FARAJ v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 17 June 1996 [1996] NSWCA 182 MOTOR VEHICLE ACCIDENT — trial judge's findings of fact on the evidence — credibility of witnesses Sheller JA. On 26 February 1985 at about 7.40pm a car being driven south by the appellant, Majed Faraj, along Clyde Street, Granville collided with a car being driven by Molly O'Connor north in the same road at the intersection with Mona Street. There were traffic control lights at the intersection. Mrs O'Connor said that she was turning right into Mona Street at the time of the collision. She had activated her right indicator light. The traffic lights facing her showed a green circle and a green arrow to the right into Mona Street. This meant that if the traffic lights were operating regularly, as the appellant came to them from the north they showed red. When Mrs O'Connor saw the other vehicle, it was travelling fairly fast at first and then slowed down. It was about one block away, that is in the next street to the north. She stopped, she said, because it was coming. In a couple of seconds the green arrow came on, she said that she started to move off and stopped again and then the collision occurred. Mr Faraj's evidence was that some 150 metres from the intersection with Mona Street there was a Total Service Station. Mr Faraj said he was travelling some 25 kilometres per hour and noticed that the traffic lights ahead of him were red. He then said that the traffic lights changed to green when he was some forty to fifty metres from the intersection. When he noticed that the traffic lights were red one hundred and fifty metres from the intersection, he said that he slowed down and following the change to green he accelerated. When the lights changed to green he noticed the car pointing in the opposite direction and he noticed there was a white car which had no lights. He himself had his parking lights on. He said that the other car which was travelling pointing in the opposite direction to him had its right hand indicator working and he considered that it was turning to the right. He said in order to avoid a collision he veered to the left, the other vehicle kept going, and then he heard a loud bang. Mr Faraj's evidence was supported by that of an independent witness, Ali Tebya. Mr Tebya said he was visiting a shop on the western side of ClydeStreet at the time and saw the collision. He was called by the appellant to give evidence and said, amongst other things, that when Mrs O'Connor made her turn the arrow was not showing green. The proceedings by the appellant against the Government Insurance Office were heard by his Honour Judge Craigie QC, who preferred Mrs O'Connor's account. His Honour concluded by saying that having regard to his findings of fact on the evidence, he found that Mrs O'Connor signalled her intention to turn right, was keeping a proper lookout, saw the appellant's vehicle approaching and was reasonably certain that the appellant's vehicle was slowing down and she 2 UNREPORTED JUDGMENTS thought it would stop. Accordingly, his Honour held there was no negligence on the part of Mrs O'Connor and it followed that there should be a verdict for her. Mr Faraj appealed from that decision. He relied only on the first three grounds set out in the amended notice of appeal. The trial Judge's conclusion depended 5 upon his acceptance of Mrs O'Connor's evidence in preference to that of Mr Faraj and Mr Tebya. It was submitted that this preference was based in large measure, if not entirely, upon the ability or otherwise of these witnesses to speak English. To make this point reference was made to two parts of his Honour's reserved judgment given on 17 August 1993. 10 His Honour said: Much has been said by counsel for the defendant as to the relationship which might have been otherwise presumed because of the locality of the residences of these two witnesses (plaintiff and Mr Tebya), the general ethnic background, and the close knit community and it would be impossible they have not met before. I find it unnecessary to decide that because I found each of the plaintiff and Mr Tebya to be unsatisfactory witnesses. Each of them had the assistance of an interpreter but, from the responses on some occasions to questions which were asked and answered in English before the interpreter had completed asking the questions, I came to the conclusion that their evidence was not of great assistance to me in material matters. Indeed, particularly from 20 _ other observations as to the demeanour of the plaintiff I found that he was inclined to embellish, if not exaggerate, his evidence particularly as to injury and that, in terms of what he actually did when he was driving the motor vehicle, he was belligerent and I found it difficult to accept what he said. As to Mr Tebya similar considerations came forward and I gained the impression that he was not at the scene at the time, and that he was endeavouring to render assistance to his friend (the plaintiff) when in fact he was not really in a position to do so. Later in his judgment his Honour came to consider the terms of some pages in a police notebook. In the course of doing so he referred to the fact that the plaintiff relied upon his wanting the police to be called as a sign that he was an 30 innocent man. His Honour said: I do not know that is altogether the only inference you could draw from that, particularly as he was asked to repeat what he said in English and he was able to repeat the words but in a different sequence. That particularly caused me to doubt whether or not the plaintiff did have that much difficulty. I have already indicated several occasions 35 where he responded in English to the questions before the interpreter had interpreted the questions. We were taken by Mr Gross QC, who appeared for the appellant, to a number of passages in the evidence which indicate that there was some issue or contest about the ability of the appellant to speak English. In my opinion this 40 explainswhat his Honour was dealing with in the second passage to which I have referred. I should acknowledge that I have some doubt as to the connection that his Honour drew between the appellant calling the police and the inference to be drawn from what he said in English when asked to repeat the words that he had used. 45 It seems to me that the gravamen of the appellant's challenge is to be found in the first of the two passages to which reference has been made. About these a number of submissions were put. First, it was said by reference to the transcript that his Honour's assertion that on occasions questions were asked and answers given in English before the interpreter had completed asking the question, was 50 not borne out by the