Vocisano v Vocisano [1974] HCA 14; (1974) 130 CLR 267 (24 April 1974)

HIGH COURT OF AUSTRALIA

VOCISANO v. VOCISANO. [1974] HCA 14; (1974) 130 CLR 267

Evidence

High Court of Australia.
Barwick C.J.(1), Stephen(2) and Jacobs(3) JJ.

CATCHWORDS

Evidence - Prior inconsistent statement - Leave to party to cross-examine witness called by him - Meaning of "party" - Whether authorized insurer a "party" - Documentary evidence - Statements made in documents admissible under certain conditions - Whether statements of party admissible as well as statements of witness called by him - Statement made shortly after road accident - Res gestae - Evidence Ordinance 1971 (A.C.T.) ss. 28, 60 (2) (b).

HEARING

Sydney, 1974, March 26; April 24. 24:4:1974
APPEAL from the Supreme Court of the Australian Capital Territory.

DECISION

April 24.
The following written judgments were delivered :-
BARWICK C.J. The appellant and the respondent are brothers. The appellant damages for the negligent driving by the respondent of a vehicle in which, beyond dispute, they were both travelling at the time it was overturned causing serious injury to the appellant. The respondent was insured under a third party policy of insurance as required by s. 51 of the Motor Traffic Ordinance 1936-1973 (A.C.T.). His insurer, as it was entitled under the policy of insurance, took charge of the litigation and briefed counsel to appear on behalf of the respondent at the hearing of the action. (at p269)

2. Apart from the question of damages, the sole issue at the trial was whether the respondent was driving the car. The appellant, due to the nature of the injuries received when the car overturned, had no recollection whatever either of what occurred or as to who was driving the car when the accident happened. The only witness called on this issue by the appellant was a man named Paragalli. He said that he had seen the respondent driving the vehicle at a time not long before the time when the vehicle overturned, but long enough for there to have been a change of driver in the interval. The respondent had answered interrogatories administered by the appellant saying that he, the respondent, was driving the car at the relevant time. However, counsel for the appellant at the trial did not rely particularly on these answers to interrogatories. (at p269)

3. The conduct of the case for the respondent followed an unusual course. The respondent gave evidence on his own behalf, saying that he was driving the car at the time the car overturned and that at that time his brother was in the passenger seat beside him. Thereupon his counsel applied for leave to cross-examine him on the basis of his having made prior inconsistent statements. This leave was granted, pursuant to s. 60 of the Evidence Ordinance 1971 (A.C.T.). The section is in the following terms:

"60. - (1) The party by whom a witness is called is not
entitled to impeach the credit of the witness by general evidence
of bad character.
(2) On the application of the party by whom a witness has
been called, the court may grant leave to the party -
(a) to prove that the witness has, at another time, made
a statement inconsistent with his evidence ; or
(b) to cross-examine the witness as to whether he has, at
any time, made a statement inconsistent with his
evidence.
(3) The court may grant an application under the last
preceding sub-section whether or not it is alleged or proved
that the witness is adverse to the party by whom he was called.

(4) A party is not entitled to prove that a witness has made
a statement inconsistent with his evidence unless the witness
has been informed of sufficient of the circumstances of the
making of the statement to identify the occasion on which the
statement was made and has been asked whether he made
the statement." (at p269)

4. His counsel did cross-examine the respondent and, as a result, inconsistent oral statements were proved by witnesses who were called by the respondent. Two of these witnesses were husband and wife who had come to the scene of the accident very shortly after its occurrence. They said that statements had been made to each of them by the respondent that the appellant had been driving the car when it overturned. At the time of the making of the first of these statements the brother, who had been thrown out of the car, was lying in an injured state on the roadway. His appearance was such that the respondent might well have thought that the appellant was dead. (at p270)

