New South Wales Court of Appeal CITATION: Mastronardi v State of New South Wales [2009] NSWCA 270 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 8 April 2009 JUDGMENT DATE: 2 September 2009 JUDGMENT OF: Giles JA at 1; McColl JA at 14; Handley AJA at 90 DECISION: 1. Extend the time to seek leave to appeal to 26 August 2008. 2. Grant leave to appeal. 3. Dispense with the requirement to file the Notice of Appeal. 4. Appeal dismissed with costs. CATCHWORDS: APPEAL – trial judge's rejection of plaintiff's account of critical events based to large extent on adverse credibility findings – whether such findings tainted by factual errors – whether error in not accepting the plaintiff's evidence based on adverse credibility findings and lack of corroboration – whether substantial wrong or miscarriage – Uniform Civil Procedure Rules 2005 (NSW) Pt 51, r 53 LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW) CATEGORY: Principal judgment Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; (2004) 4 DDCR 358 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gett v Tabet [2009] NSWCA 76 CASES CITED: King v Collins [2007] NSWCA 122 Mastronardi v State of New South Wales [2007] NSWCA 54 Mastronardi v State of New South Wales (District Court of New South Wales, Boulton ACDJ, 6 May 2008, unreported) Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240 PARTIES: Fabian Mastronardi - Appellant State of New South Wales - Respondent FILE NUMBER(S): CA 40261/08 COUNSEL: B J Gross QC with K Ryan – Appellant M Cashion SC with S Finnane – Respondent SOLICITORS: Thurlow Fisher – Appellant Crown Solicitors Office – Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 4009/01 LOWER COURT JUDICIAL OFFICER: Boulton ADCJ LOWER COURT DATE OF DECISION: 6 May 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40261/08 DC 4009/01 GILES JA McCOLL JA HANDLEY AJA Wednesday 2 September 2009 Fabian Mastronardi v State of New South Wales Judgment 1 GILES JA: I agree generally with the reasons of McColl JA, but express slightly differently why grounds of appeal 1, 2 and 4 should not be upheld. What follows is based on, and assumes familiarity with, her Honour's reasons. Ground of appeal 1 2 The appellant accepted that the appellant's evidence that prior to signing the request for protection in the POD office he had never asked for protection (in fact the evidence was that he had "never asked any prison officer to go onto protection") contradicted "the allegation in paragraph 3 of the Amended Ordinary Statement of Claim". Paragraph 3 of the statement of claim alleged that the appellant had "requested protection" and that protection was not provided. 3 The acceptance was correct, because the appellant's evidence of telling the POD office that he feared for his life and wanted help and "Can you get me out of here" was a request for protection. Protection within the prison system had been explained to the appellant, and his particulars said that the appellant had "requested Protection" and that the POD officers "didn't seem to care or be bothered giving me adequate protection". 4 It followed from this that there was also contradiction of the appellant's "evidence on trial that he said to the officers that he was in fear of his life and to get him out of there". That evidence on trial was, in the appellant's discourse, evidence of asking to go on protection. 5 For the ground of appeal, there had to be error in failing to understand the affirmative answer to the question that the appellant "had never asked any prison officer to go onto protection" as meaning, as the appellant said in re-examination, that he had not asked for "protection, official protection, signing onto a protected custody". 6 The distinction was not between help and protection, but between asking for protection and "signing onto a protected custody" as a formal process. The trial judge was not obliged to accept the appellant's explanation that he understood protection to mean signing on to a protected custody as a formal process. The appellant plainly did not – in the particulars the requests, which were short of asking to sign on to a protected custody as a formal process, were described by him as requesting protection. 7 The trial judge was entitled to see the contradiction to which he referred. Ground 2 8 What I have said shows why the trial judge was also entitled to see the contradiction the subject of this ground. Ground 4 9 In my view there was notable discrepancy between the appellant's evidence and the Long Bay Hospital notes recording that "he thinks the only reason he can think of for his assault is the fact that he arrested a few people in the course of caring [sic] out his duties". Even ignoring the first "thinks", from the notes the appellant did not know why he was assaulted but guessed at the only reason he could think of. But he did know – he had been told by the inmates. 10 It is correct that care must be taken in relying on records such as the hospital notes, but error in making a note in the terms "the only reason he can think of" is unlikely. 11 The discrepancy was not put to the appellant, and as McColl JA observes he should have been given the opportunity to explain it if it was to be relied on. It is not easy to see what explanation he might have given: perhaps that his injuries were affecting his mental processes, or maybe a direct denial that he said what was recorded in the notes. 12 However, on 30 November 1998, the day before the date of the note, the appellant signed a request to come off protection while in hospital, a ward officer recording that he feared for his safety only while in MRRC. His cognition appears to have been satisfactory. Any explanation would itself be open to question on reliability or credibility. The trial judge was satisfied for many other reasons that the appellant lacked credibility, and I agree with McColl JA that failure to put the discrepancy to the appellant did not occasion a substantial wrong or miscarriage. 13 I agree with the orders proposed by McColl JA. 14 McCOLL JA: The applicant, Fabian Mastronardi, seeks leave to appeal, and to appeal, from a decision by Boulton ADCJ in the District Court of New South Wales dismissing his claim in negligence against the respondent, the State of New South Wales. The leave application has been heard concurrently with the appeal, so that, if leave is granted the arguments on the leave application will stand as arguments on the appeal. Background 15 The applicant was assaulted on 29 November 1998 by a number of fellow prisoners while he was an inmate in the Metropolitan Remand and Reception Centre situated in Silverwater, New South Wales (the "MRRC"). He commenced proceedings in the District Court against the respondent alleging it had breached its duty of care in failing to provide protection for him against physical attack. In essence, he alleged that he had been threatened by inmates prior to the assault, had reported those threats to the respondent and sought protection, but that the respondent had not acceded to his requests, leaving him exposed to the assault in which he was injured. The respondent accepted it owed the applicant a duty of care, and that the applicant had been assaulted on the day in question. It denied it had breached its duty of care and strongly challenged the applicant's account of both the matters leading up to the assault and of the incident itself. 