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. It follows, in my view, that the Nominal Defendant must escape from both claims and that a verdict should be entered in favour of the Nominal Defendant in both actions. A further finding which I make - on the balance of probabilities and upon considering the whole of the evidence - is that the police car was proceeding at too fast a speed in the circumstances. Whether the yellow or cream Corolla, of which Taylor had an impression, was involved in some way is a fact which I am unable to determine on the evidence. Having considered the whole of the evidence, I find the evidence overwhelmingly in favour of the proposition that Rauchle was simply driving too fast. No issue has been raised that Rauchle was not acting in the course of his employment. In these circumstances, Byrnes must recover a verdict against the NSW Police Service. I am already allocated the hearing date for damages to be assessed. Given the manner in which his Honour's findings were recorded and the fact that the Judgment which his Honour delivered was one which followed a hearing occupying some four days, the present appeals would seem, clearly enough, to 2 UNREPORTED JUDGMENTS invite the observations of Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission!: "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 - event 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 with facts incontrovertibly established by the evidence or which was 'glaringly improbable'." (see also Abalos v Australian Postal Commission?) As will already have become apparent from what I have earlier recorded, each of Cst Rauchle and Cst Byrnes was, at the relevant time, a serving officer in the New South Wales Police Service assigned to the Highway Patrol. Although it seems (AB 75) that Cst Byrnes "wasn't certified to exceed the speed limit or attain urgent duties for pursuits", Cst Rauchle's evidence (AB 23) was that he had undertaken a highway course, in the course of which he undertook an extensive high speed course, and that, accordingly, since 1988, he had been qualified as a high speed police driver. On the night of the accident, 24 November 1991, Cst Rauchle and Cst Byrnes were rostered to perform highway patrol duties on the late evening shift which appears to have been from 10.00 or 10.30pm until 6.30am on the following day. Cst Rauchle and Cst Byrnes appear to have left Hurstville Police Station at about 10.30 p.m. Cst Rauchle driving an unmarked police car, a VN Holden Commodore registration number RRM230 and proceeded to the Cronulla area where they were "conducting mobile breath tests, random breath testing duty, just patrolling". Depending upon their exact location in the Cronulla area, Cst Rauchle and Cst Byrnes would, at the relevant time, have been about four kilometres to the East from the intersection of Taren Point Road and The Kingsway at Caringbah and about six kilometres to the East of the Miranda Fair Shopping Centre in The Kingsway at Miranda, the relevance of which locations will shortly appear. The Police radio log for Channel L (Lima) (AB 223) - which is the radio channel used by the police for the St George and Sutherland area (AB 112) - records that at 11.37pm a police car which was allotted call sign SU10 reported a brawl outside "Carmens" - which appears to have been some form of night spot - in The Kingsway at Miranda. A similar report apparently followed immediately from another police car apparently allotted the call sign "MI1". The same log also records that SU10 then asked the operator to transmit a "memo" to other police cars in the area to the effect that "in relation to the brawl a car has left the scene and that car is with plates OSA-508, last seen five minutes ago east" the car being described as a cream Torana with three males on board (AB 113-114). The log also bears a notation indicating that the operator had undertaken a transport check on the number plates identified which check indicated that the number plates had been stolen and did not match the vehicle described. The evidence which Cst Rauchle gave in chief on the hearing before McLachlan DCJ (AB 25-27) was to the effect that, having heard the call in relation to the brawl outside Carmens, he, being certified to drive at high speed 1. (1993) 177 CLR 472, 479; 112 ALR 641, 645-646 2. (1990) 171 CLR 167; 96 ALR 354 URAUCHLE v THE NOMINAL DEFENDANT; THE NSW POLICE SERVICE v THE NOMINA& DEFENDANT (Powell JA) and to respond to urgent duty runs, "took it upon (himself) to answer the call and proceed to the scene of the incident". Cst Rauchle's evidence was also to the effect that, having done so, he activated the police sirens and other warning devices