CHRISTOPHER CARIAN v SCOTT ELTON, CLINTON CARIAN v SCOTT ELTON, DEBBIE LAURIE v SCOTT ELTON, IVAN JONES v SCOTT ELTON

MASON P: Clinton Carian (“Carian”) and Scott Elton (“Elton”) were riding a motorcycle when it crashed into a tree. Each young man was injured, Carian very seriously. Carian sued Elton, as did Carian’s mother and brother Christopher, who claimed damages for nervous shock. Elton sued the owner of the motorcycle. The four actions were tried together in the District Court, the trial being confined to liability.

The following facts are established by unchallenged findings of the trial judge or a clear preponderance of evidence. Elton (aged 16), Bobby Jones (“Jones”) (aged 15) and Carian (aged 15) gathered at Jones’ parents’ home on the evening of 28 October 1994. Quantities of alcohol were consumed by each of them. Sometime after 10 pm Carian and Elton came upon a trail bike in the garage of the house that belonged to Jones’ father Mr Ivan Jones. The boys expressed a wish to ride the bike. In what Patton DCJ described as “colourful and unfortunately prophetic terms” Jones counselled them against doing so. Carian insisted, whereupon Jones produced two helmets. Carian and Elton rode around a vacant lot next to Jones’ house with Carian in control. Jones went inside for about five minutes. When he returned they were gone, having ventured onto the road which led to Gross Vale Road where the accident occurred.

The left hand side of the bike struck a glancing blow on a tree to the left hand side of the road before ending up back on the roadway itself (see Blue AB 85L, 91H). It would appear that Carian was thrown off the bike first, because he was found by Mr Cooper unconscious and in a foetal position very close to the tree. Elton was found sitting and conscious not far from the bike, in the middle of the roadway, some little distance to the west of Carian and the tree.

The trial judge inferred that Elton and Carian were on the motorcycle for less than half an hour after leaving the vicinity of Jones’ house. This inference was clearly open, but it would be wrong to read it as suggesting much more than an outer limit of time. The site of the accident was only a few kilometres from the Jones home. Elton’s evidence was Carian drove there directly. In a statement given to the police on 18 November 1994, Elton said that the decision to go for a ride on the motorbike was “about 11.00pm-11.15pm” . The ambulance was called at 11.35pm. In his statement, Bobby Jones said that Carian and Elton started talking about taking the bike for a run at “about 10.30pm” . There followed the unsuccessful attempt to dissuade the two boys, Jones going inside to get the helmets, and the two boys riding around the grassed paddock next door before venturing onto the public road. The central issue

Speaking of the proceedings in which Carian and Elton were the respective plaintiffs, the trial judge said: The principal issue to be determined is whether either has established on the balance of probability that the other was riding the motorcycle at the time of the collision in the sense of being in control of it. His Honour correctly ignored the theoretical possibility that it might not be established which of Carian or Elton was probably in control of the bike.

The judge’s statement of the “principal issue” reflected the possibility that, although the person in control, not the passenger, is more accurately described as “riding” a motorcycle, both the person riding a motorcycle and a passenger might sometimes be referred to as “riding” or perhaps “riding on” the motorcycle.

Carian, his mother and his brother have appealed against the dismissal of their claims. Mr Ivan Jones, the owner of the motorcycle against whom Elton obtained judgment for damages to be assessed, has applied for leave to appeal and an extension of time within which to do so. It is appropriate to grant such leave, having regard among other things to the need for consistency in the ultimate disposal of all issues by the Court. I shall refer to all four as the appellants.

The only persons present at the time of the accident were Carian and Elton. Because of his injuries, Carian had no relevant memory of the accident.

Elton also claimed to have no memory of the moments prior to the accident. But he gave clear evidence that, up until then, Carian was the rider of the motorcycle. If Elton were accepted on this, his claim would have succeeded, and the claims by Carian, his mother and his brother would have failed. This is what happened, but without an explicit finding by the trial judge that he accepted Elton’s testimony as truthful. Herein lies the heart of these appeals.

