Home » Landmarks » Commissioner for Railways (N.s.w.) Vs. Young


Dixon C.J., Kitto, Taylor, Menzies and Windeyer JJ.


(1962) 106 CLR 535

9 February 1962


Evidence—Proof of identity of object—Writing on label of jar—Neither label nor jar produced—Admissibility of oral evidence of the writing on the label—Extent of the best evidence rule in relation to documents.


The following written judgments were delivered : –
DIXON C.J. This appeal is brought as of right by the Commissioner for Railways for New South Wales. The Commissioner complains of a judgment or order of the Supreme Court of New South Wales dismissing an appeal by the Commissioner from a verdict for 5,365 pounds recovered by the respondent in an action under the Compensation to Relatives Act, 1897-1953 (N.S.W.). The respondent is a widow whose husband was killed in an accident on 21st September 1956. The accident occurred at the Town Hall railway station at 6 p.m. or shortly afterwards as the deceased was attempting to board an outgoing train southbound from No. 2 platform. (at p539)

2. No complaint was made by the Commissioner of the amount at which the damages were assessed. His complaint is that at the trial certain evidence he tendered touching the sobriety of the deceased was rejected. That means that he sought a new trial upon a ground affecting liability only. In the Supreme Court, however, his contention failed that the verdict was vitiated by the wrongful rejection of some of his evidence. Hence this appeal. (at p539)

3. The widow’s declaration was framed in negligence in and about the care, control and management of the railway premises, a train and carriages, so that the deceased whilst attempting to board the said train and carriages was thrown down whereby he was wounded and injured and afterwards died. The particulars said that the deceased received the injuries from which he died when he fell whilst attempting to board an electric train. Unfortunately it is necessary to give a somewhat full account of the circumstances of the accident as well as of the evidence bearing upon it. Without such an account the points on which the decision turns cannot readily be disposed of. They are not all points that have any general importance to command attention. (at p539)

4. The deceased, who at the time of his death was aged fifty-two, and his wife were spending a holiday with their married daughter at Villawood. On the day of his death he and his son-in-law, whose name is Budd, had gone to Sydney where they went about attempting to find in some shop a particular tool which the deceased desired to obtain. The couple had called at various hotels and had consumed sufficient alcohol to make it a question at the trial whether the deceased and his son-in-law were seriously affected by drink. Shortly before 6 p.m. they came down the ramp at the Town Hall station and took up a position to catch a train either from No. 2 platform or from No. 1. At length a train which appeared to suit them came in from the north on No. 2 platform and they attempted to board it. Budd’s account in evidence of what occurred may be given in his own words: “It was one of the old-fashioned wooden carriages; the door was open. We moved over towards the train and the father-in-law held on to the rail, about five-eighths of an inch thick, alongside the doorway and the train moved off. It was an upright rail alongside the doorway. The train moved off and he went down on his left side. He was lame in one leg and limped a little. It was an upright handrail. The train was stationary when he took hold of it. He went down on his left side and I made an attempt with both hands to hold him. I had hold of his right elbow in my left hand, and I was about to assist him on the train and he went down on the left side. I made an attempt to hold him with both hands, but he was too heavy. He went between the train and the platform where there was a small gap. The train moved a carriage length maybe or more before it pulled up. There was a man there – I don’t know who it was now. He lowered him down to the railway, in between the carriages somehow or other, and then some railway officials went down.” The deceased was taken to Sydney Hospital where he died. (at p540)

5. The Railway Commissioner’s case is perhaps best shown by the evidence of the man to whom Budd refers, a police constable who tried to save the deceased. He said: “I noticed a train on No. 2 platform. It had just started to move. I then noticed two men. They had just started to run towards the front door of the entrance to the rear carriage of the train. I then noticed one man push on the door of the train. The door then opened. The man’s hand went inside the train. He then fell to the platform and rolled off the platform between the train and the edge of the platform. I then ran towards the man and grabbed hold of him underneath his arms to try and stop him from falling underneath. The train then stopped. I then let the man go underneath the train to where a railway employee had gone. He had come down and went underneath the train. We then laid the man to the side of the train until the train had moved away. The train had gone, before it pulled up, about one and a half carriages from the time it moved off.” (at p540)

