Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision [[2016] FWC 1941] of Vice President Watson at Melbourne on 11 May 2016 in matter number U2015/12039 – application of common law principles derived from criminal cases concerning admissions – appeal dismissed.

[1] Mr Colin Wright applied for permission to appeal against a decision 1 issued by Vice President Watson on 11 May 2016 (Decision). In that Decision the Vice President found that the termination of Mr Wright’s employment was not harsh, unjust or unreasonable within the meaning of s.387 of the Fair Work Act 2009 (Cth) (Act). The Vice President made an order2 dismissing Mr Wright’s unfair dismissal application.

[2] Mr Wright’s application for permission to appeal was heard by us on Tuesday, 12 July 2016 as part of a permission to appeal roster. At that time we granted permission to appeal. We heard the full appeal on Thursday, 14 July 2016.

[3] Having regard to the complexity of the issues raised in the appeal, we granted permission to the parties to be represented by legal practitioners pursuant to s.596(2)(a) of the Act. At the hearing of the appeal Mr Wright was represented by Mr M. Harding of counsel and AGL Loy Yang Pty Ltd (AGL) was represented by Mr D. Williams, solicitor.

Background

[4] Mr Wright was employed by AGL as a Level 8 Mine Operator at Loy Yang, a power station and coal mine in the Latrobe Valley. At the time of his dismissal Mr Wright had been employed at the power station and coal mine by various operators on a continuous basis for a period of about 30 years.

[5] Mr Wright concedes that he had a problem with drugs. He was caught using synthetic drugs in the workplace on two occasions. On the most recent of those occasions, 8 January 2015, Mr Wright was discovered in a toilet at work holding a smoking device. Mr Wright accepts that he had used the smoking device to smoke synthetic cannabis in the workplace. As a result of this incident, Mr Wright was issued with a final written warning on 29 January 2015. The final written warning required him to complete a residential drug and alcohol rehabilitation program for a minimum of 10 weeks, which he did, and informed him that a repeat of any incident of a similar nature may result in the termination of his employment. AGL paid the majority of the costs of the rehabilitation program.

[6] After Mr Wright completed the rehabilitation program, he signed a return to work program in which he acknowledged that any failure on his part to comply with the requirements of the plan may result in the termination of his employment.

[7] Mr Wright was involved in a car accident shortly after completing night shift on the morning of 27 August 2015. There is no dispute that, shortly after leaving work, Mr Wright drove through a roundabout and then ploughed into the yards of the two closest houses, going through their fences as he did so. He then hit a verandah, causing the roof to collapse and kept going until he hit another fence. 3 Police attended the scene of the accident. Mr Wright told a police officer who attended the scene of the accident, Constable Ledgar, that “he’d had synthetic cannabis”. Mr Wright was taken in an ambulance from the scene of the accident to a hospital. Fortunately he did not suffer any physical injuries.

[8] AGL conducted an investigation and concluded that Mr Wright had consumed synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015. On the basis of that finding, AGL made a decision to terminate Mr Wright’s employment on 17 September 2015.

[9] Mr Wright filed an unfair dismissal application in the Commission. In that application and throughout the unfair dismissal proceedings Mr Wright maintained that he did not consume synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015.

[10] At first instance the parties agreed that the key question for the Commission to determine was whether Mr Wright consumed synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015. Mr Wright conceded that if the question was answered by the Commission in the affirmative, his unfair dismissal application must fail. AGL conceded that if the question was answered in the negative, there would be no impediment to Mr Wright being reinstated.

[11] The Vice President decided the question posed to him by the parties in the positive, with the result that Mr Wright’s unfair dismissal application was dismissed.

Consideration

[12] Mr Wright relies on nine grounds of appeal in his Amended Notice of Appeal.

Grounds 1 and 1A

[13] Grounds 1, 1A, 2 and 2A of Mr Wright’s Amended Notice of Appeal relate to the alleged admission he made to Constable Ledgar at the scene of the accident to the effect that “he’d had synthetic cannabis”.

[14] At first instance Mr Wright sought to rely on common law principles derived from criminal cases concerning admissions to have the evidence of his alleged admission to Constable Ledgar disregarded or given no weight. In ground 1 of the Amended Notice of Appeal Mr Wright contends that the Vice President erred by not dealing with this argument. Ground 2 contends that the Vice President erred in that he failed to disregard or give no weight to evidence of the alleged admission to Constable Ledgar pursuant to the common law principles relied on.

[15] The High Court considered common law principles relating to evidence of admissions in criminal proceedings in R v Swaffield, Pavic v R. 4 The majority (Toohey, Gaudron and Gummow JJ) held (at p194) that admissibility of such evidence should be seen as, in general terms:

“… turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards.”