Regrettably, his Honour did not state expressly that he accepted Elton’s evidence, or discuss reasons for doing so. Elton submits that this is implicit in the judgment and that the well known principles in Abalos v Australian Postal Commission (1990) 171 CLR 167 sustain the judgment below. The appellants submit that there is no such implicit finding. They point to admissions of liability said to have been made by Elton. They also submit that the reasoning in the judgment discloses appealable errors. Elton’s evidence

Elton’s written and oral evidence as to who was in control of the bike was clear. Carian was the more experienced rider. Carian started the bike and drove it around the paddock next door to the Jones house and out onto the main road. They travelled by a more or less direct route to the scene of the accident. Elton’s last recollection was riding in this manner onto a new section of road about 200 metres from the point of the accident. Elton denied admitting to any one that he was in control of the bike at the time it left the road. He did however concede that he expressed himself on occasions to be uncertain as to who was the driver. He said he did this because he was being “harassed” by friends of Carian, particularly Bobby Jones, and he thought this would cease if he expressed himself to be doubtful. He agreed that he had told Carian and his mother that he had no recollection of the events after the two boys got onto the new section of road and, in this context, he discussed with Carian the possibility of submitting to hypnotism to ascertain the truth.

The ambulance officers who came upon the scene spoke to Elton (Carian being unconscious). Elton admitting to having consumed alcohol (something which he is said to have denied to another witness, Mr Cooper) and stated that he was the pillion passenger. The hospital notes taken on the night of the accident also record Elton’s statement that he was riding the bike as a passenger.

The learned trial judge considered that the ambulance and hospital notes should be given some, but limited, weight as self-serving statements emanating from Elton himself. In my view, he was correct in seriously discounting the weight of statements to the medical people. Elton was in pain, but he was conscious and he appears to have had his wits about him. He was on notice that he was in a position of delicacy. After all, Mr Cooper had interrogated him as to whether he was drinking and as to who was the “rider” in the sense of being in control of the bike, obtaining (according to Mr Cooper) a clear admission that it was Elton. Elton must have realised that whoever was in control of the bike could be in serious trouble because both boys were unlicensed and both had been drinking. At the scene of the accident there was an incident (according to Mr Cooper, but denied by Bobby Jones) where Bobby Jones arrived at the scene and ran across to Elton yelling “I’ll kill you Scott” , trying to kick him as he was being attended by the ambulance officers (White AB 70-71). The appellants’ challenge to Elton’s evidence

In cross-examination, it was put to Elton that he had greater experience in driving motorbikes than he conceded. His lack of recall of the period leading up to the accident was challenged. He was confronted with the various admissions later led in evidence against him.

The principal evidence relied upon by the appellants consisted of admissions said to have been made by Elton that he was the rider of the motorcycle (in the sense of being in control of it) when it crashed. Admissions may have very great probative value which can undermine the case of an otherwise apparently credible witness ( Voulis v Kozary (1975) 180 CLR 177 at 193, Khafam Developments Pty Ltd v Zeaiter , Court of Appeal, 3 October 1996, unreported).

The trial judge was not prepared to find that Elton had made all of the alleged admissions. However, his Honour held that other potential admissions relied on by the appellants were in fact made. These include Elton’s statements of uncertainty as to who was the driver (par 11 above). Particular importance attaches to a conversation which Elton had with the first person to arrive on the scene after the accident, Mr Cooper. Mr Cooper was an independent witness.

The appellants submit that the trial judge erred in his view of Cooper’s evidence and that he should have found that Elton made a clear admission to Cooper that he was the rider of the motorcycle in the sense of being in control of it at the time of the crash. On this basis, it is contended that his Honour erred in failing to scrutinise the reliability of Elton’s evidence, compounding this error with a misapplication of the so-called presumption of continuance. The essential reasoning in the judgment below

The structure of the judgment is, I think, informative. The trial judge set out the substance of Elton’s evidence, being evidence which (if accepted) would have put the verdict in his favour beyond question. His Honour then addressed Elton’s counsel’s reliance upon the “presumption of continuance”.

