Practitioners in civil negligence cases should note that cross-examination as to prior convictions may be admissible to impeach credit where the convictions reveal a motive to fabricate, but that failure to seek a limiting direction at trial will preclude reliance on the omission on appeal under rule 151B.
Later decisions that cite Bugg v Day
Decisions cited by Bugg v Day
BUGG v. DAY [1949] HCA 59; (1949) 79 CLR 442
Appeal
High Court of Australia
Latham C.J.(1), Dixon(2), McTiernan(3), Williams(4) and Webb(5) JJ.
CATCHWORDS
Appeal - Negligence - Motor vehicles - Collision - Action - Summing up - Fairness to parties - Issues - Clarity - Evidence - Expert - Qualification - Speed - Data - Traffic offences - Convictions - Admissibility - Cross-examination as to credit - Fresh evidence - Availability and character of evidence - Inquiries before trial - Diligence - Influence on result - Evidence Act 1898-1940 (N.S.W.) (No. 11 of 1898 - No. 8 of 1940), s. 56 - Supreme Court Rules (N.S.W.), r. 151B.
HEARING
Sydney, 1949, November 14-16; December 12. 12:12:1949DECISION
December 12.
2. As to (1): The learned trial judge in his summing up was more critical of
the evidence called on behalf of the defendant than
of that called for the
plaintiff. But I agree with all the learned justices of the Supreme Court that
the summing up was not unfair.
(2) The learned trial judge put the plaintiff's case in the following words:
- "The case as put by him and other witnesses to whose
evidence I shall refer
directly is that at that intersection he, having the right of way and
travelling at a normal speed, was struck
by the taxi-cab driven by the
defendant, then travelling at an excessive speed and crossing the intersection
in breach of a traffic
regulation which would require the taxi-cab to give way
to the vehicle that is coming on its right. You know that regulation which
has
been mentioned throughout the case - give way to the man on the right if the
circumstances are such that both vehicles are approaching
so that if one or
other does not give way there will be a collision." It will be observed that
this presentation of the plaintiff's
case depends upon the fact that the
plaintiff claimed that he "had the right of way"; that is, that he was
travelling from west to
east. There is not any suggestion that the jury could
find for the plaintiff if he was travelling from east to west. (at p455)
3. The defendant's case was put in the summing up in these words: - "The defendant's case is simple to understand. There is no subtlety about it. It is that the accident did not happen at all as it is put on the part of the plaintiff but, on the contrary, the accident happened because the motor cycle was coming from the Concord Road direct and was going towards the west. There is a very clear cut issue in this case and it may well be that the decision which you will ultimately reach will depend on your view as to where the truth lies. It is put therefore that the whole basis of the plaintiff's case of negligence falls to the ground because the facts are not as the plaintiff alleges at all." In my opinion there can be no substantial objection to this description of the basis of the claim made by the plaintiff and of the defence of defendant to that claim. Perhaps, instead of saying that "it may well be that the decision which you will ultimately reach will depend on your view as to where the truth lies," his Honour might have said that the decision would certainly depend upon which story the jury accepted - whether that of the plaintiff or that of the defendant, but an absence of emphasis of this kind cannot be a justification for ordering a new trial. (at p456)
4. After the summing up was concluded counsel for the defendant objected to
the whole of the summing up and contended that the summing
up left it open to
the jury to find for the plaintiff, even if the plaintiff was travelling from
east to west, because some evidence
had been given to the effect that the
taxi-cab was being driven very fast. A discussion took place in the absence of
the jury and
it has been argued that some of the comments of the learned judge
in the course of the discussion showed that his Honour himself
thought that
his summing up would allow the jury to find for the plaintiff, even if the
jury believed that the plaintiff was travelling
from west to east. But I do
not so read the report of what his Honour said. The learned judge was
referring in the course of general
discussion to the subject of speed, which
was relevant even if the only question was a question as to who had the right
of way, because
if the taxi-cab were being driven very fast the driver would
not be in as good a position as he ought to be in order to observe the
rule of
the road. On this part of the case, however, I consider only what was said in
the presence of the jury, and in my opinion
the summing up fairly put the
cases of both parties and was not such as to mislead the jury into thinking
that they could determine
the case on the question of speed alone.
(3) A witness Carroll called by the plaintiff had had experience as a
repairer of damaged motor vehicles. He described the state
of the damaged
motor cycle after the accident. There is no question as to his qualification
to give such evidence. But he also said
that in his opinion the taxi-cab must
have been travelling at forty miles an hour. It is submitted for the defendant
that Carroll
was not an expert upon speed and that his opinion ought not to
have been admitted as evidence. It is true that, even if Carroll had
been
qualified to give an opinion as to the speed of one vehicle which had collided
with another vehicle when he had only seen the
second vehicle, he had not been
provided with data which would have been necessary to enable any person to
form even an approximate
estimate of the speed of either vehicle at the moment
of the collision. He was not informed as to the weight of the taxi-cab or as
to the distances, after the accident, of the two vehicles from the point of
collision. The effect of his evidence was completely
destroyed in
cross-examination and the learned trial judge paid no attention to it in his
summing up except to refer to the criticism
of it and to say that the jury
should consider that criticism and give such weight to it as they thought
proper. No requeset was
made for any further direction on this subject, and
rule 151B of the Rules of the Supreme Court provides that no direction or
omission
to direct given by a judge presiding at a trial shall without the
leave of a court be allowed as a ground for a notice of motion
for a new trial
unless objection was taken at the trial to the direction or omission by the
party on whose behalf the notice of motion
has been filed. If objection had
been taken at the trial it would have been a simple matter to point out to the
jury more strongly
that little or no weight should be given to Carroll's
evidence. But the necessary objection was not taken and in my opinion the
defendant
cannot rely upon this omission to direct as a ground for a new
trial.