including a magnetic blue light which was affixed to the roof and proceeded west in The Kingsway, at times attaining speeds of between 120 kph and 130 kph. It should be noted, at this point, that The Kingsway, which is a major road in the area, is a divided road with a median strip in the centre. In the evidence which he gave in chief, (AB 25) Cst Rauchle said that, having started off in Woolaware and reached the intersection of President Avenue and The Kingsway - a distance of about two kilometres - where the Caringbah shopping centre is located, he slowed down and proceeded towards the intersection of The Kingsway and Taren Point Road - about a kilometre further to the West. As The Kingsway approaches Taren Point Road it begins to curve to the left. At the intersection of The Kingsway and Taren Point Road there are three lanes on each side of the median strip, lane 3, or the lane nearest the median strip on the Southern side of The Kingsway, being the lane used by vehicles seeking to turn right into Taren Point Road. Beyond the intersection, lane 3 becomes available again for vehicles travelling West in The Kingsway. At this point it should be noted that about one hundred metres to the West of the intersection of The Kingsway and Taren Point Road and on the Southern side of The Kingsway, is Hinkler Avenue and a short distance beyond that on the Northern side of The Kingsway is Chamberlain Avenue. At this point (see Exhibits 6, 7) there are two breaks in the median strip in The Kingsway those two breaks - which seem to be nineteen metres apart (AB 296) - being separated by a small concrete traffic island, one break being opposite Hinkler Avenue and the other opposite Chamberlain Avenue, the former break no doubt being to enable vehicles travelling East in The Kingsway to turn right into Hinkler Avenue and the latter being to enable vehicles travelling West in The Kingsway to turn right into Chamberlain Avenue. Cst Rauchle's evidence in chief (AB 26-27), which was confirmed by the evidence given by Cst Byrnes in chief (AB 76-78), was that he proceeded through the intersection of The Kingsway and Taren Point Road at approximately 90 to 100 kph and that, as he rounded the intersection he came upon a motor vehicle in lane 3 which motor vehicle appeared to be stationary, or moving only slowly. When he did so, so he said, he veered into lane 2 but, as he did so, the vehicle in front of him also veered into lane 2 "almost like a brick wall in front of (him)". Then, so Cst Rauchle said, he applied his brakes extremely hard but the vehicle became out of control and it collided with a telegraph pole on the Western side of the intersection of The Kingsway and Hinkler Avenue. The photogrammetry plan (Exhibit 6) indicates that vehicle driven by Cst Rauchle left tyre marks commencing at a point about 60 metres to the East of the telegraph pole with which it collided and about 40 metres to the West of the Western side of the intersection of The Kingsway and Taren Point Road. Basing himself on the various statements which were made by Cst Rauchle and Cst Byrnes, on the one hand, and by Mr Taylor and Mr Edwards (two witnesses who were called at the hearing on behalf of the Nominal Defendant), on the other, Mr Vaughan, a consulting engineer, and formerly the Assistant Chief Engineer and Chief Mechanical Engineer of the Department of Motor Transport and of the Roads and Traffic Authority, who was also called on behalf of the Nominal Defendant, concluded (AB 280): "On the basis of the information available to me, it was concluded that: 4 UNREPORTED JUDGMENTS 1. the speed of the Commodore immediately after control was lost was probably in the range of about 103 km/h to about 118 km/h; 2. if, as described by one witness, the Commodore had been firmly braked before loss of control, the pre-braking speed was probably about 120 km/h to 130 km/h; 3. the tyre marks found at the scene were inconsistent with the Commodore moving left from lane 3 to avoid a car in lane 3; and were inconsistent with the Commodore moving left from lane 3 to avoid a car also moving left from lane 3 to lane 2; 4. the tyre marks found at the crash scene were consistent with the Commodore having rounded the kerb at a speed which was too fast for the combination of the radius of the curved path it followed and the available tyre/road friction." After the vehicle had come to rest, Cst Byrnes climbed out of the car and attempted to free Cst Rauchle but was unable to do so. At the time, he noticed that there were present a taxi driver - this was Mr Conrad to whom I will later refer - and "a bloke with a black helmet on" - who appears to have been Mr Taylor to whom I have earlier referred. After telling