His Honour said: However the “presumption of continuance” does I think apply to this case. It was referred to in a somewhat similar factual matrix by the Court of Appeal in Swinburne v New South Wales Insurance Ministerial Corporation (Court of Appeal, 29 October 1997, unreported). In that case although the majority of the Court thought that it was open to the trial judge to find that the presumption had been rebutted, Mason P thought it was not and Powell JA with whom Meagher JA agreed seemed to accept that the presumption could have applied even though the time lapse between the plaintiff and his companion setting out on a motorcycle with the plaintiff as pillion passenger and the time of the accident was at least one hour and the place of the accident was not on the route of a few kilometres which the plaintiff and his companion intended to take. The question remains whether the presumption of continuance has been displaced in this case so as to require a finding that Elton was the person in control of the bike at the time of the accident. If that finding were made then his action would succeed and the actions of the other plaintiffs would fail. (emphasis added)

The appellants submit that this reasoning betrays error of principle about the role of the presumption. I shall come back to that submission. I return to the structure of the judgment.

His Honour then referred to what he described as the most powerful piece of evidence relied upon by counsel for Carian. This was the evidence of Mr Cooper. Of this evidence, the trial judge said: It was obvious to Mr Cooper that the man sitting on the road, identified as Elton, was in pain and that he had an injured leg. Nonetheless, according to Mr Cooper, he was able to conduct a conversation with him after he had carried him to the side of the road and had checked on the condition of the other person (Carian) who was still unconscious. Mr Cooper said that he enquired of Elton whether he had been drinking and received a negative response. In answer to his further enquiry as to the circumstances of the accident Elton told him that he and Carian had been talking together (apparently as an explanation for their attention being distracted) and that he Elton had been “riding the bike”. Although I do not doubt the honesty of Mr Cooper his evidence as to the admission made to him by Elton poses some difficulty. It is inconsistent with what Elton seemingly told an ambulance officer within a very short time afterwards and it, at least potentially, gives rise to the ambiguity surrounding the use of the word “riding” or “ride” in relation to a motorcycle, an ambiguity pointed out by Mason P in Swinburne . There is also the concern that undoubtedly Elton at the time was in considerable pain and under great stress (the hospital notes record a fractured left femur and other injuries including a closed head injury). Mr Cooper did not record the conversation in any way and he gave evidence at the trial entirely from recollection. Significantly it is not mentioned in a statement which he made to Constable Barnes the investigating police officer on 27 March 1995 an omission resulting, so he claimed, from a desire not to become “involved”. Constable Barnes, who was not called to, and did not attend, the accident scene in a report to his superior Sergeant Considine dated 28 March 1995 referred to Mr Cooper in these terms: ‘On 27/03/94 a statement was obtained from Mr Jeffrey Cooper the first person at the scene of the accident. He was not very willing to provide this statement. He provided a reasonable description of the scene of the accident. He was adamant that Elton was the rider of the motor bike at the time of the accident. However he did not want to include this in his statement as he “did not want to get involved and have to go to court”. He also stated that he had spoken to Elton immediately after the accident whilst comforting him. Although he apparently could not recall all of the conversation.’

The passage is equivocal as to whether his Honour accepted Cooper about Elton having said he was “riding the bike”; or whether he was holding in effect that, though the words were said, they were ambiguous or of doubtful weight as an admission having regard to Elton’s confused state at the time.

His Honour then addressed the evidence of Carian, Carian’s mother Mrs Laurie, Bobby Jones and John Caton. Each gave evidence which (if accepted) would have supported the appellants’ case. Each deposed to an admission in one form or another by Elton. The trial judge weighed each piece of evidence and found it to be wanting. He was entitled to do so. Elton’s statements to Carian, if accepted, probably rose no higher than admitting that he had no recollection as to who was in control of the bike at the time of the accident. There were some inconsistencies in the evidence of Mrs Laurie. A reading of Jones’ transcript firmly supports the trial judge’s statement that Jones was not a credible witness. Caton was subpoened but he failed to come to court and his statement was of little weight even apart from the demonstrable inaccuracies it contained.

Then followed the climax of the judgment, in the following terms: After anxious thought I have concluded that there is no unequivocal evidence upon which I can safely rely to base a finding that Elton rather than Carian was in charge of the bike. The only evidence which I regard as reliable, using as an aid the presumption of continuance, indicates that Carian was in control when the motorcycle struck the tree and I make that finding. (emphasis added). Conclusion and reasons

I have concluded that there must be a new trial in this matter. There are four broad reasons.

