Nominal Defendant v Clements

[1960] HCA 39

High Court of Australia|1960-07-01|Before: Windeyer JJ

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Court

High Court of Australia

Decision date

1960-07-01

Before

Windeyer JJ

Source

Original judgment source is linked above.

Judgment (45 paragraphs)

[1]

High Court of Australia Dixon C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Nominal Defendant v Clements [1960] HCA 39

[2]

The purpose of this appeal by a defendant is to obtain a new trial of an action for damages for personal injuries brought by an infant by his next friend in which a verdict for the plaintiff for £2,000 was found. The injuries were sustained by the plaintiff on 1st May 1954. He appears to have been born on 23rd May 1947, so that he then would be almost seven years of age. He was knocked over by a car in front of the War Memorial at Dee Why. The car was not insured and the action was brought against the Nominal Defendant in pursuance of s. 30 (1) of the Motor Vehicles (Third Party Insurance) Act 1942-1951 (N.S.W.). The defendant called no evidence but the case he sought to make was that the plaintiff was playing with other children and ran in front of the car probably after a ball. The trial took place more than four and a half years after the accident. There was not very much in the evidence called for the plaintiff to support the defendant's theory of the accident. The plaintiff lived near by and his story was that he went over to the monument and watched the children playing. There was a beach ball and he had kicked or thrown it to a girl, presumably on its coming his way, but he had not run on to the road. A boy about a year older than the plaintiff was called who said that he had walked to a structure with a platform which was at the site; the plaintiff was behind him. Some children were playing around it and a surf ball bounced from the platform. He saw a car coming and saw the plaintiff bending sideways to pick up the ball. He looked away and when he looked back the plaintiff was under the car. Under cross-examination however he answered that the ball had gone bouncing on to the road and that the plaintiff went on to the road to get it. Upon this, of course, the Nominal Defendant placed his reliance.

[5]

No doubt the strength of the defendant's contention lay in the evidence of the youth who said that the ball had gone bouncing on to the road and the plaintiff had gone on to the road to get it. If the jury were minded not only to regard this as a correct account of the occurrence but also to treat it as negativing liability in the defendant one may be permitted to doubt whether they could have been in the least influenced to the contrary by the brief allusion in the plaintiff's statement to his having stood about six feet from the gutter in the Strand looking at the grandstand. In all the circumstances of the case the contention that the statement ought not to have been admitted seemed a somewhat flimsy ground for a new trial application. On the other hand I have had some doubt whether the conduct of the trial by counsel for the defendant really gave sufficient ground for letting in the statement as evidence. The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge's opinion has a peculiar importance.

[8]

I agree. In my opinion it is not shown that the learned trial judge erred by admitting in evidence the statement dated July 1st, 1954 which the plaintiff made to the police. The statement was tendered by the plaintiff's counsel. The plaintiff gave evidence that he was standing on the side of the road and was watching children playing with a ball when he was run down by the motor car. The defendant's counsel sought to make, upon the cross-examination of the plaintiff, the case that the plaintiff was playing with the children and ran on to the road after the ball. Having failed to get from the plaintiff any admission to support that case, he cross-examined the plaintiff at great length in order to destroy his credibility. The view which I take from reading the cross-examination is that the defendant's counsel sought to elicit from the plaintiff that he had no recollection whether he was standing still or running on the road when he was struck by the motor car, and that his father had coached him to give his evidence. If that view is correct, the cross-examination would have led the jury to think that counsel was suggesting that the evidence that the plaintiff was standing still when run down by the motor car was a recent invention. The statement dated July 1st, 1954 was consistent with the evidence given by the plaintiff, which the defendant's counsel sought to suggest was the result of coaching, not of the plaintiff's own recollection. In my opinion, the statement was receivable in evidence not as proof of the fact which it mentions, but to re-establish the plaintiff's credit. At the trial, counsel for the defendant disavowed that he intended to charge that the plaintiff's evidence that he was standing still when run over was an invention and that the only purpose of the cross-examination as to credit was to test the plaintiff's recollection and to show, if he could, that the plaintiff's father was endeavouring only to refresh it. But reading the transcript, the cross-examination seems to me to have gone further and to have suggested that the plaintiff's father did implant in the plaintiff the crucial idea that he was standing still when run over, not merely that he helped the plaintiff to recollect that fact. It may be that it is a fine point, which view of the cross-examination is the correct one. I think the cross-examination is reasonably capable of the inference which I have drawn from it. The learned trial judge who heard it was in the best position to consider whether the cross-examination was likely to impress the jury as an attempt to get from the plaintiff that his evidence was what his father told him to say, not what he himself recollected. The details of the questions asked in cross-examination and the manner of asking them, revealed by the transcript, could reasonably lead to the conclusion that the cross-examination involved such an attempt. I think that it is not possible to hold that the learned judge erred by admitting the statement in question.

