Moore v Goldhagen

Mr. Moore proposed four grounds of appeal, those being: ⁷

1. The learned trial judge erred as a matter of law in ruling that the applicant was not permitted to adduce evidence of the fact that the applicant continued to be in receipt of benefits pursuant to his accepted Transport Accident Commission claim.
2. The learned trial judge erred as a matter of law in failing to give due weight to the failure of the respondent to give evidence.
3. The learned trial judge’s judgment was against the weight of the evidence.
4. The learned trial judge erred as a matter of law in finding that the Applicant had made inconsistent statements to Senior Constable Ayoub and the Transport Accident Commission to the effect that the Applicant had stated that the bus had mounted the kerb.

The first ground of appeal arose from the trial judge’s decision to discharge the jury following the plaintiff’s opening address in which he made reference to the payment of statutory benefits by the TAC to the plaintiff, inferring that the payments constituted an admission as to the occurrence of a transport accident. The Court distinguished the position in relation to statutory payments under the workplace injury scheme and stated that “acceptance of a claim or payments of benefits by TAC, in its role as the administrator of a no-fault benefits scheme, can amount to an admission on behalf of a TAC insured driver.” ⁸ However, the Court made no finding as to this ground of appeal as it was not pursued at hearing.

The second ground of appeal concerned adverse inferences that were not drawn by the trial judge in relation to the failure of the bus driver to give evidence in relation to the accident.  The Court of Appeal was critical of the trial judge, stating that: “…in this case, Mr.Goldhagen was not only a party to the litigation but a key witness as to the liability issue: he was the one who could dispute Mr. Moore’s version of events.”⁹ The Court stated that notwithstanding that counsel did not draw the trial judge’s attention to the line of authority relating to adverse inferences, it was incumbent on the Court to address the ‘fundamental principle’. ¹⁰

After reviewing the case law relating to adverse inferences, including  Blatch v Archer, ¹¹ Jones v Dunkel, Swain v Waverley Municipal Council, ¹² Chong v CC Containers Pty Ltd,¹³ Weissensteiner v The Queen,¹⁴ and Insurance Commissioner v Joyce,¹⁵ the Court of Appeal stated that the fact that Mr. Goldhagen was not called to give evidence was ‘patently a matter of considerable significance’ which was not taken into account in the overall evaluation of the plaintiff’s account of the incident. ¹⁶

Accordingly, the second ground of appeal was made out.

The third ground of appeal was not addressed on the basis that errors were identified in relation to grounds 2 and 4.¹⁷

The fourth ground of appeal concerned the purported inconsistent statements of the plaintiff, in relation to inconsistencies between his sworn testimony and two documents, being a Police Report and a TAC Report. ¹⁸ The Court noted that neither of the reports were tendered, nor was the relevant police officer called to give evidence. Accordingly, on appeal, the plaintiff submitted that the trial judge ‘impermissibly relied’ on the statements made to the TAC and Police allegedly recorded in their reports which were not in evidence, such that they were ‘incorrectly utilised by the judge in reaching his conclusion as to the liability [of the defendant for the plaintiff’s injuries]’. ¹⁹

The Court of Appeal rejected the submission that the parts of the reports that had been recounted in Court had been ‘read into evidence’ and stated that ‘it is axiomatic in the jurisprudence of this country, as judges have instructed juries day in and day out over decades if not centuries, that the evidence before the Court is the answer to the question and that the only evidentiary function of the question is to give context to the answer.’ ²⁰

The Court was critical of the defendant for failing to adduce the TAC and Police reports on the following bases:

Firstly, the Court summarised ss 43 and 44 of the Evidence Act ²¹ and concluded, in relation to s 43:²²

1. s 43(1) was potentially engaged on the basis that Mr. Moore’s conversation with the relevant officer (as recorded in each of the Reports) contained a prior inconsistent statement;
2. s 43(1)(b) did not require Mr. Goldhagen to show the Police Report to the plaintiff, it was sufficient to inform him of the relevant circumstances in which it was said he made the statement;
3. s 43(2) was engaged as Mr. Moore denied that he made the statement;
4. s 43(2) then allowed Mr. Goldhagen to adduce evidence of the statement; and
5. s 43(3) would have then allowed, if necessary, Mr. Goldhagen to re-open his case to establish the existence of the prior inconsistent statement.

And in relation to s 44 of the Evidence Act:

1. the purpose of the section is to facilitate cross-examination in relation to a representation made by a person other than the witness;
2. this purpose is limited by questions of relevance;
3. s 43 was potentially engaged as it would seem that the reports contained a record of Mr. Moore’s alleged statement;
4. a copy of the TAC report could only have been provided to Mr. Moore if s 44(2) was satisfied – that is, (a) evidence of the representation has been admitted; or (b) the court is satisfied that it will be admitted.

Critically, the Court of Appeal held that the trial judge did not make a finding in relation to s 44(2) as to whether it was satisfied that the representation would be admitted and accordingly, the course as set out in s 44(3) should have been followed, but was not.

Further, the Court of Appeal held that in order to prove the terms of the plaintiff’s conversations with the relevant police or TAC officers, was for the defendant to call the makers of the reports.  This did not occur.

Secondly, the Court held that the reports could have been tendered as business records, pursuant to s 69 of the Evidence Act. ²³

Thirdly, the Court held that, in common law trials, contents of documents may be read into evidence by clear and open agreement between the parties.  However, this did not occur.²⁴

Fourthly, the Court reiterated, in no uncertain terms, that references by counsel to documents do not constitute evidence before the Court. ²⁵

Fifthly, the Court rejected the submission that the references by counsel to the documents constituted the relevant extracts being ‘read into evidence’ pursuant to s 48 of the Evidence Act relating to proof of contents of documents, in circumstances where there was no reference to the provision at trial. ²⁶

Accordingly, the Court of Appeal held that the fourth ground of appeal was made out.