Shimokawa v Lewis

[2009] NSWCA 266

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appellate review of findings of fact
3. › Credibility-based findings
4. › Whether trial judge failed to use or palpably misused advantage
5. › Errors in process of fact-finding
6. › Whether reasons for rejecting witnesses' evidence supported conclusions drawn
7. › Fox v Percy [2003] HCA 22
1. Appeal
2. › Appellate review of findings of fact
3. › Consistency of evidence of unconnected groups of witnesses
4. › Whether trial judge failed to consider critical matter bearing on credibility assessment
5. › Whether glaringly improbable that both groups mistaken
1. Appeal
2. › Appellate review of findings of fact
3. › Reliance on demeanour
4. › Danger of too readily drawing conclusions about truthfulness from appearance of witnesses
1. Appeal
2. › New trial
3. › Scope of new trial
4. › Whether more injustice would be done by ordering retrial on all issues
5. › Pateman v Higgin [1957] HCA 62

Quick Take

An appellate court conducting a 'real review' of a trial judge's fact-finding may overturn credibility-based findings where the reasons given for rejecting witnesses do not, on examination, support the conclusions drawn, and where the trial judge failed to consider the critical matter that two unconnected groups of witnesses gave consistent evidence on the essential point without any suggestion of collusion. The danger of too readily drawing conclusions about truthfulness from the appearance of witnesses may afflict fact-finding even where the trial judge expressly relied on demeanour.