16 The proceedings originally came on for hearing before Coorey DCJ, who disqualified himself five days into the trial on the applicant's application. A second hearing took place before Phegan DCJ, who found for the respondent. In March 2007, the Court of Appeal upheld an appeal by the applicant, set aside Phegan DCJ's judgment and ordered a new trial: Mastronardi v State of New South Wales [2007] NSWCA 54. 17 Boulton ADCJ heard the new trial. He also found in favour of the respondent. He held that the respondent had not breached its duty of care because the applicant had not complained that he was under threat prior to his assault, nor did the assault occur in the way the applicant contended: Mastronardi v State of New South Wales (District Court of New South Wales, Boulton ADCJ, 6 May 2008, unreported). The applicant challenges this decision. The critical issue is whether his Honour made errors occasioning a substantial wrong or miscarriage sufficient to warrant the ordering of a new trial pursuant to the Uniform Civil Procedure Rules 2005 (NSW) Pt 51, r 53. 18 The appellant's application for leave to appeal was filed out of time, but a notice of intention to appeal was served on the respondent on 3 June 2008. The respondent did not consent to an extension of time for leave to appeal, but could not point to any prejudice. In my view the appellant should be granted an extension of time in which to seek leave to appeal and leave to appeal should be granted. I shall therefore refer to the applicant as the appellant hereafter. Pleadings 19 The appellant's case was commenced by statement of claim filed in the District Court of New South Wales on 5 August 2002. Paragraph 3 of the amended statement of claim, the pleading on which the matter went to trial, alleged: "3. On the 28 th day of November 1998, the Plaintiff requested protection on the basis that he had previously been a security guard and had been recognised by some prisoners in POD 13 and as a result was apprehensive as to his personal safety but such protection was not provided and subsequently the Plaintiff was assaulted and suffered injuries and disabilities." 20 The respondent's solicitors sought further and better particulars. Paragraph 5 of the request asked for details of the request for protection referred to in paragraph 3, including whether the request was in writing, to which officer(s) it was made, whether more than one request was made and the reason given for refusing the request. 21 The appellant prepared a handwritten reply to the request for particulars which relevantly stated: "1.a) Prior to assault (approx 30 min) I was called to my cell by an inmate, when I entered I was called to the window by another inmate who was then out in the yard. As I began to approach I was struck from behind by the first inmate with a kettle which he held by the cord then swung it at the back of my head. I half turned to keep an eye on them both and asked what I had done. They said I would be bashed as I was a security guard (a dog). Main attack took place approx 25 min later around 30 min before lunchtime mustre [sic, as in original] (roll-call). b) About six inmates ran from the yard into my POD (13) and directly to my cell where I sat in the doorway watching T.V. I sat near the door in view of the POD desk so the two officers there could keep an eye on me as promised as I had earlier requested Protection due to threats made toward me, these two guards said I couldn't be moved straight away and would be O.K anyway and not to worry. As they ran into my cell the last one in slammed the cell door closed behind him, as he entered, so hard it re-opened half way and several inmates stood outside and watched as I was systematically punched and kicked to the ground then had my head, face and body continually kicked and jumped upon and was struck several times in the head by a kettle. … This attack lasted around 15 min during which I shouted and yelled for help continuously. This group then ran from my cell but as I tried to get to my feet another group of around 3 or 4 inmates then attacked me and bashed me about the head + body for a further 5-10min and it was at this time I thought I was going to die as I almost lost consciencness [sic, as in original]. All told the entire attack lasted approx 20-25min and was repeatedly told I was a dog and I would die. c) Continuous kicks and punches to my head, face, neck and body, and a kettle (hard plastic) was repeatedly swung by the cord and struck over my head, I eventually fell to the ground then they jumped on my head and body and kicked me countless times. Just before it stopped I felt a blow to the top of my head from a heavy object which almost knocked me out cold, I was so scared as I was sure I was about to be killed. d) I don't know any names and was to [sic, as in original] concerned with protecting myself to bother looking to try and remember what they looked like. e) I didn't recognise anyone but after I was first threatened and was told they knew who and what I was, it was obvious they knew me. I tried to make the POD officers realise the imminent physical danger I was in yet they didn't seem to care or be bothered giving me adequate protection. f) Nearly every inmate in POD 13, heard and/or saw this attack on me. At least two officers at the POD desk (which is to be occupied at all times during inmates time out of cells) was no more than 25-30ft from my cell door, and where [sic, as in original] told by me twice earlier of the threats made against me and my fear of being attacked, should have easily noticed six inmates in a group running through the POD and into my cell as I sat in the doorway after telling me I would be O.K and they would keep an eye on me. During the attack, I was able to see a large number of inmates outside my cell door watching my assault, I was yelling and screaming for help but no one came. When it was all finally over, the last of them also ran from my cell in view of everyone. I managed to get to my feet to try and get out of my cell before they came back and finished the job. I had partially lost sight in one eye and had also temporarily lost most of my hearing, the pain and fear I felt still comes to me during a flashback or nightmare which I experience several times per day ever since. With blood everywhere, my face and head badly swollen and bruised and my clothes torn I staggered toward the POD desk thinking as soon as one of them saw me they would help me. Instead they just ignored me so I just sat on a chair by myself not knowing what to do, I was disoriented and confused. An inmate approached me and said I was going to die if I didn't get out of that POD. I knew it was no use asking the same two guards so I was sure I was going to meet a violent death." 