1. The acceptance of appeal as a regular and normal procedure of the administration of justice: affording an opportunity, usually one as of right, to have a judicial decision reviewed for error of fact as well as of law. When the facility of appeal was first provided by law, the primacy of the decision of the trial judge was reinforced not only by the novelty of the new right but by the survival, in most civil causes, of jury trial. In such circumstances, the language of the courts, emphasising the paramountcy of the trial judge, was natural to the judicial mind. It was not infrequently borrowed from supposed analogies to the deference to jury verdicts as resolving factual disputes in a conclusive way[96]. One hundred and fifty years later, the normality of appeal and its perceived utility as a check against error and consequent injustice, affords a new legal context in which to reconsider some of the early judicial language. I regard the suggestion that an appellant, in order to succeed, must show affirmatively that the trial judge "misused his advantage"[97] where the credibility of a witness has been in issue, as redolent of a time when appeal, particularly on factual determinations, was a novel phenomenon. At that time, appeal was still sometimes regarded, so far as it required the re-examination of facts, as beneath judicial dignity[98]. Such re-examination was a painful and uncongenial obligation. In the context of modern appellate rights, now so long established by statute, such attitudes can safely be consigned to the history books. Many injustices may lurk in factual mistakes - probably more than in errors of law.
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> 2. Since the early days of appeal, the quality and detail of court records have greatly improved. Whereas initially some appeals had to be conducted on ambiguous or imperfect notes of a trial[99] (perhaps elaborated by judicial reports to the appellate court or the elucidation of counsel's recollections) this is not the case today. Shorthand reports of testimony have long been available to appellate courts[100]. Nowadays virtually perfect transcripts of the evidence, exhibits and argument are available. Commentators predict that computer controlled colour videotapes of trials will soon be available to appellate judges to permit them, if they so decide, to see and hear trial testimony as it was given[101]. Notwithstanding the growing use of video recordings of trials in the United States resort to such records has not proved popular with appellate courts[102]. Federal courts in the United States have rejected it[103]. Yet in one study of appeals in the State of Kentucky, it was found that appeals using video recordings were more likely to yield confirmation of trial outcomes than those based exclusively on written transcripts[104]. Whilst such facilities were not available in the present appeal, the quality of the trial record was, as usual, extremely high. This fact contrasts significantly with the facilities typically available to appellate courts at the time that the principles were adopted which, ever since, have emphasised the primacy of the trial judge in the assessment of witness credibility. Of course, it remains as true today as it was when first said that the subtle indications that can affect evaluations of credibility (appearances of bias or resentment, the hesitation of a witness in giving answers and body language)[105] will not necessarily appear in a printed transcript, unless the judge or a party asks that some matter be recorded. Yet virtually everything else will appear in the transcript, thereby isolating for evaluation the so-called "subtle influences" which printed transcripts alone, available to appellate courts, omit.
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> 3. A further significant change is the increase in the number of civil trials conducted before judges sitting alone, the near elimination in most Australian jurisdictions of jury trials of civil causes, the large increase in the workload of judges and their obligation to provide adequate reasons for their decisions[106]. These phenomena have resulted in pressures for case management and for the efficient disposal of litigation[107]. Together, these developments have significantly altered the character of the civil trial in Australia. As appears from appeal papers, an increasing portion of evidence at first instance is now presented in documentary form. At trial, and on appeal, an increasing part of advocacy is conducted in the form of written submissions. In this context, both at the trial and at the first level of appeal, it is not at all difficult for slips to be made, evidence to be overlooked and important points of argument and submissions about the facts to be forgotten. It is to correct such errors that the statutory facility of appeal on issues of fact becomes increasingly important to the way that trials are now actually conducted in this country. The significance of oral testimony remains. But in many trials, it has an importance which has shrunk since the days when the rules of appellate restraint were first written. They were days when the common law tradition of the continuous oral trial, civil as well as criminal, followed by unlimited oral argument, held sway. No more.
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> 4. There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana")[108], Atkin LJ remarked that "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." To some extent, the faith in the judicial power to discern credibility from appearances was probably, at first, a consideration which the judiciary assumed that it inherited from juries. It was natural enough that trial judges, accustomed to presiding over jury trials, would claim, and appellate judges would accord, the same "infallible" capacity to tell truth from falsehood as had historically been attributed to the jury. Nowadays, most judges are aware of the scientific studies which cast doubt on the correctness of this assumption[109]. Lord Devlin in The Judge[110] quoted with approval a remark of MacKenna J: "I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability ... to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth." It was a becoming but entirely accurate modesty.
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> Apart from all else, demeanour is, in part, driven by culture. Studies suggest that evaluation of the evidence of women may sometimes be affected by stereotypes held by the decision-maker. This is doubtless also true in the case of evidence given by members of minority groups, whether racial, sexual or otherwise. Distaste or prejudice can cloud evaluation[111]. Further, in a society such as Australia's, the capacity of the judiciary to respond to every cultural variety of communication is limited[112]. Fifty years ago, the Supreme Court of Canada[113] wisely declined to offer guidelines about the kinds of demeanour that would afford reliable indicators of the trustworthiness of witnesses. The studies of experimental psychologists since that time have confirmed the danger of placing undue reliance upon appearances in evaluating credibility. Such studies were not available to the appellate courts when the rules of deference to the assessments of trial judges on questions of credibility were first written. They are available to us today. Although they have not yet resulted in a re-expression of the appellate approach (and by no means expel impressions about witnesses from the process of decision-making) the studies have two consequences. Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility. And appellate courts should refrain from needlessly expanding the categories of trial conclusions about the facts which are effectively unreviewable because of presumed or inferred credibility considerations.
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> 5. In the future, technology may be developed which will assist courts in the conclusive determination of issues of witness credibility where these are disputed. In the United States of America, polygraphs are already in use in some jurisdictions[114]. In Australia, they have not been treated as sufficiently reliable for judicial use. Our courts must therefore continue to struggle with the aid of human estimation. Until the courts are afforded technological relief, they do well to realise the imperfections of the currently available tools of decision-making. They need to minimise, and not exaggerate, the role of the judicial assessment of credibility from appearances.