[16] The first category (voluntariness) referred to by the majority in Swaffield is not relevant to these proceedings, as it was not contended by Mr Wright that his alleged admission to Constable Ledgar on the day of the accident was involuntary in the relevant sense.

[17] The second category concerns the reliability of an alleged admission. The mental condition of an accused who makes an admission may be so serious that no reliance could be placed on the admissions made. The test is whether the person’s mind was so disordered and irresponsible that it would be dangerous to pay any attention to their alleged admission. 5 If it is, it is inadmissible. However, if the presence of a mental disorder or a mental condition or state of mind gives rise to the possibility that an admission is unreliable, that goes to the question of weight, rather than admissibility. As Doyle CJ put it in R v Simon Alexander Jude Pfitzner:6

“In my opinion it is clear enough from this that the presence of a mental disorder which makes it possible that a confession is unreliable, in the sense that the mental disorder is such that one cannot accept it as intrinsically likely to be true, is not sufficient to render a confession inadmissible. That is a matter which goes to weight, and obviously involves a consideration of the terms of the confession and, most importantly, the extent to which the contents of the confession are confirmed by independent proof of the events to which it relates.
…
It also seems to me that the tenor of the judgments is that it will only be in an exceptional case that the confessional statement will be excluded, and that ordinarily one would expect issues of unreliability to be dealt with by the jury in deciding the weight to be given to the confession, rather than by the judge in making a decision to exclude the confession.”

[18] There is no suggestion in this case that evidence of the alleged admission by Mr Wright should have been excluded on the basis of reliability. Both parties accept, however, that Mr Wright’s dazed 7 and confused8 state at the time he allegedly made the admission to Constable Ledgar was relevant to the Vice President’s assessment of the reliability of the alleged admission and the weight to be given to it.

[19] The third category referred to by the majority in Swaffield is often described in the criminal law cases as a discretion to exclude evidence of an alleged admission on the grounds of fairness. The purpose of such a discretion is the protection of the rights and privileges of an accused person in criminal proceedings. 9 The circumstances in which such a discretion to exclude evidence may be exercised include:

(a) where the accused makes an admission as a consequence of trickery or misleading conduct engaged in by police during an investigation; 10

(b) where an admission, because of its unreliability, ought be excluded as a matter of fairness, even if it were not so unreliable as to be inadmissible under the strict test of Sinclair; 11 and

(c) where circumstances particular to the accused make it unfair to rely on the alleged admission because the accused was incapable of exercising a sensible judgment about whether or not he should make a statement to the police (the Pfitzner principle). 12 The Pfitzner principle is further explained in paragraphs [20] to [22] below.

[20] In Pfitzner, Doyle CJ (with whom Millhouse J concurred) held that evidence of a confession made to police may be excluded where the mental state of the accused:

“was such that he was incapable of exercising, as distinct from disinclined to make, a sensible judgment about whether or not he should make a statement to the police. By a sensible judgment in this context I mean one which involves a meaningful consideration, within the limit of the accused’s own intelligence, of the right to remain silent, and of the significance of the occasion (the making of a statement that may be used in evidence).”

[21] This passage was endorsed by the Victorian Court of Appeal in Arnott per Ashley JA (with whom the other members of the Court agreed) at [25]-[31]. At [29], Ashley JA stated (references omitted):

“It is important to stress, however, that the notion of being ‘incapable of exercising ... a sensible judgment’ is confined to mental incapacity to comprehend that there is no obligation to make a statement and, that if made, it might be tendered against its maker. With respect, that is what I take Doyle CJ to have meant by the difference between a mental state which renders an accused incapable of exercising a sensible judgment about whether or not he should make a statement to the police and a mental condition which renders him or her disinclined to make such a judgment. The experience in this Court is that it is not uncommon for offenders caught up in the immediate emotional aftermath of an offence to make admissions which they would be disinclined to make once their state of mind returns to normal and their ordinary inhibitions are restored. One might say that their mental state at the time of making admissions renders them incapable of exercising a ‘sensible judgment’ about whether or not they should make a statement to the police; for, on one view of the matter, the only sensible judgment would be to remain silent. But that would not be enough. To allow for a broad basis of discretionary exclusion of that kind would challenge the notion long accepted in this country that:


Self harming statements, &c, made by a party when his mind is not in its natural state, ought, in general, to be received as evidence, and his state of mind should be taken into account by the jury as an infirmative circumstance. Thus a confession made by a prisoner when drunk has been received; and although contracts entered into by a party in a state of total intoxication are void, it is otherwise where the intoxication is only partial, and not sufficient to prevent his being aware of what he is doing.”

