PLIFR KABADANIS v NICK PANAGTOFCU

of the Australian Capital Territory dated 2+ Februers iu7s, dismissing the action by the plaintiff which was a clatm Soar damages tor personal iniuries said t™ have been caused my the negligence of the defendant. 'The plaintiff was ¢ passenger in

a motor vehicle driven by the defendant. The plarmtrrrts allegation was that the negligent driving of the motor vehicke

by the defendant caused the discharge of a loaded shotgun which WaS in the vehicle, and thus severely injured the plaintilf. The defence was a traverse of all the allegatiuans in the statenent of claim, and in particular a denial that the platnerfr's tururrves arose out of the use of a motor vehicie. hoa uthes deforees tere uncluded, namely that the plaintiff ani the deieniimt were af al] material times engaycd an a ,oant tdterci erpterprise, and contributor) negligence. Neither oi there tra defences was pressed at the trial. As to the alleveed sornat aitlepal enterprise the trial judge said.

At the trial the main thrust ot the defence wis an attempt to show that the accident did net happen in the manner alleged by the plaintiff, but that the shotgun tas discharged outside the motor vehicle. IJnis defenre succecdid Th. Learned trial judge gave the folluwing reason for his Goorstan om Favour

has in the motor-car." As the plaintiff's case rested entirely on his allegation that the gun was discharged accidentally as a result of the motion ef the car over either a smal] mound or a depression in the road, this Finding by the learned trial judge was necessarily decisive,

there was no possibility of founding the plaintiff's case on any

The course of the triaJ was unusual. 'The defendant, having sswoTn an affidavit of answers tu interrogatories in which he substantially supported the plaintiff's allegations, gave oral evidence ut the tital to the same effect. The learned trial judge's conclusion thet he was unpersuaded of the truth of the case for the plaintatf necessarily entailed a total rejection of the evidence of both the plaintiff and the defendant about the manner in which the plaintiff's anjurres were sustained. Moreover there was no alternative account or explanation of the plaintiff's injuries given in cvidence. The fact that the learned trial judge did not accept the story told by the plaintilf and the defendant

was not 4 resultof the plausibility of another story.

It 1s convenient at this point to repeat a passage from the reasons for Judgment of the learned trial judge, in which he

summarized the evidence which led him to his conclusion.

"The thrust of the detendant's case was cxpert evidence which was designed to establish three propositions. The first propos,tion was that the shotgun gn the venditien it wes on the day

following the accident would net have discharged by reason of anv bump whitch the car encountered on the road Phe second proposition was that if tne unjury which the plaintitrf suf red had been received while he was seatcu on the back scat of the cat there must necessarily have been sone damage to the interior of the car The third proposition was that the gun was discharged at a range of from t to 9 fect from the plaintiff's leg "

The learned trial judge examined the evidence tending to support these three propositions, and came te the followiny conclusions. Ou the qucstion whether the vun soudd have Leen discharged by any bump which the car cicvuntered on the read,

.-. while 1t was not physically inpcssible that the gun would discharye in the eircumstunces as alleged hy the plaintrid, 1t was nevertheless distinctly iampreeibl¢ that 1t would do so."

The evidence wus that there was, after the acer lent, ne dimauge ta

the interior of the car. On tne yucstion whether the gun could

have discharged 1n the cur without Jimeging the irterioer, he saic

On the question of the drstance of the muvrle ef the eum brew the plaintiff's Leg at the tare of discherec, the lourmed trias judge considered uncentradicted expert eviderve as te te wit of the

cone of fire from a shoteun of this kite, in relition ty the

distance from the muzzle. te also comes ered fhe cvidenee ol the

orthopaedic surgeon whe tirst treate ld the piaaintetf& far his

injury, that at the time he first Sa. tue plaimtrbiy wheel was

shortly after the injury occurresy, tao or threes nehos ef the plaintiff's trbira and fibula were shot away. Thess facts led to the inference that the distance from the mutale to the plaintisf's lew at the time or discharge was be tncen G aun 2 feet. The evidence of the plaintiff woe that the ru.ctle was less than 1 foot from the plaintiff's ley at tse time. the

"T do not find this aspeet of the eviderce, of the expert evidence, as compelling as the previous two aspects which I have just considered. Tt 1s consistent vith theo, however, and adds strength to the vier that the shooting could not have taken place in the car."