First, the judgment contains no express finding on the all-important question of Elton’s credibility. This in itself is not an appealable error, but the absence of a finding accepting Elton as a witness of truth removes the case from one in which Abalos principles of restraint apply directly. I am not persuaded that such a finding is implicit in the trial judge’s reasoning. It is sufficient that the matter is left in a state of uncertainty. If it were necessary to fall on one side of the line or the other, I incline to the view that such a finding was not made. This is because the structure of the judgment reveals that his Honour felt in a position to resolve the difficult question by resort to reasoning based upon the “presumption of continuance” .

Secondly, there are difficulties with his Honour’s analysis of the critical evidence of Mr Cooper. Not only is there uncertainty as to whether or not Mr Cooper’s evidence of an explicit admission was accepted, but the reasons given for finding that it was not or (alternatively) discounting its weight are unsatisfactory. The passage is set out at par 21, above. The problems with the reasoning disclosed in this passage are as follows: • Reference to general ambiguity about the concept of “riding” a motor bike is of little weight if the person said to have made the relevant admission used “ride” in the sense of being in control of the bike. It would seem that Elton did use this word in this way (see White AB 28, 34, 36). • Read as a whole, Cooper’s evidence indicates to me that he was firm in his recollection that a clear and specific admission was made by Elton (see eg WB 85). • Although Cooper did not make reference to this admission in the statement which he gave to the police, he had an acceptable explanation for this and it was corroborated explicitly by Constable Barnes. If these two witnesses were honest, and the trial judge does not suggest otherwise, then this evidence of a specific conversation occurring only minutes after the accident provides further weight to Cooper’s testimony in court that a specific and damning admission was made Elton. • The trial judge thought that Elton’s pain created “concern” about the admission. It is a little unclear whether he was suggesting that this cast doubt on Cooper’s evidence that it was made or on the weight of the admission itself. However, the medical evidence does not reveal the ambulance officers having any basis for thinking that Elton was unable to give a clear account of his situation and Cooper certainly gave evidence to that effect.

Thirdly, the reasoning touching the application of the presumption of continuance suggests that his Honour misunderstood or misapplied the relevant legal principle. His Honour appears to have approached the issue of applying the presumption on the basis that the facts of the case attracted it and that it needed to be seen whether there was evidence of sufficient weight to displace it. Indeed, the passage set out at par 24 above indicates that the trial judge thought that “unequivocal evidence” was needed to displace the presumption. One difficulty lies in the fact that the invocation of the presumption depended upon acceptance of Elton’s evidence that Carian was in control of the bike until very shortly before the accident. Given that Elton’s credibility was the matter in issue, there is more than a suggestion of circular reasoning. I do not understand the presumption of continuance to have a status higher than other evidence. Nor do the authorities separate the evidence giving rise to the presumption from the other evidence in the case. As Dixon J put it in Axon v Axon (1937) 59 CLR 395 at 405, the presumption “is but a deduction from probabilities and must always depend on the accompanying facts” . (See also Re Peatling [1969] VR 214 at 226). The presumption of continuance is essentially a matter of relevance. It is part of a rational method of weighing the strength of two competing pieces of evidence. The passage quoted in par 24 contained the added difficulty in that it shows the judge as seeking for unequivocal evidence as part of the ultimate assessment of the evidentiary material, including that giving rise to the presumption. This elevates the presumption to a level which it does not deserve.

Fourthly, I am troubled by the inferences that are capable of being drawn from the location of the two boys at the accident scene (see par 3, above). In re-examination, Constable Barnes was permitted to express the opinion that this suggested that Carian was the pillion passenger because he would not have seen the tree coming, he would have gone straight ahead, and he had injuries consistent with having slammed into the tree. Elton was inferred to have seen the tree coming and to have tried to avoid it, with a measure of success, given that his only significant injury was to the left leg. Before us, Elton submitted that this type of opinion evidence was not admissible, at least from someone of Constable Barnes’ experience. That may be so. But I see no reason why a tribunal of fact could not or should not infer as much. The fact that Carian came off the bike first (near the tree) whereas Elton continued on it until it came to rest back on the roadway suggests to me that this was because the pillion passenger was the first to be dislodged whereas the driver was able to hang on longer, whether or not the putative driver saw the tree coming in contrast to his pillion passenger.

