DANIELE vy GOVERNMENT OFFICE OF NEW SOUTH WALES INSURANCE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, POWELL and COLE JJA 7 February 1995, 7 February 1995 [1995] NSWCA 115 Appeal and New Trial — Motor vehicle accident — Identity of driver — Varying statements as to identity of driver made by parties at differing times — Master finds each of parties an unreliable witness — Master finds appellant driver — Whether finding may be disburbed. Clarke JA I will ask Powell JA to give the first judgment. Powell JA On Easter Monday, 31 March 1986, the Ford Falcon utility in which the Appellant, Nicolo Daniele and two other teenage boys, Geoffrey Lehmann ("Lehmann") and Graham Richards ("Richards"), left the carriageway of the Nine Mile Road, not far from Broken Hill, and, after overturning at least once, if not more, finally came to rest on its wheels some distance off the road. In the course of this incident Richards was thrown from the cabin of the vehicle and sustained a spinal injury of a serious nature. When the vehicle came to rest, so the Appellant was later to say, Lehmann was first out of the cabin and assisted the Appellant from the cabin on the driver's side. Having then noticed that Richards appeared to have been seriously injured, and being aware that the Appellant appeared to be heavily winded, Lehmann then ran some distance to a place where two men, a Mr Sowden ("Sowden") and a Mr Dunn ("Dunn"), were riding motor bikes, with a view to obtaining their assistance. Sowden then mounted his motor bike and went straight to the utility while Lehmann stayed behind for a short time with Dunn. When Sowden arrived at the utility he noticed that the Appellant was standing by the vehicle, leaning on it, and that Richards, who was apparently in some considerable pain, was lying, a short distance from it. Having taken a blanket from the cabin of the utility, Sowden covered Richards and then turned to the Appellant - whom he noticed had red hair - and then said, "Who was driving the car?" to which the Appellant replied, "I was". Some minutes later, the car, Dunn, who was accompanied by Lehmann and one or two other people arrived, driving a utility which apparently belonged to Sowden. When he did so Sowden asked him to call for an ambulance, so that he then drove to the Ambulance Station in Broken Hill to do so. He then returned to the scene of the accident. After Dunn had left to summon the ambulance, so Lehmann was later to say, he, being concerned that he had taken the utility without his father's permission, and being concerned that, by permitting the Appellant and Richards to drive the vehicle for a time, although neither was licensed, he, in a sense, had been the cause of the accident, determined to say that he, Lehmann, had been driving the vehicle at the time. 2 UNREPORTED JUDGMENTS After he had returned to the scene of the accident, Dunn, in the presence of both the Appellant and Lehmann, said to Sowden, "Who was driving?", at which point the Appellant said, "I was. I said I was." When the ambulance came and the three lads had been placed in it, a Report was prepared by a Mr Moore ("Moore"), who was one of the two ambulance officers who attended at the scene, in which Report Moore recorded that Lehmann said that he had been driving the vehicle when it overturned. After the ambulance had arrived at Broken Hill Base Hospital it was noted that the Appellant appeared to have suffered minor injuries and he was accordingly examined there by a Dr Bhattacharyya who recorded that - contrary to what the Appellant was later to say - the Appellant told him that he had not lost consciousness. It appears that, because of the nature of Richards' injuries, he was taken by air ambulance to Adelaide where he was admitted to the Royal Adelaide Hospital for treatment. Later during the evening, Lehmann was seen by a police officer Sen Const Behsmann, whom he told that he had been driving the vehicle at the time of the accident. On the following day, Lehmann was arrested and formally charged with a number of offences arising out of what was alleged to have occurred. Some four or five days later, Lehmann was seen by his uncle who told him that he had been informed that "the lad who had red hair was the one who had said that he was driving the vehicle" - the source of this information was later revealed as having been Dunn. Accordingly, in company with his parents, Lehmann went to the Police Station on 6 April 1986 when he gave a fresh statement to Sen. Const. Behsmann, on this occasion asserting that it was the Appellant who had been driving the vehicle at the time of the accident. Being faced with these apparently contradictory statements, Sen Const Behsmann arranged for a statement to be taken