The learned iudge tach cams tr @ cructal put of ais

reasons tor judgment. He turned to the direct aeviecoute ot the

") did not detect anythine in their dencanour from which IT could reliabls conclude that they were not telling the truth. The plaantily was undouttects injured by a Shotgun discharge and tne police confirm that there was a mound in the road such as the pluirtiff hei described it and an the area in ehich he Said it wis."

Then followed a sentence which is tre kev te the Learagd judyets

"lf the only evidence to contradict tne sworn evidence of both the platntif4 and the defendant 1s circumst intial evidence which derends for its Coie largely on the opinion of eaperts ane which is proffered bv an insurer cawntrersy te the anstructions of the rustres , thes

in order to prevail I think that evidence would need to be of a most compellin character."

We draw attention to the word "corpeliing" the learred judye then summarized the conclusions to which his considerations of the circumstanti:a!] evidence had alreedy ted him, we nave already

"The plaintiff has a strong metive for psveng an account ot the affair which will result in his obtaining substantial dJanayces li the defendant was responsible for the injury by reason of a negligent act on his part, ne too has a strong motive for givine an acount ai the affair which w1]l result +n the plairtirde obtaining substantial damares, but net at bis expense.

'the plaintiff has not called two porsens whe must tairly be regarded cs in his cart nd who nust have been able to correhorete hee version of the affair. It the "ecrsien not to call such witnesses wis aade on tactical grounds in the hope or capectutran that the defendant would call them, and therehy cnable plaintiif's counsel! to croas® cxarine then, then it seems te me that the plaintify, whe has the onus of proof, tunkcs this course ut his own risk.

Tf the decision was made ter other reasens, then 1t must stand as a weivhtyv cittieir. oof the plaintiff's case as a vhole The corresponding criticism tude bs the plaurntits that the defendant did not call the wrtnesses either and is therefore tarred with the sate brush does not seem to me tu carry the sane force. As I have sard the two urcalled witnesses were in the pluintirtr's came ord the plaintit! haus the onus ol mroant |

The next words in the gudument are thos) aiteads quetel, expressing

the learned judge's finding - strict}. seesedne, Pirs ersemec of

"Adter much considcrition of the ovaiderer on this matter, |] have cone te the view that the case for the defendant rs oc canmpelting, one in the sense thut at hes Jert re vathact any actual persuasion that the nlaintul © suffered the iniurv whilst nc was ta the moter-car."

Once again, we draw attentier tu the word tow lien!

Counsel for the appellant meade a therough ard weighty attack on the learned trial judge's finding thut he was unpersuadca of the truth of the plaintiif's story lic attacked 1t net only on the ground that the trial judec gave wereht te madnissibl¢ evidence, but ulso on the .round that bes comeiausron oa. contrary to the weight of the cvidence. In the lorelront ef his ergument he put the proposition that the cenelas en of the de arnen triad judge, quoted above, that he was lctt without anv persuasion of the truth of the plaintiti's story, ampeticd that the tiral Judee regarded the case as a finely balanced one on the facts, that he decided it on the failure of the nlautntiff£, by a narrow margin,

Jf the judgment of the learned trial tudye sere open to this interpretation, we think that some of the arsyuments propoundcd by counsel for the appellant might have hau mo.o weight. No doubt 1t 1s correct that in a case in which the halance of prebsbility ois welghed down only very slightly ip Caxour of on, side or the other, a relatively small picce of eviderce wronyfulls admitted or teyected, or shown to have been overlooked 112 misunderstood hy tie judge, aot be considered to have a relatively Layee potenti.) ef leet on the result, and thus be a persuasive atgament ip faveur el the case por the appellant But, with respect te counsel, re think taat has contention that the case was one in which the trial jyudge found tne

