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The Onus of Proof and Traps in Evidence

The NSW Court of Appeal recently considered the issue of who was responsible for a motor collision.  On the particular facts, that rested entirely on which of the two drivers involved in the collision was most plausible as a witness.  Briefly, both vehicles were driving on a 3 lane carriageway.  The left or curb side lane was for “through” traffic.  The right or median lane was “right turn only”.  Lane number 2, between the others, allowed drivers the option of either proceeding straight ahead, or turning right.

The plaintiff (who was unsuccessful at trial and who then appealed) claimed he was driving in the middle lane; that the defendant was in the median or “right turn” lane; and that as he attempted to make a lawful right hand turn, the defendant unlawfully tried to drive straight ahead, causing a collision. The defendant said she was in the middle lane and was entitled to proceed straight ahead – and that the plaintiff/appellant collided with the left side of her car as she tried to do so. There were no independent witnesses.

The main issue in the appeal was the claim that the trial Judge did not give adequate consideration to “inconsistencies” in the defendant’s evidence. The plaintiff said that the trial Judge should therefore not have preferred the defendant’s evidence to his own.

The Court of Appeal noted that a plaintiff always bears the onus of proof; and that the trial Judge was entitled to have regard to the “inherent improbability” of the collision having occurred as the plaintiff said it did.  The appeal was refused, with costs.

In the course of delivering judgment, Justice Basten commented on the way in which lawyers on the one hand, and lay witnesses on the other, might have different approaches to aspects of evidence giving. Two are worthy of note.

Firstly, lawyers frequently tend to think of inconsistencies between separate statements by the one witness as indicators of potential dishonesty or lack of reliability.  His Honour suggested that lay witnesses sometimes expressed “their version” of events in slightly different language at different times, possibly because of a sense of frustration that their earlier account had not been understood.  From time to time, he suggested, that might lead lay witnesses to emphasise by way of exaggeration, without necessarily meaning they are giving a different (or untruthful or unreliable) account of what occurred.

Secondly, lawyers sometimes cross examine on the basis of what was not said at an earlier point in time – that is, to suggest to a witness that, because they did not make a particular statement at an earlier point in time, that what they are now saying is unreliable.  His Honour noted that where that cross examination is based on omissions from earlier documents, lawyers should exercise great caution because it is often the person making the prior document, not the witness, who controls the content of the document.  The absence of a positive statement in an earlier document does not, of itself, indicate an inconsistency in the witness’s account.

The case establishes no new legal principle:  plaintiffs always bear the onus of proof and, in a case like this where the outcome was determined by “word against word”, trial Judges are always entitled to look at what is inherently probable or improbable.  The case is perhaps more interesting as a pointer to lawyers about whether the fact that a particular witness has apparently given “inconsistent” statements is necessarily an indicator that their evidence is unreliable and ought not be accepted.  Inconsistency does not automatically equate to lack of credibility;  therefore if the success of a claim rests on persuading a trial Judge that a particular witness is not credible, some fairly careful analysis should be undertaken before a litigant “rolls the dice” on a successful outcome at hearing:  Hamamdjian v Lipovac [2019] NSWCA 170

See paragraphs 11 – 17

See paragraphs 18 – 20

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