Goldsmith v Sandilands [2002] HCA 31

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, KIRBY, HAYNE AND CALLINAN JJ

TREVOR JOHN GOLDSMITH APPELLANT

AND

MICHAEL DARREN SANDILANDS & ORS RESPONDENTS

Goldsmith v Sandilands [2002] HCA 31

8 August 2002

P91/2000

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Western Australia

Representation:

M D Cole for the appellant (instructed by Terrace Law)

G T W Tannin with K E McDonald for the first, second and third respondents (instructed by Crown Solicitor for the State of Western Australia)

K N Allan for the fourth respondent (instructed by K N Allan)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Goldsmith v Sandilands

Evidence – Admissibility – Negligence – Collateral facts – Credibility – Whether failure to allow appellant to reopen his case to adduce evidence in reply going to his credit constituted a miscarriage of justice.

Evidence – Evidence available only after close of appellant's case – Whether Commissioner erred in not allowing appellant to reopen his case to adduce such evidence – Whether miscarriage of justice in the circumstances.

1. GLEESON CJ. It sometimes happens, in the course of litigation, that counsel will start a hare. The response of the opposing counsel may be to pursue it. One of the duties of a trial judge is to control the proceedings, to exclude irrelevancy, and to maintain proper limits upon the extent to which the parties and their lawyers will be permitted to raise and investigate matters that are of only marginal significance. 2. The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial"[1]. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding[2]. The general rule that relevant evidence will be received is qualified by other rules based upon considerations of justice, or practicality. One such qualification limits investigation of collateral matters. 3. Collateral facts were described by Latham CJ in Piddington v Bennett and Wood Pty Ltd[3] as "facts not constituting the matters directly in dispute between the parties". An example of a collateral fact is one affecting the credibility of a witness. As a general rule, itself subject to exceptions, a cross-examiner is bound by the answer to a question that goes only to credit. The cross-examiner is bound in the sense that he or she will not be permitted to lead evidence to contradict the answer of the witness. This rule is based on the desirability of avoiding a multiplicity of issues[4]. It is an example of the law's pragmatism. The adversarial system of civil litigation would collapse if the adversaries were permitted to lead evidence about every matter of contention that arises in the course of proceedings. The case of Piddington provides a strong (and perhaps controversial) illustration of the rule. Dixon J, who was in the majority, characterised the evidence in question as having no tendency other than to discredit a particular witness[5]. It would not have been admissible if the witness had not given evidence. It could not be called to contradict the testimony of the witness. In Palmer v The Queen[6], McHugh J pointed out that it is sometimes difficult to maintain a rigid distinction between evidence which goes only to the credit of a witness, and evidence otherwise relevant to a fact in issue. Questions of degree arise, both as to relevance, and as to whether a fact is collateral[7]. And whether a fact has a bearing upon the credit of a witness will often depend upon exactly what the witness has represented to the court. The present case provides an example. 4. The appellant and the first respondent were, in June 1993, members of the police force in Western Australia. The appellant sued the respondents in negligence for damages for personal injuries, alleging that he had injured his back and neck while a passenger in a car being driven by the first respondent on 26 June 1993. It was part of the case for the respondents that the appellant's injuries had been suffered, not on 26 June 1993, but in the course of an indoor cricket match on 22 June 1993. In support of that allegation, the respondents relied upon admissions allegedly made by the appellant. It was part of the first respondent's case that, on 22 June 1993, the first respondent, by previous arrangement, had collected the appellant after a game of indoor cricket and that, as the appellant entered the car, he said: "I've stuffed my back … playing cricket." In due course, the first respondent gave evidence to that effect. 5. Thus, a fact in issue was whether the appellant had injured his back on 26 June 1993. A fact relevant to the fact in issue was whether the appellant had injured his back playing indoor cricket on 22 June 1993. (Proof that he had injured his back on 22 June did not establish that he had not also injured it on 26 June but, together with other evidence in the case, it could rationally affect the probabilities as to whether the events of 26 June were a cause of his injuries.) The evidence upon which the respondents relied to establish the fact relevant to the fact in issue included evidence of an admission by the appellant to the first respondent. The making of the admission was denied. However, it was not in dispute that the appellant was an indoor cricket player. He played indoor cricket at Strikers indoor cricket arena, which was situated at Belmont. He conceded that he might have played there on 22 June 1993. 6. When the first respondent, in the course of his case, came to give evidence of the alleged admission, he was uncertain in his recollection about the location of the indoor cricket arena. He said he could not remember the name of the street. After stating that he was only guessing, he gave a brief description of the street. He said it was a short cul-de-sac. He said that, in the intervening years, he had once attempted to find the street. He went back to a street named President Street, but he could not be sure that was the street in which he had collected the appellant. 