ALLEN v ALLEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, CLARKE and HANDLEY JJA 15 February 1990, 15 February 1990 [1990] NSWCA 5 APPEAL — wrongful admission of evidence — application for new trial — what constitutes substantial wrong or miscarriage — RSC P 51 r16 — Balenzuela v De Gail 101 CLR 226 discussed. Samuels JA From 1970 until November 1984 the appellant and the respondent, theplaintiff and the defendant as I will call them, had lived together as wife and husband in a de facto relationship. On 19 December 1982 an incident occurred in which, according to the plaintiff, the defendant struck her in the face and inflicted a not insubstantial injury upon her, including a fracture of the zygoma. The defendant's account is somewhat different, asserting that there was a scuffle between them, in the course of which the plaintiff scratched her face and then fell, striking her face on a filing cabinet in the room, by means of which her injury was sustained. Notwithstanding this event, the parties remained together until November 1984, when they separated. In July 1984 the plaintiff issued a statement of claim in which she sought damages for trespass to the person based upon the incident which I have shortly described. To that process the defendant filed a cross claim alleging an assault by the plaintiff. These proceedings came to trial on 6 October 1988 before McInerney J and a jury. The jury found a verdict for the defendant in the action. The note in the appeal book as to the fate of the cross claim is enigmatic but we understand that the jury rejected that also. In the course of the trial the following took place. While the plaintiff was being cross examined by Mr Ward QC, she was asked: "Q. You separated in October 1984? A. November 1984. Q. You were paid $70,000 by the defendant, were you not?" This question was objected to and the jury were sent out while the matter was debated. The transcript records that after argument the learned judge ruled: "that he would allow limited cross examination on the subject" but the note contains no detail and, understandably, counsel have no clear recollection of what the limits were which the learned judge imposed. The jury then returned to the court and the cross examination continued with these questions: "Q. I did ask you whether you had received a sum of $70,000 by way of a settlement figure from the defendant following separation in 1984? A. Yes." I interpolate that this question was not objected to, although strictly it was inaccurate, since the plaintiff had not previously been asked whether she received the sum specified by way of a settlement figure". The next question was: "Q. And you are now seeking to make a claim for a larger sum, is that right?" This was objected to and rejected. Two or three further questions on this were asked: 2 UNREPORTED JUDGMENTS "Q. And you had legal representation at the time of that settlement of $70,000 received, is that not right? A. Yes." The question was objected to and the evidence rejected, but it seems that before the objection was taken, or before the learned judge ruled, the witness gave that affirmative answer. The plaintiff filed this appeal which originally took two grounds, the first complaining that the material to which I have referred was improperly admitted and the second, on one view, that the jury's verdict in favour of the defendant was perverse. I must say that I regarded that second ground as merely being in support of the first, as tending to show that the result of the trial added substance to the necessary contention that if the evidence was improperly admitted then it occasioned a substantial wrong or miscarriage: see Pt51 116. However that may be, the only ground which Mr Motbey has argued for the plaintiff is the question of the admissibility of that evidence. His argument is that reference to the sum of $70,000 in the context in which it was received would have tended to tempt the jury to conclude that the plaintiff, having already received $70,000 from the defendant, ought not to be given any further financial consideration. Particularly is this so, it is submitted, because of the reference to the receipt of the money "by way of settlement". Furthermore, Mr Motbey points to the dramatic circumstances in which the jury heard the evidence, that is to say, after they had been sent out for some minutes no doubt, so that on recall they were tuned to receive material of some great significance. For that reason what they did hear might have achieved in their minds greater substance than it deserved. In the first place I am by no means persuaded that the evidence was inadmissible. I would have thought that the defendant was entitled to explore the circumstances in which a sum of money - and, I would add, a substantial sum of money - was paid by the defendant to the plaintiff at the time of their separation. He was entitled, I would have thought, to enquire whether this was a payment for all disputes, if any, outstanding between them which were capable of money compensation and, if so, whether the settlement, as it would then have been, included anything in respect of the alleged assault. He was entitled to go further, if the answer was negative, and enquire why the plaintiff had not then raised the matter of this injury in respect of which she later brought proceedings in the Supreme Court and which she alleged was of a significant kind. When one looks at the material, the first question was not answered. The second question was not objected to and was answered and that, of course, is the question to which counsel primarily objects. The absence of objection, I hasten to add, may very well be because counsel was of the opinion, following the ruling, that the question was one which the learned judge had already