New South Wales Court of Appeal CITATION : Crowe v The Nominal Defendant [1999] NSWCA 173 revised - 21/06/99 FILE NUMBER(S) : CA 40481/97 HEARING DATE(S) : 3 March 1999 JUDGMENT DATE : 10 June 1999 PARTIES : Shane Michael Crowe v The Nominal Defendant JUDGMENT OF : Meagher JA at 1; Handley JA at 11; Powell JA at 12 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : 400065/94 at Albury. LOWER COURT JUDICIAL OFFICER : Newman J COUNSEL : Appellant: B.J. Toomey QC/R. F. Sutherland Respondent: J. Hislop QC/B. Dooley SOLICITORS : Appellant: James Purvey & Associates Respondent: Sparke Helmore CATCHWORDS : Negligence - motor vehicle accident - identity of driver in dispute - alleged inconsistencies of statements to police not in evidence - no evidence as to signature on witness statement - transcript of evidence in Local Court not in evidence below. DECISION : Appeal dismissed with costs - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40481/97 CORAM MEAGHER JA HANDLEY JA POWELL JA Thursday, 10 June 1999. Shane Michael CROWE v THE NOMINAL DEFENDANT JUDGMENT 1 MEAGHER JA: This is an appeal from a judgment of Newman J by an unsuccessful plaintiff, Mr Shane Crowe. The case involved a motor accident. It was agreed by counsel that the plaintiff had to fail if he was the driver of the vehicle involved, but would succeed if he was a passenger. Newman J found that the plaintiff was the driver. 2 The case involves a drunken odyssey around the Riverina in an unregistered second-hand motor vehicle on 23 February 1993. The adventurers who boarded the vehicle on that day were a Miss Joan Chellou and four males: three brothers, the Messrs Shane, Bruce and Basil Crowe, and a friend of theirs Mr Christopher Murphy. They started at Finley, drove to Jerilderie, thence to Narrandera and thence to Leeton. At Leeton Messrs Bruce Crowe and Chris Murphy discontinued. From Leeton the remaining adventurers drove to Jilinbar and thence home towards Finley, before which came the accident in which the plaintiff was severely injured. 3 The central question in the case was who drove the car on the Jilinbar-to-Finley leg of the trip. On this question the evidence was sharply divided. One can, of course, disregard Messrs Bruce Crowe and Chris Murphy, who were not there; one can also disregard Mr Shane Crowe, the plaintiff, as the impact of the accident gave him amnesia. That leaves Miss Chellou and Mr Basil Crowe. Mr Basil Crowe was perfectly clear in his evidence: Miss Chellou was the driver all the way from Jilinbar to the accident. 4 Miss Chellou, on the other hand, told Newman J that she commenced to drive from Jilinbar, but at some point she stopped to relieve herself, and when she returned she found Mr Shane Crowe in the drivers seat, so that he drove from that point until the point of the accident. She had previously made two statements to investigating police. She had also given evidence before a Local Court. 5 Newman J accepted her evidence. He said: "In the upshot I find that the most credible account of the events of the evening and ultimately those of the accident itself is that of Miss Chellou. "Basil Crowe conceded that in Local Court proceedings brought against the plaintiff he had lied. He is a person with a criminal record for a number of crimes of dishonesty. I should add that Miss Chellou's various accounts both to police and to the Local Court and this Court were claimed by counsel for the plaintiff to contain inconsistencies. In particular, in her original statement to police it is recorded that she stated: "We left Leeton some time after midnight. Shane Crowe was driving and Basil Crowe was in the front passenger's seat. We stopped at a roadhouse somewhere out of Leeton for about half an hour. We started back to Finley. I fell asleep some time after that and I woke up and realised we'd had an accident." "This statement was put to her by counsel for the plaintiff in cross examination. When first pressed by counsel she stated that she did not remember saying that. Later, when pressed again, she said she must have been confused. The note was made by Snr Constable Robertson, I have already dealt with his evidence. In my view I cannot place any reliance upon any record kept of this accident by that policeman. In the light of the answers given by Miss Chellou when pressed on the point I am of the view that this seemingly inconsistent statement does not have the evidentiary force it would otherwise have. "Furthermore, her account of the events surrounding the accident given on oath at the Local Court and her account to this Court are consistent. "Despite the difficulties which emerged relating to her evidence, I find that she is the one witness in whom I find the most credible characteristics. This being so I find that it was in fact the plaintiff who was driving at the time when the accident occurred and it follows that there must them be a judgment for the defendant." 6 Normally, if there is a conflict between the testimony of two witnesses, the decision of the judge as to who is to be preferred must be based in whole or in part on demeanour, and is therefore beyond review by an appellate court. However, learned senior counsel for the appellant, Mr Toomey QC, urged strongly that his Honour's finding as to Miss Chellou's evidence was marred by error, and in particular by his Honour's failure to appreciate that Miss Chellou's statements to the police were her own statement, not statements by the police to record what she allegedly told them. 7 It is difficult not to appreciate the force of Mr. Toomey's submission. This is particularly so when one reads Miss Chellou's evidence before Newman J. For example, she said: "Q: Did you ever tell the police that you, in fact, had driven from the Jilinbar Roadhouse? "A: Yes" Again she said: "Q: You told them Shane drove the whole way from Leeton, didn't you? "A: Yes." Once more she said: "Q: You see, you told the police that Shane drove the car from Leeton right through to the point of the accident, didn't you? "A: Yes." It would be difficult to find more confusing evidence. 8 What Mr Toomey submitted was that Miss Chellou had consistently told the police that Mr Shane Crowe drove continually from Leeton to the point of the accident (and, therefore, necessarily, from Jilinbar to the point of the accident); whereas before Newman J she conceded that she drove a substantial part of the way between Jilinbar to the accident. And, said Mr Toomey, the evidence she gave in the Local Court was also inconsistent with the story she gave to Newman J. In those circumstances, the unexplained material inconsistencies required her evidence to be treated with extreme caution, if not disbelief. Nor was it a satisfactory answer to say, as Newman J did, that the evidence of the police being unworthy of credence, their account of what she told them was also suspect. Unsatisfactorily so because one of the statements bore her signature. 9 However, there are a number of impediments to accepting Mr Toomey's submissions in full. First, neither of her statements to the police are in evidence; secondly, the transcript of her evidence in the Local Court is not in evidence; thirdly, we do not know whether the police statement she signed was in her handwriting or the policeman's handwriting; fourthly, the quotation from her statement contained in his Honour's judgment does not quite affirm that the plaintiff drove from Jilinbar to Finley; and fifthly, there is no means of knowing whether her evidence in the Local Court was the same as, or different from, that given before Newman J. 10 I therefore feel the appeal must be dismissed with costs. 11 HANDLEY JA: I agree with Meagher JA. 12 POWELL JA: I agree with Meagher JA.- 7 - DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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