balance ot probability weished down only very slasath accinst the

plaintiff cannot be sustutned. The words of the lLeaaned trial judcce

do not supnort it. The case was not ore in whieh the trial Judge,

after considering the story told by the piuantirf, and the story told by the defendant, found that the lefendant'ts ster bv a very small margin was the more probable. On the canterarvy he nade it clear that his conclusion was one to th.ch he wa cuavelled by the evidence, though it was reached by in unusual wethou thie circumstantial evidence made it rpess-bl. to vetrere the diiect evidence supporting the plaintiff's case. In ather words, the CcaSe Wd$S not one in which the trial judge Cound for the leSendant upon finely balanced considerations of opposing vrobubi lity, but rather one in which the compelling cvidence led for the defence destroyed the credibility of the story told by the plaintiff. In our opinion, therefore, a major premise upon which counsel for

the appellant founded much of his argument wai inearrect

the tirst ground of appeel was that the trial yudge had erroneously taken into account evidenes recerved on tne defendant's application for a warrant for the arrest of one Saris Counsel For the appellant relied strongly on passag.s in the carfica part of the judgment which, he satd, showed that the leaired judge retiecd on inadmissible evadence. 'Ihe defendant's selicitors hada assued a subpoena ad test and served it on ene Saris, who wa the plarntclite brother-in-law and uw passenper in the cir at the ti ¢ of the alleped accident. Saris did aot appear in answer to the subpe cna, and in the course of an application to the lecined gudge for a bench warrant, evidence was given tending to show that Saris had Ic ft the

Jurisdiction twice during the tizal. his wast mentioned by the

learned judge in the early part of his uidement in ating an accuunt

of the plaintiff's evidence, in whi the ptutitait suid that Saris was one of his fcllow-passengers. \ further wentron cf the same matter came later in the auderent, at the end of the learned judge's consideration of the case fer the plaintafl Having mentioned that another passenger in the cer, Anpostolukhis, a friend of the plaintitf, had been present in ,curt Curing part

of the hearing but had not been called hy the plaimtilrf, the

"Mr Saris is the brother-in-law of the plaintiff. According to the piarneckf they are not on bad terms. 7 think tt 1s most unlikels that af the plaintil!l had wished to call Mr saris that Mr Saris would have gone cut of tre Jurisdiction on the occaszons Pir ine the course of the triai "

Counsel for the appellant attackeau these teo references to Saris! alleged departure from the iurisdtet. rn an the greuna that the evidence Supporting it was given dn tee conrse of an ippiicatien for a bench warrant, which was not part ¢. the Friel, but ia

separate proceeding, the evidence was thus tnadnissable asainst

But the argument is unconmvineirys, becinsc the reasons

for judgment show two things. In the tirst place, the watter alread) referred to, namely the tmpessthitity of piving credence to the oral testimony of the plaintift ond the defendant in the

face of the tuncontraudictec expert anu eircunstantial cvidence, wa

the central fuctor in the learned qudects dectsaon. The Sarditre te

call Apostolakis and Saris was anczllar In tee sesondl place, as

1s shown by the substantial passage we nave earlicr queted from the reasons for judgment, it was not the alleged ibsence of Saris from the jurisdiction with which the JIcaraed dudye was concerned, but the fact that the plaintiff did net coil stther Apostoiakis or Saris. As the learned Judge saad, such rerlure ves oxplicable on either a tactical or a substantive yreund re the jormer was the true explanation, 1t did nothing to pelp the vleimtii hs cose, 1f the latter, it stood as a welghty criticism of the plauintilf's case us a whole. Saris' alleged absence nas not a sunstauntial

Stephen and Jacobs JJ. agreed) in Vouiseno +. Vocisane (1974)

130 C.L.R. 267 at p.274 are precisely in point here

... in the case of u trial by a judge, we have the reasons he has capressed for giving his verdict on the facts Consequently, Lt 328 necessary to scan those reasons carefully te ensure that the inadmissible material has nat entered in any substantial deuree inte the conclusion which the trial gud: > has formed. [n my opinion, verore a new trial 15 oTtdered un a case where the verdict 128 in accordunce with the evidence, 1t should be secn that the inadmissible matter has been used hy the judge in reaching his verdict .."