22 The primary judge described the particulars (at 3 - 4) as follows: "The Plaintiff gave evidence that at the time he prepared the particulars he was in gaol at Lithgow. Subsequently the Crown cast doubt on this suggesting that he was at that time serving some periodic detention. The Crown contention seems correct. There is no evidence that he received any legal advice in compiling them. On the available evidence the Particulars would appear to have been prepared by the Plaintiff. While not carefully drafted in response to each question the particulars set out a reasonably coherent account of the assaults and the surrounding events. They are not the work of an illiterate. They are deficient when it comes to later treatment. There is for instance no reference to his being hospitalised at Long Bay. However, the events central to this case were canvassed in fair detail and in logical sequence though there were some omissions." Statement of the Case 23 At the time of the assault the appellant was on remand at the MRRC awaiting trial. He had never been in gaol before. Prior to the offence for which he was awaiting trial, he had worked for some five or six years as a security officer, primarily in retail settings. According to his evidence in chief, during the course of this work, he was involved in the arrest and detention of approximately six people as a result of which he made statements to the police and attended court. 24 The appellant entered the MRRC on 9 November 1998. He underwent an induction process with officers in the Department of Corrective Services. He was first interviewed by an "intake screener", Ms Janne Mumford, who was responsible for completing "Psycho Social Assessments on all people being brought into custody". As part of her assessment of the appellant, she was required to complete a form entitled "Welfare Assessment (1) Crisis Assessment" which recorded the appellant's responses to questions set out therein. One of the questions was : "Do you have any concerns?", to which Ms Mumford recorded "says no". Ms Mumford gave evidence that she had explained to the appellant what "protection" was in the context of the prison system, but he had said that he did not need protection. 25 Ms Christine Muller, a nurse employed by the Corrections Health Service, also interviewed the appellant. On the form she completed during the interview, titled "Clinical Reception Assessment", she noted against the heading "Employment History": "Type of work – Security". 26 After his induction, the appellant was detained in the "Goldsmith area" inside the MRRC. The "Goldsmith area" is a wing inside the prison that consists of four places of detention ("PODs"). The appellant's cell was in POD 13. 27 The appellant gave evidence that three incidents occurred before the main assault on 29 November 2008. The first incident occurred a "day or two" after he was admitted to the Goldsmith area. He said he was "recognised" as a former security guard by an inmate who said to him: "We know who you are. You're a security guard. You're a dog. We're going to get you". He said he reported the incident to POD officers he was unable to identify, stating: "I fear for my life" and "I was employed as a security guard. I've been recognised. I'm in danger." According to him, the POD officers' response was "We'll keep an eye on you. You'll be okay". 28 The appellant said the other two incidents occurred on 29 November 1998. He said that approximately 25 minutes prior to the main assault, he was asked by a fellow inmate to enter his cell, whereupon another inmate in the exercise yard outside his cell, called him to the window and punched him in the face through the bars of the window. During this incident, the appellant said he was also hit with a kettle by the inmate inside his cell. This assault is referred to in the primary judgment as the "kettle incident". After this incident, the appellant said he went to the POD office and said to the officers there: "I'm in fear of my life. Can you please help me? Can you get me out of here?", to which they responded: "You'll be all right. We'll keep an eye on you. Don't worry about it". He did not say he had been assaulted. 29 The appellant also testified that shortly afterwards a group of inmates in the exercise yard were "talking and pointing at him". He again approached the POD officers and stated "I'm in fear of my life. I used to be a security guard and I've been recognised". He did not mention the group of inmates pointing at him. Their response was: "We'll keep an eye on you, don't worry". 30 The appellant's account of the main assault was as follows: "Q. What happened then? A. I went back to my cell. I was standing just outside my cell door and I noticed an officer open a door which led to the exercise yard. … Q. Yes, go on? A. And numerous inmates came through. Q. How many? A. At least, at least five or six Q. What did they do? They ran over to my cell. I panicked and just backed up into my cell. They took me inside and they punched me, kicked me until I fell down and they punched me and kicked me, jumped on my head. Yeah." 31 After the main assault ceased, the appellant said he did not complain to the prison officers on duty, but sat on a chair facing the POD office. On his evidence, set out hereunder, at this stage he was obviously injured. He said the prison officers ignored him even though he attended the midday muster during which the officers conducted a roll call and were required to count and "eyeball" the prisoners. The appellant said that after the muster, someone he identified as a "sweeper" approached him and said, "You better get out because they're going to stab you next". 