CARROLL (BY HIS TUTOR CARROLL) v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, POWELL and BEAZLEY JJA 23 April 1998, 23 April 1998 [1998] NSWCA 52 Mason P The appellant, Gary Carroll, was seriously injured in a motor vehicle accident which occurred on 2 November 1990 in the early hours of the morning. He was in a Torana motor vehicle that had become unregistered through lapse of time some two or three hours previously. He was accompanied by three friends, Jason Jones, Murray Spencer and Darren Nolan. The issue in the trial was who was the driver of the vehicle. It was the plaintiff's case, and I will refer to Mr Carroll as the plaintiff, that the driver was Mr Jones. It was the case of the Nominal Defendant, the respondent in this Court, that the driver was the plaintiff. The car in which the accident occurred belonged to Mr Jones. It had been picked up during the afternoon of 1 November 1990 and thereafter a very considerable quantity of alcohol was consumed by Jones, Spencer and Nolan at different locations. Everything indicates that Mr Jones was very severely intoxicated and aware of this fact. At about 1.25am on 2 November 1990 the Torana with its four occupants was observed by Sergeant Higgins travelling along the Londonderry Road Richmond at a speed of 114 kilometres per hour. The car was pulled over. The driver was the plaintiff. He was issued with two traffic infringement notices, one for exceeding the speed limit by over thirty kilometres per hour, and the second for driving an unregistered motor vehicle. He gave a false name of Shane Anthony Doyle on this occasion. Mr Jones was also issued with traffic infringement notices, the first for permitting the plaintiff to drive an unregistered motor vehicle and the second for permitting the plaintiff to drive an uninsured motor vehicle. The reason given by Mr Jones to Sergeant Higgins was that he had allowed the plaintiff to drive because "I'm too pissed". Because the registration and compulsory third party insurance of the vehicle had expired at midnight on 1 November the police officers removed and confiscated the car's numberplates. An attempt was made to push the vehicle off the road. At about this time the police left. Mr Jones at least was very concerned that the vehicle would probably be stripped and it is certainly clear that a short time afterwards the four men re-entered the vehicle and drove towards Mount Druitt. Probably acting on a tipoff from Sergeant Higgins, the vehicle was sighted by police and a police car gave chase. During that chase, the headlights of the Torana were turned off, it failed to negotiate a bend in South Creek Road Shane Park, left the roadway and overturned. All four occupants were injured to varying degrees and taken to hospital. Three of them were able to leave within the next twenty four hours. The plaintiff however was unconscious for about twelve days and has sustained apparently permanent and clearly very serious injuries as a result of the accident. 2 UNREPORTED JUDGMENTS At the trial, it was common ground that the plaintiff was incapable of giving evidence. The evidence that was led in the plaintiff's case directly on the issue of driver was the oral evidence of Mr Spencer corroborated in a sense by his own statement, a statement of Mr Nolan who did not give evidence (he having apparently disappeared) and one of two written statements given by Mr Jones. Mr Jones was called by the plaintiff. He gave sworn evidence that the plaintiff was the driver both before and after the occasion when the car had been stopped and the infringement notices issued. He was permitted to be cross-examined by the counsel for the party who called him on the basis of an inconsistent statement that had been given. In fact, Mr Jones gave two written statements, neither of which were put into evidence, although they might have been under the provisions of the Evidence Act but the critical contents of which were revealed in the course of the oral evidence that Mr Jones gave. The second statement in point of time was identified as MFI | and it had been signed by Mr Jones on 12 January 1996. It had been probably typed well before then but Jones had been in prison from about July 1991 until the end of 1995. The statement was typed by Marilyn Carroll, the sister of the plaintiff, and proffered to Mr Jones for signature by Mrs Lillian Carroll, the mother of the plaintiff. In this statement Jones named himself as the driver. However, there was a much earlier statement in the form of a record of interview given by Mr Jones to the police when he had been arrested on 12 July 1991. In the company of his father he answered a series of questions about the circumstances of the accident. He said that the plaintiff was the driver. There was clearly evidence which the judge was entitled to accept supporting the defendant's case at the trial. In the first place it had been the plaintiff who was driving earlier in the evening. The plaintiff had, with the other three young men, got back into the car which drove off after the plates had been confiscated. Mr Jones's inebriated condition had not improved and there was therefore evidence indicating that his concern for his own safety, which had led to the plaintiff driving in the first place, would have continued. Secondly, there were statements unequivocally given to Sergeant Salt by both Nolan and Spencer, when they were still in the hospital within a few hours of the accident, to the effect that the plaintiff was the driver. Thirdly, the injuries to Mr Jones, particularly to the left hand side of his face, were probative of the fact that he was the passenger in the front seat in the car when it rolled. Fourthly, there was the sworn evidence of Jones who, despite vigorous cross-examination and confrontation with the statement which contradicted his sworn evidence, adhered to his position. It is true that Jones may have had a continuing motive to adhere to his account that it was the plaintiff who was the driver, given the seriousness of the injuries suffered by the plaintiff and the risk of a culpable driving prosecution. Nevertheless, this was a factor which the judge would have been conscious of and clearly was part of his assessment of the witness. His Honour was generally satisfied with the credibility of the evidence of Jones. Jones was confronted with the statement signed in 1996. He gave an explanation of that and of his later recanting of it in oral evidence in chief. That explanation was tested. If accepted, it reflected adversely on the credit of Mrs Carroll and clearly was a factor which the trial judge was entitled to take into account and no doubt did take into account in his assessment of her credibility. URWARROLL (BY HIS TUTOR CARROLL) v THE NOMINAL DEFENDANT (Mason P) 3 The defence case relied, in terms of oral evidence, upon the evidence of Mr Spencer. That evidence was consistent with a statement that had been typed by Ms Carroll and was put in evidence. It was however inconsistent with the statement that