Mr Conrad to "Get on (his) radio and call for help" Cst Byrnes then removed his portable radio from the car and himself called for assistance. That call appears to have been logged by the Police radio at 11.40pm and was to the effect that there was an emergency at the location of Kingsway and Kareena - Kareena being a street to the West of the Western side of Sutherland District Hospital which is itself a short distance to the West of Hinkler Avenue - the fire brigade being required and persons being trapped. Although, in his oral evidence, Cst Rauchle gave no description of the vehicle which, so he suggested, had caused the accident, Cst Byrnes in his evidence (AB 77) described it as an orangey coloured Torana with a white vinyl roof with no tail lights, a description which he had given to Sgt (then Cst) Williams, who was then attached to the Accident Investigation Unit, on the evening of the accident when he was in the Accident and Emergency Centre at Sutherland Hospital and while Cst Rauchle was still trapped in the police vehicle (AB 110-111, 227). It should be noted that neither Cst Rauchle nor Cst Byrnes gave any evidence to the effect that the vehicle - whether or not it was a Torana - which, so they said, caused the accident, had made, or was making, a U-turn at the time. Before passing on it is convenient to note, here, that Sgt Williams, in the course of her cross-examination (AB 115) by counsel then appearing for the Nominal Defendant, gave evidence that when, later in the evening, Cst Rauchle was wheeled in on a "gurney" to the area where she was talking to Cst Byrnes, he (Cst Rauchle) looked at her (Sgt Williams) and said "Oh fuck Byrnesey it's the Accident Squad. Tell them it was a black dog." Although Cst Rauchle was the first witness called at the hearing; although Cst Rauchle had not given, and Cst Byrnes was not to give, evidence of the alleged unidentified motor vehicle making a U-turn in front of the police vehicle; the second witness who was called at the hearing was, not Cst Byrnes, but Mr Goodwin, to whom McLachlan DCJ made reference in the passage from his Judgment which I have earlier set out. Mr Goodwin's evidence was to the effect that he and a friend, Mr King - who was not called to give evidence at the hearing - were in the area of the Miranda Hotel - which appears to be in the Miranda Fair shopping complex - on the evening of 24 November 1991 where they had gone to purchase a pizza. At the time, so Mr Goodwin said, he noticed a fight in progress outside the pizza shop which was on the Northern side of The Kingsway opposite the Miranda Hotel. At URAUCHLE v THE NOMINAL DEFENDANT; THE NSW POLICE SERVICE v THE NOMINAB DEFENDANT (Powell JA) the time he noticed that some of those who had been involved in the fight "jumped into a Torana and (took off) in front of (Mr Goodwin and his friend)" (AB 50). The Torana was described by Mr Goodwin as "an orangey brown colour" (AB 51). Mr Goodwin and his friend, so Mr Goodwin said (AB 51), having first circumnavigated the Miranda Hotel and turned left into Kiora Road, which intersected with The Kingsway, then turned East in the direction which the Torana had "sped off'. Mr Goodwin claimed then to have followed the Torana at a distance until the two vehicles reached the traffic lights at the intersection of Port Hacking Road and The Kingsway - which is at a point a little to the West of the intersection of Kareena Road and the Kingsway - at which point, so he said, he was about 20 to 30 metres behind the Torana. Shortly after they passed through the lights at the intersection of Port Hacking Road and The Kingsway - the traffic lights appear to be about three to four hundred metres to the West of Hinkler Avenue and about five hundred metres to the West of the intersection of Taren Point Road and The Kingsway - Mr Goodwin, so he said (AB 51), noticed that the brake lights on the Torana came on and, at the same time, noticed a car "with its lights and a blue siren (sic) coming around the corner". At that stage, so Mr Goodwin said, (AB 50) the Torana "chucked a U-turn right in front of (the car coming around the corner)" the point at which the Torana "chucked the U-turn" being at the intersection of Hinkler Avenue (AB 51). When the Torana "chucked the U-turn", so Mr Goodwin said, it turned from the lane closest to the median strip and it swung around into the first lane and then into the second lane (AB 52) at which point of time he observed the on-coming car swerve to miss the other car and then "(go) sideways and up into the telegraph pole" (AB 52), following which the Torana continued to proceed in a Westward fashion and turned its lights off (AB 52). There were a number of odd features