"His Honour did not believe fthe nlainteri) Unless 1t can he seen that the tnadmiisii-ie material antluenced that conclusion, there Ls no ground consistently with what T have so far written for ordering a new trial After considering the reasons of the trial judge, I have come to the cone luston that they did not "

In the main counsel for the appellant seupyht a new trial. the consider that the Judgment te which we buye gust referred, points out that a new trial w1il not be ordered merely because some inadmissible material hay been admitted,

unless this material hes entcred to a substantial decree into

the conclusion which the trial judge hus dorncd. in Stekes v.

the Queen (1960) 105 C.L.R. 279 at pp.284-285, Dixon C.J., Fullagar and Kitto JJ, 1n a joint judgment, set out the ,encral rule applicable to causes where a new trial was being sought from a verdict of a jury. At pp.284-285 the Court said "Jn the end we think the decision of the application must depend upon the general rule that 1f an error of law or a misdirection or the like, occurring at the trial 15 of such a neture that it ceuld

not reasonably be supposed to have influenced a result, a new

trial need not be ordered". See also Paienzuela . De Carl £1959)

102 C.L.R, 226 and Dairy Jainers Co-uperetive Milk Co Tte ov.

Acquilina (1963) 109 C.L R458 We consieer that tht. senerad rule is not affected by anvthing ob s.lh of tne Tederal Court of

Section 28(1)(f) of that \et vrovides taat " . the Court may in the exercise of 1tS appellate jurisdiction ¢crant a new trial in any case in which there hus been a trial, e1ther witk or without au jury, on any ground upen which tt 45 appropriate to

Tt 18 clear an appellate court should be less wi ltine

to grant a new trial where the applicatton ts based an the wrongtul

admission of evidence in proceedings Setore a Juage sittiry alone than in a case where a new triad 1s souvht drem the veruiet of a jury.

guidance from sone authorities, but net frum barren vy Coombes.

The second, thi1d and fourth wrounds of appeal, which

"2. Vhat His Honour the learned Prial sudue erred in ullowing the respondent's (defendant's) legal representatives to put the case differently fred and contrat) to the defendant's sworn \nswers ts Intetrogatories.

3. That His Honour the Leatned [rie] tudge erred in drawing anferences unfavourable to the plaintaff fiom the plaintift's failure to call evidence corroborative ta his case when the plauantirf had tendered the defendant's sworn Answets toa Interrogatorics veritvines the case ef ty plaintiff. } Ihe trial miscarried by reasen or the case for the defendart net burns pat properly as the Counsel and the soliciters for the defendant were in recltty apoeerias in the interest of the third parts mare ls NoRLMLAL Insurance Tiriutee * The reterence to "the thrid party" ws .tone, ne thitd party was ever joined. ALL these grounds ar. based an whit the

appellant contended to be the learnes. trtalb Judyets crrancous decision to allow counsel tor the ecefensant te cenduct his case in a manner which entailed attachkins, the cefendaut's ar hers te

interrogatories as false. In our view this decisionwas not at

In the first place, 1t is clear that unswers to interrogatories have no athes status than that ct ovaderee Such answers are not pleadings. Tt 3s oren te ceunsel to present, uf

he wishes, evidence which 15 inconsistent with, or cuntiadicts,

evidence by hes client (hing ve. Wilkinson (1957) 77 FR Ch.S Ww

444. whether the eviderce im question 1- in chief cr im eraas-

examination, and answers toa Intetreayatoari1es connet bo oan oa

different category. Counsel made a valiiprt ¢f ort to distinguish

King v. Wilkinson on the ground that tne discrepancy am that care

between the defendant's own evidenec, and the other evidence led

by has counsel, was merely one of degree. In ruct, im tnit case the defendant swore that he had been sober ot the raterral time, and the evidence of the other witnesses .alled by hrs caunsel was that the defendant had been drunk In this case, counsel cantenced the result should be otherwise because there was not merely a difference of emphasis, but a total contradiction, between the

answers to interrogatories, and the efte.t of the otner evedeice.