I would hesitate before giving effect to this fourth ground, if it stood alone. I acknowledge that it could be argued that the inference required expert evidence to support it, although I doubt this. There is also the difficulty that this ground of attack upon the trial judge’s reasoning was only touched upon obliquely in argument before us. I mention the matter as something worthy of exploration at the new trial rather than a sufficient basis for ordering a new trial. The earlier three matters, standing alone, are sufficient.

I propose the following orders: 1. In CA 40449/99 grant leave to appeal. 2. In each matter appeal upheld. 3. Order new trial. 4. Respondent to pay appellants’ costs and to have a certificate under the Suitors’ Fund Act if qualified.

HANDLEY JA: In this appeal I have had the benefit of reading the reasons for judgment of the President in draft form. Unfortunately I have come to a different conclusion but need not repeat in my reasons the history and background facts which he has fully covered.

The central issue in the appeal relates to the identity of the driver of the motor bike at the time of the accident. An important subsidiary issue concerns the effect of the presumption of continuance.

The episode began with Carian taking the lead. He was a little younger than Elton, but he insisted on taking the trail bike for a ride. He was the more experienced rider (133-4) and he started the bike and drove it around the vacant block with Elton as pillion passenger. Bobby Jones then went inside for a few minutes and when he came back the bike had gone. Elton did not drive the bike while Bobby Jones was watching, and he corroborates Elton’s evidence up to this point.

Elton claimed to have no memory of the events immediately before the accident, but said that until then Carian had remained the driver. The accident occurred only 3 to 4 kilometres from the Jones’ home (39) and Elton said they drove straight there. This journey would have only taken a few minutes. This is within the time frame referred to by the President.

The critical issue on the appeal turns on the evidence of Mr Cooper, an independent witness, who lived close to the scene of the accident. He had heard the noise of the bike coming up the road and then a loud bang. He took a torch and went out to investigate. He found Carian unconscious at the side of the road and the bike and Elton further away on the bitumen. He moved Elton and the bike to safety, and in the course of conversation asked him who was riding the bike and Elton said that he was. Mr Cooper gave a statement to Constable Barnes of the Windsor Police on 27 March 1995 which did not include this conversation. Constable Barnes recorded Mr Cooper’s unwillingness to provide a statement and that “he was adamant that Elton was the rider of the motor bike at the time of the accident”. Mr Cooper did not want to include this in his statement as he “did not want to get involved and have to go to court”. Evidence to this effect was given at the trial by Mr Cooper and Constable Barnes. The Constable also noted that Mr Cooper had spoken to Elton after the accident but could not recall all of the conversation.

The Judge said that he did not doubt the honesty of Mr Cooper but “his evidence as to the admission made to him by Elton poses some difficulty”. The Judge referred to Elton’s contrary statement to an ambulance officer shortly afterwards, the ambiguity of the word “riding” in relation to a motor cycle, the fact that Elton was in a lot of pain at the time with a fractured left femur and a closed head injury, and the absence of any record of this conversation.

The Judge held that the presumption of continuance applied to raise an inference that Carian was still driving. He added: “The question remains whether the presumption of continuance has been displaced in this case so as to require a finding that Elton was the person in control of the bike at the time of the accident”.

The Judge expressed his ultimate conclusions as follows: “After anxious thought I have concluded that there is no unequivocal evidence upon which I can safely rely to base a finding that Elton rather than Carian was in charge of the bike. The only evidence which I regard as reliable, using as an aid the presumption of continuance, indicates that Carian was in control when the motor cycle struck the tree and I make that finding”.