6. The Commissioner apparently regarded the plaintiff’s case as based on alleged negligence consisting in the despatch of the train while a passenger was boarding it. He placed considerable reliance upon the view that the passenger himself, as well as Budd, was so affected by drink as to be unable to board the train properly, and of course he maintained that the train was despatched before the deceased tried to board it. The Commissioner’s reliance upon the alcoholic condition of the deceased, as he alleged it to be, was supported by an attempt to prove by evidence that an examination of the deceased’s blood took place after his death and that it disclosed a high alcoholic content. Blood that was taken from his body for this purpose was put in a container which was sealed and was inscribed so as to identify it. At the trial an attempt to show the facts disclosed by the examination of the blood failed because of the rejection of material proofs by the learned judge who presided, Clancy J. The evidence was not tendered in a very satisfactory way and the point was made against the Commissioner’s application for a new trial that sufficient precision had not been observed in the tender of the evidence and obtaining a clear record of what the judge’s ruling was which meant the rejection of the defendant’s proofs as to the blood content and its significance. This makes it all the more necessary to state what occurred at the trial as to the matter, even at the expense of brevity. (at p541)

7. The first witness called for the defence was the Senior Analyst in the Department of Public Health, Mr. McDonald. He showed that he was fully qualified to investigate the alcoholic properties of the contents of the vessel he received and to ascertain the percentage of alcohol. He had made a special study of such matters and had experimented and investigated them during the last twenty years. He said that on 24th September 1956 he was handed a sample in a sealed jar. He had referred to his journals for the purpose of identifying the sample and by doing so he had refreshed his memory. He was asked “What do you say you were handed on that day?” The question was objected to and disallowed. The witness was then stood down. After some further evidence had been called on other matters, Dr. Stratford Sheldon was called, a duly qualified medical practitioner who had conducted an autopsy on the body of the deceased. He deposed that he had taken some blood from the body for the purpose of estimating the alcohol. He said that the stomach smelt of alcohol. As to the sample of blood, it was sealed in a jar by the attendant in his presence, he saw it was sealed and wrote something on the label. He was asked what he wrote but that was objected to. The transcript is not clear about what happened to the question; perhaps is was disallowed or perhaps it was not persisted in. The next question was “You did write something?” – “Yes”. Mr. McDonald, the Senior Analyst, was then recalled. He was asked whether he made an analysis of some blood in a sealed glass jar and answered that he did. He said that the seal was intact when it reached him and he was asked whether there was writing on the jar. He was asked whether he recognized the writing and he said “Yes”. He was then asked whether he could say whose writing it was and he answered “Yes”, and to the question “Whose writing was it?” he said that the label was written by Dr. Stratford Sheldon. He was asked next what the writing said but that question was disallowed. Dr. Stratford Sheldon in his evidence had said that he had handed the jar to which he referred to the Coroner’s office after it was sealed. Mr. McDonald was asked if he had any record of how the sample came to his office and he answered “Yes”. The question of how it did come to his office, however, was disallowed, but he was permitted to say that the sample was handed to him by Mr. Ogg, the Chief Government Analyst. Mr. Ogg was called and said that the Senior Analyst (Mr. McDonald) was in his department working under his direction. He produced a book in the latter’s handwriting but, upon objection, he was not allowed to refer to it and he said that, apart from records, he could only give the procedure. He then stood down. At that stage Clancy J. confirmed the fact that counsel for the plaintiff objected to the Senior Analyst, Mr. McDonald, giving evidence of an analysis of the blood sample and said he upheld the objection because there was a break in the chain of identification. His Honour said that it was quite sound up to the stage after it left Dr. Sheldon. The history of a sample dealt with by Mr. McDonald onwards, of course, would be quite important, but there was a break in identification of the sample dealt with by Mr. McDonald as being that actually placed by Dr. Sheldon in the office at the Coroner’s Court and for that reason the evidence was not admissible. (at p542)

