Failure to put fabrication to Senior Constable Ochs
32In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [67], a majority of the High Court (Heydon, Crennan and Bell JJ) considered a trial judge's finding that a party-witness was reluctant to say what had happened. Their Honours said that it amounted to a conclusion that the witness was deliberately failing to comply with the duty to tell the whole truth: at [62]. Their Honours said that two conditions needed to be satisfied before such a criticism could be made by a judge in circumstances where it was crucial to the dismissal of the claim:
"First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism."
33Both those conditions were applicable to the present case. The finding of fabrication of the terms of the initial conversation and the threat amounted to something even more serious than the finding of reluctance in Kuhl. Rather than merely failing to comply with the duty to tell the whole truth, it was, expressly, a finding of conscious untruth. It was a finding capable of amounting to a conclusion of perjury, and with serious professional consequences for Senior Constable Ochs. The gravity of such a finding against a police officer cannot be overstated.
34The plaintiff did not submit at trial that Senior Constable Ochs' evidence had been fabricated.
35Senior Constable Ochs gave evidence from 12.30pm on the third day until shortly before lunch on the fourth day of the trial. Most of that time was taken up by cross-examination. It was squarely put to him that "you made up this strangulation, didn't you?". There were other occasions when, more obliquely, it was put to the witness that he was not telling the truth. He was asked, "See, the reason you're denying that [Mr Hunt's motorcycle fell over is] because in fact you know you pulled him off it but you also know that doesn't sound good".
36However, it was not put to Senior Constable Ochs that he was fabricating the opening words of their conversation. Nor was it put to Mrs Ochs, who said she heard those words. Nothing like this was put to either of them. Nor was it put to Senior Constable Ochs that he was fabricating his evidence of the threat which Mr Hunt made to him.
37It is not necessary to express a concluded view on the first condition required in Kuhl. Given the seriousness of the findings, it was essential for her Honour to set out clearly and logically the factual basis for them, and that would have involved a proper analysis of the competing evidence, so as to "engage with, or pple or wrestle with the cases presented by each party": see the authorities referred to in Coote v Kelly [2013] NSWCA 357 at [39]-[40]. At least to a substantial extent, that occurred. Her Honour's process of reasoning was more substantial than has been reproduced above, and dealt with much of the competing evidence. However, the findings that the initial conversation and the threats had been fabricated were very serious, and there is no analysis in the reasons as to why a positive finding of fabrication, as opposed to a rejection of the evidence, was made. Section 140(2)(c) of the Evidence Act 1995 (NSW) applied, although it was not mentioned by her Honour, nor is there anything to suggest that her Honour attended to the Briginshaw requirement of clear and cogent proof of the findings made: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
38It is not necessary to say anything more about the sufficiency of the reasoning process required by the first condition in Kuhl referred to above, because it is clear that the second condition was not satisfied. Senior Constable Ochs was not given an opportunity to deal with the finding that he had fabricated this evidence. Nor was the State. Nor was Mr Hunt.
39True it is that Kuhl concerned a party-witness, and it might be queried whether Senior Constable Ochs ought to be regarded as such for the purpose of the rule. Strictly, of course, he was merely a witness - albeit a witness whom the plaintiff had chosen not to sue as a defendant - and it was possible depending on the course taken by the trial that his interests might diverge from those of the State notwithstanding the admission of vicarious liability. But the position in terms of fairness remains the same whether he be a party-witness or merely a witness. In Bale v Mills [2011] NSWCA 22; 81 NSWLR 498 at [66]-[67], Allsop P, Giles JA and Tobias AJA said:
"Fairness in the administration of justice extends not only to ensuring a fair trial for the actual parties but also to ensuring that a witness who is not a party is treated fairly. It is especially important in circumstances such as the present, where a witness such as Mr Schipp had himself no right to object to his credit being impugned with respect to the Centrelink representation and where he was not given the opportunity to respond to what was clearly an extremely serious allegation not only going to his credit as a witness but also, as the primary judge was at pains to emphasise, to his honesty as a person and to his probity as a solicitor and an officer of the court. Further, the unfairness consequential upon the breach struck directly at the entitlement of the appellants to a fair hearing and procedural fairness in the making of findings by the District Court.
Here, fairness dictated that, in the absence of any cross-examination on the subject of the Centrelink correspondence, the primary judge refrain from making findings about dishonesty arising from that correspondence."
That passage was recently applied by a majority of a Full Court of the Federal Court in Ashby v Slipper [2014] FCAFC 15 at [142]. It reflects the "general rule of procedural fairness" to which Lord Hoffmann referred in Village Cay Marina Ltd v Acland [1998] 2 BCLC 327 at 338.
40When the appeal was heard, counsel for Mr Hunt sought to defend the position by asserting that there was no substantial difference between the rejection of a person's evidence and a finding that he or she deliberately lied, especially where, as here, it was expressly alleged that Senior Constable Ochs had behaved maliciously. That is not so. If authority were needed for the distinction between incorrect recollection and fabrication, Smith v NSW Bar Association (1992) 176 CLR 256 at 268 suffices:
"[A]s a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence."
41That is self-evident where, as here, the testimonial evidence was of events which had taken place more than five years previously, and had already been the subject of cross-examination at the criminal trial; cf Watson v Foxman (1995) 49 NSWLR 315 at 319. Moreover, it is one thing to allege that Senior Constable Ochs was acting for an improper purpose in 2007, and a completely different thing to find that he was fabricating his evidence under oath in 2012. That difference was reflected in her Honour's reasons: contrast the rejection of evidence at [151]-[154] with the findings of fabrication at [156], [162] and [167].
42It was also pointed out that counsel at trial had agreed, and informed her Honour, that neither was taking any Browne v Dunn points. Mr Hunt and Senior Constable Ochs had prepared written statements, and had each been cross-examined previously as to the events of 7 July 2007. As it was put by counsel for Mr Hunt to her Honour:
"[W]e both knew precisely what the others' camp were going to say about the facts and were not taken by surprise by that. So, yes, the fact that each and every miniscule aspect of those stories hasn't been put to the other witnesses doesn't mean we can't invite your Honour - the both of us - to accept one witness' version over the other."
43That agreement between the parties does not alter the position for two reasons. The first is that it is one thing to reject the recollection of a witness, and quite another to find that he or she was fabricating evidence. The second is that in any event, the parties cannot by an agreement to which the court has acquiesced, authorise a course which denies elementary procedural fairness to a witness.
44That is sufficient to require the appeal to be allowed. It was unfair to Senior Constable Ochs, to be found to have fabricated evidence without that allegation having been squarely put to him. It was unfair to the State to lose on a basis which was not advanced in evidence or in submissions. And ultimately, it was unfair to Mr Hunt, as the disposition of this appeal indicates, for him to be denied the chance to submit to the primary judge that he should win on a basis which did not involve a finding of fabricating the initial conversation and threat, or that, if the judge had formed the preliminary view that there was fabrication, that the witness should be recalled so that he could be confronted with it.
45There has been appellable error giving rise to a substantial wrong or miscarriage so as to warrant a retrial in accordance with r 51.53(1) of the Uniform Civil Procedure Rules 2005 (NSW). However, there were also a series of additional errors. Because they do not affect the result, and because there must be a retrial in any event, I deal with them relatively concisely.