about Mr Goodwin's evidence, of which it is sufficient to note the following: 1. given the distance between the Miranda Fair shopping centre and the intersection of The Kingsway and Hinkler Avenue; given the time at which the motor vehicle which Mr Goodwin claimed to have followed was said to have sped off from the shopping centre; and given the time at which the accident occurred; Mr Goodwin's version of events, to say the least, was, and despite the valiant efforts of the Appellants' counsel to justify it by reference to the alleged delays caused by traffic lights (see AB 51), remained, suspect; 2. although it seems clear enough that both Mr Conrad and Mr Taylor were at the scene and although Mr Goodwin referred to a "taxi driver" and a tall fellow "in a black helmet" neither Mr Conrad nor Mr Taylor identified Mr Goodwin as one of those who had been present at the time despite the fact that Mr Goodwin claimed to be among those who ultimately helped to remove Cst Rauchle from the wreckage; 3. further, despite the fact that Mr Goodwin claimed to have been at the scene, Cst Byrnes (AB 83) gave evidence that the first time he had ever seen Mr Goodwin was at the Miranda Hotel on an occasion which appears to have been some weeks after the accident; 4. although it was said that, on that occasion, Mr Goodwin had told Cst Byrnes that he had seen a car make a U-turn in front of the police car (AB 35, 88) and although Cst Rauchle later claimed (AB 38) that Cst Byrnes had later told him of what Mr Goodwin had said, neither Cst Rauchle in the statement which he later made to the solicitors then acting for him and Cst Byrnes, nor Cst Rauchle or Cst Byrnes in the claims made by them under the Motor Accidents Act 1988 6 UNREPORTED JUDGMENTS - which claims required them to identify any witnesses to the accident alleged to have happened - identified Mr Goodwin as a witness to the accident; 5. at no stage did either Cst Rauchle or Cst Byrnes inform Sgt Williams of the identity of Mr Goodwin or of the fact that he claimed to have witnessed the accident; 6. finally, Mr Goodwin's evidence was difficult to reconcile with the evidence of Mr Conrad and Mr Taylor to whom I have earlier referred. Although he was not the first witness called on behalf of the Nominal Defendant - that was Mr Conrad - it is convenient, first, to record what was the evidence of Mr Taylor. Mr Taylor's evidence (AB 189-200) was that, at about 11.30pm, he was riding his motor cycle in The Kingsway proceeding from Miranda towards Caringbah. Mr Taylor's evidence was further that, in the course of his so doing, and as he approached the intersection of Taren Point Road and The Kingsway, he was travelling in the median strip lane at a speed of about 60 kph. At that time, so Mr Taylor said, he was not aware of any motor vehicle proceeding East in front of him. Mr Taylor's evidence would further suggest that, when he was at, or near, the intersection of The Kingsway and Hinkler Avenue (AB 190) he became aware of a vehicle approaching from the opposite direction and he heard a siren and a squeal of tyres and noticed that the on-coming vehicle was sliding. At that point of time, so Mr Taylor said, the on-coming vehicle had just passed the traffic control lights at the intersection of The Kingsway and Taren Point Road. Mr Taylor further said (AB 190-192) that, at the time, he did not notice any vehicle between himself and the on-coming vehicle in the lane or lanes nearest the median strip on the Southern side of The Kingsway although he had an impression of a vehicle which was stationary in the kerb side lane on the Southern side of The Kingsway. Mr Taylor further said that, after the on-coming vehicle passed him, he slowed down and watched the vehicle continuing Westward as it did a one hundred and eighty degree turn and hit the telegraph pole (AB 192). Having noticed the collision, Mr Taylor, so he said, then proceeded to the intersection of Taren Point Road and The Kingsway where he himself did a U-turn and returned to the scene of the accident where he tried to render assistance. Having done so, Mr Taylor then rode his motor cycle to the Fire Station about a kilometre away to summons assistance. As I have earlier recorded, Mr Taylor did not identify Mr Goodwin as being among those who were present at the time. As I have previously indicated, the first witness called on behalf of the Nominal Defendant was Mr Conrad. Although he first gave evidence as to an incident which occurred during the course of the hearing before McLachlan DCJ, it is preferable that I first deal with the evidence which he gave as to the accident on the evening in question. Mr Conrad's evidence (AB 164) in this regard was that, on