(4) In his evidence in chief the defendant said "I have had experience in
driving since 1914. I have been driving motor vehicles
practically
continuously from 1914 to the present time." In cross-examination he gave an
affirmative answer to a leading question
- "Were you meaning to put it to this
jury by that (that is, his evidence in chief already mentioned) that you were
a careful driver?"
Counsel for the plaintiff then was allowed to cross-examine
the defendant in order to show that he had been convicted for exceeding
the
speed limit and disobeying light signals. Counsel for the plaintiff elicited
from him an admission that he had been warned that
if he was convicted again
(apparently "of failing to give way to a vehicle on the right") he would lose
his licence as a taxi-driver.
In re-examination the defendant said that he had
been convicted of "meter offences," that is, not pulling his flag down when
his
taxi was engaged, and that it was in respect of these offences that he had
received the warning. (at p457)
5. It is contended that no cross-examination as to the defendant's convictions should have been allowed. It was held in the Supreme Court by Maxwell J. that the evidence was entirely inadmissible and by Owen J. that it was admissible, but that a warning should have been given to the jury that the evidence could affect only the credit of the defendant, and that it could not be used to show that he had been negligent on the occasion of the accident in question. Jordan C.J. held that the evidence was admissible in this case because the defendant had given evidence that he was an experienced driver and that on behalf of the plaintiff it was proper to cross-examine him upon the nature of his experience and what had happened in the course of his career as a driver for the purpose of meeting the inference which the jury was invited to draw in favour of the defendant that a man of his age (sixty-one years) and with large driving experience would prima facie be disposed to take care to obey all traffic regulations. (at p458)
6. One of the commonest methods of seeking to destroy the evidence given by a
witness by cross-examination is to show that because
of convictions for
breaches of the law he is a person who should not be believed upon his oath.
There are special rules which limit
such cross-examination in the case of
persons charged with criminal offences. But the court was not referred to any
authority showing
that questions as to convictions were not admissible in
cross-examination in civil proceedings. It is true that such questions may
in
a particular case unfairly prejudice a witness or a party. There are two
safe-guards against this danger. In the first place,
s. 56 of the Evidence Act
1898 (N.S.W.) provides as follows: - "When any question put to a witness in
cross-examination is not relevant
to the cause or proceeding, except so far as
the truth of the matter suggested by the question affects the credit of the
witness
by injuring his character, the Court shall have a discretion to
disallow the question, if in its opinion the matter is so remote
in time, or
of such a nature that an admission of its truth would not materially affect
the credibility of the witness." In the present
case the learned trial judge
allowed the question only as to recent convictions and excluded evidence of
"remote" convictions. The
fact that the witness had been warned that if he
broke the traffic regulations again he might lose his licence was a special
circumstance
which could fairly be used to show that the defendant was, even
more than in the case of an ordinary defendant, vitally interested
in the
result of the proceedings, and that such an interest might affect his
veracity. In the second place, the danger of which mention
has been made may
be avoided in a case where there is a jury by the trial judge expressly
telling the jury that the fact that (if,
e.g., it is a negligence case) a
person had been convicted of negligence on some prior occasion or occasions
does not help, or even
begin, to establish the truth of an allegation that he
has been negligent on the particular occasion which is in question. It was
upon the failure of the learned trial judge to follow this course that Owen J.
based his decision that by reason of the admission
of evidence of convictions
of the defendant it was proper to order a new trial. But the trial judge was
not asked to direct the jury
in the manner stated. The summing up as a whole
was objected to, but no application was made for a direction as to the purpose
for
which the evidence of the convictions might be used by the jury, and in my
opinion rule 151B, to which reference has already been
made, provides a
complete answer to this objection on behalf of the defendant.
(5) The members of the Full Court of the Supreme Court were unanimously of
opinion that the "fresh evidence" sought to be adduced
could with due
diligence have been discovered before the trial. I agree with their Honours as
to this matter and have nothing to
add. (at p459)
7. In my opinion the objections of the defendant to the trial fail and the order of the Full Court should be set aside and the verdict of the jury and judgment for the plaintiff for 2,928 pounds should be restored. (at p459)
DIXON J. This is an appeal by leave from an order of the Supreme Court of New South Wales granting a new trial. The action was for damages for personal injuries sustained by the plaintiff, who is the appellant, in a collision between a motor cycle ridden by him and the defendant's taxi-cab. (at p459)
2. The cause of action was negligence. The accident occurred at the intersection of two streets. The defendant's taxi-cab was travelling south upon a street running north and south. The plaintiff was riding his employer's motor cycle, to which was attached a side box, along the intersecting street running east and west. His case was that he was travelling in an easterly direction so that, as he approached the intersection, he was upon the taxi-driver's right hand. He complained that the taxi-driver failed to observe the regulation requiring him in such circumstances to give way to the vehicle approaching him from his right and that on the contrary he maintained an excessive speed. The defendant's case was that the plaintiff was travelling in the opposite direction, so that it was the plaintiff's duty to give way and the accident was caused by the plaintiff's riding over the crossing in neglect of the rule. (at p459)
3. The jury found a verdict for the plaintiff. But for a number of reasons a majority of their Honours in the Full Court (Maxwell and Owen JJ., Jordan C.J. dissenting). considered that the trial had been unsatisfactory and a new trial should be ordered. (at p459)
4. I have come to the conclusion, though not without hesitation, that the verdict should stand. (at p459)
5. The complaints which the defendant makes concerning the admission of evidence and the charge to the jury of the learned judge at the trial should no doubt be considered in combination but, on examination, I do not think that together they disclose sufficient ground for setting aside the verdict. (at p460)
6. The evidence adduced by the plaintiff tended to show that the defendant drove his taxi-cab down to the intersection at a high rate of speed, that the plaintiff entered the crossing from the defendant's right, that the defendant failed to give way and after colliding with the plaintiff continued for another eighty feet with such momentum that his cab brought down a telegraph pole which it struck. (at p460)