32 According to both the appellant's particulars and his evidence at trial, a senior officer eventually approached the appellant and escorted him to an office behind the POD office. The POD diary indicated that this took place at 1.20pm. While in that office, the appellant was asked to sign a formal application to enter protection. The document as completed included both a request to enter protection and a statement to the effect that the appellant did not wish police involvement. According to the appellant, the latter statement was not on the document when he signed it. 33 The prison officers who were on duty during the 29 November 1998 gave evidence that they remembered nothing about the main assault or the events leading up to it, and did not recall any requests for help or assistance from the appellant. Mr Barber, a correctional officer working in position of "Rover 2" on the date of the main assault who was responsible for moving between Pods 13 and 14 to supervise the inmates, gave evidence that he was approached by an inmate, identified as "Faulkner", who informed him that if an inmate "sitting in front of the TV" was not moved from the POD, "he would be carried out". Mr Barber notified a more senior officer, Mr Katieli, who he saw escort the inmate from the area. At some stage Mr Katieli told him the appellant was the person to whom Faulkner was referring. Primary Judgment 34 The primary judge's rejection of the appellant's case was based on a number of adverse findings he made concerning the reliability of the appellant's evidence. Although the appeal, as will become apparent, turns on four comparatively narrow grounds, it is necessary to set out the way the primary judge disposed of the case in order to put those grounds in context. The following discussion reflects the order of his Honour's judgment. 35 As will be apparent his Honour's detailed analysis demonstrates that he concluded that the appellant's evidence both of the events prior to the main assault and of the main assault itself, taken in the context of other accounts he had given of these events was inherently unbelievable. 36 Although his Honour did not make specific findings about each matter which follows, each clearly contributed to that conclusion. 37 First, his Honour rejected the appellant's case at trial that the prison officers who dealt with the appellant after the main assault altered the three documents signed by the appellant after the main assault without the appellant's knowledge in order to suppress a police investigation. His Honour found (primary judgment, at 5, 6) that such an assertion was at odds with the appellant's difficulty in examination in chief in recollecting the content of the documents. He observed (primary judgment, at 6) that the "suggestion of a conspiracy requires some cogent evidence to support it. That evidence was not forthcoming". This finding is not challenged. 38 His Honour next dealt with matters which occurred in 2004. In due course the appellant was convicted of the offences for which he was on remand in the MRRC and was given periodic detention. However subsequently he committed further offences and was sentenced to imprisonment. In 2004 he lodged an appeal against sentence for the purposes of which he signed an affidavit prepared by a legal aid solicitor on his instructions. In that affidavit he claimed that the assault at the MRRC was because he would not give up cigarettes. He accepted, in response to a question by the primary judge, that he gave the solicitor the instructions which led to that claim being included in his affidavit. His explanation for his dissembling was (primary judgment, at 7) "he thought Corrective Services and Legal Aid were connected and he didn't want them to find out about his Civil action." Although the primary judge did not make an express finding about the inconsistency between this account of the reasons for the main assault, and the case advanced at trial he was, in my view, entitled to take into account that, at best, the appellant had signed a false affidavit. 39 The primary judge next noted inconsistencies between the appellant's evidence on cross examination and his allegations, both in his particulars and in his statement of claim, that he had sought protection from prison authorities. The primary judge observed (primary judgment, at 7): "Later in cross-examination it was put to the Plaintiff that prior to his signing the request for protection in the pod office he had never asked for protection. He agreed. This directly contradicts the allegation in paragraph 3 of the Amended Ordinary Statement of Claim and his evidence on trial that he said to the Officers that he was in fear of his life and to get him out of there." His Honour set out this evidence (primary judgment, at 10). It is the subject of the first ground of appeal. I set it out when I deal with that ground. It is also relevant to note, at this stage, that later in his reasons his Honour found (primary judgment, at 18) that Ms Mumford explained the nature of protection to the appellant during his induction, that she asked him whether protection was sought, and that he declined it. His Honour also found the appellant did not tell Ms Mumford he had worked as a security guard. 40 The primary judge next considered the appellant's account of events leading up to the main assault. He was clearly unimpressed by the fact that the appellant could give no description of any of the inmates he said had threatened him prior to the main assault, or the officers to whom he said he had spoken. He observed the appellant had given "conflicting 'guesses'" as to the inmates' descriptions. 41 His Honour expressed doubt that the appellant had been punched in the head through the bars during the kettle incident. He observed (primary judgment, at 8) that the appellant had given conflicting accounts of the location of the injury on his head, and that he had made "no mention in his particulars of such an incident and no mention in earlier proceedings before Judge Coorey", nor had he referred to the punch in giving a history to a Dr John Roberts, a consultant psychiatrist retained by the appellant's solicitors. This observation is the subject of the third ground of appeal. 42 His Honour also observed (primary judgment, at 8) that it was "most unlikely that if he had been earlier threatened [the appellant] would accept an invitation from an inmate who is not identified to go into his cell and put his face so close to the window as to be punched from the outside". 43 The primary judge also had difficulty with the appellant's evidence relating to his location immediately prior to the main assault. According to the appellant's particulars, the attack occurred when he was sitting in the doorway watching TV. His Honour found (primary judgment, at 8 – 9) that this detail had "significant ramifications" because, from the layout of the appellant's cell and the ground floor plan of POD 13, a person in the doorway of that cell (or indeed just outside it) would not have been able to see the door to the exercise yard. The primary judge did not accept the appellant's account at trial that he was instead "just outside [the cell door] and able to see the doorway", dismissing this version (primary judgment, at 9) as "an implausible attempt on [the appellant's] part to evade the problem that he was in". This finding is not challenged. 