Bedek v Brown [2000] FCA 880

FEDERAL COURT OF AUSTRALIA

Bedek v Brown [2000] FCA 880

Australian Federal Police Act 1979 (Cth), s 64B

CDJ v VAJ (1998) 197 CLR 172 Devries v Australian National Railways Commission (1993) 177 CLR 472 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 Walsh v Law Society of NSW (1999) 73 ALJR 1138 IVAN RUDY BEDEK v ANDREW KEVIN BROWN and COMMONWEALTH OF AUSTRALIA NO. AG 76 of 1998 JUDGES: GALLOP, WHITLAM and MADGWICK JJ DATE: 26 JULY 2000 PLACE: CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY AG 76 of 1998

DISTRICT REGISTRY

BETWEEN: IVAN RUDY BEDEK

Appellant

AND: ANDREW KEVIN BROWN

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGES: GALLOP, WHITLAM and MADGWICK JJ

DATE OF ORDER: 26 JULY 2000

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY AG 76 of 1998

DISTRICT REGISTRY

BETWEEN: IVAN RUDY BEDEK

Appellant

AND: ANDREW KEVIN BROWN

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGES: GALLOP, WHITLAM and MADGWICK JJ

DATE: 26 JULY 2000

PLACE: CANBERRA

REASONS FOR JUDGMENT

THE COURT 1 On 17 June 1990 the first respondent ("Constable Brown"), who was a member of the Australian Federal Police ("the AFP"), shot the appellant in the course of a police raid on a house in a Canberra suburb. Constable Brown stated that he did so because the appellant came towards him with a knife in such a way that he feared for his life. On 25 June 1990, following an interview with police at hospital, the appellant was charged with the attempted murder of Constable Brown. The appellant was tried on an indictment containing that count and a further count of attempting to inflict grievous bodily harm on Constable Brown. At the close of the Crown case, on 1 November 1991, the trial judge (Higgins J) directed verdicts of acquittal. 2 On 9 December 1992 the appellant commenced proceedings in the Supreme Court of the Australian Capital Territory against Constable Brown, three other members of the AFP, and the second respondent ("the Commonwealth"). By virtue of s 64B of the Australian Federal Police Act 1979 (Cth), the Commonwealth is liable for acts committed by members of the AFP in the performance of their duties. The appellant pleaded various causes of action relating to the raid and shooting on 17 June 1990 and to his subsequent prosecution. When the proceedings came on for trial, the appellant consented to judgment being entered for all the defendants except the respondents. The appellant pressed against them an action for damages for assault, to which Constable Brown pleaded self-defence. The trial judge (Miles CJ) upheld that defence and gave judgment for the respondents: [1998] SCACT 78. This is an appeal against that judgment. 3 The trial judge made the following key findings: "I am satisfied, on the balance of probabilities, that Const. Brown fired when the plaintiff kept advancing towards him with a knife pointed at Const. Brown's throat. … On the probabilities I am convinced that he fired in fear, and that his fear was accompanied by a belief that it was necessary to fire in order to stop the plaintiff's advance towards him with the knife pointed at his throat at a distance of less than one or two paces. That belief was reasonable in the predicament in which he found himself." 4 The finding that the appellant was armed with a knife is critical. In his evidence the appellant denied having a knife in his hand. That evidence was contradicted by Constable Brown and another police officer. The appellant said that after he was shot Constable Brown left the room where he was lying and returned with a knife which was then thrown beside his body. That evidence was also contradicted by two other police officers. The judgment below sets out the relevant evidence in some detail. There is no need to repeat it for present purposes. 5 The direct conflict of evidence required the trial judge to determine who was lying, the appellant or the police. Miles CJ said: "Naturally the plaintiff's sworn evidence cannot be dismissed simply because of the number of witnesses who gave evidence to the contrary on crucial issues. Police witnesses do not enjoy any privilege as witnesses who are inherently more credible than other persons. Indeed, there is a tendency to regard them as suspect witnesses, at least where their evidence alleges that someone has made a confession or an incriminating statement: McKinney v. The Queen (1991) 171 CLR 468. One does not overlook the possibility that a number of witnesses, even members of the Australian Federal Police, may have put their heads together in order to frame a man with a long criminal history, a man whom one of them has happened to shoot in the heat of the moment during an entry which may or may not have been authorised by law. I do not overlook that possibility. Nor do I overlook the likelihood that the plaintiff's extraordinary performance in the witness box is largely due to a near lifetime of institutionalization and an inability to express himself in a socially conventional manner. I do not overlook the possibility that his presentation is in no way due to deliberate fabrication." 6 However, in assessing the appellant's credibility, Miles CJ plainly had regard to when the allegation about Constable Brown fetching the knife was raised for the first time. His Honour observed, "An omission by a witness to mention at an early opportunity something of importance on a material issue may be so glaring that the assertion when made later begs credence". The allegation was not made to the police in the interview with the appellant in hospital, and it was not raised by the appellant's counsel on his behalf in the criminal trial. 