8. The new trial motion was based upon the contention that the rejection of the evidence which would have identified the jar was erroneous, that is to say, the evidence of the contents of the label. It does not appear from anything that was said before the jury what were the contents of the label, but apparently on the new trial motion in the Supreme Court it was stated to their Honours that it was to the following effect: “Blood taken from the body of Robert Patterson Young on September 22nd 1956.” It would appear that if it had been shown that the jar came to the hands of Mr. McDonald as Senior Government Analyst in a sealed condition and bore a label with an inscription in the handwriting which Mr. McDonald said he recognized as Dr. Sheldon’s, and Dr. Sheldon had been allowed to say what it was that he wrote and Mr. McDonald that that was what he read, then the identification of the jar would have been quite sufficient. It could hardly have mattered that there had been a failure to prove otherwise the actual transmission of the jar from the Coroner’s office to Mr. Ogg’s office; for the jury would have been at liberty to infer that it was the same jar and that it had been transferred from one office to the other. The point that there was not sufficient clearness and precision in the tender of the evidence to establish the identification of the jar may seem attractive until the material parts of the record are brought together. But it then becomes plain that what it was sought to do was clearly presented to the mind of the judge and of those representing the plaintiff, and the learned judge decided to disallow it. The reason for his Honour’s rejecting the evidence of what was written on the label was simply that to admit it was to admit secondary evidence of the contents of a written document. That ruling was upheld by the Supreme Court where the new trial motion was dismissed on the ground that the ruling was correct and, as to some of their Honours, on the further ground that even if the writing upon the label had been proved by admissible evidence, identity of the sample would not have been proved. The relevancy of the topic of the alleged intoxication of the deceased does not seem to be open to question. The entire circumstances of the accident were admissible in evidence to prove what actually happened. For what actually happened is a matter to be inferred generally from all the circumstances which could be laid before the jury. Clancy J. directed the jury that even if the men were in an advanced state of intoxication it does not dispose of the claim just by that very fact. It is a surrounding circumstance that might make you believe the probabilities lie in the direction of the claim that their judgment was befuddled, or their movements were not so accurate as they ought to have been, or the recollection of events by Budd so acute as if they had taken no liquor, but the fact that they were drunk, if you like, does not dispose of the matter; there still remains the question, were they endeavouring to get on a stationary train when it moved, and it would not matter how drunk they were if that was the simple fact. (at p543)

