Warry v P B Pty Ltd [1999] QCA 154

[1] THE COURT: This is an appeal against a judgment given in the District Court on 12 June 1998 dismissing an action for damages for personal injuries alleged to have been caused by the negligence of the defendant respondent. It was accepted by the learned trial judge, who otherwise rejected the appellant's version of events, that on 6 December 1993 the appellant fell down some concrete steps inside the front door of a warehouse. It is also common ground that the warehouse was owned by the respondent and the appellant had agreed to lease it from the respondent. On the day in question the appellant and two of his employees were on the premises in order to clean them.

[2] There was a conflict of evidence at the trial as to the circumstances in which the appellant fell. The appellant said that he was hosing the mezzanine floor with a hose while standing on the top step of the steps leading up to it. He said he was distracted by something, turned and then fell down the steps. He said he grasped instinctively for a handrail but there was none and he fell, injuring himself. It was the absence of the handrail upon which the appellant principally relied for a finding of negligence against the respondent.[1]

[3] There were two other persons present in the warehouse that day. They were Messrs Hadden and Haenga, who were then employees of the appellant. Each in his evidence gave a version of events which was consistent with the other's but inconsistent with that of the appellant. It was common ground between the appellant on the one hand and Messrs Hadden and Haenga on the other that, some time prior to the events the subject of this action the appellant, Mr Hadden and Mr Haenga were engaged in a water fight using pressurised fire extinguishers and a bucket.

[4] However Messrs Hadden and Haenga each said that the water fight was continuing up until the time when the appellant fell. Each said that they were hiding from the appellant and he was pursuing them up the flight of stairs carrying a pressurised fire extinguisher in his hands. They said he had just about reached the top of the stairs when he was confronted by one of them holding a bucket of water. He went to retreat by running back down the stairs but fell in the process of doing so. On their version there was no question of his reaching out for a handrail which was not there; the fire extinguisher in his hands would have made that impossible. He simply lost his balance and fell as he attempted to run back down the stairs. All of this was denied by the appellant.

[5] The learned trial judge preferred the evidence of Messrs Hadden and Haenga to that of the appellant. He saw no reason to doubt the truth of their accounts and accepted them. And he concluded therefore that there was no causal connection between the absence of a handrail and the appellant's injury.

[6] In rejecting the appellant's version of events his Honour said:

"The credibility of the plaintiff was a large issue at the trial. I have taken into account that he was convicted for dishonesty as a result of his employment as the manager of Independent Brake Supplies; that he gave exaggerated accounts of his unfortunate attempts to obtain academic qualifications; that he gave various versions about his financial position in his tax returns, information to National Mutual in his statement of affairs upon becoming bankrupt and in his answers to interrogatories. There are also differences between the statement of claim and his evidence. As a witness he created a poor impression. He appeared unready to be frank about matters which did not advance his case. His evidence as a whole should be treated with great caution, particularly where it is not corroborated by any other objective evidence. I deal with his evidence on the basis that he is an unreliable witness."

His Honour's reliance on the conviction for dishonesty is the basis of one of the appellant's grounds of appeal. It is said that evidence of the conviction was inadmissible, that it was relied on by his Honour as a basis for disbelieving the appellant and that, in the circumstances, the appellant was entitled to a new trial.

[7] As it emerged in oral submissions that was one of only two grounds of appeal. The appellant abandoned all other grounds of appeal except that ground and a ground seeking the admission of fresh evidence. It is convenient to consider those grounds in that order.

[8] The appellant had been convicted in the District Court at Brisbane on his own plea of guilty on 9 March 1992 of misappropriation with a circumstance of aggravation. He was ordered to perform unpaid community service of 240 hours. At the time of his conviction and sentence of community service s 252 of the Corrective Services Act 1988 relevantly provided:

"252(1) A conviction for an offence in respect of which -

shall be deemed not to be a conviction for any purpose ... except in relation to -

(d) the making of the ... community service order ... ;

(e) the taking of subsequent proceedings against the offender in accordance with this Act including proceedings under sections 206, 207, 208 and 209;

(f) the making of an order pursuant to s 663B of The Criminal Code;

(g) any law that disqualifies a convicted person, or authorizes that a convicted person be disqualified, from making or obtaining a driver's licence;

(h) any proceeding against the offender for a subsequent offence.

[9] That section was repealed by s 207 of the Penalties and Sentences Act 1992: see the Schedule to that Act under the heading "Corrective Services Act 1988" cl 17.[2] However that repeal relevantly commenced on 18 December 1992 after the date of the appellant's conviction and sentence. The respondent's counsel conceded that s 252 operated in respect of the appellant's conviction on 9 March 1992 and in our view that concession was correctly made.[3]

[10] The argument of Mr Rolls, for the respondent, was that the apparent effect of s 252 was qualified by s 5(3) of the Criminal Law (Rehabilitation of Offenders) Act 1986 which relevantly commenced on 25 August 1988, before the commencement of the Corrective Services Act which commenced on 15 December 1988. Section 5 provides:

"5(1) It is declared that a conviction that is set aside or quashed and a charge are not part of the criminal history of any person.