transcript. Although there were instances in the transcript, at least three, where the person preparing it had indicated that the witness had WRRAJ v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Sheller JAB answered in English, none of which were shown as interrupting the interpreter, I doubt if the shorthand writer or the person preparing the transcript was concerned to record such interruptions. However that may be, I would not be prepared from the bare transcript to conclude that what his Honour said about the matter was incorrect simply because there is no reference to an interruption in the transcript itself, either in English or otherwise. It seems to me quite likely that the practice of preparing the transcript would not include such interruptions. The second basis upon which the matter was put was that the witnesses Mr Faraj and Mr Tebya never squarely had it put to them that they were interrupting and indeed so far as the transcript goes, were never warned or admonished for doing so. Again it is quite probable that if this was happening from time to time the witness's attention should have been drawn to it. But however that may be this seems to be one facet of the way in which a witness gives evidence which may be taken into account in the circumstances in weighing or as a factor in assessing a witness's evidence. I am not persuaded that any further cross examination or admonition was called for before his Honour could take this into account. It seems to me that the real substance of the appellant's case is a different point. If it is made out the appellant claims that he is entitled to a new trial. The point is quite a simple one. It is said that, fairly read, the passage that I first quoted from the judgment shows that his Honour concluded that each of the plaintiff and Mr Tebya were unsatisfactory witnesses because they answered questions in English before the interpreter had completed asking the question. On that basis it is said his Honour concluded that their evidence was not of great assistance. I would agree that if his Honour had reached that conclusion on the basis that a witness whose first language is not English on occasions interrupts the interpreter by giving an answer in English, that would be unjustified and erroneous. However, I do not think when taken in its context this is what his Honour either said or meant. I think that in the passage I have quoted, fairly read, his Honour was pointing out that the responses of these witnesses to questions led him to the conclusion that their evidence was not of great assistance. Those responses were on occasion in the form of interruptions to the interpreter in English. But I do not think that his Honour was saying, fairly understood, that it was only those responses where there was an interruption that led him to that conclusion, and that the reason for that conclusion was the manner in which the response was given. In my opinion his Honour was referring to the responses generally of those witnesses and referring not merely to the manner in which they were given but also to the content of the responses. I think this reading of what his Honour said is supported by the context in which it was said. His Honour went on, having made the observation, to refer to the demeanour of the plaintiff and conclusions that he formed based on these observations and then went on to express the impression that he gained about the evidence of Mr Tebya from, as he said, similar considerations. I am quite satisfied, however, that the substance of his Honour's view was dependent upon both the responses as they were given, and the manner and conduct throughout the evidence of the two witnesses. As [have said, I do not think that the second passage to which reference was made leads to any different conclusion. That seems to me to be dealing with adifferent issue, an issue that was before the trial Judge, namely the extent to 4 UNREPORTED JUDGMENTS which the plaintiff was able to express himself in English at the time that he made his statement to the police after the accident and also on other occasions. For these reasons I am not persuaded that any of the first three grounds in the amended notice of appeal are made out and accordingly I would propose that the appeal be dismissed with costs. Clarke JA. I agree. Handley JA. I also agree. I have been troubled by this case. Mr Gross, for the appellant, submitted that his Honour's reasons for judgment, particularly at pp 210 R to U, 212 O to T, where he referred to the plaintiffs use of English in the course of giving his evidence constituted appellable errors. If one of the reasons why his Honour formed an unfavourable view of the evidence of Mr Tebya and the plaintiff included their occasional use of English in their evidence, that in my view would have been totally inappropriate and this Court would have been bound to intervene and order a new trial. No judicial officer should underestimate the difficulty facing the most honest witness in giving evidence and being cross examined in a language other than his mother tongue. These difficulties are such that a witness with enough English to get them by at their work place and in shops will not be able to give evidence in Court in English without a real risk of a miscarriage due to incomplete understanding ofquestions and insufficient knowledge of English to enable them to give reasonably accurate answers. It would be entirely natural for a witness in that situation to occasionally break into English in the course of giving his or her evidence. This would not indicate that the witness did not reasonably require the services of an interpreter or that his or her evidence was in some way suspect. As I said had I been satisfied that his Honour relied upon the occasional use of English by these witnesses as a factor which by itself adversely affected their credibility I would have favoured intervention by this Court. However, this Court should not be astute to find error in the reasons for judgment of a trial Judge, especially where the error alleged is of such a serious nature as that attributed to the trial Judge by Mr Gross. On balance, and not without some doubt, I have reached the conclusion that properly understood the errors relied upon by the appellant have not been made out and that his Honour's reasons for judgment should be understood in the sense referred to by my brother Sheller. I therefore concur with the orders proposed. Clarke JA. The appeal will be dismissed with costs. Orders accordingly. Counsel for the appellant: BJ Gross QC/KF Morrissey Solicitors for the appellant: GH Healey and Co Counsel for the respondent: HM Di Suvero Solicitors for the respondent: NSW Insurance Ministerial Corporation