9. That is how his Honour put the matter to the jury; but the question of law remains, was the objection well taken that the contents of the label were inadmissible. So far as relevance to the issue goes, it is not easy to treat the contents as irrelevant. They formed part of the proof it was sought to give that the deceased’s blood content showed that his behaviour, including the manner in which he attempted to board the train, was influenced or controlled by drink. The issue was whether he was thrown between the train and the platform, or was dragged there, by the negligent manner in which the train was started. His inability to control his movements properly was material to that inquiry. The only reason for rejecting the proof was that it involved the contents of a writing. No attempt was made to show that the jar or vessel was lost or destroyed or that the label had been removed or obliterated. The evidence as to the writing on the label was offered simply as part of the identification of the sealed container and on the footing that such evidence was not within the rule requiring the production of written documents or proof of the loss, destruction or other unavailability of the document before the tender of secondary evidence. In J.H. Wigmore’s work on Evidence, 3rd. ed. (1940) vol. IV, para 1182, pp. 321-323, that learned writer dealt with the application of the rule to what he calls “inscribed chattels”. He wrote: “It is impossible to say that any settled doctrine has found favour respecting the application of the rule to material objects, not paper, bearing inscriptions in words. This is because there are inherent difficulties. It is impracticable to base any distinction upon the material bearing the inscription; for a notice-board or a tombstone may deserve the application of the rule as well as a sheet of note-paper. Nor is it practicable to distinguish according to the number of words; for each number is but one higher than the preceding, and a broker’s note of ten words or a baggage-check of a few initials may need inspection as much as a lengthy lease for ninety-nine years. Nor can the purpose of the words be material; for the memorandum-tick made for private verification may become as important as the deed intended for public registration. No Court seems to have attempted, and certainly no Court has achieved, a satisfactory test for the distinction to be drawn. There are precedents requiring and precedents not requiring production – precedents often entirely irreconcilable if one were seeking an inflexible rule. But there is no reason for making such a rule; the rational and practical solution is to allow the trial Court in discretion to require production of an inscribed chattel wherever it seems highly desirable in order to ascertain accurately a material fact.” In spite of what the learned author says in the last paragraph, it cannot be satisfactory to leave the question of the admissibility of the proofs to the discretion of the judge at the trial. One can understand a judge as a tribunal of fact insisting on the production of an article and failing, if the party would not produce it, to feel the requisite degree of satisfaction that the material issue is proved. But that is another matter. The role excluding secondary evidence did not go beyond writing and include physical objects. “Where the question is as to the effect of a written instrument, the instrument itself is primary evidence of its contents, and until it is produced, or the non-production is excused, no secondary evidence can be received. But there is no case whatever deciding that, when the issue is as to the state of a chattel, e.g. the soundness of a horse, or the equality of the bulk of the goods to the sample, the production of the chattel is primary evidence and that no other evidence can be given until the chattel is produced in court for the inspection of the jury”: per Lord Coleridge C.J. for the Court of Crown Cases Reserved in Reg. v. Francis (1874) LR 2 CCR 128, at p 133 . This is true of a picture where the question is whether a photograph is a copy: Lucas v. Williams &Sons (1892) 2 QB 113 . It is true of an article of clothing where the question is as to its manufactured condition: Hocking v. Ahlquist Bros. Ltd. (1944) KB 120 . It has been held too, that upon the trial of an indictment containing counts for an unlawful assembly, seditious combinations and the like, production was unnecessary of flags, banners and placards bearing seditious inscriptions and devices. Abbott C.J. for the Court of Queen’s Bench said: “With respect to the last point, the reception of the evidence as to the inscriptions on the flags or banners, I think it was not necessary either to produce the flags or give notice to the defendants to produce them. The cases requiring the production of a writing itself will be found to apply to writings of a very different character. There is no authority to show that in a criminal case ensigns, banners, or other things exhibited to public view, and of which the effect depends upon such public exhibition, must be produced or accounted for on the part either of the prosecutor or of the defendants. And in many instances the proof of such matters from eye-witnesses, speaking to what they saw on the occasion, has been received, and its competency was never, to my knowledge, called in question until the present time. Inscriptions used on such occasions are the public expression of the sentiments of those who bear and adopt them, and have rather the character of speeches than of writings. If we were to hold that words inscribed on a banner so exhibited could not be proved without the production of the banner, I know not upon what reason a witness should be allowed to mention the colour of the banner, or even to say that he saw a banner displayed, for the banner itself may be said to be the best possible evidence of its existence and its colour”: R. v. Hunt (1820) 3 B &Ald 566, at pp 574, 575 (106 ER 768, at p 771) . The decision is not considered sound by Wigmore (loc. cit.) and is treated by Parke B. in Jones v. Tarleton (1842) 9 M &W 675, at p 676 (152 ER 285, at p 286) , as meaning that the evidence of the inscriptions is received as part of the res gestae; but it illustrates the distinction between physical things bearing written inscriptions and documents the written contents of which amount to what may be called an instrument or writing which, because of the significance of what it expresses, has some legal or evidentiary operation or effect material to the case. In the present case the purpose of offering the evidence was simply to prove that the sealed jar leaving the hands of Dr. Stratford Sheldon was the same sealed jar that came to the hands of Mr. McDonald. The proof depended upon the identity of the character and condition of the jar in all respects and most particularly its label. The statement upon the label that it contained the blood of the deceased, if that was what it stated, could not be used as evidence of that fact. But the identity of the writing on the jar in Dr. Stratford Sheldon’s hand with what Dr. Stratford Sheldon stated that he wrote was an admissible evidentiary fact forming part of the description. It seems clear enough, on reading the evidence closely, that the label was pasted on the vessel so as to form part of its then condition and was not a mere detachable ticket. In other words, the vessel was an “inscribed chattel” of which the correct view is that the full description was admissible by oral proof for the purpose of identification. (at p546)