[10]

The plaintiff was a boy nearly seven years of age when the accident occurred and eleven years of age at the date of the trial in December 1958. His evidence in chief was that while he was standing near the edge of The Strand, Dee Why, looking out towards the ocean and watching other children playing with a ball in the vicinity of the war memorial there, he was hit in the back by a car that he did not see, knocked down and injured. Cross-examination elicited that he took some part in the game that was going on, at least to the extent of kicking the ball when it came to him, and it was suggested to him that he was knocked down when he darted out into the street after the ball. This he denied. In the course of his cross-examination, the plaintiff admitted that he had been coached to give evidence by his father, that some time in 1958 he had dictated a statement to his father which the father had written down and he had tried to learn, and that it was hard to remember some answers. Dr. Listwan, a medical witness called for the plaintiff, in the course of cross-examination - based upon information supplied by another doctor who had been present for the defendant at the witness's examination of the plaintiff - was asked whether in June 1958 the plaintiff told him that in relation to the accident "he had no recollection of any of the details of the matter at all". To this question, the witness answered "Yes". Later, however, he said that in October 1958 he saw the plaintiff again and made a note "Tells the story of the accident today". The plaintiff himself, when cross-examined about his conversations with the doctor, said he could not remember anything of them. It appeared upon his re-examination that in the course of his preparation to give evidence, he had written down three or four other statements about the accident. His counsel tendered one of these written statements, but this was objected to and rejected - a decision not now challenged. In the course of the discussion leading up to the rejection of this statement, counsel for the defendant said: "I am testing his memory. I am not suggesting the boy is giving false evidence." This statement has been relied upon as a disclaimer of any imputation that the plaintiff's account of what happened had been fabricated.

[16]

Until towards the end of the eighteenth century, it was accepted that the evidence of a witness could be corroborated or confirmed by an earlier statement consistent with his evidence. By the time of R. v. Parker [1] , the contrary view had been established and it was said that Lutterell v. Reynell [2] , which was treated as authority for the earlier rule, was no longer the law. The rejection of previous statements as corroboration in every case did not, however, involve the rejection of confirmatory statements in any case, as the following statement from the Notes to Pothier on Obligations, by Sir W. D. Evans, vol. ii, p. 251, appropriately appended to the report of R. v. Parker [1] , so aptly recognizes: "According to the principles of correct reasoning, the propriety of the evidence in this case must depend upon the nature of the object which it is intended to attain. In an ordinary case the evidence would be at least superfluous, for the assertions of a witness are to be regarded in general as true until there is some particular reason for impeaching them as false; which reason may be repelled by circumstances, showing that the motive upon which it is supposed to have been founded could not have had existence at the time when the previous relation was made, and which therefore repel the supposition of the fact related being an after-thought or fabrication. The suspicion of an opposite conduct may result either from the inherent nature and complexion of the evidence itself, or it may be indicated by the imputations actually thrown out in cross-examination or otherwise, by the opposite party". These observations draw attention to a critical principle sometimes overlooked - that it is the particular circumstances of the case that determine whether or not an earlier statement consonant with the evidence given by a witness is itself admissible. Notwithstanding the earlier rule, it is now firmly established that an earlier statement is not admissible merely as confirmation of the evidence given by the witness; furthermore, if there be nothing more than that the evidence of a witness has been attacked in the course of cross-examination, that does not of itself render admissible earlier statements by the witness consonant with his evidence.