Counsel contended, further, that rp thes ctbe tae cb tect of admitting evidence tending to show the taulsity of the defendant's answers to interilogatorics was te put er undie of improper significance on the plaintiff's farture tu cat] evidence corroborative of his story. It was satu that the plaivutaff's counsel, having in his favour the defcndint's enswers ta interrogatories, was entitled to rely on the plaintclfts ana the defendant's oral evidence, and therefore that the Pract that neither of the other two passengers was called should have been disregarded aS insignificant. At this point, of course, counsel stressed the contention which we have already rejected uy incorrect that the

trial judge's finding was based on a fine balince of prebabrlities.

We have already erven leesuons For retecting this latter argument, put we also reject the »rror vontention wiih tt was sade

to support - the argument that the piainterF was ent tiled toa rely on

the defendant's answers to interrogatoiies and eral evidence to justify not calling the two passengers. Where avarlahle corroborative evidence 1s not called, the apparent strength of

the evidence to be corroborated should net ef itself deter the tribunal of fact from having greate: confidence in drawing unferences from evidence culled by the othe; sice Dlewever stronaiy a body of factual evidence appears to suppert a party's case, the facts that two eye-witnesses were not culled, and thet no

explanation was proffered for not cailtng them, must tend tr some

degree to lessen the weight of that hodv of ovidence.

In this case, the appellunt's argument 125 mide even weaker by the fact that when the copy of the defendant's affidavit of answers to interrogatories was fturnisned to the piaintrifl's solicitors, a co.ering letter capress!y stated that the eerenuant'!s solicitors did not accept the truth ef the answers Counsel contended that this fact was ammatertul, but in aur opinion it tends to increase the confidence which the judye could have in crawing inferences from the cvidence called by the defence, stnce the Letter must have put the plaintiff's solicitors on notice that the truth of the answers would be puttin wssue at the trial. Counsel alse contended that the letter should be tcvroared oecause it was 10t informative - 1.¢. iat merely challenged the tiuth ef the arswers without sugyesting what the real truth wes, but the. dee net, an our opinion affect the imnescupable conelusion that the Fetter tended to increase the necd for ccrruborative cricence ard thus add wereht

A further development ot the sare point that evidence

should not have been admitted te contradict the defendant's anshers

to interrogato1ies was provided by the fourth ground of appeal, cuetcd above. Counsel contended that at the triil the statuter oirsurer oa} the defendant was seen to be pursutne a course vhich wat net in the defendant's anterests. 1s the defendant's counsel and soficitors were concerned to present an account of the facts (1.¢. that the accident happened outside the motor-cari which would not entail the liability of the insurer under the policy, at was said that the defendant and the insurer should have been separate pirtics, ur that the insurer should have repudiated liability under the nolicy, left the defendant to fend for himself in this action, ana thus allcwed the issue of its liability to be trice in cther proceedings. It ma be that either of these courses, 1f the. had been adopted, would

have given the plaintitf a better chance of succeeding on his vers:on

of the facts, but in our opanien the aryument 1 untenahlo as

ground of attach on the judgment of the tearned trrel jude 'The shortest answer to 1t 15 that 1t 2s net for a plaintiff to complain

that the defendant's interests are net beirny advanced In fact, of

course, the defendant was held not liable to the plaintiff, and the

aim of the course adopted by his coursel was te aichteve this result, Furthermore, the whole scheme of statutery liability insurance under the Motor Traffic Ordinance, as under simtlar Jesielation clsenhere in Australia, involves the tight af the insurer te take control of proceedings in which the Lrability of the insurre 63 sc bese, sec s.68 of the Motor Traffic Ordinance I%36. Tne ui dendintts instructions to his solicitors and counsel wast mevitabls take

this right into account 'There 15 no authority ap supnoert of the proposition that the insurer may not take centre | af such

proceedings in order to cstuablish any state oF licts which nevwates

the defendant's liubility, cven one to which the polucy plainly

We think that there 15 no substance itn thes vraund of appeal, and that the course tuken at the trial by the leatned

The remaining grounds or apneal ell aeiite te certain 1tems of circumstantial evidence and the use which the trial gude¢

made of them, in one case, that he failcoau to take rt rpto acecant.