7. Properly considered the plaintiff's case depended on the fact that he was on the defendant's right hand and that the defendant, driving at too high a speed, did not give way. (at p460)
8. If the defendant's case were accepted as correct, namely, that the plaintiff was proceeding in the opposite direction and came into the crossing on the defendant's left, that would have been a complete answer to the plaintiff's case. But the defendant's counsel appears to have been under some apprehension lest the jury might, even on that footing, treat the evidence that the defendant was travelling at an excessive speed as enough to justify a verdict for the plaintiff notwithstanding that it was the plaintiff who had the defendant on his right hand and who failed to give way. (at p460)
9. If such a view of the matter had been put to the jury, it might have been answered, and perhaps effectually, on the ground that in the circumstances supposed the plaintiff would have been guilty of contributory negligence. (at p460)
10. But on the plaintiff's real case, contributory negligence had of course no place, and the defendant did not raise it. The plaintiff's counsel did not in fact put to the jury as an alternative case the possibility of their accepting the defendant's evidence as to the direction in which the plaintiff was travelling and nevertheless finding for the plaintiff on the ground of excessive speed on the part of the defendant. Obviously, forensically, it would have been both difficult and dangerous for him to have attempted to put such an alternative case. But it is said that he presented the plaintiff's case in a general way and avoided pinning his case to the single definite issue of the direction in which the plaintiff was travelling. (at p460)
11. In these circumstances the defendant contends that in his charge to the jury the learned judge at the trial should have directed the jury not to treat excessive speed as an independent head of negligence which would suffice even though they were of opinion that the plaintiff crossed from the east and not the west, and therefore had the obligation of giving way. The defendant complains that so far from giving such a direction to the jury his Honour encouraged them to treat excessive speed as an independent head of negligence. (at p460)
12. I do not think that the jury would so understand the summing up and I do not think that what the learned judge said to the jury bears this interpretation. The general effect of the charge appears to me to be to submit to the jury the question in which direction was the plaintiff travelling as the issue upon which the case turned, and I think that the references to speed which the summing up contains are either bound up with the plaintiff's case that he was on the defendant's right hand or else are merely statements of what particular witnesses said made by the learned judge in the course of summarizing the evidence. (at p461)
13. But at the conclusion of the summing up, when counsel for the defendant sought a re-direction upon this matter, his Honour made observations some of which suggest that he did regard speed as an independent and alternative head of negligence. This, fortunately for the plaintiff, was said in the absence of the jury and the charge as transcribed does not in my opinion bear out the impression which these particular observations of his Honour give. (at p461)
14. It remains true however that nothing was said in the summing up which positively excluded the possibility of the jury's finding for the plaintiff on the ground of the defendant's excessive speed notwithstanding that they accepted the defendant's version as to the direction in which the plaintiff was travelling. (at p461)
15. I do not think that a new trial should be ordered because of the want of a positive instruction to the jury not to take this course or not to do so without considering whether the plaintiff's contributory negligence in failing to see the defendant earlier and give way was a bar. We have not the advantage of a report of the addresses of counsel to the jury, but reading through the evidence and the summing up, I do not think that we should conclude that the risk was so real of the jury's accepting the defendant's case as to the plaintiff's coming from the east and yet finding that the excessive speed of the defendant was the cause of the accident as to make it imperative for the learned judge to give them a direction upon the subject. (at p461)
16. A further complaint of a more general character was made concerning the summing up. It was that it did not fairly present the case for the defendant and that it put too strongly the considerations favouring the plaintiff. (at p461)
17. No doubt the defendant's case might have been presented to the jury as possessing greater strength and no doubt some of the subsidiary considerations in favour of the plaintiff which were mentioned were susceptible of answers to which the attention of the jury was not specifically drawn. But the summing up did not introduce any matter of prejudice, it did not tend to distract the jury's attention from the real issue, there was nothing to confuse them, and nothing to lead them to suppose that the responsibility of applying their minds to the facts and deciding the case upon the true issue was not theirs. To grant a new trial in a civil case upon the ground that the charge to the jury did not fairly and adequately submit the case of one or other party to them is a course which the court may take where the court is satisfied that it would be a manifest injustice to leave the verdict standing. But it must be a very strong case and that is a description which certainly cannot be applied in the present instance. (at p462)
18. Besides advancing the foregoing considerations in favour of a new trial, the defendant relied upon the discovery of fresh evidence as a further ground and also upon the wrongful admission of certain evidence or the failure to give a direction as to the limited use which might properly be made of the evidence. (at p462)
19. As to the ground that fresh evidence has been discovered I shall say little. The considerations which govern the grant of a new trial on such a ground have lately been discussed in this Court in Orr v. Holmes [1948] HCA 16; (1948) 76 CLR 632 . It is enough to say that I am not satisfied that either of the two requirements are fulfilled which govern the Court's discretion in granting a new trial when it is alleged that fresh evidence has been discovered. I am not satisfied that the new evidence puts such a different complexion on the case that the opposite conclusion ought to be reached by a jury with that evidence before it, and I am not satisfied that no reasonable diligence would have enabled the defendant to adduce the evidence at the former trial. (at p462)