from Richards in Adelaide - in that statement Richards said that it was Lehmann who had been driving the vehicle at the time of the accident. Later - in mid-May - after he had been interviewed by Sen Const Behsmann, the Appellant was arrested and charged with a number of offences relating to his involvement in the accident - those offences were - or included - "unlicensed driver" and "unlawfully using a conveyance". Lehmann and the Appellant appear to have come before the Court at Broken Hill in August 1987. At that time, so it seems, Richards was called by the Police Prosecutor to give evidence and, in the course of his giving evidence, he, for the first time, asserted that it was the Appellant, rather than Lehmann, who had been driving the vehicle at the time of the accident (see AB 357). In the light of the submission made on behalf of the Appellant during the course of the hearing of this appeal, that, when, as he later did, the Appellant pleaded guilty to the charge of "unlicensed driver', he was to be regarded as admitting only that he had at some time - but not at the time of the accident - driven the vehicle, it should be noted, first, that, despite the fact that, at the time, he was cross-examined on the Appellant's behalf, it was not suggested to Richards that the evidence which he then gave was deliberately untrue; and, second, that, not only did the Appellant not give evidence to contradict Richards' evidence, but he did not give evidence at all, and, instead, as I have already noted, entered a plea of guilty to the charge. WRANIELE v GOVERNMENT OFFICE OF NEW SOUTH WALES INSURANCE (Powell JAB In due time, proceedings were commenced by both the Appellant and Richards against the Respondent as the authorised insurer of the vehicle concerned - in the case of the Appellant, those proceedings appear to have been commenced in the District Court but later to have been removed into the Supreme Court. At some time which is not entirely clear, procedural directions were given which led to Lehmann also commencing proceedings against the Respondent as the authorised insurer. Of those three sets of proceedings, that commenced by Richards was later compromised. The proceedings by the Appellant and Lehmann then came on for hearing at Broken Hill before Master Greenwood in November 1990, the hearing continuing over a period of five days. The evidence given at the hearing included the evidence of each of the Appellant, Lehmann and Richards, as well as the evidence of Sowden, Dunn, Sen Const Behsmann and a number of other witnesses. It is accepted by counsel appearing on the hearing of this appeal that the true issue to be determined by the Master at the trial was that of the identity of the driver, in relation to which issue great stress had, at the trial been placed, on behalf of the Appellant, on the admissions which had been made by Lehmann to Moore and Sen Const Behsmann, and, on behalf of Lehmann, on the admissions which had been made, by the Appellant to Sowden and Dunn. It is, clear that the Master was not impressed by either of the Appellant or Lehmann as a witness and that, still less, was he impressed by Richards as a witness - it is equally clear that the impression which each of these three young men made upon the Master was that none was a witness whose evidence ought to be accepted in the absence of corroboration. That view having been formed by him, the Master then looked to the evidence which, as he put it, was "untainted" - that evidence being, for the most part, the evidence which had been given by Sowden and Dunn - as well as the admissions which had been made by the Appellant and Lehmann against themselves. Having considered that evidence at some length, the Master concluded, first, that, contrary to the evidence which he had given, the Appellant had, in fact, answered the questions which had been put to him, first, by Sowden and, later, by Dunn, in the way which I have earlier recorded; and, second, that the admission contained in those answers was, in all probability, the truth. Having so concluded the Master then added: "There is other evidence, weak and all as it may be, which, of itself would not be sufficient to make a finding against Daniele." That additional evidence included evidence as to the nature of the injury which the Appellant had sustained in the accident, which injury, the Master - basing himself on the evidence of Mr McBain, the second of the ambulance officers - considered was an injury which could have been sustained by a driver wearing a lap/sash seatbelt; the refusal of the Appellant to acknowledge the presence of Sowden and Dunn at the scene of the accident; and, finally, the refusal of the Appellant to attend a second identification parade