[18]

It is more doubtful whether when (to use the language of the valuable annotation relating to consistent statements appended to the case of Sweazey v. Valley Transport [1] ) "the credibility of a witness is assailed because, on some former occasion, he has made statements that differ from his statements under oath at the trial, his sworn testimony may not be corroborated by proof that on other occasions and at other times his statements were in harmony with his testimony" [2] . The learned author of the annotation observes that the admission of the former statement in such circumstances is against the weight of authority, and in this connexion he cites as English authority Jones v. South-Eastern & Chatham Railway Co.'s Managing Committee [3] . In that case, a woman claimed workmen's compensation from her employer for an accident which allegedly occurred at her employer's premises. At the hearing she was cross-examined about statements made by her to third parties to the effect that the accident happened at her home. Evidence that on two occasions within two days after the accident she had made complaints that injury occurred at work were rejected. The following observations of Swinfen Eady L.J. and of Neville J. were approved by the Privy Council in Gillie v. Posho Ltd. [4] where their Lordships were dealing with a case where a witness had without any justification been allowed to corroborate himself by producing a letter that he had written earlier. Swinfen Eady L.J. said: "It was argued that there is in certain cases a rule under which a witness may be asked to give particulars of what a person has said shortly after an occurrence, and the complaint that such a person may have made shortly after an occurrence, not as being evidence of the facts complained of but as being evidence of the consistency of the story of the complainant from beginning to end, and it is said that such a question ought to have been admitted in the present case on that principle. The answer is twofold; first that the principle has no application to a case of this kind. No doubt in cases especially of violence upon women and girls the rule is established under which a question of that kind is allowed to be put That is a special class of case. Secondly, this statement was made two days after the alleged accident, and not shortly afterwards. If a statement of that kind were admitted, it would be easy to manufacture evidence by telling your various friends, and then calling them as witnesses to prove what you had told them" [1] . Neville J. said: "We have simply to apply here the general rule of evidence that statements may be used against a witness as admissions, but that you are not entitled to give evidence of statements on other occasions by the witness in confirmation of her testimony" [2] . As will be seen later, Herring C.J. and Gavan Duffy J. in Franklin v. Victorian Railways Commissioners (unreported) have expressed the opinion that a former statement is not in general admissible to re-establish the credit of a witness whose evidence has been impeached by proof of a previous contradictory statement.

[21]

The exception that a prior consistent statement may be proved to rebut a charge of recent contrivance is one that is now generally recognized by text book writers: see Rupert Cross, Evidence (1958) p. 207; Nokes, An Introduction to Evidence (1952) p. 120; Phipson on Evidence 9th ed. (1952) p. 512; Roscoe's Evidence in Civil Actions 20th ed. (1934) vol. 1, p. 186; Starkie on Evidence 4th ed. (1853) pp. 253, 254; Wigmore on Evidence 3rd ed. (1940) vol. 4, s 1129; Halsbury's Laws of England 3rd ed., vol. 15, p. 449 ("Evidence" - par. 810). Of these, the earliest and one on which later statements have not improved, except to make definite what was expressed tentatively, is that of Starkie: "It seems to be the better opinion that a witness cannot be confirmed by proof that he has given the same account before, even although it has been proved that he has given a different account, in order to impeach his veracity; his having asserted the same thing does not in general carry his credibility further than, nor so far as, his oath. But although such evidence be not generally admissible in confirmation of a witness, there may be many cases where under special circumstances it possibly might be admissible; as for instance in contradiction of evidence tending to show that the account was a fabrication of late date and where consequentially it becomes material to show that the same account had been given before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen." Such statements are admissible not to prove the truth of the facts stated but merely to show the consistency of the witness's assertions. The problem is discussed in the annotation already referred to (140 Am. L.R. 21) and at p. 93 there is to be found the following statement: "The principal exception to the general rule of evidence that the statements of a witness out of court, consistent with his testimony, are inadmissible, is the one mentioned by Story J. in Ellicott v. Pearl [1] , that where the testimony of the witness is assailed as a fabrication of recent date, or as a complaint recently made, proof of the antecedent declarations of the witness consistent with his testimony may be received, in order to repel such imputation". For this statement the learned annotators cite a wealth of American authority.