20. The questions of the wrongful admission of evidence are two in number. The first of them presents little difficulty. A witness was called for the plaintiff who described himself as a motor repairer and said that he had been engaged in the business of motor engineering for over ten years. After the accident he had repaired the motor cycle ridden by the plaintiff. He was permitted to express an opinion, based on his inspection of the damage done to the machine, that the motor car or other vehicle hitting the near side and doing the damage must have exceeded forty miles an hour. This opinion was received in evidence over the objection of the defendant's counsel. In my opinion it ought not to have been received in evidence. It plainly involved assumptions of fact that were not adverted to by the witness. Even if the data were ascertainable and available, his conclusion would involve a problem far beyond his capacity and qualifications and one to which he did not purport to address himself. It was not evidence based upon a branch of knowledge or an art in which the witness was skilled but a wild and unsophisticated conjecture. (at p463)
21. But in my opinion the mis-reception of this evidence ought not to lead to a new trial. It ought not to do so because the statement of the witness was of such slight importance. (at p463)
22. The question of speed was dealt with by the direct evidence of a bystander and by the evidence of the defendant himself, who explained that his foot slipped from the brake to the accelerator. It is true that he said it did so almost at the point of impact, but he said "you had only to touch the accelerator and the car jumped out of her skin" and he accounted thus for the impact with which his taxi-cab hit the telegraph post. The opinion of the motor repairer could add little to this, but, what is decisive, in cross-examination its effect was destroyed by an admission obtained from the witness that he had not known that the motor cycle had hit a tree as a result of the collision. (at p463)
23. The second question as to the admissibility of evidence is of a very different kind. In his evidence in chief the defendant had said that by occupation he was a taxi-driver, that he was sixty-one years of age, that he had had experience in driving since 1914 and had driven motor vehicles continually from that year to the present time. In the course of his cross-examination he assented to questions by counsel for the plaintiff suggesting that he had meant by that to put to the jury the view that he was a careful driver. Counsel then proceeded to obtain from the witness a series of answers to the effect that when the policeman saw him at the scene of the accident (about half an hour after it had taken place) he knew that if he admitted that he failed to give way to a vehicle on his right he might lose his licence because, having been convicted of exceeding the speed limit, of disobeying traffic lights, failing to give way to the right and of taxi-meter offences, he had been warned finally that if he offended again he would lose his taxi licence. (at p463)
24. It ultimately appeared that the warning he had received was from the Road Transport Department and was to the effect that, if he failed to take advantage of the leniency that had been extended to him and came again under notice for any breach of the regulations relating to the operation of public motor vehicles, consideration would be given to the suspension or cancellation of his licence. The cross-examination as to the traffic convictions and warning was objected to, but the objection was overruled. (at p463)
25. It appears to me that the cross-examination was admissible as going, in the particular circumstances, to the credit of the witness. The plaintiff was challenging his statement that the plaintiff was travelling west as a concoction. (at p464)
26. The warning of the Road Transport authority might properly be relied upon by the plaintiff as affording a strong motive for inventing an answer to the obvious charge that he had not given way to a vehicle on his right entering a crossing. The convictions were the basis of the warning and not to be separated from the warning and the fact that one of them was for failing to give way to a vehicle crossing from the right lent point to the argument. The defendant's answer was that the meter offences formed the specific basis of the warning, offences more relevant to the functions of the Road Transport authority. But that was a question for the jury to consider and did not go to admissibility. (at p464)
27. It is hardly necessary to say that the matter elicited by the cross-examination could only be admissible as going to the credit of the witness and could not be admitted as relevant to the issue of negligence (cf. James v. Audigier (1932) 48 TLR 600; 49 TLR 36 ). (at p464)
28. It was suggested that the cross-examination was made admissible by the evidence in chief of the defendant to the effect that he was sixty-one and had been driving a taxi-cab continually since 1914. This, it was said, amounted to a claim to be an old experienced driver who might be expected to proceed in a restrained and careful manner. To rebut this implication evidence of his traffic offences might be elicited. This view was accepted in the Supreme Court by Jordan C.J. and Owen J. but I am inclined to think that the defendant's counsel is right in saying that the evidence in chief strictly read goes no further than experience, including no doubt skill, and does not touch prudence, moderation, or propriety of conduct in driving. (at p464)
29. Moreover, on further consideration, I do not think that the evidence of the defendant's traffic convictions are admissible as impeaching credit simply because they are convictions for offences. Notwithstanding that I think that they were admissible for the first reason I have mentioned, it is desirable to say something of this suggested ground. (at p464)
30. It appears that s. 6 of Mr. Denman's Act (28 and 29 Vict. c. 18) (The Criminal Procedure Act 1865) has not been transcribed in New South Wales. The opening words of that provision say that a witness may be questioned as to whether he has been convicted of any felony or misdemeanour. It may be doubtful whether misdemeanour covers all summary offences. But the corresponding provision in Victoria (s. 31 of the Evidence Act 1928) has the words "any indictable or other offence," instead of felony or misdemeanour. Mr. Denman's Act was preceded, in respect of civil causes, by s. 25 of the Common Law Procedure Act 1854 (17 and 18 Vict. c. 125) but apparently that section too is not part of the statute law of New South Wales. The admissibility of convictions to impeach the credit of a witness is therefore governed by the common law. Unfortunately there is not a little obscurity about the extent of the common-law principle concerning the use of convictions for this purpose. (at p465)
31. It must be remembered that until the Evidence Act 1843 (6 & 7 Vict. c. 85) conviction of felony or any crimen falsi rendered a man incompetent as a witness. This limited the possible occasions of the question arising but did not exclude the possibility altogether. For competency might be restored by a pardon unless the statute creating the offence otherwise provided, and by 9 Geo. IV., c. 32, if an offender convicted of felony not punishable by death or of a misdemeanour, except perjury or subornation of perjury, endured the punishment to which he was sentenced it had the same effect and consequences as a pardon under the great seal. The question how far convictions could be used to impeach the credit of a witness might, therefore, arise if a witness were called who had obtained a pardon or who had endured the punishment, notwithstanding that he had been convicted of a felony or a crimen falsi. (at p465)