[22] Ashley JA relevantly concluded (at [31]) that what needed to be shown on the balance of probabilities was that the accused:

“was incapable of exercising sufficient volition to give effect to what he knew to be his right to remain silent; or unless the confession demonstrated an extent of unreliability, though short of the stricter test in Sinclair, such that it should be excluded in the exercise of the discretion.”

[23] Mr Wright did not object to the admission into evidence of his alleged admission to Constable Ledgar, but he did submit that the Vice President ought to have disregarded the evidence or given it no weight on the basis of the Pfitzner principle, namely, at the time Mr Wright allegedly made the alleged admission he was incapable of exercising a sensible judgment about whether or not he should make a statement to the police.

[24] We are not aware of any civil law case in which the Pfitzner principle has been applied. Counsel for Mr Wright was not able to direct our attention to any such case.

[25] The Pfitzner principle is reflected in s.90 of the Evidence Act 1995 (Cth), which is expressly limited in its application to criminal law proceedings:

Section 90 - Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it
would be unfair to a defendant to use the evidence.

[26] Mr Wright submits that the Pfitzner principle ought be applied in appropriate unfair dismissal proceedings because the principle is an evidentiary and forensic principle that informs the fact finding exercise in which the Vice President was engaged.

[27] AGL submits that the Pfitzner principle is limited to criminal law proceedings and has no application in civil law proceedings such as the determination of unfair dismissal proceedings by the Commission.

[28] The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s.577(a) of the Act. Although the Commission is not bound by the rules of evidence and procedure, it tends to follow the rules of evidence as a general guide to good procedure. 13 For example, the Commission may exercise its discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.14

[29] In an unfair dismissal case involving contested allegations of misconduct, the Commission is required to make a finding based on the evidence whether, on the balance of probabilities, the conduct occurred.¹⁵ In light of this requirement and having regard to the principles referred to in the previous paragraph, we accept (as does AGL) that it was relevant and appropriate for the Vice President to have regard to Mr Wright’s state of mind at the time he made the alleged admission to Constable Ledgar and the circumstances in which the alleged admission was made in assessing the reliability of that evidence and the weight to be given to it.

[30] However, we reject the contention that the Vice President was required, in unfair dismissal proceedings, to apply the Pfitzner principle and make a determination as to whether Mr Wright was incapable of exercising a sensible judgment about whether or not he should make a statement to the police. That principle is founded on the protection of the rights and privileges of an accused person in criminal proceedings, 16 including the right to remain silent when being questioned by police about an alleged criminal offence.

[31] Mr Wright submits that the Vice President erred in law by not dealing with his contention that the alleged admission to the effect that “he’d had synthetic cannabis” was to be given no weight by reference to the principles enunciated in Pfitzner. 17 Mr Wright also submits that the Vice President erred in failing to disregard or give no weight to evidence of the alleged admission to Constable Ledgar pursuant to the Pfitzner principle.18 In light of our finding that the Vice President was not required to apply the Pfitzner principle, we reject those arguments.

[32] The Vice President did have regard to Mr Wright’s contention that the Commission must assess the reliability of the alleged admission by reference to the circumstances in which it was made, including Mr Wright’s mental state at that time. So much is clear from paragraphs [35] to [37] and [42] to [43] of the Decision. In particular, the Vice President made express reference to Mr Wright’s submissions concerning reliability in paragraphs [35] to [37] and made findings in paragraph [42] that Mr Wright was “clearly dazed at the accident scene” 19 and “present[ed] in a confused manner with abnormal physical symptoms”.20 Having made those findings, the Vice President then reached the conclusion expressed in paragraph [43] of the Decision that Mr Wright’s “statements to the police at the accident scene are a reliable record of the circumstances and that his denials of drug use to AGL and in his evidence before the Commission should not be accepted”. We find no error in that reasoning process. Accordingly, we reject grounds 1 and 1A of the Amended Notice of Appeal.

Ground 2

[33] Mr Wright contends that the Vice President erred by making a significant error of fact in finding at paragraph [42] of the Decision that Mr Wright’s statement that “he’d had synthetic cannabis” was responsive to police questioning and/or was referable to the immediate past.

[34] This is one of a number of grounds where it is alleged the Vice President made a significant error of fact. To a substantial degree, the Vice President’s findings on the evidence and his conclusion that Mr Wright did consume synthetic cannabis prior to or during his journey from work on 27 August 2015 were based on his assessment of the credibility of Mr Wright and the other witnesses such as Constable Ledgar who gave evidence. In particular, the Vice President had to decide whether or not to accept Mr Wright’s denial of the allegation that he consumed synthetic cannabis prior to or during his journey from work.