7 The first ground of appeal picks up on the following passage from the judgment below: "For the defence it was submitted that the Court should also take into account the failure of the plaintiff's legal representatives to put anything to the police witnesses in the committal proceedings or in the trial of the plaintiff (who was charged and acquitted of the attempted murder of Const. Brown) to suggest that Const. Brown had placed the knife in the room. I do not place anything but marginal importance on what happened in the committal proceedings, where a "failure" to put questions in cross-examination can be due to a variety of reasons, ranging from incompetence to forensic cunning. On the other hand, the absence of any suggestion by counsel to the police witnesses in the trial that the knife was planted by one of their number, is not to be underestimated." (Empahsis supplied). The highlighted "conclusion" is said to be wrong and, in support of this ground of appeal, the appellant asks the Court to receive as further evidence the transcript of the criminal trial before Higgins J. That transcript shows that it was suggested, in cross-examination, to Constable Brown that the knife was placed in the room after the appellant was shot by "somebody senior to you or somebody else". It also records it being put to the other police witness to the shooting, in cross-examination, that the knife was dropped next to the appellant by "a member of the SOT [Special Operations Team] squad". Constable Brown was a member of this team. 8 At the outset it should be said that counsel for the respondents is undoubtedly correct in submitting that, in the context his Honour has used the expression "one of their number" to refer to Constable Brown, and to no one else. After all, in his evidence-in-chief, the appellant alleged that Constable Brown fetched the knife. That was the allegation that Constable Brown said in his evidence before Miles CJ had never been put to him either at the committal proceedings or at the criminal trial. 9 The discretion to receive further evidence on appeal has been explained by the majority of the High Court in CDJ v VAJ (1998) 197 CLR 172 at 195-204. The transcript does not, in any event, contradict Constable Brown. Moreover, it was available for inspection by the appellant, having been discovered by the Commonwealth, and part of it (the testimony of a doctor) was received in evidence before Miles CJ. One is left to guess what use, if any, counsel then appearing for the appellant made of it in the trial before Miles CJ. The appellant has completely failed to make out any kind of case for the exercise of the Court's discretion, and the tender of the transcript is rejected. 10 By his second ground of appeal, the appellant asserts that the failure at the criminal trial to put the suggestion that Constable Brown planted the knife was of "no probative value" because the appellant did not give evidence at that trial and he bore no onus in relation to the issues at that trial. It cannot be suggested that Miles CJ was unaware of these considerations. His Honour said: "Although the so-called rule in Browne v Dunn (1894) 6 R 67 cannot be the subject of adverse comment against an accused person in criminal proceedings (see R v Birks (1990) 19 NSWLR 677) there is no reason in fairness or in logic why the failure to comply with the rule in criminal proceedings cannot be the subject of comment and attention in subsequent civil proceedings. The so-called rule is again only a matter of common sense. In the normal course of human affairs, fairness requires a serious allegation against a person to be put to that person or indeed any witness who is in a position to respond to it. But it is not only a question of fairness, it is part of any rational process of inquiry. If not put, and the allegation is raised subsequently for the first time, the inference is the more easily drawn, if that inference fits the rest of the circumstances, that the late allegation is false." It is no doubt true that the pressures on an accused person in criminal proceedings, as well as questions of legitimate forensic tactics in such proceedings, make it right that caution should be exercised in applying these considerations. But it is not to be assumed that his Honour was unaware of such features of the criminal proceedings. A common sense approach, having regard to these features, was required. It appears that that was the course taken by his Honour. We respectfully agree with this statement, and his Honour's approach. This ground of appeal is not made out. 11 The third ground of appeal attacks the trial judge's view that "the failure of the [appellant] to raise, in the interview with him in the hospital and by his counsel on his behalf in the criminal trial, the alleged fetching of the knife by Const. Brown" was "of far greater practical significance" than the omission by the police witnesses to refer, in their written statements made later on 17 June 1990 or the next day, to a failed attempt by one of their number to open a wound dressing package before reaching for the knife on the floor and opening the package with that knife. His Honour explains at some length his reasons for taking that view. Counsel for the appellant developed this ground in argument primarily by deprecating the use made by the trial judge of the record of interview at the hospital. However, it should be noted that that document was tendered without objection. In addition, Miles CJ made every allowance for the appellant's medical condition at the time. The reliance placed on the interview is specifically challenged too in the fourth ground of appeal. However, again, we respectfully agree with his Honour's approach. Both these grounds of appeal cannot succeed. 