The First of these items was the cridenee ef tests which had been conducted by experts relating to the penetrative effects of pellets from a cartridge of the same kind as that whicn was said to have been discharged, on pieces uf animal flesh and bone. An experimental shot was fired through a shin of tresh veal, containing more flesh and more bone than in the lower leg of a huran boing, at a bullet trap consisting of 50 pieces of caneite, 2/8 oC an anch thick, laid close together. Some of the shot perctrated the shin of veal and as far as the ninth sheet of canmette. In his judgment the learned trial judge eaplasned that tnrerc was po ervidencs about tae

comparative resistance to shot of a Numan log ane a freshl. killed

shin of veal, but said that he found the cvidence useful as giving

a general idea of the penetrutive povers of the shet from tret kind of cartridge. Counsel for the appellant contended that the evidence of the test with the shin of veal was totally taaduresthie im the absence of compurative evidence to which we have rererrc? Ke do not think there 15 substance in this cuntention., be evidence al the tests was that some shots [11ied at the canette without the interposition of the aninal flesh nenetrated as dar as the twenty- third sheet of cane.ite. The argument could as well be that this too Was inadmissible because there was no caneite in the metor vehicle, nor any evidence us to the comparative resistance of

Caneite and the materials which lincu the intertor of the motor

vehicle. Jn tact, has Honour used the evidence relating te the

animal flesh only as a demenstratten et the nenetr 4 of

the shot, and in relation to the absence of damese t2 the interior of the car. This was plainly a "jury question" eon which his Honour was entitled to make a sort of decision which @ yury wonldd make. Counsel conceded that he could not relv en this point bs itself, but only in conjunction with the evidence as to the absence ul

The next item of evidence was thet which «as suid to suggest the possibility that the cartridge which was Frred «nad causer the plaintiff's injury was defective in containing fess than the normal amount of powder. The argument was that 1f this cartriage bas so defective, the inferences drawn from the absence of tresh and bone

and from the absence cf damage to the cur were uuseund.

The evidence relied on to shew the possibility that the cartridge was defective wus thit of the plaintitt himself in describing the loudness of the 1epo:t, coupied vith that of eapert witnesses who gave evidence of the volume of sound produced hy the

firing of a normal cartridge of the tyne whicn, i counsel contended,

was probably fired fromthe yun, namely ""bhiuc Ster mere"

The plaintifi an describine hee the eccident happened seid

"ell, Io gust hear the exploster - rt ose antt so loud and 1 think my leg vain (The plaintiff's English was obviousl. wuperrects avshea py the judge

to repeat this answer, he said "No, it wasn't serv Jeud".

An ecapert called for the detence to ative evidence aus to the possibility that the gun was discharged accidentally, was asked by the trial judge to express an opiniern about the aeise accompanying the discharge of the Blue Star no.3 carttidee, and Ie said fhat ait Made a consideruble noise crven outside tue cat

the cur, he alse said that af the neise "wisatt vers loud! he would

deduce that the discharge was either outside the car or that "there wasn't very much charec™. Another expert called hy the defence gave evidence of having measured, with cerentilie instruments, the volume of sound preduced Ty the cetseuarue of Blue Star no.3 cartridges in a car .. varios coiditiens such as windows open and closed, pieces of urimal flesh ccingy present at varlous ranges trom the muzzle. He gaye the resuJts vel Lis tests in decibels and milliseconds but also said that "one could only

possibly describe 1t as a very loud shatp report" and "aundeubtedly

There was evidence from un earpert in firearms and ammunition who had very Long experience ef the discharve of Blue Star no.5 cartridges for experimental purposes. - n this Tone experience he had never seen such a cartridve farth, o: dascharse