the evening in question, at about 11.30pm, he was working an afternoon shift driving a taxi cab in The Kingsway travelling in an Easterly direction from Miranda toward Caringbah. At the time, so he said, (AB 164) he heard over the taxi cab's two-way radio a message to the effect that there was an unmarked police patrol car speeding up The Kingsway - seemingly in a Westerly direction - that message being attended with a warning to be careful. As he reached a point on The Kingsway about opposite the Sutherland Hospital - which, as I have earlier recorded, is located on the Southern side of The Kingsway and between Hinkler Avenue and Kareena Road - he (Mr Conrad) noticed a set of headlights and a blue police light approaching, those lights being diagonally opposite him at about the UAAUCHLE v THE NOMINAL DEFENDANT; THE NSW POLICE SERVICE v THE NOMINAZ DEFENDANT (Powell JA) intersection of Taren Point Road and The Kingsway. At that point of time, so Mr Conrad said, there did not appear to be any motor vehicle in front of the approaching vehicle which vehicle appeared to be in "the middle lane". As he watched, so Mr Conrad said, the lights of the on-coming vehicle moved as if the vehicle was moving, sideways towards a telegraph pole with which it collided. Having observed the collision between the vehicle and the pole, Mr Conrad turned right into Hinkler Avenue where he stopped and then tried to assist Cst Byres in his endeavours to remove Cst Rauchle from the police car. In the course of his cross-examination (AB 173) Mr Conrad indicated that, so far as he was concerned, he was not aware of any other vehicle travelling East in The Kingsway ahead of him at the time. Other evidence which was given by Mr Conrad, which evidence obviously carried some weight with McLachlan DCJ, related to an incident which, so Mr Conrad said, occurred during the luncheon adjournment and shortly prior to the resumption of the afternoon hearing on the second day of the hearing before McLachlan DCJ. At that time, so he said (AB 162-164), Mr Conrad was in the vestibule outside his Honour's court when he saw Cst Byrnes. This appears to have been at a time when Cst Byrnes had been cross-examined by counsel then appearing for the Nominal Defendant, who had, quite clearly, suggested to Cst Byrnes that his evidence was fabricated, and before his cross-examination had concluded. Although the evidence which he gave is not entirely clear, as best as I can piece it together, Mr Conrad's evidence was that, at the time, he had a conversation with Cst Byrnes which was in the following words or in words to the following effect: "CONRAD: Hello BYRNES: Hello, how are you? CONRAD: O yeah, I'm all right. More to the question, how are you? BYRNES: I'm fucked. (pause) I shouldn't have lied. CONRAD: Well, you know, these things happen. BYRNES: I shouldn't have lied. Why would you do it. Why would you stuff up your job like that. (AB 162-164, 311-312) So far as this latter evidence is concerned, the following matters might be noted: 1. although Mr Conrad was cross-examined as to this conversation (AB 176-180), it was not suggested to him during the course of that cross-examination that Mr Conrad had not spoken to Cst Byrnes at the time but, rather, it was suggested that Cst Byrnes had said: "Why would I lie? Why would I risk my job for a lie? 2. despite the suggestion thus made in the course of Mr Conrad's cross-examination, Cst Byrnes was not called to give evidence in reply; 3. when dealing with Mr Conrad's evidence, McLachlan DCJ said (inter alia) (AB 318-319): "T should say that I was impressed by this witness. He was obviously nervous at the prospect of giving evidence against the police but he coped with cross-examination very well and with some small changes, adhered to his evidence. I did not regard him as a particularly well educated man but he seemed to me to be 'very much on the ball'. 8 UNREPORTED JUDGMENTS I have carefully considered his evidence both from my notes and from my reading of the transcript. I accept him as a witness of truth but I also accept that his recollection after 4 years may have dimmed and that he may not have exactly heard what Byrnes said in the court foyer. However, I am of a conclusion that the words said by Byrnes did include something to the effect of 'I should not have lied." The evidence does not enable me to determine as to in which piece of evidence Byrnes' lied but his credibility must be in doubt." The third witness who was called on behalf of the Nominal Defendant was Mr Edwards, to whom reference has earlier been made, who had made a statement to the police on the day following the accident, and who was not cross-examined by counsel appearing at the hearing for Cst Rauchle or by counsel then appearing for Cst Byrnes. In his statement to the police (Exhibit 9) (AB 229-230), Mr Edwards said (inter alia): "3. About 11.30pm on Sunday 24 November 1991 I had just crossed The Kingsway, near Taren Point Road from north to south. Immediately after crossing The Kingsway I started to walk east towards Caringbah. 