The President considers that there was no “explicit finding by the trial Judge that he accepted Elton’s testimony as truthful”. This is literally correct, but in my respectful opinion the Judge’s reasons disclose with sufficient clarity that he made such a finding. This appears from his conclusion when he said “the only evidence which I regard as reliable … indicates that Carian was in control when the motor cycle struck the tree”. The only evidence to that effect was from Elton, and this therefore is a finding that his evidence was reliable.

The President reviewed the Judge’s reasons dealing with the evidence of Mr Cooper, and said: “The passage is equivocal as to whether his Honour accepted Cooper about Elton having said he was ‘riding the bike’; or whether he was holding in effect that, though the words were said, they were ambiguous or of doubtful weight as an admission having regard to Elton’s confused state at the time”.

The passage in the trial Judge’s reasons certainly is equivocal because he reviews what he sees as difficulties with the evidence of Mr Cooper and reaches no conclusion at that point. In my view Mr Cooper’s question “who was riding the bike” was not ambiguous, and Elton said in his cross-examination that he assumed that persons asking such a question meant who was in charge of the bike (black 36). The question of the weight of any admission made at that time is another matter because Elton was in considerable pain. He appears to have suffered a loss of consciousness with a period of post traumatic amnesia (blue 80). The Judge referred to Elton’s statement to the ambulance officer to the opposite effect. The extent of his pain may be gauged from the fact that he received seven doses of morphine in the ambulance (blue 18).

Mr Cooper’s evidence in cross-examination exposed significant errors in his recollection. He said in chief that Elton was in pain in his ankle (68) which was uninjured. He said that when he went to the scene of the accident Carian was lying a metre and a half to two metres east of the tree that the bike had hit, that is in the direction from which the bike had come. He had a good recollection of this and was positive that Carian was not lying on the other side of the tree (72). He said that Elton was lying in the middle of the road about 15 metres further on with the bike further away just in front of him. He denied that the bike was on the side of the road and said that it was definitely in the centre, possibly even further than the centre. He denied that it was closer to Carian than Elton.

His attention was then directed to a plan he had drawn for the police and signed on 27 March 1995 which became exhibit 4. This showed Carian lying west of the tree, the bike was further on, on the edge of the bitumen, and Elton further on in the centre of the road. He agreed that he had drawn this plan but insisted that it was “wrong” (74) in relation to the location of the two boys and the bike.

The Judge does not refer to this evidence but he was entitled, because of it, to have reservations about the reliability of Mr Cooper’s evidence about the admission made by Elton that he was the driver. In further cross-examination Mr Cooper said (79): “Q You see I put to you this, if Mr Elton said we were riding on the bike and talking to each other and an accident occurred, that would be just as consistent with your memory today wouldn’t it, as to what you told us? A If that is what he said to me? Q Yes. A That’s more or less what he said to me. Q More or less, we were riding on the bike, we were talking to each other, didn’t see the bend and the accident happened? A They were answers to my questions, that wasn’t a statement he made”.

The Judge, in commenting on Mr Cooper’s evidence about his conversation with Elton, said that he did not record the conversation in any way and he gave evidence entirely from recollection. His evidence about the position of the boys and the bike after the accident conflicted with the plan he drew 5 months after the accident and three and a half years before the trial.

The Judge said in conclusion “the only evidence which I regard as reliable … indicates that Carian was in control when the motor cycle struck the tree”. This was a finding that Mr Cooper’s evidence that Elton admitted that he was the driver was not reliable. The matters I have referred to and the views the Judge formed as the result of seeing and hearing Mr Cooper in the witness box entitled him to make that finding.

The Judge’s acceptance of Elton’s evidence as reliable, and his finding that Mr Cooper’s evidence was not, attract the Abalos principle which protects such findings even where the Judge does not rely expressly on the demeanour of the witnesses. As McHugh J said in Abalos v Australian Postal Commission (1990) 171 CLR 167, 179: “… when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to the demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part in her findings”.

He had said earlier in his reasons at 178-9: “If there was any inconsistency between Professor Ferguson’s evidence and her Honour’s findings … then she must be taken to have rejected that evidence”.