[28]

The exception has also been the subject of consideration by the Supreme Court of Victoria. In Woodward v. Shea [7] , Sholl J. decided substantially upon the two Irish cases to which I have referred, that where the purpose or the possible effect of cross-examination of a witness who has refreshed his memory from a document containing a statement made by him prior to the hearing is to suggest recent invention of his evidence, counsel for the witness may, on re-examination of the witness, tender in evidence the document itself. After referring to the state of the evidence, Sholl J. said: "I think I cannot exclude the possibility of a suggestion by counsel upon the basis of that evidence, or an inference by the jurymen or one of them on the same basis that those answers might indicate recent invention" [8] . Subsequently, in Frankcombe v. Holloway [9] , the same learned judge decided that where, in the course of either examination in chief or cross-examination, the evidence of a witness may reasonably appear to be of recent invention, evidence of prior consistent statements made by that witness may be admitted merely to establish the credit of the witness, and not to establish the truth of their contents. Finally, in Franklin v. Victorian Railways Commissioners (unreported) Sholl J. adhered to the view which he had expressed in Woodward v. Shea [1] that it is sufficient to render admissible in re-examination a prior statement consistent with the witness's testimony if the cross-examination may reasonably have been taken by the jury or by one or more of them to suggest recent invention. Herring C.J. and Gavan Duffy J., having referred to Woodward v. Shea [1] , adopted the proposition "that a former statement made by a witness is generally inadmissible to re-establish his credit when impeached by proof of a previous contradictory statement except when the witness is charged with having recently fabricated the story", which, as I indicated earlier, draws what I regard as a correct and important distinction between merely proving a previous contradictory statement and going further to impeach the witness's evidence as a fabrication.

[33]

The testimony of a witness, given on oath in the witness box, cannot ordinarily be supported by evidence that earlier and elsewhere he had said the same thing. In New South Wales in civil proceedings without a jury this principle has been qualified by the Evidence Act, s. 14B (enacted by Act No. 35 of 1954 s. 2 (b)). But that provision has no application either in cases tried before a jury or to the evidence of interested parties. This case, therefore, depends upon purely common law rules which, like so much of the law of evidence, were firmly established only in the nineteenth century. The earlier doctrine, as stated in Hawkins, Pleas of the Crown, Bk. 2, c. 46, was that "what a witness hath been heard to say at another time may be given in evidence in order either to invalidate or confirm the testimony that he gives in court". And Gilbert C.B. took the same view in his Law of Evidence, published in 1756 (p. 153), saying that "though hearsay be not allowed as direct evidence yet it be in corroboration of a witness's testimony to show that he affirmed the same thing on other occasions and that the witness is still consistent with himself". But in R. v. Parker [1] , Buller J. said that the passage in Hawkins "is not now law" [2] . And soon thereafter a more strict analysis of probative values showed that, although inconsistent utterances may undermine credibility, mere repetition of a statement does not tend to show it to be true. Thus the rule that prior consistent statements are inadmissible became settled. Here we are concerned with an exception to this rule. It is a recognized exception. But, as Collins J. observed in his judgment in this matter, "there is a danger that the salutary rule that a witness cannot corroborate his own evidence by previous self-serving statements be departed from unless the true meaning of the phrase "recent invention" is clearly recognized and the exception kept strictly within its own limits". I go therefore to see what limits have been set to the doctrine relied upon here to make the plaintiff's statement to the sergeant of police admissible.