5. A statement written out by a police officer to record what the respondent had said to him was signed by the respondent. In this statement the respondent said that his brother had been driving the car. This writing, signed by the respondent, was received in evidence pursuant to s. 28 of the Evidence Ordinance, aided by s. 35. These sections are as follows :

"28. - (1) Where direct oral evidence of a fact or of an opinion
would be admissible in a proceeding, a statement made by a
person in a document tending to establish the fact or expressing
the opinion, as the case may be, is, subject to this Part,
admissible as evidence of the fact or the opinion in the
proceeding if -
(a) in the case of a statement tending to establish a fact,
the maker of the statement had personal knowledge
of the matters dealt with by the statement or, in the
case of a statement expressing an opinion, the person
expressing the opinion is qualified to give evidence
of his opinion ;
(b) the maker of the statement is called as a witness in
the proceeding ; and
(c) the court is satisfied that the statement was made at
a time when the facts stated in the document were
fresh in the memory of the witness or, in the case of
a statement expressing an opinion, the facts on which
the opinion was based were fresh in the mind of the
person expressing the opinion.
(2) The last preceding sub-section applies whether the
statement is or is not consistent with the evidence given by
the maker of the statement but, where -
(a) the statement is tendered by the party by whom the
witness is being called ; and
(b) the statement is inconsistent with the evidence given
by the witness in the proceeding,
the statement is admissible in evidence only with the leave
of the court.
(3) A statement referred to in this section shall not, without
the leave of the court, be tendered in evidence by the party
by whom the witness has been called except at the conclusion
of the examination-in-chief of the witness and before the
witness is cross-examined."
"35. For the purposes of this Part, a statement in a document
shall be deemed to have been made by a person if the document
or the material part of the document was written, made or
produced by him with his own hand or was signed or initialled
by him or otherwise recognised by him as his statement."

(at p271)

6. The learned trial judge found a verdict for the respondent. In his reasons for judgment he discussed the question but, as I read those reasons, did not decide whether the oral inconsistent statements constituted evidence of the facts which were referred to in them. But he did treat the oral statements made to the two witnesses proximately to the occurrence of the accident as evidence of the facts contained in them on the footing that the making of the statements by the respondent formed part of the res gestae. (at p271)

7. The learned judge, for reasons which he gave and which included his impression of Paragalli, did not accept the evidence of that witness. He found himself unable to find that the respondent was driving the car at the relevant time. Accordingly, he found a verdict for the defendant in the action. (at p271)

8. The appellant has challenged the allowance of cross-examination of the respondent by his counsel and of the proof of the oral inconsistent statements. He has also challenged the admissibility of the written inconsistent statement and both the admission and use made of the oral statements thought by the judge to be part of the res gestae. Because of these matters, the appellant claims the trial to have miscarried and seeks a new trial. (at p271)

9. Although, as will be seen, I do not think the allowance of these objections of the respondent to the course of the trial would entitle the appellant to a new trial of the action, it is proper, in my opinion, that the Court should express itself as to what was done at the trial. (at p271)

10. In my opinion, the judge was in error in allowing cross-examination of the respondent by his own counsel. The matter turns, in my opinion, on the proper meaning of s. 60 of the Evidence Ordinance and, in particular, on the meaning to be assigned to the word "party" in that section. Having considered the careful and well-presented argument of counsel for the appellant, I am unable to treat the word "party" in that section as referring to any other than the party on the record. The section, it seems to me, places in juxtaposition the party and the witnesses whom he has called. Although in other sections in the same part of the Ordinance as that in which s. 60 is to be found no distinction is made between a party and a witness when giving evidence, in the section itself the distinction is, in my opinion, clearly drawn. It is not, in my opinion, the intention of the section to give a party the right to cross-examine himself. There is no warrant in the law for such a course unless derived from the section. (at p272)