[35] In Short v Ambulance Victoria, 21 the Full Court of the Federal Court summarised the principles to be applied by an appellate court or tribunal when considering challenges on appeal to findings of fact made at trial in circumstances whose those findings rested on assessments of credibility:

“It was central to Mr Short’s case that the real reasons for the refusal to appoint him to higher duties were not as Mr Standfield and Ms Ray testified, and he attacked the credibility of their account. The authorities set a high bar for an appellant seeking to overturn credit findings. In Devries v Australian National Railways Commission the majority per Brennan, Gaudron and McHugh JJ observed:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

In Fox v Percy at [26]- [31] Gleeson CJ, Gummow and Kirby JJ reiterated that a finding of fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences.” (citations omitted)

[36] These principles have been applied by Full Benches of the Commission for many years. 22

[37] In the first bullet point of paragraph [42] of the Vice President’s reasons, his Honour found that Mr Wright admitted to Constable Ledgar that he had had synthetic cannabis in the “immediate past”. The basis for that finding is the evidence given by Constable Ledgar in the hearing before the Vice President: 23

“…Now, Constable Ledgar, are you able to recall your observations of the occupant, who is Mr Wright, when you first arrived on the scene?---When I first arrived at the scene, I was flagged down by two males who were out on the street, who directed me to where Mr Wright’s vehicle was, because it wasn’t visible from the street. When I approached the vehicle, he was - or the driver I could see was male and the vehicle was revving it’s engine and I could see the driver moving his arms in the vehicle. I approached the window, which was half down. I could still see that he was pushing on the accelerator and he was moving the gearstick from drive to reverse, backwards and forwards. The car wasn’t moving, so I put my hand through the window, turned the vehicle off and the driver continued to make the same movements, as if he was trying to drive a vehicle, or get it to move. I then opened the door and tried to speak to the driver. It was only at that point that he seemed to acknowledge that I was there, however, when I was asking him questions, or I started to ask him questions in relation to what his name was and details of what had happened, I wasn’t getting any response. I continued asking those questions and made checks via the radio as to whether an ambulance was on its way, which it was, and just continued to speak to Mr Wright. He wasn’t very responsive. His head was constantly twitching from left to right, as I was speaking to him. His eyes were glazed over and they were bloodshot and they were watery, giving the glassy appearance. During my conversation with him, he would - eventually I got his name out of him and the address which he gave as being a Churchill address, date of birth and a telephone number. I asked him if he had taken anything. Initially I wasn’t getting any response to those questions. As I explained to Mr Wright at the time, ambulance are going to need to know what you’ve taken because you’re not looking in a good way. He’s eventually stated that he’d had synthetic cannabis and I gave that update over the radio and requested the ambulance to hurry considering his appearance. He seemed to be getting worse. I was concerned at that point that he may have been overdosing, so I wanted the ambulance there as soon as I could.

And just to make sure the record’s clear, Constable Ledgar, because you’re speaking fairly quickly. What was the substance that he said he had taken?---He stated that he had taken synthetic cannabis.”

[38] Mr Wright could not recall making the alleged admission to Constable Ledgar. Accordingly, Mr Wright could not give evidence of what he intended to say by his statement that “he’d had synthetic cannabis” and, in particular, whether he was being responsive to the questions by Constable Ledgar or was referring to the immediate past when he made the statement. In those circumstances, when making a finding about whether Mr Wright’s statement was responsive to the questions asked of him by Constable Ledgar and referable to the immediate past the Vice President had before him Constable Ledgar’s evidence of what Mr Wright said to him, Mr Wright’s denial that he consumed synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015, and circumstantial evidence such as the implement photographed in the console of Mr Wright’s car at the time of the accident.

[39] Mr Wright’s statement to Constable Ledgar that “he’d had synthetic cannabis” is equivocal insofar as those words do not indicate when Mr Wright had consumed synthetic cannabis and whether he made that statement in response to the questioning from Constable Ledgar. However, the context in which those words were spoken is highly relevant to an assessment, on the balance of probabilities and having regard to the Briginshaw standard, whether Mr Wright was intending to inform Constable Ledgar that he had consumed synthetic cannabis in the immediate past.

