FISH MARKETING AUTHORITY OF NEW SOUTH WALES v CORBETT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 1 February 1990, 1 February 1990 [1990] NSWCA 63 Evidence — impeachment of witness's credit — question disallowed — trial judge gives no reasons — Evidence Act 1898 NSW s56 Meagher JA This is an appeal from his Honour Judge Thompson. The applicant was Mr Corbett for an award under the Workers Compensation Act. Judgment was given by his Honour on 9 November 1988. Mr Corbett's story was that when he was working for the present appellant, the Fish Marketing Authority, on 15 January 1984 he suffered an injury. Certainly after that date he arrived at Sydney Hospital in a state of some disarray. The issues before his Honour were whether an injury occurred or not; whether there was resulting incapacity and whether there was a refusal by the employer to offer suitable work. It is somewhat surprising that the question of injury was in issue. Not only did the applicant give evidence about injury but two independent eye witnesses did. Indeed, one was called by the present appellant. Neither of those independent witnesses was cross-examined. Likewise I find it difficult to believe that the application by the applicant for further employment with the appellant was truly in issue as a request for work and refusal was evidenced and it was never suggested to the applicant that the application was in any way a sham. The question of the degree of incapacity of the applicant certainly was a very large issue. The applicant gave evidence of a considerable incapacity and this evidence was challenged, very largely by a sustained attack on his credit. The present appellant proved that the applicant had a life which was in many ways exceedingly unattractive. The applicant admitted that he was an habitual drunkard and an alcoholic, that he was a man of violence and had been involved in many violent incidents after and before the date of injury. He was a man who used, for his own purposes, various aliases. He was a man who obtained a loan from a finance company on what was probably a false basis. He was a man who thought there was nothing wrong in driving motor vehicles even though he was unlicensed and he was a man who on numerous occasions vandalised other people's property. The questions before us raise further aspects of the credibility of the applicant. In the course of the trial counsel for the present appellant asked him whether on 20 January 1977 he was convicted of stealing parcels from the Australian Postal Commission, at the Central Court of Petty Sessions. That question was put and disallowed. The disallowance of that evidence is a ground of appeal. He was also asked whether he had been charged on 6 November 1975 with the offence of demanding money with menaces. That question was disallowed and there is an appeal in respect of that. 2 UNREPORTED JUDGMENTS He was also asked whether he was charged in 1976 with the offence of larceny. That was disallowed. There is also an appeal in respect of that. It is difficult to uphold the appeal on either of the second or the third ground because the question: "Were you charged with something?" does not go either to an issue in the case or to the credit of the applicant. If the question had been: "Did you plead guilty?", or "were you convicted of either of those charges?", different considerations would have arisen. Since these questions were not put in the second and the third matters before us they may be disregarded. That brings us to the one remaining question, the first of them: "Were you on 20 January 1977 convicted of stealing parcels?" Apart from statute it is probable that that is a perfectly proper question. Apart from statute, there would be no ground for disallowing it. However, his Honour did disallow it. For an appeal on that ground to be successful it is incumbent on the appellant to prove that his Honour's rejection of that question was improper. To prove that the rejection was improper the appellant must show that there was no proper basis for rejecting it. The appellant certainly has demonstrated that apart from statute there was no proper basis to reject it. But that is not an end of the matter because there was a possible statutory basis upon which it was rejected, namely, that set out in s56 of the Evidence Act. In my view the present appeal has not negatived the possibility that his Honour rejected it on the basis of s56 or of the principle enshrined in s56. In this regard it is important to note that shortly before the question was rejected another question was asked: "Did you on | April 1980 supply false information to the police?' That question was objected to on the grounds of relevance but his Honour allowed it not on the grounds of relevance but on the grounds of credit. In the process of doing that his Honour had reference to the High Court decision in Bugg v Day 79 CLR 442 where the High Court discussed those matters at some length. His Honour having allowed that question with respect to a conviction in 1980 then shortly afterwards disallowed the present question also going to a prior conviction which was alleged to have occurred in 1977. The transcript does not say precisely on what basis his Honour did disallow the question. All the transcript says is that the question was in fact disallowed. So the court is not in a position to ascertain precisely on what ground his Honour acted. Having regard to the fact that his Honour had just been acquainted with the High Court decision in Bugg v Day, it is obviously a serious possibility that his Honour had in mind either s56 or the principle which s56 enshrines. The further fact is that bearing in mind the similarity of the questions about the 1977 conviction and the 1980 conviction it is very difficult to formulate any rational basis on which his Honour could have allowed the question as to the 1980 conviction but disallowed the question of the 1977 conviction unless his Honour had in mind s56. For those reasons I am of the opinion the appellant has not made out his case and that the appeal must fail. I would dismiss the appeal with costs. Handley JA I also agree. Clarke JA The order of the court then will be as Mr Justice Meagher has announced. The appeal will be dismissed with costs. Appeal dismissed with costs. URSISH MARKETING AUTHORITY OF NEW SOUTH WALES v CORBETT (Clarke JA) 3 Counsel for the Appellant: A Abadee QC and P Sweeney Solicitor for the Appellant; EG Scarparo Counsel for the Respondent: M Williams QC and F Fletcher Solicitor for the Respondent: Taylor and Scott