[35]

In Phillips on Evidence (1814), after a discussion of the reasons for the main rule excluding evidence of statements made by a witness out of court which are consistent with his testimony, it is said that: "In one point of view, a former statement by the witness appears to be admissible in confirmation of his evidence; and that is, where the counsel on the other side impute a design to misrepresent from some motive, of interest or relationship, etc.; there, indeed, in order to repel such an imputation, it would be proper to show, that the witness made a similar statement at a time when the supposed motive did not exist, or when motives of interest would have prompted him to make a different statement of the facts". An anticipation of this appeared in W. D. Evans' work on the English law of evidence which forms an Appendix to his translation of Pothier on Obligations, published in 1806. The passage, which is quoted by my brother Menzies, was appropriately enough set out by Roscoe in a footnote to the report of R. v. Parker (1783) in volume 3 of Douglas's Reports, the volume compiled by Roscoe and published in 1831 from manuscripts left by Sylvester Douglas, Lord Glenbervie. Evans' statement is especially interesting because he speaks of the evidence as admissible "to repel the supposition of the fact related being an after-thought or fabrication" (Roscoe misquotes this as "falsification"); and these phrases became and continue to be the common currency of text writers and judges for the exposition of this topic. For examples: In Starkie on Evidence 3rd ed. (1842) vol. 1, p. 222 it is said of prior consistent statements that, "although such evidence be not generally admissible in confirmation of a witness, there may be many cases where under special circumstances it possibly might be admissible; as, for instance, in contradiction of evidence tending to show that the account was a fabrication of late date, and where consequently it becomes material to show that the same account had been given before its ultimate effect and operation, arising from a change of circumstances, could have been forseen". Perhaps the first judicial use of this phraseology was by Story J. in delivering the judgment of the Supreme Court of the United States in Ellicott v. Pearl [1] : "there are exceptions; but they are of a peculiar nature as where the testimony is assailed as a fabrication of recent date, or complaint recently made; for there in order to repel such imputation proof of the antecedent declaration of the party may be admitted".

[37]

As broadly stated in Taylor on Evidence 12th ed. (1931) p. 941, s1476, he must be "charged with a design to misrepresent in consequence of his relation to the party, or to the cause; in which case it may be proper to show that he has made a similar statement before that relation existed". Accusations or suggestions, made in cross-examination or by independent evidence, that what a witness says in the box is a recent fabrication are the commonest way of charging such a design to misrepresent. But expressions such as "recent fabrication", "after-thought", "recent invention", "belated concoction" all presuppose some period or point of time. The clearest case is when it is suggested that the witness and one X, an interested person, had on a given date concocted a false story for the witness to tell in the box. Proof that at an earlier date, and before the witness had ever met X, he had made a statement consistent with the evidence said to have been fabricated will obviously refute that. Evidence of such a statement is therefore admitted, not as any proof of the facts stated, but to rebut the suggestion of fabrication on or after a particular date. In circumstances so plain the ground and purpose of the rule are clear. As Ronan L.J. put it in the Court of Appeal in Ireland in Flanagan v. Fahy [1] : "if a witness is charged with having invented and fabricated a story in consequence of a certain transaction, is it not open to him to show that this charge is false by proving that he had told the story long before the transaction in question? Surely there can be no doubt that in any rational system of law he must be allowed to do so" [2] . Difficulties arise only when it is sought to apply the principle in circumstances not quite so plain. For, although the English text-books, Phipson, Roscoe and others, recognize the rule, the illustrations they give of its application are few. Of the cases they refer to only two, both in Ireland, Reg. v. Coll [3] and Flanagan v. Fahy [1] , have much in point for present purposes. In the United States, however, there are many reported cases with a wealth of careful discussion in several jurisdictions. The main authorities are referred to in Wigmore , 3rd ed. (1940) vol. 4 s 1128, 1129; Jones on Evidence, 5th ed. vol. 4, s. 960; 58 American Jurisprudence, Witnesses s. 828, see especially s. 829 as to limitations on the rule; and especially in 140 American Law Reports Annotated 21-186, being an annotation to Sweazey v. Valley Transport there reported.