[40] It is clear from Constable Ledgar’s evidence, as relevantly set out in paragraph [37] above, that Constable Ledgar commenced his communications with Mr Wright shortly after the accident by asking Mr Wright for his name and “details of what had happened” in the accident. Initially Mr Wright was not very responsive to Constable Ledgar’s questions. Eventually Constable Ledgar was able to get Mr Wright to provide information concerning his name, address, date of birth and telephone number. Based on his observations of Mr Wright, Constable Ledgar then asked Mr Wright if he had taken anything. Initially Mr Wright did not respond to questions of that kind. Constable Ledgar then explained to Mr Wright the purpose for his questions, namely the “ambulance are going to need to know what you’ve taken because you’re not looking in a good way”. Constable Ledgar then gave evidence to the effect that: “He’s eventually stated that he’d had synthetic cannabis and I gave that update over the radio and requested the ambulance to hurry considering his appearance”. It is apparent from this analysis that the context in which Mr Wright told Constable Ledgar that “he’d had synthetic cannabis” supports the Vice President’s finding that Mr Wright’s statement was referable to the immediate past and was made in response to questions being asked of him by Constable Ledgar.

[41] As to other evidence relevant to these findings, it is clear that the Vice President considered and gave weight to Mr Wright’s denial that he had consumed synthetic cannabis prior to or during the journey from work, 24 together with a body of circumstantial evidence such as the smoking pipe in the centre console of Mr Wright’s vehicle at the time of the accident,25 Constable Ledgar’s opinion concerning Mr Wright’s appearance and behaviour at the scene of the accident,26 Mr Ledgar’s history of drug taking including at work,27 the fact that a traumatic incident had occurred during Mr Wright’s night shift at work and he had used drugs in the past to deal with stressful situations,28 the fact that Mr Wright did not obtain a test for the presence of synthetic cannabis until well after the incident and Mr Wright was aware of the difficulties in detecting synthetic cannabis, and Mr Wright’s unpersuasive attempt to explain away the smoking pipe in the centre console of his car.29

[42] Having regard to all of these matters, we are of the view that the Vice President’s findings that Mr Wright’s statement to Constable Ledgar to the effect that “he’d had synthetic cannabis” was referable to the immediate past and was made in response to questions being asked of him by Constable Ledgar were not inconsistent with facts incontrovertibly established, glaringly improbable, contrary to compelling inferences, or otherwise erroneous. In our view there was a firm basis in the evidence for the Vice President’s findings.

Ground 2A

[43] Mr Wright contends that the Vice President erred by making a significant error of fact in concluding at paragraph [42] of the Decision that Mr Wright made the statement that he had taken synthetic cannabis “when pressed for information” and had explained to Constable Ledgar the “workings of his nightshift”.

[44] The notes made by Constable Ledgar shortly after Mr Wright was taken away from the scene of the accident in an ambulance state, in part: “Male stated just finished work after 12 hour shift”. 30 That evidence supports the Vice President’s finding that Mr Wright explained to Constable Ledgar the “workings of his nightshift”, for it describes the duration of Mr Wright’s nightshift and when he finished that shift.

[45] In our view, it is a fair characterisation of the evidence 31 that Mr Wright told Constable Ledgar “he’d had synthetic cannabis” when Mr Wright was “pressed for information about whether he had taken any substances”. Mr Wright was “pressed for” that information in the sense that Constable Ledgar had to ask Mr Wright on a number of occasions whether he had taken anything before Mr Wright responded to him.32

[46] Accordingly, we reject ground 2A of the Amended Notice of Appeal.

Ground 2B

[47] Mr Wright contends that the Vice President erred in that he failed to give any or sufficient weight to the evidence of Mr Wright that he had not smoked synthetic cannabis prior to or during the journey from work on the morning of 27 August 2015, or to evidence that he had not done so since January 2015, in determining whether on the balance of probabilities Mr Wright had consumed synthetic cannabis prior to or during the journey from work on 27 August 2015.

[48] The Vice President clearly made reference in paragraph [41] of his Decision to Mr Wright’s evidence that “he did not, and had not smoked synthetic cannabis for a considerable period”. Having referred to that evidence, the Vice President then made reference to the task before him, which was to “determine whether he [Mr Wright] should be believed in the evidence he has given in this regard”. 33 In paragraph [42] of the Decision, the Vice President set out a number of aspects of the evidence which suggested that Mr Wright’s denial should not be accepted. Finally, the Vice President weighed up all “the circumstances” and found “that on the balance of probabilities Mr Wright smoked synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015”.34 In light of that reasoning process, we reject the contention that the Vice President erred by failing to give any or sufficient weight to Mr Wright’s denials of drug use.

Ground 3

[49] Mr Wright contends that the Vice President made a significant error of fact in finding at paragraph [42] of the Decision that:

(a) the smoking pipe produced by AGL appears to be identical to the item in the photograph taken by the police in Mr Wright’s vehicle; and

(b) Mr Wright had a smoking pipe in the centre console of his vehicle at the time of the accident on 27 August 2015.