32. It might also arise if a witness were called who had been convicted of an offence other than a felony or crimen falsi. But the general rule had been established that the credit of a witness could be impeached only in cross-examination and not by evidence of collateral facts. To this the exceptions were admitted of the production of the record of a conviction of the witness for some crime and the adduction of evidence that he is unworthy of belief upon his oath (R. v. Watson [1817] EngR 133; (1817) 2 Stark 116, at pp 149-158 (171 ER 591, at pp 604-607); 32 St Tr 1 , at p 490 ; Spenceley v. De Willott [1806] EngR 40; (1806) 7 East 108 (103 ER 42); 3 Smith KB 389 ). But no direct authority has been found dealing with the question whether on the one hand only convictions for crime naturally tending to destroy or weaken confidence in a witness' veracity or honesty might be used to affect his credit or on the other hand any conviction was available for that purpose. In Wigmore on Evidence, 3rd ed. (1940), pars. 980-987, pp. 538-988, the learned author raises the question what crimes are relevant to indicate bad character as to credibility. He proceeds "There are here three answers possible on principle: (a) Whatever offences were formerly treated as disqualifying one entirely as a witness shall now be treated as available for impeachment. This is the commonest solution, and has come about usually by express proviso in the statutory abolition of the former disqualification; (He is speaking of America) (b) If in a given jurisdiction general bad character is allowable for impeachment, then any offence will serve to indicate such bad character; (c) If character for veracity only is allowable for impeachment, then only such specific offences may be used as indicate a lack of veracity-character." (at p466)
33. Among the many citations which follow as illustrations, there are few English judicial authorities. But the author does mention the following observation of Lord Holt C.J. in R. v. Warden of the Fleet (1700) 12 Mod 337, at p 341 (88 ER 1363, at p 1366) "and in respect to a person who had been burnt in the hand, if it were for manslaughter, and afterwards pardoned, it were no objection to his credit; for it was an accident which did not denote an ill habit of mind; but secus if it were for stealing, for that would be a great objection to his credit, even after pardon: but the record of conviction ought to be produced, which here they had not." Probably however, this passage relates to competence. (at p466)
34. There is a discussion by Holmes J. in Gertz v. Fitchburg Railroad Co. (1884) 137 Mass 77 of the principle on which convictions of crime are used to discredit testimony. He says "when it is proved that a witness has been convicted of a crime, the only ground for disbelieving him which such proof affords is the general readiness to do evil which the conviction may be supposed to show. It is from that general disposition alone that the jury is asked to infer a readiness to lie in the particular case and thence that he has lied in fact. The evidence has no tendency to prove that he was mistaken but only that he has perjured himself, and it reaches that conclusion solely through the general proposition that he is of bad character and unworthy of credit." (at p466)
35. Holmes J. makes it clear that he considered that the common law had not sanctioned the use of all convictions for this purpose but only of those having the tendency he has described. For, in discussing a Massachusetts statute of the same kind as Mr. Denman's Act he says "The statute puts all convictions of crime on the same footing - those which formerly excluded, those which always have gone only to credibility, and it would seem, those which formerly would not have been admissible at all." (at p466)
36. It is interesting to notice that in some States of the Union statutes have been passed particularly excluding from use prior convictions for offences against motor traffic laws in any civil or criminal proceeding arising out of a motor accident: Wigmore on Evidence, 3rd. ed. (1940), par. 987 (ad fin.). (at p467)
37. But probably the need for such legislation was felt as a result of statutes which made a conviction for any offence evidence for the impeachment of the credit of a witness. (at p467)
38. The fact seems to be that much uncertainty existed prior to the passing of s. 25 of the Common Law Procedure Act 1854 as to the state of the law. (at p467)
39. A good deal of uncertainty appears in the passage dealing with "Impeachment of Character" in the Second Report of the Common Law Commission (1853), at pp. 21-22, a passage too long to quote and one which does not elucidate the point now in question. (at p467)
40. Scanty as is the material obtained to form a conclusion I think the better view is that at common law a conviction of a witness for an offence could not be used for the purpose of discrediting him if the offence was not of such a nature as to tend to weaken confidence in the credit of the witness, that is to say in bis character or trustworthiness as a witness of truth. Traffic offences cannot often fulfil this condition. (at p467)
41. It is sufficiently obvious that if a party is shown by cross-examination or otherwise to have been guilty on previous occasions of the same kind of conduct as that alleged against him in the litigation the tribunal of fact is likely to reason that what he would do once he would do again. The danger is of course great that the rule against using propensity to do a thing as a ground for finding that it has been done on a particular occasion will be disregarded. (at p467)
42. The general discretion which at common law belonged to a court (R. v. Taylor (1892) 18 VLR 497 ) and the wider discretion given by s. 56 of the Evidence Act 1898-1940 (N.S.W.) provides however, a safeguard against the use of convictions under the pretext of discrediting a witness for the substantial purpose of directly affecting the judgment of the jury upon the substantive issue. (at p467)
43. In the present case Owen J. was of opinion that, having admitted the evidence which included the references to prior convictions of the defendant for traffic offences as affecting credit, rightly as I think, the learned judge should have given a specific direction warning the jury that they must not use the evidence for any purpose except as it affected the general credibility of the defendant as a witness. (at p467)
44. Such a warning would no doubt have been proper. But I am not prepared to 'regard the failure to give it, particularly as it was not expressly sought by the defendant, as a ground for a new trial. (at p468)
45. In my opinion the cross-examination was admissible because it tended to show that the defendant had a strong temptation to deny that the plaintiff was approaching on the defendant's right hand, but not because of either of the other two reasons suggested. Being admissible the learned judge's failure to exercise his discretion against allowing the cross-examination does not form a ground for a new trial, at all events in the circumstances of the present case. (at p468)
