Kassem v Crossley & Anor; Kassem v Krayem & Anor

[2000] NSWCA 276

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Procedural fairness
3. › Trial judge's observations of party in courtroom
4. › Observations outside witness box relied upon for credibility assessment
5. › Whether trial judge fairly disclosed intention to rely upon observations
6. › Whether party given reasonable opportunity to address observations
7. › Denial of procedural fairness
1. Appeal
2. › New trial
3. › Denial of procedural fairness at trial
4. › Whether denial could have had no bearing on outcome
5. › Caution required where issue concerns acceptance or rejection of testimony

Quick Take

Where a trial judge intends to rely on observations of a party's courtroom behaviour (outside the witness box) to assess credibility, the judge must disclose that intention to the parties before judgment so that the party has a reasonable opportunity to address the observations by interrogation, evidence or advocacy. The judge's silence after the issue is raised in addresses, followed by reliance on the observations in a reserved judgment, constitutes a denial of procedural fairness warranting a new trial. A party's counsel objecting to the use of courtroom observations does not constitute waiver of the procedural fairness point where the judge does not indicate an intention to rely on the observations.