44 The respondent launched a significant assault on the appellant's credibility having regard to his evidence as to where he was immediately prior to the main assault. Whereas the appellant's counsel had submitted that the assault the appellant described could hardly have escaped the attention of the officer on the door of the POD, the respondent's counsel submitted that the appellant's evidence about the main assault was a fabrication. He drew attention to the fact that there was a surveillance camera facing in the general direction of the appellant's doorway and that the officers monitoring that camera saw nothing amiss and recorded nothing. In his cross-examination, despite agreeing that it was not possible to see the door to the exercise yard from the doorway to his cell, the appellant had continued to assert he saw the inmates coming through the door. The respondent's submission, which the primary judge appeared to accept (primary judgment, at 10), was that if the appellant had seen the inmates coming through the door, he had failed to explain why he did not close his cell door and press the "knock-up button" just inside. 45 The primary judge (primary judgment, at 10) rejected the appellant's account that inmates ran past an officer on the door and assaulted him, as well as the further submission that they came from POD 14. This finding is not directly challenged, although it might be inferred that the appellant's counsel are of the view that this is an ultimate finding which will fall away if the grounds of appeal are upheld. 46 As I have said, the primary judge found (primary judgment, at 20) that during the appellant's induction interview Ms Mumford explained to him what was involved in protection and that, on her asking if he wanted protection, he declined. His Honour also found (primary judgment, at 20) that even if the appellant had divulged his past employment in the security industry during induction, it would not have been sufficient to put the respondent on notice that he required protection. In making that finding he accepted (primary judgment, at 18) Ms Mumford's evidence that former employment as a security guard in itself was "not deemed … as a major threat unless they have worked in a situation where they are going to have an association problem", for example, an association problem "with someone they'd had an altercation with in their job as a security guard". Ms Mumford's opinion was corroborated by Mr Chesney who gave evidence that while an obligation to protect an inmate may arise if the inmate had been recognised as a security guard and threatened, "being a security guard doesn't necessarily always indicate that he's going to need protection" (primary judgment, at 15). These findings are not challenged. 47 The primary judge's conclusions on the question of prior requests for protection were (primary judgment, at 20 – 21): "The Plaintiff of course says that on three separate occasions he approached the Pod desk for help saying amongst other things 'I'm in fear of my life. Get me out of here. I've been threatened…' I am not satisfied that the Plaintiff ever did so. Such words would have constituted a clear request for protection and the Plaintiff was forced to admit that he never asked for protection until after he had been taken out of the Pod by Mr Katieli . … There was absolutely no reason why such a request should have been ignored and not recorded. On the occasion when Mr Barber's attention was drawn to him, the steps to remove him were taken swiftly. Why, if he was ignored three times did he not say to Mr Chesney that he had asked for assistance and had not received it…." (emphasis added) 48 The primary judge found the appellant's "account of sitting in the doorway of his cell and seeing prisoners let in from the exercise yard" to be "comprehensively discredited". He said (primary judgment, at 21): "If a number of prisoners ran in and others were milling around his doorway they must have been noticed by the officer at the door, the officers at the pod desk or by the officers in the tower, the event occurring over a significant period suggested by the Plaintiff to be 25 minutes. He had a 'knock-up button' adjacent to where he sat. He gave no explanation why he didn't use it. How could he attend the muster a short time later and be 'eyeballed' by an officer and not be noticed if he was dripping blood? … The notion that all of these officers including those in the tower were part of a conspiracy is quite without foundation". 49 He concluded (primary judgment, at 22) that, on balance, it seemed far more likely that the assault on the appellant occurred after the muster and in his cell away from the lenses of the surveillance cameras and that it did not really matter whether the motive was his past as a security officer or a refusal to part with cigarettes. 50 The primary judge then noted an account recorded two days after the main assault when the appellant was in Long Bay Hospital (the "Long Bay history"). A handwritten note on the appellant's medical records stated that the appellant "was a security officer in Bankstown Square he thinks the only reason he can think of for his assault is the fact that he arrested a few people in the course of caring [sic] out his duties". His Honour noted (primary judgment, at 22): "This appears to be merely a possible explanation proffered by the Plaintiff. He told the Court he had been told by inmates that he was a security officer, a dog and that they were going to get him. If this was so there was no need for him to be thinking up reasons. This observation is the subject of the fourth ground of appeal. 51 His Honour then said, (primary judgment, at 22) "[t]aking the view of the plaintiff's lack of credibility that I do I could not be satisfied of any of the above mentioned accounts." 52 His Honour concluded (primary judgment, at 22) there was no evidence in the POD diary, the area manager's diary, the register of videotapes held, or the tower log to corroborate the appellant's submission that "anarchy prevailed" on the day of the assault. He summarised his findings (primary judgment, at 22 – 23) as follows: "In the end result I am satisfied that, in the induction process conducted by Ms Mumford the Plaintiff was informed of the nature of protection but declined its offer. Asked about employment he did not mention past work as a security guard. He expressed no concerns. He did not subsequently seek protection or assistance from the Pod desk with safety concerns. Such assault as occurred was not such as to attract the attention of officers on duty in the Pod or those attending CCTV monitors." 53 Accordingly, the case on liability failed (primary judgment, at 23). 