46. Two observations made by the learned judge on matters of fact in the course of his charge to the jury were made the subject of criticism and were relied upon as adding to the reasons for granting a new trial. One related to an error in the statement taken by the police-constable from the defendant. The error was as to the side of the cab struck by the cycle. The other observation concerned the side of the cycle damaged. Toward the end of his judgment Owen J. has dealt with these two questions and explained them. His Honour said that he would not have been disposed to attach much importance to either of the two points had they stood alone but when taken with the other matters to which his Honour had referred they served to increase his feeling that in certain respects the trial miscarried. (at p468)
47. It is unnecessary for me to say more than that, taking the view I do of the other matters, these two additional points are quite insufficient to warrant a new trial. (at p468)
48. In my opinion the appeal should be allowed with costs, the order of the Supreme Court should be discharged, in lieu thereof the new trial motion dismissed with costs, and the verdict and judgment for the plaintiff restored. (at p468)
McTIERNAN J. A new trial of this action was ordered for defects in the summing up and error in the admission of evidence. (at p468)
2. In regard to the summing up, it is criticized upon two grounds: - partiality to the plaintiff and lack of certainty in stating the issue of negligence to which each party directed his evidence. (at p468)
3. I agree with Jordan C.J. that there is no real substance in the first complaint. The summing up does not in any respect exceed the latitude allowed to a trial judge to comment on facts. Jordan C.J. dealt with the complaint in the following way - "There is nothing in the summing up which in the remotest way suggests that in his Honour's criticism of the evidence he was taking the decision of the facts out of the hands of the jury and into his own. He made it perfectly plain that he was doing nothing of the sort." This statement is in accordance with established principle (Hobbs v. Tinling (1929) 2 KB 1, at p 49 and Thompson v. Truth and Sportsman Ltd. (1930) 31 SR (NSW) 292; 48 WN 57 ). These cases are cited by Jordan C.J. (at p469)
4. The only issue of negligence which was in contest was: - Who broke the rule requiring a driver to give way to a vehicle on his right? This issue is clearly put in the summing up. The language of the summing up does not give any room for a real doubt that the jury would not have thought that such issue was the only issue for them to decide. The contrary view is that the references to speed could have led the jury into thinking that it was not the only issue; and that these references might have led them to decide the issue of negligence apart from the question whose duty it was to give way. The jury could not properly decide the case in that way without a direction on contributory negligence. No such direction was given. The direction may have been necessary to provide for the event of their rejecting the evidence adduced on behalf of the plaintiff that his direction was east. If his direction were west, it would have been his duty to give way; and it may have been contributory negligence on his part not to do so. Having regard to the issue put to the jury, a direction on contributory negligence was not necessary. The case which the summing up put to them as the plaintiff's case was the only case which he made. It was that the accident was caused by the defendant's neglect of the rule about giving way, not by negligence consisting in driving at an excessive speed across the intersection. If the jury proceeded to their verdict according to the express directions in the summing up, it seems almost certain that they found the plaintiff was driving east, the defendant, who was driving south, failed to observe the rule requiring him to give way to the plaintiff, his failure was negligence and was the cause of the plaintiff's injuries. The criticism that the summing up invited the jury to consider any other issue of negligence attributes more to the references which the trial judge made to speed than they can fairly bear. The speed at which the defendant was travelling was one of the facts of the case and it was not necessary for the trial judge to refrain from referring to it. There is nothing in the summing up to support the suggestion that the jury gave their verdict upon any other issue of fact than the issue whether the plaintiff was driving east or west at the time the collision occurred. There is no defect in the directions given to the jury about that issue of negligence. (at p469)
5. A witness, who was allowed to give his opinion as an expert, said that the defendant was travelling at a speed of forty miles an hour when the collision occurred. This witness professed that, in the course of his trade as a motor-car repairer, he had gained experience of the damage done to vehicles struck in collisions with vehicles travelling at various rates of speed. Relying upon that experience he formed the opinion that the plaintiff's vehicle was struck by one travelling at forty miles per hour. The trial judge disallowed an objection to the competency of this witness to give this evidence as an expert. "The competency of the expert is a preliminary question for the judge, and is one upon which, in practice considerable laxity prevails" (Phipson Law of Evidence, 4th ed., (1907), p. 356. See Wise Bros. Pty. Ltd. v. Commissioner for Railways (N.S.W.) [1947] HCA 33; (1947) 75 CLR 59; (1946) 47 SR (NSW) 233; 64 WN 34 . The evidence of this witness about his experience was slight but sufficient to enable the judge to say that the witness was competent enough to give an opinion as an expert about the probable speed of the defendant's car. The weight of the opinion was a matter for the jury. It seems obvious, upon a perusal of the cross-examination of the witness, that his opinion and reasons were destroyed. The admission of the opinion in evidence is not a sufficient ground for a new trial. (at p470)
6. The defendant was asked in cross-examination whether he had been convicted of offences against the traffic laws. Objections made to these questions were overruled. It is argued that, in a case like the present, a party against whom an allegation of negligence is made may never be asked whether he has been convicted of an offence against any traffic law, because, if it were shown that he was convicted of such an offence, the jury's attention would be diverted from the issue of negligence to collateral issues, and prejudice and injustice to the party would result. (at p470)