10. It follows that the evidence was wrongly rejected. Prima facie this should lead to a new trial. But it cannot be said that, had the evidence been admitted, it must necessarily have affected the result. There was already much evidence to suggest that the deceased was affected by drink. Nevertheless the defendant Commissioner relied upon the evidence tendered and wrongly rejected to establish the fact, and had it been admitted it might have been a turning point in the jury’s decision for all that can be known. For the plaintiff the evidence was firmly objected to. Unfortunate indeed as it is that a new trial should prove necessary, it appears to be an unavoidable result. But the new trial should be limited to the question of liability. The appeal should be allowed with costs. In lieu of the order of the Full Court of the Supreme Court there should be an order for a new trial except as to damages. (at p546)

KITTO J. As Owen J. Observed in the Supreme Court, the real issue which the evidence presented to the jury for their consideration in this case was whether the train moved off while the deceased was attempting to board it or whether he attempted to board it when it was already in motion. (at p546)

2. I do not see that the question whether the deceased was drunk or sober bore in any way on that question. It is often true in a personal injury case that evidence as to the sobriety or drunkenness of a person at the time of the occurrence has a bearing upon the probabilities of the case when considered in the light of general experience. But everyone knows that sober men as well as drunk men attempt to board moving trains; and I venture to say that no-one knows whether a drunk or a sober man is the more likely to make the attempt. I fail to see how proof, if it had been given in this case, that the deceased was drunk when the movement of the train threw him down could legitimately have been considered of any assistance in deciding which occurred first, his commencing to board the train or the train’s commencing to move from the platform. (at p547)

3. In my opinion the attempt to prove the alcoholic content of the deceased’s blood had no other tendency than to raise a false issue, and the evidence was for that reason inadmissible. I would therefore dismiss the appeal without discussing the application to this case of the well-attested distinction as regards admissibility between, on the one hand, oral evidence the function of which is to give a description of a physical object having as one of its features lines so drawn that they form letters or figures and, on the other hand, oral evidence the function of which is to recount expressions of ideas in the form of words or numbers made to appear on a physical object. (at p547)

TAYLOR J. The question in this case is whether there should be a new trial of the action out of which this appeal has arisen because the trial judge wrongly rejected certain oral evidence. At the trial it was part of the appellant’s case that on the day when the respondent’s husband met his death he had taken a good deal of drink and an attempt was made to prove the result of a laboratory analysis of a sample of blood that had been taken from his body by Dr. Stratford Sheldon. The sample was taken during the course of a post-mortem examination. It was put into some sort of container – though the type was not specified – and sealed. Apparently a label of some kind was attached to the container which, in turn, was handed to an unspecified attendant to be taken to the coroner’s office. All this happened on 22nd September 1956. Two days later, on 24th September 1956, the government analyst handed to Mr. McDonald – a senior analyst – a sealed glass jar containing a sample of blood. There was a label attached to it upon which there was some writing in Dr. Sheldon’s handwriting. We are told, though it was not proved, that the writing was to the following effect: “Blood taken from the body of Robert Patterson Young on September, 22, 1956”. The label, it should be said at once, was not produced and no attempt was made to show that it had been lost or destroyed. But attempts were made to establish by oral evidence what it was that Dr. Sheldon had written upon the label which was attached to the container which he handed to the attendant and what it was that Mr. McDonald saw written upon the label attached to the jar which he received. First of all Dr. Sheldon, himself, was asked: “Q. And did you write anything on the label? A. Yes. Q. What? A. I should say that – (objected to) Q. You did write something? A. Yes.” His examination in chief concluded at this point and he was not again asked any question concerning the label. It should be observed that no objection was raised to these questions; the objection that was raised was directed to the form of Dr. Sheldon’s answer and, clearly enough, the objection was valid though no ruling appears to have been given upon it. No attempt, however, was made to ascertain whether the witness was in a position to give admissible evidence on the point; the matter was left simply where it was and, in the result, the appellant can have no complaint if the learned trial judge concluded, as he may have done, that the witness was not able to specify what he had written on the label. (at p548)

2. At a later stage Mr. McDonald was asked what was written on the label attached to the sealed jar which was handed to him. He was permitted to say that the writing was that of Dr. Sheldon but when he was asked “what the writing was” objection was taken and the evidence was rejected. Following upon this ruling no evidence was given by Mr. McDonald concerning the result of the analysis which he had made. (at p548)