54 The primary judge considered the issue of damages in case his conclusion on liability was wrong. He considered (primary judgment, at 23 – 26) a number of psychiatric and neurological reports tendered on behalf of the appellant, which he considered were unfavourable to the appellant. He said that if the appellant had succeeded in liability, he would have awarded him $25,000 and interest of $4,500, with no aggravated damages or future economic loss, the only other heads of damage the appellant advanced (at 26). The appellant does not seek leave to appeal from this aspect of the decision. Grounds of Appeal 55 The appellant asserts that the primary judge made errors of fact, and misinterpreted and failed properly to consider the evidence in four respects: (a) in holding that the appellant's evidence that prior to him signing the request for protection in the POD Office he had never asked for protection "directly contradicts" the allegation in paragraph 3 of the amended ordinary statement of claim and his evidence at trial; (b) in holding that the appellant was forced to admit that he never asked for protection until after he had been taken out of the POD by Officer Katieli and that this was contrary to what he said repeatedly in his handwritten particulars; (c) in stating that the appellant had made no mention of being punched by another inmate through the bars in either (i) the earlier proceedings before Coorey DCJ, and (ii) the history given by him to Dr Roberts, a doctor retained by the appellant's solicitors; (d) in placing excessive reliance, in a manner detrimental to the appellant's credit, upon the history recorded in the Long Bay Hospital records. 56 Part (i) of the third ground of appeal was abandoned in oral argument. 57 As will be apparent from the foregoing analysis, each of the appellant's grounds of appeal challenges a finding which was integral to the primary judge's view of the appellant's credibility and to the overall acceptance of his version of the events leading to the assault. His Honour also tested those findings against the MRRC's contemporaneous records, including videotapes and tower logs and could find nothing which supported the appellant's account of how the assault occurred. Consideration 58 A challenge to credibility findings faces the considerable difficulties identified in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. While the Court is obliged, within the confines of the grounds of appeal, to "conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons" and "give the judgment which in its opinion ought to have been given in the first instance", there are "natural limitations" on an appellate court that proceeds wholly or substantially on the record, and the appellate court's obligation to review can only be carried out within those natural limitations: (at [23] - [25]) per Gleeson CJ, Gummow and Kirby JJ; see also Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240 (at [148]) per Campbell JA (Macfarlan JA agreeing); Gett v Tabet [2009] NSWCA 76 (at [10] - [23]) per Allsop P, Beazley JA and Basten JA. 59 One of those "natural limitations" is the advantage of a trial judge over an appellate court in particular in matters involving the "evaluation of [the] witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share": Fox v Percy (at [23]). A trial judge's conclusions may be found to be erroneous, even when they appear to be, or are stated to be, based on credibility findings in the light of "incontrovertible facts or uncontested testimony" or where the decision is "glaringly improbable" or "contrary to compelling inferences" in the case: Fox v Percy (at [28] – [29]). Ground 1 – request for protection 60 The essence of this complaint is that the primary judge erred in failing to distinguish between the formal process of seeking protection and the appellant's verbal requests made to various prison officers in which he said he was in fear for his life and sought assistance. 61 I have set out (at [39] above) the passage of the primary judge's reasons to which this complaint relates. 62 The appellant's evidence in chief at trial was that he sought help from prison officers in respect of the three incidents to which I have earlier referred (at [27] – [29]). 63 The appellant's formal written application for protection was made on a form described as "Inmate's Application or Statement" which stated: "I wish to sign onto protection for my own safety and good order of the gaol". The appellant was asked a series of questions in cross-examination about this application. He agreed that that document was the first time since he had entered the MRCC that he had "completed a written request for protection". 64 The following exchange then took place: "Q. And it was the first time since you'd entered Silverwater Prison that you had requested in any way whatsoever protection, wasn't it? A. Protection or help? Q. Protection? A. To go onto protection. Q. What I'm suggesting to you is that at no stage before you filled out the document in the pod office to go onto protection had you requested to go on protection at any time after you'd entered Silverwater Gaol? A. (No verbal reply) RYAN: Your Honour, just before that's answered, 'protection' is a term of art in this situation and may lead to confusion. HIS HONOUR: From the demeanour of the witness, he seems to appreciate the meaning of the term and indeed, a moment ago, he appeared to distinguish going onto protection from just help, as he pointed out. Now, I thought counsel then, very carefully, framed the question as to whether at any time, prior to signing that document in the pod office, he had made any request to go on protection. RYAN: I appreciate that, your Honour. It still leaves open the possibility that in the witness's mind there can be a distinction between the word 'protection' and words that amount to seeking protection. HIS HONOUR: Well, counsel might ask some further questions and if he doesn't, you can clear it up in re-examination. Yes, you can ask the question." Q. Mr Mastronardi, you understand the process of going on protection to be a formal process within a prison, correct? A. Yes, yes. Q. If you go on protection, you go into a special protection unit, do you not? A. Yes. Q. Yes. What I'm asking you is from the time you entered Silverwater Gaol to the time you signed the document in the pod-office you had never asked any prison officer to go onto protection. That's the fact isn't it? A. That's correct, yes." 65 Mr B Gross of Queens Counsel, who appeared for the appellant with Mr K Ryan on appeal but not at trial, submitted that, contrary to the primary judge's findings, there was no contradiction between the passage I have set out from the appellant's evidence in cross examination and the allegation in paragraph 3 of the amended statement of claim that he had requested protection prior to the main assault. He contended that the primary judge failed to understand the senses in which the appellant was using the term "protection" in each instance. He argued that the appellant's statement in cross-examination that he had "never asked any Prison Officer to go onto protection" was directed only at the formal process of completing a written request for protection, but did not include the requests for help he had made on the three occasions prior to the main assault. 