7. In the present case there are special circumstances. The defendant said in evidence in answer to his counsel that he had been driving since 1914 and in cross-examination he said that he meant the jury to understand by this evidence that he was "a careful driver." A jury would think that a characteristic of a careful driver is a strict adherence to rules designed to promote the safety of drivers, their passengers and pedestrians. The defendant gave this favourable testimony of himself to impress them and to assist his case, which was a denial of the plaintiff's allegation that he violated an important traffic rule by failing to give way to the plaintiff. The questions to which objection was taken were whether the defendant had been convicted of exceeding the speed limit, disobeying traffic lights and failing to give way to a vehicle coming on his right. The objections to these questions were rightly overruled. The defendant admitted these convictions. It was right to allow the questions, even if nothing more could be said to justify the asking of them, than that the fair trial of the action required that if the jury took into consideration the evidence which the defendant gave as to his experience as a driver, they ought not to be left in ignorance about the facts that these questions were asked to elicit. Jordan C.J. put the matter this way - "The facts that the defendant had had experience in driving since 1914, and had been driving motor vehicles practically continuously from 1914 to the present time, had no relevancy whatever to the question whether the plaintiff's motor cycle was being ridden in an easterly or a westerly direction along Yaralla Street. But they might well incline a jury to think that such a seasoned veteran as the defendant would be likely to be both experienced and careful, and therefore as unlikely to commit a breach of an elementary rule of the road as an old salt would be to commit a breach of the collision regulations. Learned counsel may not have realized that he was taking a risk in asking the questions, he almost certainly did not know of the convictions or counsel of his experience would have been scrupulously careful to do nothing which would make evidence of them admissible. However, he did ask them, presumably because he thought that they would be of some advantage to his case, and, in my opinion, this made it legitimate for counsel for the plaintiff to use all legitimate "means to prevent such advantage. In the circumstances, I think that the evidence complained of was properly admitted." I entirely agree with this statement. (at p471)
8. Apart from the special circumstances which have been mentioned, it was right to allow these questions. Subject to s. 56 of the Evidence Act of New South Wales, a witness may be asked any question which tends to discredit him (Mutch v. Sleeman (1928) 29 SR (NSW) 125, at p 135 ). It tends to his discredit to ask him whether he has ever been convicted of a criminal offence. An offence against the traffic laws is not an exception to this rule. The objects of the traffic laws are order and safety on the roads. A conviction for an offence against any such law may reflect upon the credit of the offender according to the circumstances. In a civil case, a party may subject to s. 56 be asked whether he has ever been convicted of an offence against those laws. An action in which damages are claimed for injuries caused by the negligent driving of a motor vehicle is not an exception. If counsel thinks that it would be to the advantage of his client to ask a party in such an action whether he has been convicted of an offence against the traffic laws, he is, subject to s. 56, free to ask the question. (at p472)
9. Where such a question has been asked the circumstances may call for a direction by the trial judge with the object of doing what is possible on his part to prevent the jury from acting upon an erroneous view as to the relation of the fact of the conviction to the issue of negligence which they are trying. There was no such direction given in this case. The question whether the circumstances of the case called for it does not arise. The defendant's counsel, no doubt wisely, refrained from asking for such a direction. For this reason rule 151B creates an obstacle to his raising on appeal the point whether the direction ought to have been given. (at p472)
10. The defendant also submits that he has discovered fresh evidence and that this evidence and the circumstances of its discovery satisfy all the conditions which make the discovery of fresh evidence a ground for ordering a new trial. These circumstances were examined in the Full Court but were found to be insufficient. I agree with that view. (at p472)
11. In my opinion the appeal should be allowed: the judgment for the plaintiff and verdict should be restored. (at p472)
WILLIAMS J. This is an appeal from an order of the Full Supreme Court of New South Wales which by a majority (Maxwell and Owen JJ., Jordan C.J. dissenting) set aside a verdict and judgment for the appellant (the plaintiff in the action) for 2,928 pounds and ordered a new trial. The action resulted from a collision at the intersection of Yaralla and Mackenzie Streets, Concord, between a motor bicycle with a side-box attached ridden by the plaintiff and a taxi-cab driven by the defendant on 5th March 1948. The case for the plaintiff was that he was riding along Yaralla Street in an easterly direction whilst the defendant was driving along Mackenzie Street in a southerly direction so that the plaintiff had the right of way, and that the accident was caused by the failure of the defendant to give way. The case for the defendant was that the plaintiff was riding along Yaralla Street in the opposite direction so that the defendant had the right of way, and that the accident was caused by the failure of the plaintiff to give way. Evidence was also tendered for the plaintiff that the defendant was driving at an excessive speed. (at p472)
2. At the end of the summing up counsel for the defendant, in the absence of the jury, objected to the whole of the summing up except on the question of damages on the ground that it had been unduly favourable to the plaintiff and asked the learned trial judge, Dwyer J., to withdraw it and substitute one more to the defendant's liking. He asked his Honour to direct the jury that if they found the plaintiff was travelling west then their verdict must be a verdict for the defendant, if they found he was travelling east then there must be a verdict for the plaintiff, and if they could not make up their minds which way he was travelling there must be a verdict for the defendant, because the only case that the defendant was called upon to meet was the plaintiff's case that he was travelling east. A discussion then took place, still in the absence of the jury, as to whether there was another case open to the plaintiff, that is to say whether, if the evidence of the defendant was accepted that the plaintiff was riding in a westerly direction, there was evidence on which the jury could find that the effective cause of the accident was not the failure of the plaintiff to give way but the excessive speed of the taxi-cab. In the course of the discussion his Honour said that it would no doubt be possible for the jury, even if they accepted the defendant's version, to find that nevertheless he was more or less to blame. But his Honour could not have meant that he thought this case was open to the jury on his summing up because he added that counsel for the plaintiff did not ask him to put such a case to the jury at any stage, and that he had consciously refrained from doing so. (at p473)
3. The real question is, of course, what his Honour told the jury and not what was said in their absence, and having read his summing up, the most important passages of which appear in the judgment of Jordan C.J., I am unable to find anything from which the jury could have reasonably believed that they could find for the plaintiff otherwise than on the basis that he had the right of way and that the accident was caused by the defendant failing in his duty to give way. I am unable to agree that this issue was clouded by the introduction of evidence as to the speed of the taxi-cab. A full account of the accident would naturally include the speed at which both vehicles were travelling, and excessive speed on the part of the vehicle which was under a duty to give way would at least afford an explanation of why it failed to do so and therefore form part of the res gestae. His Honour did, I think, sum up in favour of the plaintiff, but he made it clear to the jury that they and they alone were the judges of fact and were entitled to disregard any opinions he might express on the facts and I agree with Jordan C.J. that there is nothing in his Honour's summing up which would justify a new trial. (at p473)
