The multiple versions - reliance by the trial judge on their consistency as rendering the respondent's version of how the accident occurred all the more probable.
80 The appellant sought to rely upon the trial judge concluding, contrary to the submissions of the appellant, that not only had the respondent given a consistent version of the accident from as early as 22 June 2000 but that consistency "tends to render his version of how the accident occurred and in particular the presence of an on-coming car on his side of the road, all the more probable".
81 What the appellant in effect sought to do was to attack the eight versions as inconsistent. Then having failed in that attack, the appellant sought to rely on a ground of appeal to the effect that the trial judge incorrectly treated the repetition of prior consistent self-serving statements by the respondent as probative evidence in the respondent's favour of the truth of those statements.
82 The appellant in particular relied upon the following observations of Windeyer J in Lopes v Taylor (1970) 44 ALJR 412 at 418:
"His statements out of court of what happened are evidence against him. But it is a mistake to treat them as if they were evidence given in court and use them, or any part of them, as the foundation of the finding in his favour of an issue, the alleged contributory negligence of the respondent, the onus of which was upon him."
83 However, it is important to appreciate that Lopes v Taylor was decided in a very different context. Moreover, it pre-dated the Evidence Act and in particular s60 thereof to which I refer below.
84 In Lopes, the statements in question were clearly self-serving. They had been given in statements to the police by the defendant, and then put into evidence by the plaintiff. They were however sought to be relied upon by the defendant, in order to prove contributory negligence on the part of the plaintiff, where the defendant had the onus of proof. Clearly in those circumstances they had little if any foundation or weight.
85 In the present case, the appellant had introduced the evidence of Dr Soden in relation to version 1, as also the personal injury claim form in relation to version 3, the police interview in relation to version 4, the interview given to an AAMI investigator in relation to version 5, Ms Goldsworthy's sketch and material in relation to version 7. Mr Armstead had at trial given the sworn evidence said to constitute version 8.
86 When one puts aside version 1, based as it was on the evidence of Dr Soden which should have no weight for the reasons earlier stated, there is no inconsistency between the various versions. They were properly to be compared to Mr Armstead's sworn evidence at trial. Moreover, s60 of the Evidence Act provides that "the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation". Here, the appellant had introduced the relevant evidence as going to the credibility of Mr Armstead so that it was thereafter available as admissible evidence for all purposes, by force of s60.
87 The joint judgment of Gleeson CJ, McHugh, Kirby and Hayne JJ in Adams v The Queen (2001) 207 CLR 96 at 108-9 [36-7] makes clear the effect of the Evidence Act on the earlier position regarding prior inconsistent statements, or statements alleged to be:
"Reading the section [s102] according to its terms gives no absurd or, as the appellant contended, bizarre result. The example given by the appellant in aid of this contention was of a witness's prior inconsistent statements, relevant as bearing upon facts in issue in the proceeding other than the credibility of the witness, which would be inadmissible as evidence of the truth of its contents by operation of s59, as hearsay. This, so the argument proceeded, would not be caught by s102 and would, therefore, be admitted as evidence of the truth of its contents by s60. That is, not being evidence relevant only to the witness's credibility, s102 would have no operation. Because, however, the evidence would be relevant both for the purpose of considering the witness's credibility and proof of the facts which the witness had intended to assert in the out of court statements, the hearsay rule would not apply (s60).