This demonstrates that an appellate court may infer from the express findings of a Judge, who has given adequate reasons, that he or she has rejected evidence inconsistent with those findings. The trial Judge referred to the relevant evidence of Mr Cooper and could only have come to the decision he did if he rejected it. An appellant must establish that the judgment appealed from was wrong (Warren v Coombs (1979) 142 CLR 531, 539), and will give respect and weight to the trial judge’s conclusions (ibid 551). In an appeal from the exercise of a judicial discretion Lord Wright said that an appellate court will make every reasonable presumption in favour of upholding the judge (Heyman v Darwins Ltd [1942] AC 356, 388). In my view this was the approach adopted by McHugh J in the passage last quoted, and in my judgment it requires this Court to conclude that the Judge rejected the evidence of Mr Cooper that Elton had admitted that he was the driver of the bike.

The President has concluded that the Judge’s use of the presumption of continuance was affected by legal error because he thought that the unequivocal evidence was needed to displace the presumption. I am not able to read the passage from the Judge’s reasons quoted by the President in this way. In my view the Judge was simply commenting on the state of the evidence, and recording his finding that the evidence given by Mr Cooper about the admission by Elton was not unequivocal, and he could not safely rely on it. The passage in the cross-examination of Mr Cooper quoted above entitled the Judge to find that his evidence was not unequivocal. I do not read the sentence in question as dealing with the presumption or the evidence required for its rebuttal.

The President also holds that the Judge’s use of the presumption involved circular reasoning because it depended on his acceptance of Elton’s evidence that Carian was driving until shortly before the accident. However the finding that Carian was driving the bike around the vacant block also attracted the presumption, and Elton’s evidence to this effect was corroborated by Bobby Jones. The lapse of time and the distance travelled after the bike was driven on to the road were short and do not rebut or materially weaken the force of the presumption.

I agree that the presumption does not have a higher status than other evidence and that it must be weighed against the accompanying facts. Its effect is that the existence of facts at one point of time is evidence of their existence at a later point of time. See Cloverdell Lumber Co v Abbott (1924) 34 CLR 122, 137-8 per Isaacs J.

I am unable, with respect, to accept that it is “a rational method of weighing the strength of two competing pieces of evidence”. Its primary function is to fill a gap in the direct evidence.

In the present case there is such a gap because Elton said that his last memory some two hundred metres before the accident was that he was riding pillion, and Mr Cooper said that Elton admitted after the accident that he was the driver. There is no direct evidence of the identity of the driver at the time of the accident. As I read the Judge’s reasons, he did not rely on the presumption in coming to his decision to reject the evidence of Mr Cooper. He simply found that his evidence on this question was not unequivocal evidence on which he could safely rely. He then turned to consider Elton’s evidence that he was the passenger shortly before the accident, and found that this was reliable “using as an aid the presumption of continuance” (emphasis supplied). In my opinion this was a proper use of the presumption which did not involve giving it a higher status than other evidence. Elton’s evidence was that he was still the passenger shortly before the accident and the presumption could operate for the rest of the journey until the collision.

The Judge found that Carian was driving the bike around the vacant lot. Some short time later, and 3 to 4 kilometres away, there is an accident. Unless there was a change of position in the meantime, Carian was still the driver. He was the more experienced driver and the more adventurous. He alone had driven the bike on private property while Bobby Jones was watching and conditions were safer than on a public road. If Elton did not ask, or was not allowed, to drive the bike on private property, one could infer that he would not attempt or be allowed to drive it on the road. There is nothing in the evidence of the events at the Jones’s home to suggest that Carian would have wanted to stop on the road and change places with Elton. The presumption of continuance operating on the Judge’s finding that Carian was driving the bike on the vacant block can therefore “aid” Elton’s evidence that Carian was still the driver two hundred metres or so before the accident.

Regrettably, I am also unable to agree that the location of the bodies and the bike after the accident support an inference that Elton was the rider. Mr Cooper identified the tree that the bike hit by markings on the bark. There was a pedal mark a foot above the ground. More bark was missing about a metre from the ground on the right hand side of the tree where it looked as if the handle bar had hit it. The third mark was half a metre higher in the middle of the tree (black 69).