3. Before us it was urged that his Honour’s ruling on the objection to the question asked of Mr. McDonald rested upon the so-called best evidence rule. The label, it was said, was a written document and, in the absence of evidence that it had been lost or destroyed, its contents could not be proved by secondary evidence. But although what the appellant says may have been so it is by no means clear to me that this was the sole ground upon which his Honour’s ruling rested. If, however, the evidence was rejected on this ground alone the rejection was, in my view, erroneous. A description of the label, including the writing, was, subject to the observations which I shall make presently, clearly admissible as evidence to identify the container from time to time between 22nd September 1956 and 24th September 1956. On this point I agree with the views expressed by Ferguson J. in the Supreme Court and by my brothers Menzies and Windeyer in this Court and I find it unnecessary to say more. (at p549)

4. But it is apparent that there were several links in the chain of proof by which it was sought to establish that the sample of blood which Mr. McDonald analysed was the sample of blood which Dr. Sheldon obtained from the deceased’s body. First of all it was necessary to establish that the sealed container which the latter despatched to the coroner’s office was identical with the sealed glass jar which the former received on 24th September 1956. Secondly, it was, no doubt, of importance to show that the container was received by Mr. McDonald in the same condition as it was in when it left Dr. Sheldon, or, to adduce other evidence for the purpose of identifying the sample which it contained as the sample taken by the latter. Proof of the first of these matters depended, of course, upon identification of the label on each occasion. No doubt in many cases where proof of a relevant fact depends upon a chain of proof it is not of much consequence whether the first or last link of the chain is proved first. But if it becomes apparent during the course of a trial that the party concerned is quite unable to establish a vital link in the chain on what principle can it be said that evidence as to the others ought to be admitted? In that event such evidence would be incapable of proving any material fact in the case and ought to be rejected. (at p549)

5. In the present case it may not have become clear beyond dispute that the appellant was unable to prove through Dr. Sheldon what it was that he had written on the label. But a fruitless attempt was made, without objection to any question, to establish what it was. There the matter was left and in my view it was open to the learned trial judge to conclude that proof of this vital link was beyond the appellant. If this were so it was proper to refuse to allow Mr. McDonald to say what writing appeared on the label attached to the jar which he received for that evidence could not have constituted any evidence that the sealed jar contained blood of the deceased. Nor could it have provided any ground for permitting Mr. McDonald to testify as to the result of the analysis which he had made. That being so it would not have advanced the case of the appellant in the slightest degree. (at p549)

6. However, we are asked to grant a new trial because, as it is said, it was the appellant’s intention to recall Dr. Sheldon and complete the chain of proof after Mr. McDonald’s evidence had been completed. But this was not done because since Mr. McDonald’s evidence had been rejected, so the appellant says, pursuant to the best evidence rule Dr. Sheldon’s evidence as to the writing on the label would also have been rejected if he had been recalled. Dr. Sheldon had, however, already been questioned on the point. No objection had been taken to the relevant question and the appellant had failed to establish by his evidence what he had written on the label. Now we are asked to grant a new trial on the assumption that if he had been recalled the appellant would, if no objection had been taken, have been able to elicit from him what it was that he had written. In the circumstances of the case this is, I think, too much to ask at this stage. The appellant had more than one opportunity at the trial – one of which was taken without objection but unsuccessfully – to tender this evidence and it would, in my view, be contrary to principle to direct a new trial on the assumption that when the trial takes place the appellant may, perhaps, be in a position to prove then what he failed to prove at the trial. In my view the appeal should be dismissed. (at p550)

