Fox v Percy

Last updated

Fox v Percy
Coat of Arms of Australia.svg
Court High Court of Australia
Full case name Fox v Percy
Decided2003
Citation214 CLR 118
Court membership
Judges sittingGleeson CJ, McHugh, Gummow, Kirby & Callinan JJ
Case opinions
appeal dismissed
Gleeson CJ, Gummow & Kirby JJ
McHugh J
Callinan J

Fox v Percy is a decision of the High Court of Australia.

Contents

The case is important to appellate law in Australia. The court made notable observations about the role of; appellate courts, trial judge findings, and assessments of witness demeanor.

Fox v Percy is the 15th most cited High Court case according to LawCite. [1] [2]

Facts

Background facts

(pictured) The type of vehicle Percy had been driving at the time of collision, a 'Kombi Van' 1973-1980 Volkswagen Kombi (T2) van 01.jpg
(pictured) The type of vehicle Percy had been driving at the time of collision, a 'Kombi Van'

The appellant Barbara Fox was injured in 1992. She was riding a horse alongside her friend Mr Murdoch, and came into collision with a Kombi Van driven by Megan Percy. Fox claimed damages against Percy in negligence. At trial, the crucial dispute was whether the respondent's motor vehicle was on the correct side of the road at time of impact. Both gave evidence claiming to be on the correct side of the road. [3]

Soon after the collision, an ambulance and police arrived at the scene. The ambulance attendants claimed at trial that when they arrived, the Kombi Van was on its correct side of the road. The police officer recorded in a sketch also that the vehicle was on the correct side, and that there were skid marks 10 meters behind it. The officer testified that those skid marks suggested to him 'that the vehicle had at all material times ... been on its correct side of the road'. [4] Fox had a blood alcohol reading of 0.122 when a measurement was taken by ambulance staff. [4]

Primary judicial findings

The primary judge, Herron DCJ had to resolve the conflict in testimony between the parties. He accepted the police record, and in particular, the officer's evidence about skid marks being present behind the vehicle. [5] Despite accepting this account; the judge found that the defendant was on the wrong side of the road at the time of collision. [6] He made these findings while relying on the appellant's testimony; confirmatory testimony provided by Mr Murdoch; and evidence contained within an expert report prepared by Mr John Tindall, a traffic engineer. [7]

Percy sought review at the NSW Court of Appeal.

Court of Appeal

The judges divided on appeal. In dissent, Fitzgerald JA criticized the growing practice of using experts to resolve simple trial functions; but wrote that rational minds could reasonably differ in this instance. He acknowledged the apparent legal constraints upon appellate courts while interfering with a trial judge's factual conclusions. He noted in particular the primacy to be given to a trial judge in 'assessment of credibility and reliability of witnesses'. He rejected an argument that the trial had not been properly concluded. [8]

The majority opinion, written by Beazley JA; acknowledged the advantages which the primary judge had in making findings in Fox's favour. [9] Nevertheless, she decided that the evidence of the police officer concerning the skid marks on the respondent's correct side of the road were facts 'incontrovertibly established by the evidence'. [10] As the primary judge had accepted the testimony about the skid marks, she concluded that the oral evidence of Fox and Mr Murdoch did not suffice to sustain the final opinion of the primary judge. She drew attention to defects in the reports of the expert witness Mr Tindall, including a lack of proved evidence to sustain some of his assumptions; and that he had not been called to give oral evidence. The court therefore found for Percy. [10]

Fox then appealed to the High Court.

Judgment

The High Court decided unanimously for the respondent, Percy. The majority judgment discussed at length legal principles behind the appeal process; comments which have been cited many times since.

Gleeson CJ, Gummow & Kirby JJ

Statement of appeal principles

The majority judgement began by briefly discussing the nature of judicial appeals as statutory. They mentioned four types of appeal discussed in prior case law. [11] They noted the meaning of the word 'rehearing' in the Supreme Court Act (NSW) as being; a proceeding on the basis of the record, with fresh evidence only to be admitted exceptionally. [12] Further describing this generic type of appeal, the court said of its requirements: [13]

'On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.'

They said that appellate courts must 'conduct a real review of the trial'. While allowances must be made for not having directly seen a witness; an appellate court is still required to 'weigh conflicting evidence and draw ... inferences'. [14]

Of the dichotomy between appellate obligations and appellate restraint, the court said: "the mere fact that a trial judge necessarily reached a conclusion favoring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute". 'Incontrovertible facts' or uncontested testimony might demonstrate a trial judge's conclusions are erroneous, even when those conclusions are based on credibility findings. [15] Additionally, in some 'quite rare' instances the court noted, an appellate conclusion may be reached that the decision at trial was 'glaringly improbable', despite an absence of facts meeting the 'incontrovertible' threshold. In such an instance, the High Court instructed that an appellate court must 'not shrink from giving effect to' its own conclusion. [16]

One more noteworthy observation made by the court, was its comment on scientific research regarding assessments of witness credibility made by judges. They noted that such studies had cast doubt on the ability of judges to tell truth or falsehood accurately on the basis of courtroom testimony. While not eliminating the principles behind the primary role trial judges have in making credibility findings, the court noted this research might 'tend to reduce the occasions where those principles are seen as critical'. [17]

Application of principle to the case

The court noted that Fox's case relied upon the advantages that the primary judge enjoyed in seeing the parties give their evidence. It noted that the Court of Appeal had given due allowance to the trial judge's advantage. [18] Still, the High Court found that the Court of Appeal did not make an error in overruling the trial judge; 'as the skid marks on the respondent's correct side of the road were incontrovertibly established'. [19]

Significance

Fox v Percy is frequently cited by judges whilst discussing the legal principles which inform appeals. Although the case was a civil dispute, its principles are understood to have (somewhat qualified) relevance in a criminal appeal context. [20] The proper role of trial judges in making credibility findings is a matter of debate among jurists and scholars. [21]

The majority's comments about the weaknesses judges face in making demeanor based findings, were tacitly endorsed by the Kiefel Court in Pell v R. [22] Interestingly, in Pell, the intermediate appellate justices had decided to watch the witness testimony directly; and made their own credibility findings de novo. [23] The High Court remarked negatively upon the CoA's decision to watch the videos in this way. They held in their unanimous acquittal of Cardinal Pell that 'the Court of Appeal ... acted too much like jurors'. [24]

The case is the 15th most cited High Court case of all time. [1] [2] Many of its citations are found in appeals of Magistrate court decisions.

Related Research Articles

<span class="mw-page-title-main">Appellate procedure in the United States</span> National rules of court appeals

United States appellate procedure involves the rules and regulations for filing appeals in state courts and federal courts. The nature of an appeal can vary greatly depending on the type of case and the rules of the court in the jurisdiction where the case was prosecuted. There are many types of standard of review for appeals, such as de novo and abuse of discretion. However, most appeals begin when a party files a petition for review to a higher court for the purpose of overturning the lower court's decision.

<span class="mw-page-title-main">Appellate court</span> Court of law that is empowered to hear an appeal

An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to hear a case upon appeal from a trial court or other lower tribunal. In much of the world, court systems are divided into at least three levels: the trial court, which initially hears cases and considers factual evidence and testimony relevant to the case; at least one intermediate appellate court; and a supreme court (or court of last resort) which primarily reviews the decisions of the intermediate courts, often on a discretionary basis. A particular court system's supreme court is its highest appellate court. Appellate courts nationwide can operate under varying rules.

In United States federal law, the Daubert standard is a rule of evidence regarding the admissibility of expert witness testimony. A party may raise a Daubert motion, a special motion in limine raised before or during trial, to exclude the presentation of unqualified evidence to the jury. The Daubert trilogy are the three United States Supreme Court cases that articulated the Daubert standard:

In United States law, a harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial. Harmless error is easiest to understand in an evidentiary context. Evidentiary errors are subject to harmless error analysis, under Federal Rule of Evidence 103(a) The general burden when arguing that evidence was improperly excluded or included is to show that the proper ruling by the trial judge may have, on the balance of probabilities, resulted in the opposite determination of fact.

In law, the standard of review is the amount of deference given by one court in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower court's decision. A high standard of review means that deference is accorded to the decision under review, so that it will not be disturbed just because the reviewing court might have decided the matter differently; it will be varied only if the higher court considers the decision to have obvious error. The standard of review may be set by statute or precedent. In the United States, "standard of review" also has a separate meaning concerning the level of deference the judiciary gives to Congress when ruling on the constitutionality of legislation.

In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to the interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. Answers to questions of law are generally expressed in terms of broad legal principles. They can be applied to many situations rather than particular circumstances or facts. An answer to a question of law as applied to the specific facts of a case is often referred to as a conclusion of law.

<span class="mw-page-title-main">Oklahoma Court on the Judiciary</span>

The Oklahoma Court on the Judiciary is one of the two independent courts in the Oklahoma judiciary and has exclusive jurisdiction in adjudicating discipline and hearing cases involving the removal of a judge from office, excluding the Oklahoma Supreme Court, exercising judicial power under the Oklahoma Constitution.

<span class="mw-page-title-main">United States Army Court of Criminal Appeals</span> United States Article I court

In the United States military, the Army Court of Criminal Appeals (ACCA) is an appellate court that reviews certain court martial convictions of Army personnel.

An ultimate issue in criminal law is a legal issue at stake in the prosecution of a crime for which an expert witness is providing testimony.

<i>R v W (D)</i> Supreme Court of Canada case

R v W (D), [1991] 1 S.C.R. 742 is a leading decision of the Supreme Court of Canada on assessing guilt based on the credibility of witnesses in a criminal trial. More specifically, W.D. examines sexual assault cases and burdens of proof in evidence law.

United States v. Johnson, 327 U.S. 106 (1946), was a United States Supreme Court case.

<i>R v Henry</i> Supreme Court of Canada case

R v Henry [2005] 3 S.C.R. 609 is a leading Supreme Court of Canada case on the protection against self-incrimination in section 13 of the Canadian Charter of Rights and Freedoms. The court ruled that the Crown may use the accused's previous voluntarily given testimony to incriminate or impeach credibility in a retrial if the accused again chooses to testify at said retrial. The court further held that no distinction should be drawn between the use of such evidence to incriminate the accused directly or to impeach their credibility. The Court partially restored this distinction in R. v. Nedelcu, 2012 SCC 59.

Peterson v Minister of Safety and Security is an important case in South African criminal law. For the appellant appeared J Whitehead SC, instructed by JL Martinson & Company, Cape Town; for the respondents, A Schippers SC and S O'Brien, instructed by the State Attorney, Cape Town.

<i>Fish v. Kobach</i> 2018 Kansas District Court case

Fish v. Kobach was a 2018 bench trial in the United States District Court for the District of Kansas in which five Kansas residents, the ACLU and the League of Women Voters contested the legality of the Documentary Proof of Citizenship (DPOC) requirement of the Kansas Secure and Fair Elections (SAFE) Act, which was enacted in 2011 and took effect in 2013.

<i>M v R</i> Legal case in the High Court of Australia

M v R or M v The Queen is an Australian legal case decided in the High Court. It is an important authority in the field of criminal law, for the circumstances in which it is permissible for a jury's guilty verdict to be overturned by a judge. The case involved an appeal against criminal conviction by a father, against allegations of sexual assault and rape by his daughter. His appeal was allowed by majority.

<i>Jones v Dunkel</i>

Jones v Dunkel is a decision of the High Court of Australia, concerning inferences that may be drawn when a party fails to give evidence.

<i>Dinsdale v R</i> Judgement of the High Court of Australia

Dinsdale v R is an Australian legal case decided in the High Court.

Kimmelman v. Morrison, 477 U.S. 365 (1986), was a decision of the U.S. Supreme Court that clarified the relationship of the right to effective assistance of counsel under the Sixth Amendment to other constitutional rights in criminal procedure. In this case, evidence against the defendant was probably seized illegally, violating the Fourth Amendment, but he lost the chance to argue that point due to his lawyer's ineffectiveness. The prosecution argued that the defendant's attempt to make a Sixth Amendment argument via a habeas corpus petition was really a way to sneak his procedurally defaulted Fourth Amendment claim in through the back door. The Court unanimously disagreed, and held that the Fourth Amendment issue and the Sixth Amendment issue represented different constitutional values, and had different requirements for prevailing in court, and therefore were to be treated separately by rules of procedure. Therefore, the habeas corpus petition could go forward. In its opinion, the Court also gave guidance on how to apply its decisions in Stone v. Powell and Strickland v. Washington.

United States v. Throckmorton is an 1878 decision of the U.S. Supreme Court on civil procedure, specifically res judicata, in cases heard at equity. A unanimous Court affirmed an appeal of a decision by the District Court for California upholding a Mexican-era land claim, holding that collateral estoppel bars untimely motions to set aside the verdict where the purportedly fraudulent evidence has already been considered and a decision reached. In the opinion it distinguished between that kind of fraud, which it called intrinsic, and extrinsic fraud, in which deceptive actions exterior to the proceeding prevented a party, or potential party, to the action from becoming aware of the possibility they could vindicate their rights in court.

<i>Pell v The Queen</i> 2020 judgment of the High Court of Australia

Pell v The Queen was a High Court of Australia decision that overturned the conviction of Cardinal George Pell for sexual offences against a child. On 22 June 2017, Victoria Police announced Pell's arrest for historical sexual assault charges on two choirboys at St Patrick's Cathedral in Melbourne. The allegations stemmed from Pell's time spent as Archbishop of Melbourne, and pertained to two anonymous victims referred to throughout the court process as victim A and victim B. B died before any allegation was reported to police. Pell was tried twice in the County Court of Victoria.

References

  1. 1 2 Note: LawCite citation statistics track the written judgements of courts, journal articles, and tribunals. (both in Australia and overseas) https://www.austlii.edu.au/cgi-bin/LawCite?cit=&party1=&party2=&court=High%2BCourt%2Bof%2BAustralia&juris=&article=&author=&year1=&year2=&synonyms=on&filter=on&cases-cited=&legis-cited=&section=&large-search-ok=1&sort-order=cited
  2. 1 2 Note: data is as of September 2020
  3. ↑ 214 CLR 118, at para [2] - [4]
  4. 1 2 214 CLR 118, at para [6]
  5. ↑ 214 CLR 118, at para [7] - [9]
  6. ↑ 214 CLR 118, at para [10]
  7. ↑ 214 CLR 118, at para [11]
  8. ↑ 214 CLR 118, at para [16]
  9. ↑ 214 CLR 118, at para [17]
  10. 1 2 214 CLR 118, at para [18]
  11. ↑ at [20], citing Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd  (1976) 135 CLR 616 at 619-622
  12. ↑ 214 CLR 118, at para [22]
  13. ↑ 214 CLR 118, at para [23]
  14. ↑ 214 CLR 118, at para [25]
  15. ↑ 214 CLR 118, at para [28]
  16. ↑ 214 CLR 118, at para [29]
  17. ↑ 214 CLR 118, at para [31]
  18. ↑ 214 CLR 118, at para [41]
  19. ↑ 214 CLR 118, at para [42]
  20. ↑ Dyer, Andrew (20 February 2020). "He 'Came Across as Someone Who Was Telling the Truth': Pell v The Queen". Sydney Law Review. 42: 11. SSRN   3539938 – via SSRN.
  21. ↑ Hamer, David (23 May 2018). "The Unstable Province of Jury Fact-Finding: Evidence Exclusion, Probative Value and Judicial Restraint after IMM V the Queen". Melbourne University Law Review. 41: 26. SSRN   3182861 – via SSRN.
  22. ↑ 376 ALR 478, at para [129]
  23. ↑ Note: This was possible because the accuser's testimony was recorded on video.
  24. ↑ "Pell in purgatory | Jeremy Gans". Inside Story. 13 April 2020. Retrieved 1 October 2020.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.