Credit findings, contemporaneous notes & reconstruction

Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) [2013] NSWCA 10

Some useful observations on credit and the interplay with contemporaneous notes and reconstruction of events:

Allsop P

65. Mr Morris submitted that the blunt “Browne v Dunn” question put by the judge to Ms Minato meant that Ms Minato was never taxed by anyone putting the somewhat more subtle proposition identified by Mr Morris. That, however, does not identify error in process or fact-finding by the primary judge. Ms Blackburn was running her own case. Of course that had significant difficulties for her. But the line of cross-examination suggested by Mr Morris, though perhaps subtle and difficult to accomplish, was not complex in conception. It was to a degree obvious that Ms Blackburn should confront Ms Minato with her views in 2004 and to suggest that that reflected the truth and that there was confusion in her 2008 and 2010 evidence. The trial may not have been perfect; but it was as fair as the primary judge could conscientiously make it. Mr Morris referred to the helpful discussion of “credibility” by Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 as follows:

“ “Credibility” involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

66. These considerations, however, are embedded in the human reaction to, and resolution of, the apparent conflict in the 2004 and 2008 emails. Such was evident to Ms Blackburn.

67. Lest I be wrong about any error in process, I would conclude that there has been no miscarriage of justice necessitating a new trial on this point. An examination of the email correspondence in 2008 leads me to the tolerably clear conclusion that there was no error in the finding by the primary judge that Ms Blackburn and Mr Withyman had had a sexual relationship.

Brisbane Barrister – David Cormack

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