[50] The police photographed an implement in the centre console of Mr Wright’s car at the time of the accident, but did not inspect it. The photograph taken by police shows most of the implement, but the bottom part of it is obscured in the photograph by the centre console of Mr Wright’s car. The implement in the centre console of Mr Wright’s car at the time of the accident was not in evidence before the Vice President because it was subsequently taken from the car by Mr Wright or his relatives and Mr Wright does not know where the implement is. 35

[51] AGL’s solicitors tendered in evidence before the Vice President a smoking pipe which they had purchased for the purpose of the proceedings. A photograph of that smoking pipe is in the Appeal Book. 36 It is apparent from a comparison between the photograph of the implement in the centre console of Mr Wright’s car at the time of the accident and the photograph of the smoking pipe purchased by AGL’s solicitors that:

(a) the non-obscured part of the implement located in the centre console of Mr Wright’s car is very similar to the corresponding part of the smoking pipe purchased by AGL’s solicitors; and

(b) it is not possible to compare the bottom part of the implement located in the centre console of Mr Wright’s car with the corresponding part of the smoking pipe purchased by AGL’s solicitors because the photograph taken by police obscures that part of the implement.

[52] In light of that evidence, we are of the view that it was open to the Vice President to find, as he did, that the smoking pipe produced by AGL “appears identical to one photographed by the police” [emphasis added].

[53] Once the evidence concerning the similarity between the photograph of the implement in the centre console of Mr Wright’s car and the smoking pipe purchased by AGL’s solicitors is combined with two other pieces of evidence, it is clear, in our view, that the Vice President’s finding that Mr Wright had a smoking pipe in the centre console of his vehicle at the time of the accident was not inconsistent with facts incontrovertibly established, glaringly improbable, contrary to compelling inferences, or otherwise erroneous.

[54] The first piece of additional evidence is the fact that Mr Wright lied to police when he informed them that when he did smoke synthetic cannabis it was “just in joints”. 37 As Mr Wright conceded in his evidence, his statement in this regard was untrue. He was caught smoking synthetic cannabis at work from a bong. It was, in our opinion, appropriate for the Vice President to have regard to this evidence when assessing the veracity of Mr Wright’s denial that he had a smoking pipe in the console of his car at the time of the accident.

[55] The second piece of additional evidence concerns Mr Wright’s attempt to explain to the Vice President what the implement shown in the police photograph of the console of his car was and the purposes for which he used that implement. This issue is dealt with in paragraph [43] (second bullet point and last bullet point) of the Decision. In particular, at the hearing Mr Wright produced a pipe of a different colour and configuration to the implement shown in the photograph of the console of Mr Wright’s car. Mr Wright tendered a video of him using this different pipe as an attachment to an air-hose to clean his lawnmower. The Vice President found this evidence to be unpersuasive and concluded that “it appeared that Mr Wright was concocting a story about similar devices that was designed to limit the significance of the photo taken by police”. 38 In support of this finding, the Vice President referred to the different colour and configuration of the pipe produced by Mr Wright at the hearing, Mr Wright’s failure to produce the actual implement from the centre console of his car at the time of the accident, and Mr Wright’s evidence about the nature and purpose of the implement which, in his Honour’s view, “did not appear to be truthful”.39 We have reviewed a photograph of the implement produced by Mr Wright at the hearing. The photograph supports the Vice President’s findings that the implement produced by Mr Wright was of a different colour and configuration to the implement shown in the photograph of the console of his car at the time of the accident. Having regard to that evidence and the benefit the Vice President had of observing Mr Wright give evidence about these matters, we consider it was open to the Vice President to find, in effect, that Mr Wright was being untruthful about what was in the centre console of his car at the time of the accident.

[56] For the reasons set out above, there was, in our view, a firm basis in the evidence for the Vice President’s findings concerning the smoking pipe in the centre console of Mr Wright’s car.

Ground 4

[57] Mr Wright submits that the Vice President made a significant error of fact in finding at paragraph [42] of the Decision that the accident was not the cause of the applicant acting in a confused manner by reference to the opinion evidence of Constable Ledgar in circumstances where Constable Ledgar accepted:

(a) that he was not medically trained;

(b) that he could not know if Mr Wright had taken a substance; and

(c) the possibility that Mr Wright’s appearance could equally be consistent with being caused by the accident.