7. One other matter remains to be mentioned. The substantial issue in the case was whether the death of the deceased resulted from the negligence of the appellant’s servants. For the respondent, it was said, that the train which he was attempting to board commenced to move whilst he was in the act of boarding it and that, as a result, he was thrown down between the railway carriage and the platform. On the other hand, the appellant asserts that the deceased ran after the train and attempted to board it whilst it was moving. In these circumstances the suggestion was made that the question whether the deceased was to some extent under the influence of alcohol was quite irrelevant. My view is that it was not irrelevant. It may have been an issue on the fringe of the case but the appellant was quite entitled to give evidence as to how the accident happened. I do not, for a moment, suggest that any inference that the deceased ran after the train could have been drawn from the fact, if it had been proved, that he was under the influence of alcohol at the time. Nor could a conclusion that the deceased was to some extent affected by liquor have operated to disentitle the respondent to a verdict. But it was quite open to the appellant to prove the circumstances in which it was alleged the accident happened. These were, according to the appellant, that the train was moving when the deceased attempted to board it and though he may have got safely aboard if his judgment had not been impaired, the accident was explicable partly because of the movement of the train and partly because the deceased’s judgment had been impaired by alcohol. (at p550)

MENZIES J. What happened at the trial of this action is stated in detail by other members of the Court and, for the purpose of dealing with the questions of law that fall to be decided, I need say but little about the facts. The witness McDonald was not only the senior analyst in the Department of Public Health but he was a scientist who had over a period of some years conducted experiments on the effect of alcohol on the human organism and it is abundantly clear that he was called to give evidence of the alcohol content of the blood of the plaintiff’s deceased husband, Robert Patterson Young, and about the likely effect upon his condition of the amount of alcohol that the blood test would indicate he had taken. This evidence was not given because in the event there was no identification with the deceased of the blood that McDonald had analysed. Dr. Stratford Sheldon gave evidence that in performing an autopsy a sample of the blood of the deceased was taken and sealed in a container and that he wrote on the label on the container and handed it in to the coroner’s office. To a question as to what he wrote the doctor said “I should say that” and upon objection either to the question or the form of answer nothing more was elicited from him. After McDonald had given evidence that the blood which he had analysed was in a sealed glass jar labelled in the writing of Dr. Sheldon, a question was disallowed directed to ascertaining what was the writing on the label. After the witness and a further witness, Ernest Samuel Ogg, the Government Analyst, had been stood down, his Honour the presiding judge, before evidence of the analysis was tendered, said: “Mr. Evatt, you object to Mr. McDonald giving evidence of an analysis of a blood sample. I uphold the objection, because there is a break in the chain of identification. It is quite sound up to the stage after it left Dr. Sheldon. The history of the sample dealt with by Mr. McDonald onwards, of course, would be quite important, but there is a break in identification of the sample dealt with by Mr. McDonald as being that actually placed by Dr. Sheldon in the office at the Coroner’s court and for that reason the evidence is not admissible.” There is no doubt that as the evidence stood his Honour was correct in deciding that McDonald could not give the results of his analysis but there is, of course, an anterior question, namely, whether it was correct to have rejected evidence of what was written on the label, which it seems was “Blood taken from the body of Robert Patterson Young on September 22nd, 1956”. The meaning of what was written could, of course, have no significance towards proving the identity of the blood. (at p551)

2. Had there been evidence that what Dr. Sheldon wrote on the label corresponded with what was written upon the label of the container from which McDonald took the blood which he analysed, the jury could, in all the circumstances, have inferred that McDonald analysed the blood sample that Dr. Sheldon had taken. As to this I agree with Ferguson J. when he said that this evidence would, with other evidence, establish no more “than that the blood analysed was probably that of the deceased” but I part company with his Honour when he added: “Before evidence of the result of the analysis would have been admissible, it would have been necessary for the defendant to have called evidence, which, if true, would have established conclusively that the blood was that of the deceased”. Furthermore, at the hearing it was rightly not in dispute that when there was in issue whether the deceased had done a foolish thing(that is, to endeavour to board a moving train with its doors shut), it was material, thougg not in any way decisive, to ascertain whether or not he was intoxicated. (at p552)

3. The question for decision is, therefore, whether the evidence of what was written on the label was correctly rejected. (at p552)