authorized. The third question was objected to and rejected and the same fate met the fourth, although the answer had already been given. Let it be assumed, contrary to my inclination, that the evidence about the receipt of $70,000 as a settlement was objectionable and ought to have been rejected. Let it be assumed further that the absence of an objection, which would be fatal to the argument, stemmed from counsel's reasonable perception of the learned judge's ruling. It is then necessary for the plaintiff to persuade us that the admission of the evidence occasioned a substantial wrong or miscarriage. The requirements by which that proposition may be made good were discussed by the High Court in Balenzuela v De Gail 101 CLR 226 and in particular in the judgment of Dixon CJ at 233-236. There is a reference there to what was said by URJ ALLEN v ALLEN (Samuels JA) 3 Cussen J in Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497 at 526 where his Honour said that a miscarriage will be occasioned if a jury "retire to their room under a wrong impression" in relation to the law, if there has been a misdirection, or as to the evidentiary material, if part has been wrongly rejected or wrongly admitted. Then, as Mr Motbey pointed out to us, Dixon CJ deals with the difference between the onus which may apply in the test at common law as opposed to, the test under statute, for example, under Pt51 116, and concludes ultimately at 235 that under a rule such as ours the party complaining must show that what is complained of has occasioned a substantial wrong or miscarriage. Then Mr Motbey went to 236 where it is said that an error of law will have been made if what has occurred at the trial is such as improperly to limit or enlarge the evidentiary material so that it is not an unreasonable hypothesis to suppose that the judgment of the jury might be affected. In the present case there is an additional factor to which regard must be had. It seems, as we have been told from the bar table and, of course, accept, that before the summing up commenced counsel asked for certain directions which, if I may say so, was a very sensible course to have adopted, and in the course of this dialogue Mr Motbey asked the judge to tell the jury that this evidence about the plaintiff having received $70,000 in a settlement was irrelevant and should be ignored. To this request McInerney J acceded and in his charge to the jury said: "There was some question put to Mrs Allen about getting $70,000 settlement from the defendant in respect to the matrimonial wash up, if one could use that expression. That has nothing to do with this case. These are entirely different proceedings. What may have happened in the matrimonial family situation is not a matter that you will be concerned about. So just put that out of your minds. It is a different matter altogether." It seems to me that this was a very clear direction to the jury that they were not to pay any heed to that evidence and it was, moreover, sought by counsel for the plaintiff. It is to be assumed that counsel, by asking for the direction, thought that it was one which would satisfy his purposes and would exclude any disadvantage which the reception of the evidence might otherwise have brought about. Furthermore, after the direction had been given, it was open to counsel to ask the judge to discharge the jury if he felt that the precise manner in which the direction had been couched was inadequate; because, after all, the precision required of counsel in asking for a direction, does not usually include giving the judge a verbatim version of exactly how it ought to be put. Indeed, it might be that at that stage it was open to counsel to change his mind, and to conclude that this was a case where no direction would serve his purpose and to put that submission to the judge. Neither of these courses was adopted and I hasten to say that I do not offer the slightest criticism of counsel for having abstained from them. Giving full weight to the assumption that I have made that the evidence was inadmissible, it was not a case where the material received was so poisonous as to defeat any attempts to nullify it. In Cross and anor v McRae 30 SR 137 Street CJ, quoting from what had been said by Barton J in Peacock v The King 13 CLR 619 at 659, added at 140: "Tt is apparent, as he pointed out" - this is a reference, of course, to what Barton J had said - "that to say that every time that an accident occurs in the course of a trial the whole proceedings are rendered abortive would place very serious impediment in the way of justice......." 4 UNREPORTED JUDGMENTS He goes on to warn that each case must be dealt with on its own facts and with regard to its own circumstances. In my opinion, assuming, as I emphasise, that the evidence was inadmissible, it was not such as to require the jury to be discharged. It was not such as to be immune to correction by the means which the learned judge adopted. I think his direction was entirely adequate and I am not satisfied, as I must be to find a miscarriage of justice, that there was any real chance that the jury might have been misled or, if Dixon CJ's analysis is precisely correct, "to suppose the judgment of the jury might be affected." That being so, I find it impossible to find that any improper admission of evidence occasioned a substantial wrong or miscarriage and I would propose that the appeal be dismissed with costs. Clarke JA I agree. Handley JA I also agree and for the reasons given by his Honour the presiding Judge. The order of the Court therefore is that the appeal is dismissed with costs. Counsel for the Appellant: S J Motbey Solicitors for the Appellant: Levitt Zabow Counsel for the Respondent: I B Ward QC/P Linegar Solicitors for the Respondent: Mr Paul Rogers Blacktown