RAUCHLE v THE NOMINAL DEFENDANT; THE NSW POLICE SERVICE v THE NOMINAL DEFENDANT and ANOR [1998] NSWCA 181

RAUCHLE vy THE NOMINAL DEFENDANT; THE NSW POLICE SERVICE v THE NOMINAL DEFENDANT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, POWELL JA and SHEPPARD AJA 26 June 1998, 14 July 1998

[1998] NSWCA 181

Appeal and New Trial — Interference with Judge's findings of fact — Function of appellate court — Where findings based at least in part upon credibility of witnesses — Whether findings glaringly improbable.

Mason P I agree with Powell JA.

Powell JA The principal question for determination in these appeals and the associated cross-appeal - which cross-appeal is a purely defensive one - against a Judgment delivered by McLachlan DCJ in proceedings in which the Appellant in the first appeal ("Cst Rauchle') and the Second Respondent in the second appeal ("Cst Byrnes") sought to recover damages in respect of injuries sustained by them in an accident involving an unmarked police car which was at the relevant time being driven by Cst Rauchle, is whether the Appellants have demonstrated that McLachlan DCJ erred when he found that the accident was caused, not by the actions of an unidentified motor vehicle, but by the actions of Cst Rauchle in driving the police car too fast.

In his Judgment (AB 321-322) McLachlan DCJ recorded those findings in the following way:

"Having considered the whole of the evidence, I have concluded on the balance of probabilities that the Torana car did not make a U-turn in front of the police car nor did it veer across in front of the police car. I am conscious that in making these findings I am disbelieving the evidence of the plaintiffs, and I am disbelieving the evidence of Mr Goodwin, but I must assess the witnesses and the evidence as I see them. In my view, the evidence of Mr Conrad and Mr Taylor is such that no other findings are open to me on the balance of probabilities.