after attending one at which only Dunne had been present, the second identification parade being sought so that Mr Sowden might be present. In the light of his conclusion, the Master - so far as is relevant - found a verdict for the Respondent and entered Judgment accordingly. The attack that is now made by the Appellant's counsel on the Master's conclusion is, as I understand it, first, that it is not a finding based on the demeanour of the Appellant as assessed by the Master, and that, accordingly, the 4 UNREPORTED JUDGMENTS finding by the Master is not one which the principles laid down by the High Court in such cases as Abalos v Australian Postal Commission! and, more recently, in Devries v The Australian National Railways Commission? preserve against intervention; and second, that even, if the principles discussed in those cases are applicable, the finding of the Master in the present case is, in the light of what are said to be the incontrovertible facts, glaringly improbable. I regret that I am quite unable to accede to these submissions. It is sufficient in my view to remind oneself of what was said by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission? where their Honours said: "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. 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 (or her) advantage' or has acted on evidence which was 'inconsistent on the facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." What I have earlier recorded, in my view, makes it clear that, contrary to the submissions advanced by the Appellant's counsel, the Master's conclusion as to the identity of the driver was significantly influenced by his view as to the credibility of the various witnesses - particularly that of the Appellant - and that it could not be said of that conclusion that it was "inconsistent with facts incontrovertibly established by evidence" or that it was "glaringly improbable". That conclusion leads one inevitably to propose that the appeal be dismissed with costs. Clarke JA. I agree. Although the case has been argued thoroughly and many propositions put exhaustively, the fact remains that the Master accepted as truthful the evidence that the Appellant admitted, almost immediately after the accident, being the driver of the vehicle. In the circumstances that admission could only have been understood as an admission that he was the driver of the vehicle at the time of the accident. The Master went further and accepted as truthful that that admission was repeated. He took note of the fact that the Appellant was somewhat distressed at that time and possibly did not understand the ramifications of what had occurred, but also had regard to evidence from independent witnesses such as Mr Sowden and Mr Dunne and ambulance officers, to the effect that the Appellant was walking around and, apart from complaining of being short of breath, appeared to be in no great distress. Having accepted the fact that those admissions were made, it remained for the Master to determine whether they were truthful admissions in circumstances where Lehmann himself had made more than one admission that he was the driver. The Master in his judgment determined that they were truthful admissions and judgment against the Appellant followed inevitably. The effect of finding that the admissions were truthful was that the Appellant was the driver of the vehicle at the relevant time. 1. (1990) 171 CLR 167 2. (1992-1993) 177 CLR 472 3. (supra) at 479 WRANIELE v GOVERNMENT OFFICE OF NEW SOUTH WALES INSURANCE (Cole JAB The finding involved the rejection as witnesses of truth of the Appellant, Lehmann and Richards as witnesses of truth and was based essentially upon an assessment of the untainted evidence in the light of all the other evidentiary material. That there was a substantial element of demeanour involved in the credibility assessment appears also to me to be relatively plain, as it must be, when a trier of fact is faced with a case in which, in his view, one or more witnesses are clearly lying. Having carefully analysed all the evidence the Master reached the conclusion which I have mentioned. I am simply not persuaded that there is any proper basis upon which this Court could interfere with the judgment arrived at as the result of a careful analysis of all the evidentiary material and an assessment of the credibility of the witnesses. I agree with the order proposed. Cole JA I also agree. Clarke JA: The order of the Court will be that the appeal is dismissed with costs. Counsel for the Appellant: RJ Perrignon Instructed by: William C Beerworth and Crowley (Broken Hill) by their City Agents John Brennan and Co Counsel for the Respondent: HJ Mater Instructed by: G Leeds (Parramatta)