66 Mr Gross contended that the appellant's understanding of the term "protection" was made clear first by the context of the appellant's response, during which the appellant had attempted to clarify whether the cross-examiner was dealing with "protection or help?", to which the cross-examiner replied: "protection"; and secondly, by his explanation in re-examination that what he meant by "protection" was "official protection, signing on to a protected custody". 67 Mr Gross also complained that the primary judge failed to consider the explanation the appellant gave in re-examination and therefore misinterpreted the appellant's evidence. That was a reference to the following exchange: "Q. You were asked a question whether you had ever asked for protection prior to making a written request to Mr Katieli" A. Yes Q. And your answer was no? A. Yes. Q. What did you understand by the word 'protection'? A. Protection, official protection, signing on to a protected custody. … [after a skirmish of objections] HIS HONOUR: He's told us what he means by a protection, that is a formal protective custody. He's already in his evidence in chief Mr Ryan said that on previous occasions he had told them, and I'll go back to it if you like. Told him, that's the high ranking officer, he did previous work as a security guard and the officer said 'that shouldn't be a problem'. He told the officer in the POD office, when two officers were present, 'I fear for my life. I was employed as a security guard. I've been recognised. I'm in danger.' And they were alleged to have said to him, 'We'll keep an eye on you, you'll be okay'. These things obviously are not asking for formal protection . RYAN: No. … HIS HONOUR: Oh well he seems to understand that protection means formal protective custody, well that's the answer he gave anyway. RYAN: Yes thank you your Honour, I've got nothing further." (emphasis added) 68 Mr M Cashion of Senior Counsel, who appeared for the respondent with Mr S Finnane on appeal and at trial, contended that the primary judge was justified in pointing out the contradiction between the appellant's evidence in cross examination that the first time he requested protection was after he had been removed from POD 13. He argued that even having regard to the appellant's re-examination as to his understanding of protection, this did not explain the inconsistency between his statements in cross-examination and his assertion in his statement of claim and particulars that he had asked for protection. 69 In my view, there is no substance in this ground of appeal. The appellant's response, "Protection or help", to the cross-examiner's question was telling. It demonstrated a clear appreciation of the distinction between a formal request for protection and an (informal) request for help. His case was pleaded and particularised on the basis that prior to the main assault he had formally sought protection. The primary judge found the process of asking for protection was explained to him when he was inducted. As I have said, this finding was not challenged. When cross-examined the appellant accepted that he had not made any such request prior to the main assault. His re-examination did not in any way clarify, or cast any different light on, that concession. 70 Mr Gross sought to argue that it was only after the appellant had actually been assaulted that he appreciated he had to request formal protection. However that submission does not sit well with the appellant's evidence that he had earlier been assaulted during the "kettle incident". It was common ground that, assuming the kettle incident occurred, the appellant did not seek formal protection, but, at best, told prison officers he was in fear of his life, but did not say he had been assaulted. That of itself was a remarkable omission. The fact that the appellant did not seek formal protection following what he said was an assault underlined the inconsistencies in his evidence which, in my view, justified the primary judge's rejection of his evidence about the three prior complaints. 71 In my view the primary judge's finding was open to him. 72 I would reject this ground of appeal. Ground 2 – the appellant's handwritten particulars 73 Ground 2 was, in a sense, another version of Ground 1. It complains about the following passage in the primary judgment (at 20): "The Plaintiff of course says that on three separate occasions he approached the Pod desk for help saying amongst other things 'I'm in fear of my life. Get me out of here. I've been threatened…' I am not satisfied that the Plaintiff ever did so. Such words would have constituted a clear request for protection and the Plaintiff was forced to admit that he never asked for protection until after he had been taken out of the Pod by Mr Katieli. This was contrary to what he said repeatedly in his particulars Exhibit C. " (Emphasis added) 74 Mr Gross contended that the primary judge erred in placing excessive reliance on the handwritten particulars in his assessment of the appellant's credit. He submitted that his Honour treated the particulars as being a complete narrative as to all relevant events whereas, he argued, the appellant's responses only addressed a portion of the particulars requested by the Crown Solicitors Office. 75 It will be recalled that in his particulars the appellant wrote: "b) … I had earlier requested Protection due to threats made towards me …. e) … I tried to make the POD officers realise the imminent physical danger I was in yet they didn't seem to care or be bothered giving me adequate protection …" 76 The appellant's written and oral submissions approached this issue as if the primary judge had drawn an adverse conclusion about the appellant because of an omission from the particulars. 77 However, in my view, the primary judge saw the discrepancy he identified between the requests for protection the appellant referred to in his particulars, and his answer in cross-examination denying he had sought protection before the main assault as another inconsistency which undermined the appellant's credibility. 78 In my view that finding was open to his Honour. I would reject Ground 2. Ground 3 – the primary judge's treatment of the appellant's claim to "being punched through the bars" 79 This ground of appeal complains about the following passage in the primary judgment (at 8), under the heading "Being punched through the bars": "He had given conflicting accounts of where on his head he had been punched by the inmate in the exercise yard. He had made no mention in his particulars of such an incident and no mention in earlier proceedings before Judge Coorey. In giving a history to a Dr Roberts, a doctor retained by his own solicitors, he also failed to mention such an incident. It was put to him that this was a fabrication. It seems most unlikely that if he had been earlier threatened he would accept an invitation from an inmate who is not identified to go into his cell and put his face so close to the window as to be punched from the outside" The primary judge did not explicitly conclude that the appellant had fabricated this incident insofar as it involved an allegation another prisoner struck him through the cell window bars, however it appears from the structure of his reasons to have been one of a number of reasons which led to him to conclude the appellant was an unreliable witness. 