4. I had only taken a couple of steps when I saw a dark coloured car, I think it was blue, travelling toward me from Caringbah. It was an unmarked police car and it had a blue light on the roof and I could hear a siren. It was about 200 metres away from me when I first saw it and I think it was travelling at approximately 100 km/h. 5. At this time I saw two other cars that were in the right hand turn lane in The Kingsway waiting to turn north into Taren Point Road. A vey (sic) short time later, these two cars moved off and turned right into Taren Point Road. Only a couple of seconds later the police car came through the intersection of Taren Point Road. As it went past I turned around to look at it. 6. Because of the bend in the road I lost sight of the police car about 30 or 40 metres west of Taren Point Road. (approximately outside No 422 Kingsway, Caringbah) About this time I heard a short screech, followed very quickly by a bang. After I rounded the bend in the road I saw a dark blue car crushed into a timber telegraph pole which is on the corner of The Kingsway and Hinkler Avenue. As I continued to walk toward the blue car I saw that there were flames and sparks coming out from under the bonnet. By this time there were a few other people around and some of them were trying to put the fire out with buckets and hose. This blue car appeared to be the same police car I had seen only moments prior. Because of all the other people around I just stood back and kept out of the way. 7. At this time I noticed a maroon taxi, I think it was a St George taxi. It was parked in Hinkler Avenue on the eastern side facing south. The back of this taxi was about half a metres (sic) south of the alignment of the northern gutter of The Kingsway. The taxi was empty at this time but all its lights were one." Although there was other evidence tendered on behalf of the parties on the hearing before McLachlan DCJ, what I have recorded above represents the substance of the evidence of the principal witnesses who were called on behalf of the parties, and represents the evidentiary background against which McLachlan DCJ recorded his conclusions which I have noted at the commencement of these reasons. In the Notice of Appeal which on 25 March 1996 was filed on behalf of Cst Rauchle the grounds of appeal were all directed to what were alleged to be errors in fact finding which had been made by McLachlan DCJ. It is not necessary to UAAUCHLE v THE NOMINAL DEFENDANT; THE NSW POLICE SERVICE v THE NOMINA® DEFENDANT (Powell JA) set out all of those grounds of appeal, the following being sufficient to give an indication of the grounds which were raised: "1. His Honour erred in disbelieving the evidence of Mr Goodwin, an independent witness. 2. His Honour erred in concluding that the evidence of Mr Conrad and Mr Taylor made no other findings open to him on the balance of probabilities than those he made. 3. His Honour erred in concluding, on the balance of probabilities, that the Torana car did not make a U-turn in front of the police car or veer across in front of the police car. 4. His Honour erred in finding that the police car, being driven by David Rauchle, was driving too fast in the circumstances. 6. His Honour erred in concluding that the witness Byrnes did state words to the effect 'I should not have lied' to the witness Conrad outside the Court. 7. His Honour erred in doubting the credibility of the witness Byrnes. In the Notice of Appeal which, on 25 March 1996, was filed on behalf of the NSW Police Service, the grounds of appeal which were taken were identical with those which had been taken in the Notice of Appeal which had been filed on behalf of Cst Rauchle. In neither Notice of Appeal was there advanced, as a ground of appeal, any assertion that, in his Judgment, McLachlan DCJ had failed to give adequate reasons for the conclusion to which he had come (see Pettitt v Dunkley3; cf Soulemezis v Dudley (Holdings) Pty Ltd'). In the Notice of Cross-Appeal which was filed on behalf of Cst Byrnes in the second matter - which Notice of Cross-Appeal, since it sought to have the verdict and judgment in favour of the Nominal Defendant set aside only in the event that the appeal filed on behalf of the NSW Police Service succeeded, was clearly but a defensive appeal - the grounds of appeal taken were identical with those taken in