(2) A person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person's criminal history or of the criminal history of another person or a charge made against the person or another person.

(3) Subsection (2) shall not apply where the requirement or request to disclose a conviction or charge therein referred to is made-

(a) for the purposes of an inquiry being conducted pursuant to authority conferred by or under an Act; or

(b) in civil or criminal proceedings before a court if the fact of the conviction or charge is relevant to an issue in the proceedings or the court has granted permission for the requisition or request to be made."

[11] Mr Rolls did not contend, on any basis, that the appellant's conviction was admissible, conceding that the effect of s 252 is not merely to exclude a conviction from a person's criminal history within the meaning of s 5(2) but to deem it not to be a conviction at all. He submitted, however, that pursuant to s 5(3)(b) the charge[4] against the appellant was admissible because the fact of the charge was relevant to an issue in these proceedings.

[12] But the fact that the appellant was charged with an offence was not relevant to any issue in these proceedings.[5] It was probably not even relevant to the appellant's credit. What was relevant to his credit was that he pleaded guilty to a charge of dishonesty and was consequently convicted.

[13] In any event, it should be said, neither the respondent's cross-examination of the appellant nor the evidence which it adduced went solely to the charge against him. Both were directed to his plea of guilty and his conviction on that charge. It follows, in our view, that the learned trial judge was wrong in permitting cross-examination about the appellant's conviction and permitting the respondent to adduce the document headed Certificate of Conviction which in the body of the document did not refer to conviction but which, when read as a whole, must be construed as a statement that the appellant was convicted of the offence referred to in it.

Whether in consequence the appellant is entitled to a new trial

[14] As appears from the passage which we have quoted from his Honour's reasons the appellant's conviction for dishonesty was only the first of a number of matters to which his Honour said he had regard in concluding that the appellant was an unreliable witness. And it appears from that passage also that his Honour had regard not only to the specific matters to which he referred but, more generally, to the way in which he answered questions. His Honour's comment that he appeared unready to be frank about matters which did not advance his case is one which could also be made of his conduct of this appeal. He argued it in person with considerable competence. But when he was questioned about unsatisfactory answers which he had given below he tended to be evasive.

[15] This may be demonstrated by reference to one of the specific matters relied on by his Honour; the appellant's exaggerated accounts of his attempts to obtain academic qualifications. Both before giving evidence and in his evidence he said that he completed his Senior Certificate at Eagle Farm TAFE. However evidence was given from an administrative officer with the Board of Secondary Studies that no Senior Certificate had ever been issued in the name of the appellant. He was asked about this during the course of his appeal. His answers were plainly evasive.

[16] As his Honour also pointed out there were also substantial inconsistencies in his evidence, and between his evidence and his financial documents, about his financial position which, taken together, give the impression that he was being evasive. And the same can be said about his evidence about his bankruptcy and about the extent of his injury. Having heard the appellant, who is plainly an intelligent man, advancing his argument at some length, it is therefore easy to see how his Honour arrived at the conclusion which he did about the appellant's unreliability for that is the conclusion at which we also arrived.

[17] Whilst the evidence of the appellant's conviction no doubt supported the conclusion at which the learned trial judge arrived, that the appellant was an unreliable witness, it was by no means a substantial factor in that conclusion. On the contrary, the other matters to which we have referred, in our view, compelled that conclusion in any event. The wrongful admission of the conviction evidence does not therefore entitle the appellant to a new trial.[6]

[18] The appellant seeks to adduce fresh evidence on the basis that it could not have been obtained with reasonable diligence for use at the trial, that it is such that, if given, it would probably have had an important influence on the result of the trial and that it is such as presumably to be believed, that is, apparently credible.[7] However none of the evidence sought to be adduced, in our view, satisfies all of these requirements.

[19] The evidence which the appellant sought to adduce was of four kinds; evidence from his former wife Julie Anne Bertucci, the hospital records from Emergency Department at the Royal Brisbane Hospital, evidence of his own bank accounts and evidence from the records of a travel agent. None of this evidence was in a form capable of being received as such. However this Court, with the consent of the respondent, received it for the purpose of considering whether, if it were put in such a form, it would satisfy the above requirements.

[20] The incomplete affidavit of Ms Bertucci went to a number of matters which the appellant submitted were relevant. The first of these was the time of the appellant's accident and whether he was taken home by his wife. The appellant said that the accident occurred shortly after 4.00 o'clock in the afternoon and that he was taken home by his wife. Messrs Hadden and Haenga each said it occurred at lunch time and denied that he was taken home by his wife. Ms Bertucci says that, in accordance with her normal practice she drove to the subject premises after completion of her work, arriving there about 4.10 to 4.20 pm. According to her the appellant was then lying on the floor of his office in a great deal of discomfort and unable to walk. She says that she drove him home. But this conflict is of only marginal relevance. It is possible that both Messrs Hadden and Haenga were mistaken as to both of these matters. But that would not detract from their evidence of the circumstances in which the accident occurred about which they could hardly have been mistaken; if their evidence in this respect was false it was probably deliberately so.