4. It was objected that the learned trial judge should not have admitted certain evidence. It was contended that his Honour should have rejected the evidence of one Carroll, a motor repairer and engineer, who did not witness the accident but examined the damage to the motor bicycle and side-box and stated that in his opinion the damage was such that the taxi-cab must have been travelling at forty miles per hour. But his evidence was not evidence that any jury could reasonably have accepted after his cross-examination and there is plenty of other evidence that the taxi-cab was certainly not loafing along the road. To this objection the words of Willes J., delivering the judgment of Keating J. and himself in Henman v. Lester [1862] EngR 860; (1862) 12 CB (NS) 776, at p 789 [1862] EngR 860; (142 ER 1347, at p 1358) are not inapposite - "Furthermore, we apprehend that, even if the judge had decided wrongly upon this collateral point, we ought not to grant a new trial; the judge's mistaken ruling as to matter collateral to the issue, not being ground for a bill of exceptions, never ought to be ground for a new trial, unless the court can see that injustice has been occasioned by the mistake: see Black v. Jones [1851] EngR 188; (1851) 6 Exch 213 (155 ER 518) . And in this case we can plainly see not only that no injustice has been done, but that the objection is an unreal one, and that, if we sent down the case to a new trial, we should pronounce a decision equally far from the merits of the case as it is from truth and fact." (at p474)
5. It was also contended that his Honour should not have allowed the defendant to be cross-examined about convictions for previous traffic offences. Jordan C.J. and Owen J. considered that this line of cross-examination would not have been admissible but for the fact that the defendant's counsel commenced his examination in chief by eliciting from the defendant the fact that he had been driving motor vehicles since 1914. Owen J. added that where such evidence is given it is essential that the presiding judge should be at pains to explain to the jury, either at the time the evidence is given or in the course of his summing up, the legitimate purpose for which such evidence can be used and the unfairness and impropriety of treating it as going to the issue of liability. Maxwell J. considered that the evidence was inadmissible. He said that no authority is needed for the proposition that where negligence is charged on a particular occasion it is not permissible to set up a general propensity for careless driving by reference to earlier acts of negligence or cognate matters such as convictions for or warnings in respect of traffic offences. We were assured by Mr. Jenkyn that in an experience of twenty years in running-down cases, he had never known this class of evidence to be admitted. In face of such a "communis opinio" I hesitate to say such evidence is admissible without it being opened up in some particular manner (Hollington v. F. Hewthorn & Co. Ltd. (1943) 1 KB 587, at p 593 ). But after consulting many learned text books on the law of evidence, I am satisfied that it was always permissible at common law to seek to impeach the credit of a witness in civil cases by cross-examining him as to previous convictions for felonies and misdemeanours. If the witness denied the conviction, and the evidence was not relevant to any issue, he could not, as in the case of other irrelevant matters, be contradicted. The law in this respect has been altered in England by statute for nearly a century and there, if the witness denies or does not admit the conviction or refuses to answer, the cross-examining party may prove the conviction, but there is no corresponding statute in New South Wales. Accordingly in New South Wales counsel is entitled to cross-examine a witness in civil cases as to previous convictions in order to impeach his credit but on irrelevant matters the witness cannot be contradicted and his answers will be conclusive. But the court has a discretion under s. 56 of the Evidence Act 1898 (N.S.W.) to disallow such questions in the circumstances therein mentioned. I am therefore of opinion that the questions as to convictions for previous traffic offences which the defendant was asked in cross-examination were admissible subject to the discretion of the learned trial judge to disallow them. If such questions are usually not asked in the cross-examination of witnesses in New South Wales in running-down cases, it must be because the court in the exercise of its discretion will usually disallow them. The defendant was entitled to the direction to the jury to which Owen J. referred if his counsel had asked for it, but this was not done, and in view of the terms of rule 151b a new trial should not, in my opinion, be granted on this ground. (at p475)
6. Another ground relied on by the respondent to support a new trial was the discovery of fresh evidence. I agree with the Supreme Court that a new trial should not be granted on this ground because the fresh evidence is evidence which might have been produced at the trial if the defendant had been reasonably diligent. Counsel for the defendant informed us that this evidence was not available at the trial because, in view of the defendant's instructions to his solicitors that the plaintiff was travelling along Mackenzie Street to the west, the plaintiff's evidence that he was travelling in the opposite direction was unexpected. But the fresh evidence was evidence which if believed would have corroborated the defendant's evidence whatever case the plaintiff made and should therefore have been available in case it was required. (at p475)
7. For these reasons I would allow the appeal. (at p476)
Webb J. I agree with the judgment of the Chief Justice. (at p476)
2. However, but for rule 151B of the Rules of the Supreme Court of New South Wales I would have taken the view that a new trial was warranted because of the absence of a direction to the jury that the evidence of the defendant's conviction for breaches of the traffic laws went only to his credibility and not to the issue of negligent driving. It was necessary that the jury should have understood this to ensure a proper trial. But in Cotton v. Commissioner for Road Transport and Tramways (1942) 43 SR (NSW) 66; 60 WN 42 there was an unsuccessful objection to the admission of evidence going only to credibility. The purpose of admitting this evidence was not explained to the jury; still it was held by the Full Court of New South Wales that rule 151B prevented an order for a new trial, although the rule provides for leave of the court allowing the non-direction to be made a ground of appeal. No such leave was sought here; mor can it be implied from the order for a new trial, as only Owen J. considered the non-direction on this evidence to warrant a new trial. Maxwell J. relied on other matters. (at p476)
ORDER
Appeal allowed with costs. Order of Full Court set aside. In lieu thereof dismiss motion for new trial with costs. Restore verdict of jury and judgment for plaintiff for 2,928 pounds with costs.