the Notices of Appeal filed on behalf of Cst Rauchle in the first appeal and on behalf of the NSW Police Service in the second appeal. Notices of Contention were filed on behalf of the Nominal Defendant in each appeal seeking to uphold the Judgment of McLachlan DCJ in each proceeding on a number of bases which, in the light of the view to which I have come, I do not think it necessary to record. Although, as I have earlier recorded, neither Notice of Appeal nor the Notice of Cross-Appeal sought to raise as a ground of appeal an assertion that the reasons given by McLachlan DCJ for the conclusion to which he came were inadequate; although no such assertion was made in the Written Submissions which were provided on behalf of each Appellant prior to the hearing; and although, during the course of hearing of the appeals T.8-10), the Court raised with counsel then appearing for the Appellants the fact that no such ground of appeal had been advanced; no application for leave to amend the Notices of Appeal to raise such a ground was made until the absence of such a ground was again drawn to the attention of counsel for the Appellants during the course of his reply (T. 35). As that application was then opposed by counsel for the Nominal Defendant, leave sought was then refused. Even if leave had been granted, I 3. [1971] 1 NSWLR 376; 4. (1987) 10 NSWLR 247 10 UNREPORTED JUDGMENTS would have rejected such a ground of appeal as I consider the reasons which his Honour gave were adequate (see Soulemezis v Dudley (Holdings) Pty Ltd5; Apps v Pilet®). In the event, the question which the Court must determine is whether it has 5 been demonstrated on behalf of the Appellants that McLachlan DCJ failed to use, or palpably misused, his advantage or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. Despite the detailed analysis of the evidence which was undertaken by counsel for the Appellants and the criticism direct by him against McLachlan 10 DCJ acceptance of the evidence of, in particular, Mr Taylor and Mr Conrad, I am satisfied that counsel's attempted demonstration of error on his Honour's part has fallen far short of what required to be demonstrated in order that the appeals might succeed. There was, in my view, ample material before McLachlan DCJ which justified his Honour's conclusion and when the evidence of Messrs Taylor, 15 Conrad and Edwards is coupled with the evidence of Mr Vaughan and the material upon which, in addition to the evidence of Messrs Taylor, Conrad and Edwards, Mr Vaughan relied, it is quite impossible, in my view, to find that his Honour's conclusions were inconsistent with facts incontrovertibly established by the evidence or were glaringly improbable. 20 I therefore conclude that each of the appeals and the cross-appeal should be dismissed. The Orders which I propose are therefore as follows: 1. In matter CA 40137 of 1996 (a) ORDER that the Appeal be dismissed. 25 (b) ORDER that the Appellant pay the costs of the Respondent to the appeal 2. In matter CA 40138 of 1996 (a) ORDER that the Appeal be dismissed. (b) ORDER that the Cross-Appeal be dismissed. 30 (c) ORDER that the Appellant pay the costs of the Respondents to the appeal, the costs of the First Respondent to include such costs, if any, as the First Respondent may have incurred in respect of the Cross-Appeal. Sheppard AJA In this matter I am in agreement with the judgment to be delivered by Powell JA. I agree in his reasons and with the orders which he proposes. 1. In matter CA 40137 of 1996 (a) Appeal dismissed. (b) Appellant pay the costs of the Respondent to the appeal 2. In matter CA 40138 of 1996 (a) Appeal dismissed. (b) Cross-Appeal be dismissed. (c) Appellant to pay the costs of the Respondents to the appeal, the costs of the First Respondent to include such costs, if any, as the First Respondent may have incurred in respect of the Cross-Appeal. In matter CA 40137 of 1996 5. supra 6. (1987) 11 NSWLR 350 UAAUCHLE v THE NOMINAL DEFENDANT; THE NSW POLICE SERVICE v THE NOMINAL DEFENDANT (Sheppard AJA) Counsel for the appellant: C T Barry QC and R W C Royle Solicitors for the appellant: McBride Harle & Martin (Hurstville) Counsel for the respondent: J Poulos QC and P J O'Connor Solicitors for the respondent: Windeyer Dibbs In matter CA 40138 of 1996 10 Counsel for the appellant/cross respondent: C T Barry QC and R W C Royle Solicitors for the appellant/cross-respondent: Ferguson Holz Counsel for the first respondent/cross respondent: J Poulos QC and P J O'Connor 15 . Solicitors for the first respondent/cross respondent: Windeyer Dibbs Counsel for the second respondent/cross appellant: N A Confos 20 Solicitors for the second respondent/cross appellant: Maunder & Jeffrey3040