[21] Ms Bertucci's affidavit also deposes to a self-serving statement of the appellant as to the circumstances in which the accident occurred. Plainly that would not have been admissible.

[22] It also deposes to a conversation which she says she had with Mr Hadden on her arrival at the premises which included a statement from the latter that the appellant was cleaning the top floor and slipped. No doubt that statement could have been put to Hadden in cross-examination and, if he did not distinctly admit making it Ms Bertucci could have been called to say that.[8] Two preliminary points may be made about that. The first is that, even assuming that Hadden made that statement there is plainly a possible innocent explanation for it: the appellant's or Hadden's reluctance to admit to the appellant's wife that the appellant had been injured in the course of such childish behaviour not only by the appellant but by Hadden himself. The second, which may also be made about her other proposed evidence, is that Ms Bertucci's credibility in this respect is yet to be tested. The respondent's counsel indicated that if an affidavit in proper form, containing this evidence, were to be received he would want to cross-examine Ms Bertucci upon it.

[23] There are two reasons why, in our view, that point need not be reached. The first is that Ms Bertucci's evidence in this respect, even if true, would have been unlikely to have had an important influence on the result of the trial. No credible reason was given for why either Hadden or Haenga would fabricate the versions which they gave of the appellant's fall. The evidence was almost overwhelming that it was the appellant who fabricated his version of the circumstances of the accident.

[24] The second is that the appellant has not established that Ms Bertucci's evidence could not have been obtained with reasonable diligence for use at the trial. It is true that at least one subpoena was served on her and it seems likely that at some stage she rang the court to say that she would not be attending because she had not received conduct money. By the time of trial the appellant and Ms Bertucci had separated. However there is no question but that she could have been brought to court. The reason why she was not appears to be a decision by the appellant's counsel, as appears from the record, that her evidence was not of sufficient help to the appellant's case to justify that course. For those reasons, in our view, this Court ought not to permit her evidence to be given at this stage.

[25] The hospital emergency records are sought to be tendered to prove a self-serving statement by the appellant as to the time at which his accident occurred. It was plainly not admissible for that purpose and, in any event, as we have already indicated, the time at which the accident occurred is, at best, of marginal relevance only. It should also be said that it was not established that this evidence could not have been obtained with reasonable diligence for use at the trial.

[26] The bank accounts were the appellant's personal accounts for the period from March to May 1995 by which the appellant sought to prove that, contrary to the evidence of Messrs Hadden and Haenga, he was not engaged in his business in Brisbane during that period. In the first place that evidence is of only marginal relevance. Messrs Hadden and Haenga may both have been mistaken about that. However the bank accounts plainly do not prove that the appellant was not at his business in Brisbane during that period. They show a number of transactions on the account occurring in Brisbane and a number occurring in Cairns. That shows no more than that, during that period, someone with authority to operate on the appellant's account in Cairns did so. Even if that were the appellant it does not prove that he was not working in the business in Brisbane during that period. Moreover no attempt was made to show that this was evidence which could not have been obtained with reasonable diligence for use at the trial.

[27] The records from the appellant's travel agent were designed to prove that the appellant, his wife and two other people were on holidays in Tasmania from 3 January 1994 to 21 January 1994. This evidence, the appellant said, contradicted the evidence of Messrs Hadden and Haenga that he returned to work before February 1994. Of course, even if he was away during that period, it does not do that; it is consistent with his returning to work before 3 January or after 21 January. It is, however, inconsistent with the evidence of the appellant himself to the effect that he was in bed recuperating from his injury for most of January. His explanation for why this evidence could not have been adduced at the trial was unsatisfactory. Although there is no suggestion that he suffered any head injury in his accident he did at least imply that it was his condition between the time of the accident and the time of trial which prevented him from remembering that he had been on that holiday at that time. It might be thought that a more likely explanation for his failure to adduce this evidence at trial was that it was inconsistent with the evidence which he gave and with his contentions that, in consequence of his injuries, he was in considerable disabling pain during that period. For those reasons this evidence must also be rejected.

[28] Both grounds of appeal therefore fail and the appeal should be dismissed with costs.

[1] No allegation was made of breach of statutory duty.

[2] Neither s 207 nor the Schedule appear in the current reprint of the Act.

[3] Acts Interpretation Act 1954, s 20; Penalties and Sentences Act 1992, s 204(1).

[4] See par (c) of the definition of "charge" in s 3(1) of the Criminal Law (Rehabilitation of Offenders) Act 1986.

[5] Those issues were whether the respondent was liable in negligence and the measure of the appellant's damages.

[6] Cf Vocisano v Vocisano (1974) 130 CLR 267 at 274 - 275; Kabadanis v Panagiotou [1980] FCA 80; (1980) 47 FLR 221 at 225 - 227.

[7] Langdale v Danby [1982] 1 WLR 1123; Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404 at 408.

[8] Evidence Act 1977, s 18.