11. But it is said that by reason of the rights of the insurer and his interest in the action and its result, the insurer is properly regarded as a party for the purpose of such a section as s. 60. Reliance was placed in support of this view upon expressions in the decision of this Court in McCann v. Parsons [1954] HCA 70; (1954) 93 CLR 418 , and upon the decision of the Supreme Court of New South Wales in Rostek v. Keegan (1967) 85 WN (Pt 1) (NSW) 555 . (at p272)

12. It is, of course, quite true that one cannot for all purposes disregard the fact that the authorized insurer of a defendant has an interest in the cause and, indeed, a contractual, and in some systems a statutory, right to conduct the defence of the action in the name of the insured. This relationship of the insured and insurer was regarded as of significance in this Court's decision in McCann v. Parsons [1954] HCA 70; (1954) 93 CLR 418 . In considering an application for a new trial upon the ground that fresh evidence had been discovered, it was necessary to consider the efforts of the insurer as well as the insured in connexion with the preparation for and conduct of the trial. But nothing in the Court's reasons in that case, in my opinion, lends any colour to the proposition that the authorized insurer is, for a purpose such as that to which s. 60 is directed, the party to the action or that the insurer can be regarded as distinct and separate from the party on the record and because so distinguished be accorded rights in the action which are other than those of the party on the record. In my opinion, nothing in the reasons for judgment in McCann v. Parsons (1954) 93 CLR 418 justifies the conclusion drawn by the Supreme Court (Lee J.) in Rostek v. Keegan (1967) 85 WN (Pt 1) (NSW) 555 . Accordingly, that case in so far as it decided that counsel for a defendant may be allowed to cross-examine his client because of prior inconsistent statements was not correctly decided. (at p272)

13. As, in my opinion, the trial judge ought not to have allowed the respondent to be cross-examined by his counsel, it follows that the prior oral inconsistent statements of the respondent were not properly admitted into evidence. (at p272)

14. Being of this opinion, there is no need for me to pursue, as the trial judge did, the question of whether, being admitted, the prior inconsistent statements may, in some circumstances, be evidence of the facts to which they relate. (at p272)

15. The question of whether statements form part of res gestae is fraught with difficulty at any time. In the present case, the learned trial judge relied upon the views expressed by the Privy Council when giving its advice in Ratten v. The Queen (1972) AC 378 . This is not an appropriate occasion, it seems to me, to discuss whether any change in the established law, and if so its precise extent, was intended by their Lordships in expressing their views in that case. A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable : but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility. In Ratten's Case (1972) AC 378 , Lord Wilberforce seems to have regarded the relevant occurrence as the "drama" which began when it may be supposed a threat to kill his wife was made by the appellant in that case and which ended with her death. So regarded, the telephone call was necessarily involved in the occurrence and the deceased's statement to the telephonist clearly contemporaneously identified with it. But, in the present case, there was, in my opinion, no sufficient contemporaneity of the statements made to either of the witnesses Smith to warrant the conclusion that the statements were made as part of the res. The occurrence was the accident, and although the statements by the respondent were made proximately to the occurrence of the accident, they were in the nature of a historical account rather than in the nature of a statement made as part and parcel of the occurrence. Although, as the trial judge said, the circumstances may satisfy some of the expressions used by the Privy Council in expressing their Lordships' view, the statements were not, in my opinion, admissible as part of the res gestae. Accordingly, the evidence of those witnesses was inadmissible either as prior inconsistent statements or as statements made as part of the res gestae. (at p273)

16. The writing signed by the respondent is in quite a different case. Section 28 makes a statement made by a person in writing admissible as evidence of the facts in the statement if oral evidence of them would have been admissible. Section 35 provides, so far as presently relevant, that a statement signed by a person is to be deemed to have been made by him. I am unable to accept a submission of counsel for the appellant that it is necessary for the operation of s. 35 that it be established that the person signing the statement could read and did understand the writing. It is sufficient, in my opinion, for the purpose of s. 35 that he has signed the writing. Of course, whilst the statement is by the statute deemed to have been made if the writing is signed, the statement and the circumstances of its making will be examinable : on such examination it may be concluded that the writing does not in fact represent a statement of the person signing it. But that possibility does not deny the effect of s. 35 read with s. 28 in making the writing signed by the person admissible as evidence of the facts which it contains. (at p274)