Bobby Jones’s statement to the police (blue 91) records that he and his father collected the damaged bike the following day. The left and right foot pegs were smashed, the left side of the handle bar was bent, and the right side was grazed. About a week later they collected the helmets. The blue helmet that Carian had been wearing had bark on its left side. The helmet that Elton had been wearing had a crack at the temple height all the way around the back, but there was no sign of any bark.

It seems therefore that Carian’s head hit the middle of the tree about 1½ to 2 metres above the ground. This would explain why, according to Cooper’s plan, his body was lying close to the tree to the east of it.

Elton on the other hand missed the tree and travelled further up the road beyond the bike. The rider would have been closer to the tree when the collision occurred and, it seems to me, more likely to hit it when thrown from the bike. The passenger was further back and since the left handle bar took the major impact he could have been thrown off to the right with a catapult action and finished further away in the centre of the road.

No expert was called to give evidence on the inferences which could be drawn from the damage to the tree, the bike, and the helmets and the location of the bodies and the bike after the accident. If inferences are open on the evidence at all, those outlined above appear to be at least as likely as those referred to by the President.

In my opinion for these reasons the appeals by Carian and others in the same interest fail and should be dismissed with costs.

FITZGERALD JA: The circumstances giving rise to this appeal and the competing considerations are set out in the reasons for judgment of the other members of the Court.

The trial judge held that there was “no unequivocal evidence … to base a finding that Elton rather than Carian was in charge of the bike” and that there was “evidence which….. indicates that Carian was in control when the motor cycle struck the tree…”. The only direct evidence Carian was in control was Elton’s testimony. I consider that his Honour’s finding that Carian was in control when the motorcycle struck the tree was based on Elton’s evidence, which his Honour described as “reliable, using as an aid the presumption of continuance”. I therefore agree with Handley JA that the trial judge accepted Elton’s evidence that Carian was in control when the motor cycle struck the tree.

The trial judge appears to have placed considerable weight on the presumption of continuance. In the passage in his Honour’s reasons for judgment in which the presumption was referred to as “an aid”, his Honour also noted an absence of “unequivocal evidence” against the conclusion which the presumption was thought to “aid”. Elsewhere in the judgment, the question to be answered was formulated in terms which suggest that his Honour considered that it would be necessary for the presumption of continuance to be “displaced” before it could be concluded that Elton was controlling the motorcycle when it struck the tree.

In my opinion, his Honour overstated the importance of the presumption of continuance in this case. While a rational inference is sometimes available that a prior situation probably continued, there is little basis for such an inference on this occasion. Two teenagers, both unlicensed and affected by alcohol, embarked on a risky escapade. Some time later, the motorcycle crashed while both were on it, one in control and the other a passenger. The boy initially in control of the motorcycle might have remained in control or each might have taken a turn at controlling the motorcycle. Even with the “aid “ of the presumption of continuance, the former possibility is not significantly more likely than the latter.

In any event, there was unequivocal evidence that Elton was in control of the motorcycle when it struck the tree in his extra-curial admissions that that was so. As the President has pointed out, admissions can have considerable probative value.

I agree with Handley JA that the admission made by Elton to Mr Cooper according to Mr Cooper’s evidence was unambiguous, but disagree with his Honour’s opinion that the trial judge’s rejection of Mr Cooper’s evidence of Elton’s admission can nonetheless be supported. His Honour’s mistaken conclusion that what Elton said to Mr Cooper was ambiguous impermissibly influenced his decision that Elton did not admit to Mr Cooper that he (Elton) was in control of the motorcycle immediately prior to the collision with the tree.

Before accepting Elton’s evidence that Carian was in control of the motorcycle when it struck the tree, the trial judge was required to assess the reliability of that evidence against the cumulative effect of inconsistent earlier statements by Elton either that he was the person in control at the material time or that he could not remember who was the person in control, including the evidence of Elton’s admission given by Mr Cooper. As the President has pointed out, prior inconsistent statements can undermine the reliability of an otherwise apparently credible witness. Because Mr Cooper’s evidence of Elton’s admission was disregarded, the trial judge did not correctly assess the reliability of Elton’s evidence.

In summary, the trial judge did not properly determine whether or not to accept Elton’s evidence. I agree with the President that there should be a new trial.

I agree with the orders proposed by the President.