7. Bearing in mind the first respondent's uncertainty as to the location of the indoor cricket arena, of which trial counsel was presumably aware when he cross-examined the appellant, and which he must have known when he examined the first respondent, and bearing also in mind that there was only one Strikers indoor cricket arena, that it was in Belmont, and that the appellant was prepared to accept that he may have played there on 22 June 1993, it is surprising that trial counsel for the first respondent decided to embark upon an investigation of the precise location and physical surroundings of the indoor cricket arena at which the appellant played. It was a subject about which the appellant was prepared to concede all that mattered, and about which his own client professed no clear recollection. And any question as to the address of Strikers could presumably have been settled by looking at a telephone directory. 8. In cross-examining the appellant, counsel for the first respondent elicited admissions that the appellant was an indoor cricket player, that he used to play at Strikers at Belmont, and that he might have been playing cricket on 22 June 1993. That was all he needed. But he went further. He suggested to the appellant, without objection, that the arena was at President Street. The appellant agreed. The suggestion, he said, had rung a bell. But the suggestion was erroneous. President Street is not in Belmont; it is in Welshpool, which we were told is three kilometres from Belmont. 9. Having thus, in cross-examination, and without objection, put a misleading suggestion, and elicited from the appellant the erroneous information that Strikers was in President Street, counsel for the first respondent, again without objection, pursued the matter with his own client, when he called him as a witness. Despite the first respondent's protestations that he could not remember, and that he was only guessing, counsel pressed his client on the subject, and finally obtained from him some rather tentative evidence that President Street appeared to be, or was similar to, the street in which the indoor cricket arena from which he had collected the appellant was located. Counsel for the appellant cross-examined the first respondent on the subject. The cross-examination demonstrated what the first respondent had said in the first place: he was extremely uncertain as to the location of the arena. He agreed that there was no indoor cricket arena in President Street. He repeated that he was guessing. It was put to him that Strikers was in Esther Street, Belmont. He said he had no idea. 10. The name and description of the street in which the indoor cricket arena was located was a collateral fact. It was a circumstantial detail relating to the evidence of the alleged admission. And, having regard to what the appellant had conceded in his evidence, it was of negligible significance. It is possible that, if there had been a dispute about whether the appellant had ever played indoor cricket, then the details about the location of the arena, if seriously in contest, might have had some real bearing on the credit of the first respondent. Even in that circumstance, it would have been collateral. 11. Trial judges have the power, and the duty, to control the pursuit of irrelevancies, or collateral matters. But it is understandable that a judge may be cautious about cutting off a line of examination or cross-examination where no objection is taken. Counsel usually know more about their respective cases than the judge, and it is sometimes unfair to compel them to indicate where questions are heading. 12. The opportunity for Commissioner Reynolds, who presided, to give this supposed issue its quietus, arose, not from an objection to a question, but from an application made by counsel. Counsel for the appellant, after cross-examining the first respondent, asked for leave to re-open his case by re-calling the appellant to prove the location of the Strikers indoor cricket arena, and by leading evidence about the differences between Esther Street, Belmont, and President Street, Welshpool. Commissioner Reynolds refused such leave. That refusal is the principal subject of the present appeal. (We were informed by all counsel that, under Western Australian practice, it is very unusual for a plaintiff to have a case in reply; hence the application to re-open.) 13. Commissioner Reynolds' ruling was correct. The circumstance that the subject of the location and surroundings of the indoor cricket arena at which the appellant was said by the first respondent to have been playing, and at which the appellant accepted he might have been playing, on 22 June 1993 was raised by counsel for the first respondent, did not mean that counsel for the appellant was entitled to pursue the subject to its conclusion. Presumably counsel for the first respondent was trying to make the first respondent's evidence as to the admission more credible by pressing for as much circumstantial detail as possible. And counsel for the appellant's cross-examination of the first respondent's evidence on the issue was aimed at attacking his credibility. Even if the evidence could reasonably have been regarded as bearing on the credit of the first respondent, the matter was collateral. Furthermore, having regard to the first respondent's disclaimers as to his recollection, the proposed further evidence did not even bear significantly on his credit. This is reflected in the ultimate reasons for judgment given by Commissioner Reynolds, who said: