IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA
5	No AP 13 of 1988

BETWEEN:
10
MELVIN LAWRENCE JONES
First Appellant

AND:
15	KENNETH GRAEME SMITH	
Second Appellant
AND:
20	GARY MARK LACKERSTEEN
Respondent

25	CORAM:	NADER. KEARNEY and ANGEL JJ

REASONS FOR JUDGMENT
(Delivered 17 August 1990)

30
This is an appeal by the unsuccessful defendants (Melvin Lawrence Jones and Kenneth Graeme Smith) from a judgment in favour of the plaintiff (Gary Mark Lackersteen) given on 26 August 1988 for damages for
35		wrongful arrest, false imprisonment, and assault and battery.	At all material times, Jones was a Detective Senior constable and Smith a constable, both stationed at Darwin.

His Honour's reasons for judgment are reported at (1988) 92 FLR 6.	We shall refer to that report as if it were incorporated  in these reasons.	The facts are sufficiently set forth therein.
5

There were 32 grounds of appeal.	The original grounds 7 and 17 were amended at the hearing.	The generality of the grounds of appeal was rendered more specific by a document handed to the court headed
10	"Outline of argument on behalf of the appellants."

Most of the 32 grounds raised purely factual issues. We propose to express our opinion of them shortly and in a general way.	None of them has the potential to affect
15		the outcome of the case.	To understand why that is so it is necessary to appreciate the foundation upon which his Honour's decision rested.		It did not depend upon inferences drawn from findings of primary fact some of which rested on doubtful premises.	The appellants have
20		indeed demonstrated some error of primary fact in his Honour's reasons.	But, no material consequences flow from any such errors.	For example, the claim that his Honour was wrong in finding that the chainsaw had been secreted on 17 April was almost undoubtedly correct, and
25		his Honour mistook the plaintiff's statement signed on 10 May for one signed on 24 May, but we would reject as not persuasive the consequence which the appellants say flows from such errors.	The appellants' attack upon a number

of findings of fact cleverly tends to obscure the overwhelmingly determinative fact, namely, that after having observed the plaintiff and the other witnesses including the defendants during a long and tense trial,
5		and after having taken into account the considerable number of known matters adverse to the plaintiff (including his lies in the witness box), his Honour confidently found that in material respects the plaintiff was to be accepted and the defendants rejected.	on the
10		other hand, the learned trial equally confidently concluded that the appellants had not been honest about the central events.	This opinion was not merely a consequence of his Honour's acceptance of the plaintiff in basic respects, but it was a conclusion firmly based
15		on a consideration of the appellants' evidence in itself: it was just not acceptable.	The combined effect of a plaintiff's evidence, itself compelling, and that of the appellants, itself unacceptable, was irresistible: the case had only one way to go.		Convinced as he was that
20	the appellants had lied, the plaintiff's allegations were more readily acceptable.

It is difficult to imagine a case in which a trial judge more critically and carefully weighed the
25		evidence bearing on the issues of fact and the witnesses and their manner of giving their evidence.		This was a case par excellence where his Honour thought aloud, exposing his reasoning process in detail.	Of course

there is a risk in so doing of exposing the reasoning more readily to fault finding analysis.	However, notwithstanding the discovery of minor faults, the appellants have not persuaded us that his Honour made any
5		error that could possibly have led him to different ultimate findings.	The factual resolution of the case lay in the trial judge's assessment of the credibility of the evidence of the plaintiff and the appellants, not the surrounding circumstances and proper inferences.	That
10		being so, the failure to call Coropolides and Withers as witnesses was of little significance.

counsel for the respondent said, and we agree, that the relative credibility of the plaintiff and the two
15		defendants formed a central component of his honour's reasons:	this was especially so given the fundamental conflict between the plaintiff and the defendants on the central issues.	The effect of this fundamental conflict cannot be overestimated in the light of his Honour's
20	finding that the appellants were not to be believed.

His Honour was not starry eyed about the plaintiff. He knew what a despicable person he had been. At pl0 of his reasons he said:
25
"I have therefore kept constantly in roy mind that he is a self-confessed thief, forger, confidence roan and a person who is prepared to make up false stories to explain his possession
30	of stolen goods, and a person who has even told lies in the witness-box about the circumstances in which certain goods came into his

possession.	These are grave and weighty matters and the evidence of the plaintiff must be treated with the greatest caution.
Furthermore, he has failed, on what seems to me
5		a flimsy excuse, to call at least one witness who, while not present during the happening of the major part of the events of 24 April, was in a position to corroborate certain important parts of the plaintiff's evidence of the
10	occurrences of that day.
Despite all this, and giving careful attention to the plaintiff's demeanour in the witness­ box and his performance under a most thorough
15		and competent cross-examination, I have no doubt that what the plaintiff tells me happened on 24 April 1982 is substantially correct. Unfortunately, in this case, the plaintiff has no monopoly on lying."
20

That the plaintiff had not turned a new leaf and frankly confessed his past but, rather, had persisted with lies in the witness box underscores the weight that
25		must be given to his Honour's acceptance of the plaintiff's account in preference to that of the appellants of the events in question.	His Honour said in the passage above quoted that he had no doubt that what the plaintiff told him happened on 24 April was
30		substantially correct.	we have no doubt that his Honour used that expression advisedly.	It was used in a context in which his Honour was well aware that it was only necessary for him to prefer the plaintiff's version on the balance of probabilities in order to find for the
35		plaintiff.	satisfaction beyond doubt is the highest degree of proof known to the law.	In another part of his reasons the learned trial judge said, "I am quite satisfied the plaintiff has made out his case.": p27.	At

that place his Honour said that he had borne in mind the seriousness of the plaintiff's allegation and he refers to Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.	His Honour's consciousness of the importance of using the
5		appropriate terminology to describe the standard of his satisfaction concerning findings of fact is illustrated by his use (pl2) of the phrase "satisfied on the balance of probabilities" in connexion with the hiding of the chainsaw.	The extent of his Honour's preference for the
10	plaintiff's version of events was not a mere slight
preponderance of probability.	we are convinced that none of the questions raised on the appeal could have affected the dominant fact that his Honour regarded the plaintiff as fundamentally reliable and the appellants as not to be
15		believed.	The arguments of the appellants do not impugn his Honour's conviction that the plaintiff was essentially truthful and that the appellants were not credible.

20		Our conclusion that there is no factual basis for interfering with the factual findings of the learned trial judge does not lose sight of some demonstrable error: eg, as to the date on which the saw was concealed. Nor have we overlooked the plausible argument of the
25		appellants concerning the seeming lack of physical signs resulting from such a beating as that described by the plaintiff.	But his Honour dealt adequately with that matter.	He did not (contrary to what we understand to be

alleged) conclude from the appellant Jones' remark to the plaintiff "We don't leave marks either." (pl8) that the appellants had some special esoteric skill in the art of bashing without leaving marks.	His Honour, as we
5		understand him, says, in effect, that the remark evinced a consciousness of the desirability of not leaving marks and an intention to avoid doing so.	We do not think that his Honour treated the remark merely as evidence that the appellants possessed some special skill in that respect.
10		In his reasons (p24) his Honour himself explained how a considerable amount of pain and fear could have been inflicted without leaving many visible marks: we believe that those conclusions would have been available without evidence, based upon common sense and general experience.
15		His Honour also accepted that the battery seemed more severe to the plaintiff than it objectively was.	That, too, is an understandable inference and one which was readily open on the evidence.	The expression "We don't leave marks", said his Honour, evinced an intention to
20	put into operation a policy of withholding severe blows
unless they were to a part of the body where they were not likely to show: p25.	The appellants contended that the medical evidence disclosed physical signs which were not consistent with the account of the battery given by
25	the plaintiff.	Starting at page 23 of his reasons the learned trial judge faced that issue squarely and considered it at length. In our opinion, he convincingly dealt with it.	We would reject the appellants'

submissions in support of grounds 18 or 19 concerning the battery.

The arguments of the appellants do not begin to
5		weaken the central foundation upon which his Honour's conclusions rested, namely, the combined effect of the firm acceptance of the credibility of the plaintiff and the lack of credibility of the appellants.

10		The appellants complained that the learned trial judge had erred in law in rejecting evidence sought to be led from two detectives of an oral statement allegedly made by the appellant Jones to them on his return from the Noonamah/Berry Springs area on 24 April, the day of
15		the assaults and batteries.	Mr Stratton QC, counsel for the appellants at the trial, applied to adduce evidence from two detectives of the Northern Territory Police Force of an oral statement made to them by the appellant Jones in the absence of the plaintiff.	He said that the
20		evidence would be that one of them said to Jones "What are you up to?" and that Jones said words to the effect that he had been with Lackersteen down the track and "Lackersteen tried to bolt on us."	Mr Stratton said that, although it was hearsay, the evidence was
25	admissible "if not directly the res gestae, something akin to the res gestae."(Appeal Book p765).	This evidence, if admissible, was relevant to a claim made later by Jones that he had discharged his service pistol

to prevent the plaintiff from continuing an attempt to escape from custody.	The statement, as evidence of the fact that Lackersteen had attempted to escape, was inadmissible as hearsay and, insofar as it was made by
5		the appellant Jones, as wholly self-serving.	The statement was so far removed in time and place from the fact to be proved that it could not possibly have been part of the res gestae.	It was, in fact wholly self­ serving.	In our opinion the learned trial judge was
10		correct to reject it on the basis upon which it was tendered.	There was a basis upon which it might have been admissible if it had been so submitted, namely, that it had a tendency to show that the story about the plaintiff's attempted escape was not of recent invention.
15		Mr Stratton however never suggested such a basis of admissibility.	It is clear that he sought to have the evidence admitted as tending to prove the fact that the plaintiff tried to escape, whereas it was not admissible for that purpose.
20

Authorities are often cited to the effect that an appeal court should only interfere with findings of fact in clear cases, that findings of fact based in whole or in part on demeanour are not open to review in an
25		appellate court; they are well known and need no repetition here.

In view of the fact that we would not interfere with

his Honour's finding that the appellants assaulted (including battery) the plaintiff, it is unnecessary to consid r grounds 31 and 32.

5	The appeal should.be dismissed with costs.