Transport & General Insurance Co Ltd v Edmondson

The ground upon which the Full Court directed a new trial was that certain observations which the learned trial judge made when dealing with the issue of contributory negligence in the course of his summing-up, were inaccurate and irrelevant and might well, in the circumstances of the case, have influenced the jury in reaching their verdict. After hearing argument on this appeal we entertain some doubt whether we would have reached the same conclusion but as we think there is a further ground justifying the order for a new trial it is unnecessary that we should express a final view on the point.

The other ground which, in the circumstances, the learned members of the Full Court found unnecessary to consider, related to the admission of portion of a statement made by one of the defendant's witnesses, Magee, to a constable of police shortly after the accident. This witness swore in the course of his examination in chief that the plaintiff's car "jumped out of the cobble-stone gutter back on to the bitumen". This was, in substance, reiterated in cross-examination when, in answer to a question which was intended to elicit that the witness had not seen the respondent's car in any position other than on the earth shoulder of the road, he said "other than when it jumped back on to the bitumen". Thereafter, he was cross-examined concerning certain evidence which he had given at a coronial inquiry and an attempt was made to establish that he had not then said "a word about" the car jumping back or, even, about the "car coming back to the bitumen - that is, the near-side wheel jumping up and coming back onto the bitumen". Other questions in similar vein were asked in cross-examination but what has been set out is sufficient to give some general indication of the situation which the appellant claimed had arisen. At the same time we should point out that a perusal of the transcript leaves us with the impression that there was some confusion as to what it was that the witness was alleged to have said at the trial and to have omitted to say at the inquest. It was in these circumstances that application was made to the learned trial judge to permit the appellant to elicit from the constable evidence of portion of the witness' earlier statement to him. But again, it is by no means clear precisely what it was that the appellant wished to prove. Nevertheless, his Honour allowed the evidence to be given. It is, however, apparent from the statement of his reasons for permitting this to be done that he proceeded upon an erroneous principle. He said: "It appears to me that the criterion which will allow evidence of this character to be adduced is nowhere better stated than by Sholl J. in Woodward v. Shea [1] where he said this: "In other words, is the suggestion of recent invention fairly open to counsel on the answers given by the witness in cross-examination, or if he does not choose to make the imputation is it something to which the jury or any member of the jury might fairly infer?" [1] . It appears to me that the three questions which were asked by Mr. Shannon and the answers which were given clearly fall into that category and it would be open to counsel for the plaintiff, and if counsel did not make the suggestion it would be open to the jury, to suggest or infer that the evidence of Mr. Magee as to the Holden coming back onto the road immediately before the collision was something which he had invented or thought of at some point of time after the evidence given by him at the Coroner's Inquest. On that basis I think the evidence is admissible and I propose to admit it". The principles upon which evidence of earlier statements may be admitted to re-establish the credit of a witness whose credit has been impugned by a suggestion of recent invention are firmly established and a recent statement of them is to be found in The Nominal Defendant v. Clements [2] . In the circumstances it is, we think, desirable to repeat what was then said: "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" [1] . What should be observed is that it is for the judge to determine for himself whether the credit of the witness has been impugned in the relevant sense and it is not to the point to enquire whether it would be open to the jury, or to some member of it, as the decision in Woodward v. Shea [2] would seem to suggest, to infer that a suggestion of recent invention had been made. If, according to the view of the learned trial judge such a suggestion is made it raises a subsidiary issue in the case and it is for the judge, having so decided for himself, to instruct the jury how they should deal-with it; if in the view of the judge no such suggestion is made it is for him to instruct the jury appropriately. Secondly, when the suggestion has been made, it is for the judge to satisfy himself that the evidence sought to be adduced is such that it "rationally tends to answer the attack".

1. [1952] V.L.R. 313. 2. [1952] V.L.R., at p. 317. 3. (1960) 104 C.L.R. 476. 4. (1960) 104 C.L.R., at pp. 479, 480. 5. [1952] V.L.R., at p. 317.

A question of much the same character arose in the very recent case of Dawson v. The Queen [3] in relation to an application by the Crown in a criminal trial for leave to cross-examine the prisoner as to his previous convictions. In that case Taylor and Owen JJ. reiterated the view that it was for the judge himself to decide as a question of fact whether the conduct of the defence involved imputations that evidence had been fabricated and that it was erroneous to approach the determination of this question by enquiring whether the jury or any member of the jury might think that the conduct of the defence involves such imputations [4] .

1. (1961) 106 C.L.R. 1. 2. (1961) 106 C.L.R., at pp. 20, 21.

We have considered the evidence for the purpose of seeing whether it is possible for us to say that if the learned trial judge had acted according to correct principles he would have permitted the evidence in question to be given. But there is such a degree of confusion concerning the matters which were the subject of discussion that it is impossible for us to resolve that question merely upon consideration of the written transcript. That being so we have no alternative but to allow the matter to be re-tried.

Before leaving the case we think we should point out that difficulties of the kind which arose at the trial may frequently be resolved by adoption of the course suggested by Jordan C.J. in Smith v. Commonwealth Life Assurance Society Ltd. [5] when he said: "If in any case there is any doubt as to whether a suggestion of afterthought is being made, evidence to rebut it may be tendered, and a disclaimer of any such suggestion obtained, or if the suggestion be pressed, the evidence may become admissible" [1] . And, we may add, even if a disclaimer is not forthcoming, it may in circumstances such as the present result in some clarification of the suggestion which is being made.