In our opinion the wergnt tu te etven te the evidence of the plaintiff that the report sas "not very loud" vas negligible; the learned trtal judge wis entirety sustiited op net

accepting the suggestion that the cartridge might hive been

defective. Counsel for the plaintiff submitted thit the plaintiff! . evidence in this respeet should be accepted becuse rt was se improbable thut he would fabricate such a detail Tho oreument 3s

not convincing. he do not think that anv reliance should be placed

on inference from such a subjective «und necessarily mm preetse Statement as that the report was "pot very foud". The plaintiff

also said that he had never, before the event, heard a shotgun

But even if he accepted thut the cartrsdee meat hive been defective, the weight of that fact, in conpairisen with the rest ot the evidence, would stall Le reetisible. Counc coald put 1t no higher than that 1f it were accepted that tre cartiridsye might have been defective, the cvidence of the tests relat nyte the penetrative power of the discharged pellets must be resected. But this does not go to the central question of fact. Mn the

plaintiff's own story, the discharye of the cartridge shot away a substantial portion of his leg, but did no damage whatever to the interior of the car. In our opinion any Jury, enart Prom expert

evidence, would reject as wildly anprebande the hepother rs that

this could be explained by the defective tcadina of the cartridac.

The final matter relied or ts the appel tent 21 the evidence, which was not contradicted, that sone vaicamace do shetarun pellets were found in the car on the dav alter tie eceritent. One pellet was found by u policeman on the back le tt-hning Pleor bout more pellets were found by another pelicenan "on the ieft-hane sce rear floor". The latter witness, who way a member of the peltce

scientific section, examined all five vetlets heti with the naked

eye and under the microscope, and found no "signs of dabauve or marking whatsoever" on them, In re-examination he said that he believed he could distinguish between damaged and undarnued pellets. An expert witness called for the defence said that the degree of penetration of shotgurp pellets inte apy substance seald be proportional "in some way" to the amount: F povcer un the cartridse; that In a normal discharge, an appreciable wonant af shat ais

deformed before it leaves the muzctle el fhe wun, that the shot from

a cartridge which was under-loeded with pos ler nodal le. far less

daraged than shot from a normal caititdsyc, that it was nessibse

to fire a shotgun with damp powder, but vet a poor tesuit, and

that after the discharge of a normal cartridge there .ould be

some shot which was not deformed, beceause at had net been de farmed in the gun and had not hit anv cojecet, that if the cartrigae were loaded with less than the nermal quantits of powder, the aunber or such undamaged shot might be more, that petlets ure Precucntiy found in association with shooters who load their own curtridges, that it was possible for some pellets to escape trom the cartridge, and that 1t was possible for some pellets from an unde r-vowered

Counsel argued that the possible effect af all this evidence was ignored by the trial judye, and that if he had property considered it, he might have heen able to accept thit the gun was discharged in the car. Counsel] argued thit the presence of the undamayed pellets in the cur supgested that the shoteim 14 discharged in the car and that the cartridge was 1 Cefectlrye ere - 1.e. under-loaded with puwdet, and this wes Consistent with the plaintiff's evidence that the report was "ret very loud" Overall, counsel put the matter us one which, ever FP it were net in rtsell of great weight, should be icvarded as stenifieent mm view of the trial judge's finding that tne case was ore of a fine balance of

probabilities. But we have already said that we do net accept this

We do not think tnat the tact that the lea.ned audse did not in his judgment mention the undamaged pellets r- of aay importance, because the evidence itsel! could net hare keen of any

weight. 'There was absolutely no evidence as te tet tae oellets hal

precedsng prs ace a true sopelf: Vie Keasons for Judgment herein uf hie hers

got into the car, or as to how long they had been there. It 15 only speculation to say that the presence of the pellcts shows that a gun was fired in the car - an inference which 1s contra- indicated by the absence of damage in the car. he think that

the learned judge was justified in regarding the undamaged pellets

For all these reasons the appeal must be dismissed with