80 As I have said, the appellant did not persist with his complaint about the primary judge's conclusion he had not given evidence about this incident before Judge Coorey. However Mr Gross did press the remaining aspect of ground 3, the complaint that the primary judge erred in concluding that the appellant had not mentioned being punched through the bars in giving a history to Dr Roberts. He contended that Dr Roberts' report of 6 December 2001 did refer, albeit obliquely, to the punch in the following statement: "Mr Mastronardi stated that in relation to these threats, there was an incident where a prisoner 'swung' at him". 81 Mr Gross submitted that the primary judge drew too subtle a distinction between a "punch" and a "swing". He noted the appellant gave Dr Phillips, a psychiatrist retained by the appellant, a history of an occasion when a prisoner "swung a fist at him through the barred cell window" in a report dated 10 December 2001. He also referred to a report from Dr Edwards of 21 February 2002 which recorded the incident in the cell in substantially the terms of the appellant's evidence in chief. 82 In my view there is no substance in this ground of appeal. The primary judge undertook a careful examination of the evidence to assess the appellant's credibility in the course of which he identified inconsistencies in his evidence, in particular, in the varying accounts the appellant had given of the events before, and concerning, the main assault. This was another instance of inconsistency in the sense that the appellant had failed to report a "punch" rather than a "swing" in giving a history to Dr Roberts (and of course Dr Phillips) of the events leading to the main assault. The fact that he reported the "punch" to Dr Edwards a year or so later, in my view, supports the primary judge's conclusion about his unreliability, rather than pointing to error on his Honour's part. 83 This ground of appeal should be rejected. Ground 4 – reliance on the Long Bay Hospital history 84 The primary judge considered a history recorded on 1 December 1998, two days after the main assault when the appellant was in Long Bay Hospital. The handwritten note recorded that the appellant told the nursing staff he was having difficulty sleeping because he kept getting "'flashbacks' of the alleged assault", then continued: "He states he was set upon by 12 inmates stated he did not have to bashed [sic, as in original]. He has been in jail for only one month has never been in jail before. He was a security officer in Bankstown Square he thinks the only reason he can think of for his assault is the fact that he arrested a few people in the course of caring [sic, as in original] out his duties". 85 His Honour noted (at 22): "This appears to be merely a possible explanation proffered by the Plaintiff. He told the Court he had been told by inmates that he was a security officer, a dog and that they were going to get him. If this was so there was no need for him to be thinking up reasons. Taking the view of the Plaintiff's lack of credibility that I do I could not be satisfied of any one of the above mentioned accounts." (emphasis added) 86 Mr Gross submitted that, taken in context, the Long Bay history did not justify the primary judge drawing the adverse conclusion that it conflicted with the appellant's evidence at trial. He argued firstly that, given the appellant's medical condition at the time, the history was inherently unreliable. Secondly, he contended that it was dangerous for the primary judge to rely on the discrepancy in the wording used by the history to suggest that the appellant's account of the motive for the assault in the Long Bay history differed to that at trial. Finally he pointed out that the appellant was not cross-examined on the discrepancy at trial. 87 In my view there is substance in the fourth ground of appeal. As Mason P (Beazley and Tobias JJA agreeing) explained in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; (2004) 4 DDCR 358 (at [35]) there can be dangers in relying on hospital notes prepared by busy medical practitioners. The circumstances in which this history was recorded does not immediately suggest that it was recorded in emergency circumstances, rather in the atmosphere of trying to comfort a troubled patient. However, the appellant ought to have been given the opportunity to explain the Long Bay Hospital history if the respondent intended to contend it was inconsistent with his evidence: Davis (at [38]); see also King v Collins [2007] NSWCA 122 (at [35]) per Basten JA, Mason P and Santow JA agreeing. I would add that it is not apparent that the respondent sought to rely on this identified discrepancy at trial. 88 However this conclusion does not mean the appeal should succeed. Before the Court can order a new trial, it must appear to the Court that "some substantial wrong or miscarriage has been thereby occasioned": UCPR r 51.53. This question is judged by determining whether there has been a "failure to provide a trial in which, in a significant respect, the assessment of the evidence was not flawed": Mastronardi v State of New South Wales (at [82]) per Basten JA (with whom Ipp and Campbell JJA agreed). In my view the primary judge's reference to the Long Bay Hospital history was made in circumstances that did not amount to a substantial miscarriage in terms of UCPR r 51.53. His Honour's reference to the Long Bay Hospital history appeared towards the end of his reasons, at a stage where he had already demonstrated, in my view, why the appellant's version of the events for which he contended could not be accepted. His assessment of the substantial body of evidence, including the appellant's significant concession that he had not sought protection before the main assault, amply supported his conclusion. Orders 89 I would make the following orders: (1) Extend the time to seek leave to appeal to 26 August 2008. (2) Grant leave to appeal. (3) Dispense with the requirement to file the Notice of Appeal (4) Appeal dismissed with costs. 90 HANDLEY AJA: I agree with McColl JA and the supplementary reasons of Giles JA. ********** 02/09/2009 - Gett v Tabet [2009] NSWCA 76 (at [10] - [23]) per Allsop P and Basten JA. should read: Gett v Tabet [2009] NSWCA 76 (at [10] - [23]) per Allsop P, Beazley JA and Basten JA. - Paragraph(s) [58] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.