Mr Spencer had given very shortly after the accident to the police officer who interviewed him in the hospital. Mr Spencer was cross-examined. Counsel for the appellant accepted, indeed advanced the submission that Spencer's evidence lacked credibility in a number of respects. Also supporting the defence case at trial was the statement of Mr Nolan, who as I have said was not able to be called as a witness. His Honour recognised that the statement (typed by Ms Carroll) was capable of carrying probative effect; but nevertheless was clearly entitled to consider its weight severely affected by the absence of the witness. More importantly, his Honour had regard to aspects of that evidence which led him not to place any great weight upon it. The trial judge correctly directed himself that it was not necessary for him to resolve what was a very live dispute at the trial, namely whether the members of the plaintiff's immediate and extended family, Lillian Carroll and Marilyn Carroll in particular, had contrived to establish, contrary to the truth of the matter, that Mr Jones was at the time of the accident the driver of the car. As I say, his Honour did not have to make a finding on that matter and he did not do so. What his Honour said in finding a judgment for the defendant was "The plaintiff bears the onus of proving on the balance of probabilities his allegation that Jason Jones, the owner of the Torana motor vehicle, was at the relevant time also the driver. The evidence adduced falls far short of discharging that onus and the plaintiffs case on liability accordingly fails." Counsel advanced a number of submissions why on particular issues the probabilities favoured the appellant's case. I do not think it necessary, or indeed appropriate, to detail all of the matters advanced, although I will say something about the part of the case based upon the evidence of Marilyn Carroll. The reason for that is that it is very clear that the duty of this Court as an appellate court is to recognise the clear advantage that a trial judge has in resolving disputed issues of fact turning upon credibility. If ever there was a credibility-based case, it was this one. Those witnesses who were called on both sides had motives to support the position they took. There were conflicts and inconsistencies, and there were absent witnesses, most notably the plaintiff himself. In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 Brennan, Gaudron and McHugh JJ 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 advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable." The principal thrust of the challenge made upon the judgment turned upon the judge's non-acceptance of the evidence of Marilyn Carroll in one respect. Marilyn Carroll, the sister of the plaintiff, gave evidence that she had a discussion with Spencer and Nolan at the Mount Druitt Hospital in the course of which handwritten statements were written by the two young men. She later typed them up at home and presented them to her mother. These were the statements of Mr Spencer and Mr Nolan which were put into evidence. 4 UNREPORTED JUDGMENTS The trial judge stated (appeal book 169) that he was satisfied that during the short period of time when Spencer and Nolan were in Mount Druitt Hospital they spoke to Sergeant Salt and told him that the plaintiff was the driver of the car. (I interpose to say that that finding is not in dispute.) He went on to say that he did not accept that during "that brief period" they also made handwritten statements which they gave to Marilyn Carroll in which they directly contradicted their statements made to Sergeant Salt that the plaintiff was the driver. His Honour was in error in construing the evidence of Marilyn Carroll as indicating that this conversation occurred within the twenty four hours following the accident. That is accepted by senior counsel for the respondent. It is however clear to me on a reading of the paragraph that follows the one I have just quoted from that his Honour also had regard to the fact that Mr Spencer had given a materially different account to that given by Marilyn Carroll as to the circumstances in which he, Mr Spencer, provided the handwritten version of the statement of his which was later typed. It is true that there was an error and an error which had some bearing upon the trial judge's assessment of Ms Carroll's evidence. But what I think needs to be kept in focus is that the ultimate issue in the trial was who was the driver and the only witnesses whose evidence was given on that and tested were Jones and Spencer. Jones' evidence read as a whole, as I have done, is coherent. It contains an explanation for the circumstances in which the contradictory statement was signed, which while hardly creditable is nevertheless reasonably credible. Spencer who gave evidence was inconsistent in some of his answers. He certainly did not emerge unscathed from cross-examination. But more importantly it was the trial judge's function, of which his Honour was clearly aware, to resolve the matter of credibility between the two. As I have said, there was evidence on the probabilities which clearly supported the case of the defendant, and as his Honour made clear at the end of his judgment, judgment for the defendant turned not upon any finding of fact involving misconduct but upon the fact that the plaintiff who bears the onus of proof had failed to sustain it. Returning to the test in the passage from Devries which I have referred to, it cannot be said in my view that the trial judge's finding did not depend to a substantial degree on the credibility of witnesses. As I have said, this was a credibility case par excellence. It cannot be said, in my assessment, that the judge failed to use or palpably misused his advantage. Nor did he act on evidence which was inconsistent with the facts incontrovertibly established or which was glaringly improbable, given that there were difficulties with accepting the evidence relating to the preparation of the three statements that were typed by Mr Carroll being difficulties that do not turn solely upon the matter of error that I have adverted to. One cannot help but have a great sympathy for the serious and permanent injuries suffered by the plaintiff and for the family who have to care for him in consequence of them. It was the trial judge's function to determine on the evidence before him whether the plaintiff had established the case on the probabilities and it is our function to determine in accordance with the test in Devries whether the trial judge misused the advantages which he had. In my view the trial judge did not. The appeal must be dismissed with costs. Powell JA I agree. Beazley JA I agree. URWARROLL (BY HIS TUTOR CARROLL) v THE NOMINAL DEFENDANT (Mason P) 5 Mason P That is the order of the Court. Appeal dismissed with costs. 5 Counsel for the appellant: R W Cameron Solicitors for the appellant: Beeton & Co Counsel for the respondent: A B Shand QC 10 Solicitors for the respondent: G E Lazar