17. The counsel for the appellant, however, submitted that s. 28 does not extend so far as to make admissible a prior inconsistent statement of a party as distinct from a prior inconsistent statement of a witness called by a party. In this connexion, he called attention to sub-s. (2) of s. 28 and sought to find in its language a parallel with s. 60 to which I have already referred. But I am unable to accept this submission. It seems to me that s. 28 is general in its terms. It does not in its first sub-section draw a distinction between the party and the witness he has called. It speaks of the maker of a statement which is a neutral expression no doubt designedly adopted. The section expressly says that the circumstance that the statement otherwise falling within its provisions is an inconsistent statement will not make it inadmissible but may subject it to the need to obtain the leave of the judge for its tender. The grant of that leave is not associated with the terms of s. 60 or with any grant of leave for which that section provides. Accordingly, I am unable to accept the submission that the writing signed by the respondent was not admissible. Being admitted, it was evidence that the respondent was not driving the car at the relevant time. It was thus available to the trial judge in deciding whether he would accept the evidence of the witness Paragalli. (at p274)

18. There was a submission made by the appellant that a statement contradicting his own evidence could not be tendered by a party in any event. However, I know of no reason why a party should not contradict himself, whether it be by oral evidence by himself or of a witness or by means of a statement which has been signed by him and made admissible by statute. (at p274)

19. The remaining question is whether it can be said that the irregularities in the trial to which I have referred warrant the grant of a new trial. Of course, if the evidence of the oral statements had been admitted in a trial by a jury, there must be a new trial for, in that case, it could not be said that they did not affect the jury's conclusion. But, in the case of a trial by a judge, we have the reasons he has expressed for giving his verdict on the facts. Consequently, it is necessary to scan those reasons carefully to ensure that the inadmissible material has not entered in any substantial degree into the conclusion which the trial judge has formed. In my opinion, before a new trial is ordered in a case where the verdict is in accordance with the evidence, it should be seen that the inadmissible matter has been used by the judge in reaching his verdict. Consequently, I have carefully scanned the reasons expressed by the trial judge. Apart from the evidence of the witness Paragalli, there was no evidence to support the appellant's case if, as appears, no reliance was placed on the answers to interrogatories. Indeed, the writing admitted under s. 28 was evidence that the respondent was not the driver at the time the car overturned. His Honour did not believe Paragalli. Unless it can be seen that the inadmissible material influenced that conclusion, there is no ground consistently with what I have so far written for ordering a new trial. After considering the reasons of the trial judge, I have come to the conclusion that they did not. Notwithstanding passages in the reasons for judgment to which the standing passages in the reasons for judgment to which the appellant's counsel called attention, any use which the trial judge made of the inconsistent statements was at most merely confirmatory of an opinion which he had independently formed of the credit of Paragalli. Those passages do not warrant the conclusion that in fact the trial judge used those statements as part of his estimation of that witness's credit or of the acceptability of his evidence. (at p275)

20. The matter then presents itself as one in which the appellant had no evidence which the trial judge was prepared to accept that the respondent was the driver of the car. The onus was on the appellant. The verdict founded on the want of conviction that the respondent was the driver of the car ought not, in my opinion, to be disturbed. Notwithstanding that there were irregularities in procedure and evidence wrongly admitted in the case, in my opinion, the appeal should be dismissed. (at p275)

STEPHEN J. I have had the advantage of reading the reasons for judgment of the Chief Justice with which I agree and to which I have nothing to add. (at p275)

JACOBS J. I agree with the conclusion of the Chief Justice and with the reasons expressed by him for reaching that conclusion. There is nothing which I would wish to add. (at p275)

ORDER

Appeal dismissed with costs.