1. (1935) 35 S.R. (N.S.W.) 552. 2. (1935) 35 S.R. (N.S.W.), at p. 557.

In the circumstances the appeal should, we think, be dismissed.

I should not have taken the same view as the learned judges of the Supreme Court concerning the observations made by the trial judge in his summing-up on the question of contributory negligence. The summing-up as a whole was, in my opinion, satisfactory, and I cannot see that what his Honour said in the relevant passage was at all likely to mislead the jury or to put into their minds an idea which might lead them to decide the case upon irrelevant considerations. If this were the only point in the appeal, I should think that the order for a new trial should not be allowed to stand.

But there is another point. In the defendant's case evidence was admitted of a statement which had been made to a policeman by one of the defendant's witnesses shortly after the collision. It was admitted as tending to meet a suggestion of recent invention. The transcript of the proceedings does not show that such a suggestion had in fact been made or a foundation for it laid. That does not end the matter, because a suggestion of this kind may be made or foreshadowed in such a way that although what is being done can be perceived by the trial judge, it does not appear from the printed page. But the learned presiding judge did not decide that the suggestion had been made or that a foundation for it had been laid. His Honour held that the evidence was admissible because certain questions which had been put to the witness in cross-examination, but which in terms had done no more than emphasize and invite him to agree that in a coronial inquiry he had not mentioned a certain matter to which he had sworn at the trial, had left it open to counsel for the plaintiff to suggest, and open to the jury to infer even without any suggestion from counsel, that the witness had recently invented what he said about the matter referred to.

His Honour had not before him the judgments delivered in this Court in the case of The Nominal Defendant v. Clements [2] , which show that the test he applied was not the correct test. The material before us does not enable us to say that according to the test propounded in that case the evidence was admissible. Prima facie it was not. And it was evidence which might well have had an influence on the jury's verdict. Accordingly it seems inevitable that a new trial should be had.

On the first point argued, namely the suggested prejudicial effect of some observations by the learned trial judge in his charge to the jury, I think that I might have taken a different view from that taken in the Supreme Court. But that does not mean that I would disturb the decision of that Court that there should be a new trial. An error in law, whether by misdirection or by wrongful reception or rejection of evidence, is, generally speaking, a ground for a new trial. But contrasted with such cases, where the right to a new trial depends upon the application of strict criteria of law, are cases in which a new trial is sought because of some matter occurring in the conduct of the trial, such as the manner in which the trial judge dealt with the facts, or some incidental observations that he made in his charge to the jury. This Court recently said of matters of that sort, "if the judge's charge to the jury introduces matter of prejudice, or plainly is likely to distract the jury's attention from the real issue or issues on which liability depends, or to throw them into confusion about the case, or to lead them to think that theirs was not the responsibility of applying their minds to the evidence and deciding the case as a matter of fact upon the true issues, the court may interfere": Manning v. Bernard Manning & Co. Pty. Ltd. [1] . Such matters are, in my opinion, more appropriately dealt with by a court in banc than by a court of appeal. In New South Wales where the common law system of trial by judge and jury at nisi prius still continues, the Full Court exercises the historic function of supervising those trials. The strength of that system is that whether in a particular case a new trial should be had on grounds depending, not upon the application of rules of law, but on the court's discretion to control the conduct of trials to prevent injustice, falls to be decided by judges experienced in the conduct of trials and accustomed to the ways of juries. In Jones v. Dunkel [2] and Balenzuela v. De Gail [3] I referred to the distinction between errors of law, which under earlier procedures might have been made the subject of a writ of error by bill of exceptions, and a discretion to grant a new trial at nisi prius because the conduct of the trial was unsatisfactory. It is still an important distinction. Cases of the first sort are always proper for the consideration of a court of appeal: cases of the second sort ought, in my view, ordinarily to be determined finally by the court in banc. I do not say that this Court cannot or must never interfere with the Supreme Court in the exercise of its discretionary powers. But in my view it should do so only in exceptional circumstances when some wrong principle has been applied and to prevent a clear miscarriage. However, in the present case this question becomes unimportant, for I agree that the order for a new trial should stand, for the reasons given in the judgment of my brothers McTiernan, Taylor and Menzies.

1. (1960) 101 C.L.R. 345, at pp. 351, 352. 2. (1959) 101 C.L.R. 298, at pp. 313, 314. 3. (1959) 101 C.L.R. 226, at p. 244.

The rule permitting the admission of evidence of earlier consistent utterances to rebut a suggestion of recent fabrication must be kept within its proper limits. The matter was fully considered in The Nominal Defendant v. Clements [1] . It is not necessary to say more than that to make such evidence admissible there must be an imputation by counsel of fabrication. It is what counsel directly or indirectly invites the jury to infer, not what without his invitation, express or covert, some juryman might infer, that makes the evidence of a prior consistent statement admissible. It may be that such an imputation was made in this case. Certainly there is nothing in the transcript of the proceedings at the trial to suggest that when the matter was discussed counsel for the plaintiff repudiated any such suggestion: see Smith v. Commonwealth Life Assurance Society Ltd. [2] . But I agree that it does not clearly appear that, as the case stood, there were sufficient grounds for admitting the evidence, and moreover that the learned trial judge seems to have been under some misapprehension in doing so. I would therefore dismiss the appeal.

1. (1960) 104 C.L.R. 476. 2. (1935) 35 S.R. (N.S.W.) 552, at p. 557.