it really is at that angle". At that stage the witness was shown a rough plan of the vicinity of the junction (exhibit 1) and asked to mark upon it the position of the respondent's van which he then did. The witness, who was giving evidence nearly four years after the event and who had retired some time before from the police force, had said earlier that he only had a vague independent recollection of the incident but he had made a routine report concerning it at about 9.20 p.m. on the same night and the sketch in question was on the back of this form. It seems to have been quite clear that the witness had sought to refresh his recollection prior to marking both the photograph and the plan and when his examination in chief was concluded he was immediately cross-examined concerning the positions which he had marked upon them:

"Q. Where is your note, if you can point out to me, as to where the van was? A. Where the van was?

Q. Yes? A. It is only in the sketch plan.

Q. (Indicating document produced on subpoena.) Only in this sketch plan? A.

Q. Is this little bit here - this little thing here - what you call the sketch plan? A. That is the sketch plan made roughly on the Accident Report.

Q. Where is the other one, then? A. It should have been with the other papers. There is usually a scale plan drawn, and there would have been . . .

Q. I thought you refreshed your recollection in the witness box and then answered Mr. Clapin's question? A. I said I could not give an accurate description of the . . .

Q. How long have you been out of the Police Force? A. 3 1/2 years.

Q. I suppose this was only an incident in your life? A. Exactly. Q. I

Q. And you are depending on aids to refresh your recollection? A. That is so.

Q. You have no independent memory of it at all, is that right? A. That is right.

Q. I would just like to see, if you would show me, where you got the refreshing of your recollection which enabled you to put that mark on exhibit '1'? A. It is only - I had recollected the accident, but so far as being accurate in the details, it is a long while back. I do remember the accident, which was quite an unusual one and the only one I had ever attended at that particular intersection. Mr. Clapin: Could the witness be given the document he had in his hand previously?

Q. That may be so. I am not saying you were not there. You appreciate that? A. Yes, I know.

Q. Where you put where you say the van was on this sketch, did you depend, to do that, on your recollection? A. On my recollection. That is not entirely accurate.

Q. There is no note as to where it was? A. No.

Q. Or other means of fixing it? Is that right - that you noted at the time?

A. No. I could not put it within 20 feet, to be accurate.

Q. You could not put it within what? A. 20 feet, I would say.

Q. Or perhaps a little longer? A. It could have been a little longer. It is

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)

17. The final ground upon which the respondent sought to retain his order for a new trial was that the circumstances of the case were such that the learned trial judge should have directed the jury that, notwithstanding any failure on the part of the respondent to take reasonable care for his own safety, they should find for the respondent if, notwithstanding such failure, the appellant, by the exercise of reasonable care on his part, might still have avoided the accident. In our view the observations in Alford v. Magee [1952] HCA 3; (1952) 85 CLR 437 make it clear that this was not a case in which such a direction could properly have been given. (at p110)

18. For these reasons the appeal should, in our opinion, be allowed and the verdict of the jury restored. (at p111)

Appeal allowed with costs. Order of the Full Court of the Supreme Court set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.