[58] Constable Ledgar has considerable experience in dealing with drug affected persons. 40 Constable Ledgar both observed Mr Wright’s appearance and behaviour and spoke to him at the scene of the accident. Having regard to his observations of, and dealings with, Mr Wright at the scene of the accident, Constable Ledgar expressed the view that “Mr Wright’s physical behaviour and his condition were consistent with taking an intoxicating substance”.41 To his credit, Constable Ledgar also accepted during cross examination that he could not know if Mr Wright had taken a substance and Mr Wright’s appearance could have been caused by the accident itself.42

[59] It is clear from the whole of paragraph [42] of the Decision that the Vice President did not decide whether or not to believe Mr Wright’s denials of drug taking solely on the basis of Constable Ledgar’s opinion as to his behaviour and condition. However, it was appropriate, in our opinion, for the Vice President to have regard to Constable Ledgar’s views and place some weight on them in making an overall assessment of the relevant evidence in relation to the key fact in dispute. There is no case of error in this aspect of the Decision established.

Ground 5

[60] Mr Wright submits that the Vice President made a significant error of fact in finding at paragraph [42] of the Decision that Mr Wright smoked synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015 in circumstances where:

(a) Mr Wright’s physical disability precluded him from smoking synthetic cannabis whilst driving; and

(b) there was evidence before the Commission going to the time Mr Wright swiped out, arrived at his car and had the accident in his vehicle that supported a finding that there was no opportunity for Mr Wright to consume cannabis prior to driving.

[61] In support of this ground of appeal, Mr Wright relies on the unchallenged evidence that he was unable to use a pipe to smoke synthetic cannabis whilst driving by reason of his disability to his right hand and arm. The Vice President referred to this evidence in paragraph [33] of the Decision (second bullet point).

[62] The finding made by the Vice President was that Mr Wright smoked synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015 [emphasis added]. 43 In order to make this finding, it was not necessary for the Vice President to make an express finding about whether he accepted Mr Wright’s unchallenged evidence as to his inability to use a pipe to smoke cannabis whilst driving, because there remained the possibility that Mr Wright smoked cannabis before driving or smoked cannabis in a joint whilst driving.

[63] Mr Wright also seeks to rely on evidence concerning when he swiped out of work and arrived at his car, when the accident happened, and how long it takes to drive from Mr Wright’s workplace to the scene of the accident to establish that there was no opportunity for him to consume cannabis prior to driving. Mr Wright contends that no attention was given to this evidence by the Vice President, with the result that we should infer these facts were overlooked.

[64] The Vice President made express reference in his Decision to material facts relevant to this argument put by Mr Wright. In particular:

(a) at paragraph [20] the Vice President referred to Mr Wright’s evidence that “when he arrived in the car park, he went directly to his car, got in and drove off”; and

(b) at paragraph [33] the Vice President referred to Mr Wright’s unchallenged evidence that on 27 August 2015 he “took between 25 and 30 seconds to walk from the turnstile to where his car was situated in the mine car park”.

[65] The Vice President then went on to weigh up evidence both in support of and against a conclusion that Mr Wright smoked synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015. 44

[66] In our view, it is not open to conclude that the Vice President overlooked or simply discarded the evidence concerning whether there was any opportunity for Mr Wright to consume cannabis prior to driving. The better view is that the Vice President concluded that he did not need to discuss the particular contention that there was no opportunity for Mr Wright to consume cannabis prior to driving.

[67] In any event, we are not satisfied that the evidence relied upon by Mr Wright warrants a finding that there was no opportunity for Mr Wright to consume cannabis prior to driving, for the following reasons:

(a) First, the calculations relied on by Mr Wright as to how long it would take to drive from his workplace to the scene of the accident were based on the driver “observing all the speed limits exactly”. 45 However, Mr Wright could not recall how fast he was driving throughout each part of the journey from his workplace to the scene of the accident.46 He accepts there is a small possibility he was travelling beyond the speed limit;47

(b) Secondly, Mr Wright’s submission is based on the times recorded in Constable Ledgar’s notebook. Constable Ledgar expressed those times to be estimates and gave evidence that the actual time of the accident may have been “marginally later” than that recorded in his notebook; 48 and

(c) Thirdly, no evidence was adduced by or on behalf of Mr Wright as to how long it takes to smoke synthetic cannabis. Such evidence would have been required in order to conclude that Mr Wright had no opportunity to consume cannabis prior to driving.

Ground 6

[68] Mr Wright submits that the Vice President erred in concluding that the credibility of Mr Wright’s evidence was undermined on, unstated, critical matters by reason of the “just in joints” statement made to police subsequent to the accident on 27 August 2015 and the Vice President’s finding that Mr Wright had an interest in a finding that he did not smoke drugs in circumstances where both matters were irrelevant to the determination of whether Mr Wright had or had not smoked synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015.