12 The fifth ground of appeal relates to the precise locations of Constable Brown and the appellant when the shot was fired. Counsel for the appellant has subjected the evidence to exquisite scrutiny in order to raise various hypotheses. Whilst this reflects great energy and ingenuity on his part, these are not matters upon which his Honour made any specific findings. He was not able to "draw useful inferences one way or the other" about this question from the disposition of the furniture in the room and the position of the appellant's body after he was shot. Nor are any of the findings contended for by the appellant such as would displace the ultimate finding of the trial judge about Constable Brown's fear and belief. In particular, the inference invited as to the cause of a mark on the appellant's hand do not, in our view, lead anywhere. A report obtained on 18 April 2000 from a consultant forensic pathologist is said to touch on this matter and is tendered as further evidence on appeal. That tender must be rejected in the exercise of the Court's discretion. Whatever might be that expert's "robust view" about the cause of the wound to the appellant's hand, the reception of that opinion in evidence now would not affect the findings on the ultimate issue. It is also contrary to the submission made at trial by the counsel then appearing for the appellant as to the likely cause of that mark, namely, that it "may well have been caused by a gun shot". This ground of appeal also fails. 13 Finally, in his last ground of appeal, the appellant takes issue with the trial judge's statements that the defence witnesses and their story were "inherently credible". This is something that the trial judge may take into account. His Honour explained at some length his approach to assessing credibility. Of course, once the issue of the knife was determined adversely to the appellant's credibility, Constable Brown was well placed to make out his plea of self-defence. In making his findings, Miles CJ referred most favourably to the impression made by the defence witnesses. There is no other evidence that would permit us to displace his Honour's findings based on the credibility of the witnesses: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479: "More than once in recent years, this court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact (see Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53; Jones v Hyde (1989) 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" (SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" (Brunskill v Sovereign Marine & General Insurance Co Ltd (supra)." 14 Notwithstanding what Kirby and Callinan JJ said in the fairly recent case of State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588, the majority in that case adhered to the above passage in Devries. Most recently, McHugh, Kirby and Callinan JJ said in Walsh v Law Society of NSW (1999) 73 ALJR 1138 at 1148: "Some aspects of the appellate procedure will remain the same where the appeal is conducted solely on written materials, whether those materials be technically evidence in a de novo hearing or the record under consideration in an appeal under s 75A of the Supreme Court Act. In either case, the appellate court will be bound generally to defer to any conclusions on the questions of credibility formed by the court or tribunal from whom the appeal is brought where the latter has seen and heard the witnesses (Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378 at 381; cf McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284 at 323-324). In particular circumstances, it will be open to an appellate court to reach conclusions contrary to those of the court or tribunal below, notwithstanding a credibility finding (see, for example, State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 at 321 [63-64], 331-332 [93], 340 [146]). Sometimes it will be authorised to reject those findings where they are "glaringly improbable" (Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844) or "contrary to compelling inferences" of the case (Chambers v Jobling (1986) 7 NSWLR 1 at 10; cf State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 at 881-882 [93]). But the caution required of all appellate courts in such matters has long been recognised and frequently upheld in decisions of this Court." 15 Hence, it is still the law that an appellate court must respect findings of fact founded on questions of credibility unless some or other of the circumstances referred to in the passage cited above from Walsh v Law Society of NSW prevail. 16 This last ground of appeal must also fail. 17 The appeal will be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court. Associate: Dated: 26 July 2000 Counsel for the appellant: Mr P Walker Solicitor for the appellant: Barker Gosling Counsel for the respondents: Mr G Stretton Solicitor for the respondents: Australian Government Solicitor Date of Hearing: 10 May 2000 Date of Judgment: 26 July 2000