[69] We reject the contention that Mr Wright’s untruthful statement to the police subsequent to the accident to the effect that when he did smoke synthetic cannabis it was “just in joints” was irrelevant to the determination of whether Mr Wright had or had not smoked synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015. That evidence was relevant both to an assessment of Mr Wright’s credibility and to the factual controversy as to whether the implement in the centre console of Mr Wright’s car at the time of the accident was a smoking pipe. Had Mr Wright’s statement to police that he only smoked cannabis in joints been true, it would have supported his contention that the implement in the centre console of his car was an air cleaning device. The fact that Mr Wright’s statement to police was untruthful supported the likelihood of the implement being a smoking pipe.

[70] As to the comment made by the Vice President concerning Mr Wright’s interest in a finding that he did not smoke drugs, it is not necessary for a tribunal of fact to find that a person has any motive to fabricate a version of events in order to reject their evidence. 49 However, where a motive to lie does exist it is a relevant factor in the assessment of a witness’ credit.50 The absence of a motive to lie is also relevant to the assessment of a witness’ credit.51

[71] These principles are often applied by a tribunal of fact in circumstances where it may be more willing to accept the likelihood of evidence given by a witness who has no interest in the outcome of the case being truthful than evidence given by a person who has a significant personal interest in the outcome of the proceedings. In the latter instance, the evidence given by the person with a significant personal interest in the outcome of the proceedings may well be true, but the tribunal of fact will carefully consider the evidence, together with all other relevant evidence, before making findings of fact in the proceedings.

[72] In our view, the Vice President applied these uncontroversial principles as part of an overall assessment of Mr Wright’s credit as a witness. There is no case of error in this aspect of the Decision established.

Conclusion

[73] We dismiss the appeal for the reasons set out above.

DEPUTY PRESIDENT

Appearances:

Mr M. Harding, counsel, with Mr A. Kentish, solicitor, on behalf of Mr Wright.

Mr D. Williams, solicitor, on behalf of AGL.

Hearing details:

2016;

Sydney,

14 & 16 July.

 1   [2016] FWC 1941

 2   PR580239

 3   Decision at [23]

 4   (1998) CLR 159 (Swaffield)

 5   Sinclair v The King (1946) 73 CLR 316; Tofilau v The Queen (2007) 231 CLR 396 at [334]

 6   (1996) 85 A Crim R 120 (Pfitzner) at 135-6

 7   Decision at [42] (first bullet point)

 8   Decision at [42] (third bullet point)

 9   R v Arnott (2009) 214 A Crim R 500 (Arnott) at [25]; applying Swaffield at [77]-[78]

 10   Pfitzner at 138

 11   Arnott at [28]

 12   Arnott at [28]-[31]; Pfitzner at 139-140

 13   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [61]-[62]; s.591 of the FW Act

 14   s.135 of the Evidence Act

¹⁵ King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [24]

 16   R v Arnott (2009) 214 A Crim R 500 (Arnott) at [25]; applying Swaffield at [77]-[78]

 17   Ground 1 of the Amended Notice of Appeal

 18   Ground 1A of the Amended Notice of Appeal

 19   Decision at [42] (first bullet point)

 20   Decision at [42] (third bullet point)

 21   [2015] FCAFC 55 at [98]-[99]

 22   See, for example, City Motor Transport Group v Devcic [2014] FWCFB 6074 and the cases referred to therein, and Jones v Ciuzelis [2015] FWCFB 84

 23   Decision at [30]

 24   Decision at [41]

 25   Decision at [42] (second bullet point)

 26   Decision at [42] (third bullet point)

 27   Decision at [42] (fourth bullet point)

 28   Decision at [42] (fourth bullet point)

 29   Decision at [42] (fifth bullet point)

 30   Decision at [29]

 31   See paragraph [37] above

 32   Ibid

 33   Decision at [41]

 34   Decision at [43]

 35   Decision at [42] (second bullet point)

 36   AB v2 p376

 37   Ibid

 38   Decision at [42] (last bullet point)

 39   Ibid

 40   Decision at [42] (third bullet point)

 41   Ibid

 42   AB pp107-109

 43   Decision at [43]

 44   Decision at [41] to [43]

 45   AB p 63 PN545-8

 46   Ibid

 47   Ibid

 48   AB p 98 PN941-2

 49   Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at 7 to 8

 50   R v Uhrig (unreported, Court of Criminal Appeal (NSW), 24 October 1996) at 16 to 17

 51   Palmer v The Queen at 6

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