4. Counsel’s question to Dr. Sheldon asking what he wrote on the label was, I think, unobjectionable, but it seems that if objection was taken to it that objection was not ruled upon and the question was not pressed. In these circumstances, had McDonald given evidence of what was written on the label, that by itself would not have established that the blood analysed was that of the deceased; evidence of what Dr. Sheldon wrote would still have been necessary. Although the transcript of what happened at the trial does not show explicitly what was the basis upon which the question to McDonald was rejected, I have after consideration of the case as a whole, including the course taken by the parties in the Full Court, reached the conclusion that the substantial ground upon which the oral evidence of what was written upon the label was rejected was that it was thought to be inadmissible secondary evidence of a writing. The label not having been produced and as reference to departmental records had been ruled out, rejection of the evidence on the ground that oral evidence of the writing was inadmissible would conclude the matter and it seems that all concerned, including the learned presiding judge, treated the rejection as decisive. A rejection so based was, in my opinion, wrong. I agree with Ferguson J. that the best evidence rule provided no basis for excluding oral proof of what was written on the label and because I concur in his Honour’s reasoning I need not elaborate upon the point. The course being followed was to identify a container by reference to marks upon a label upon it and it is immaterial that those marks were written words. If it were in question whether a person was at a particular time reading a volume of the Commonwealth Law Reports, oral evidence could be given that he was reading a book with the title “Commonwealth Law Reports. Vol. 100. 1958-59” without any infringement of the best evidence rule. So could evidence that the case reported on page one of the book was Council of the City of Newcastle v. Royal Newcastle Hospital and that the last page in the book was numbered 687. The distinction to be made here is that which was clearly expressed by Martin B. in Boyle v. Wiseman (1855) 11 Ex 360 (156 ER 870) , when he said: “The case of Whitehead v. Scott (1830) 1 M &Rob 2 (174 ER 1) appears to me to be perfectly right. For the purpose of identifying anything, whether it be a writing or anything else, proof may be given to show what it is. And therefore, in an action of trover for a promissory note, the contents of the promissory note may be stated verbally by a witness. The reason is, that the evidence is not given of the contents as evidence, but for the purpose of identification. Therefore, in an action of trover brought for a deed, as was the case in Whitehead v. Scott (1830) 1 M &Rob 2 (174 ER 1) , the witness was properly asked to describe the indorsement on the back of it, or the contents of it, or any other matter, merely for the purpose of identification. In an action of trover for a cart, it might be identified by showing the name of the owner and the description on the cart itself. Whitehead v. Scott (1830) 1 M &Rob 2 (174 ER 1) , therefore, which involved the question as to the admissibility of evidence for the purpose of identification, wholly differs from that of secondary evidence which is given with a view of proving the contents of a written instrument, to show its effect” (1855) 11 Ex, at pp 367, 368 (156 ER, at p 873) . (at p553)

5. This is, therefore, a case where material evidence was wrongly rejected and, although I have had some hesitation about it, I have eventually come to the conclusion that a new trial on the question of liability should be ordered. The question of drink loomed large, perhaps too large, in the case. Evidence of what the deceased and a witness Budd had drunk during the afternoon was given – Budd said he had had five drinks – and there was conflicting evidence about Budd’s own condition. In reply the plaintiff called Dr. Cox, whose evidence was as follows: “Q. I would like you to tell the court; if a man had five middies and a rum between, say, two o’clock and six o’clock, would that have any – and in addition, he was a moderate drinker – he is a moderate drinker? A. Yes. Q. Would that have any effect at all on his sobriety? A. I don’t think it would affect his behaviour.” His Honour directed the jury, correctly enough, that as the evidence stood “nobody says anything about the state of sobriety of the deceased”. In these circumstances I have not been able to reach the conclusion that evidence by McDonald relating to the analysis of the deceased’s blood and the state of the deceased to be inferred therefrom, of which the ruling excluded proof, could not have made a difference to the result of the case. (at p554)

6. I think the appeal should be allowed. (at p554)

WINDEYER J. The respondent is the widow of one Robert Patterson Young, who was killed on the afternoon of 21st September 1956 when attempting to board a train at Town Hall Railway Station, Sydney. She brought an action under the Compensation to Relatives Act, alleging negligence in the control and management of the railway by the appellant, the Commissioner for Railways. The case for the plaintiff was that a train had been negligently started while the deceased was getting aboard, causing him to be thrown off between the carriage and the platform. The case for the Commissioner was that no passengers were getting on to the train when it was started, that after it had begun to move the deceased and a companion, one Budd, ran towards it, tried to get aboard and that in doing so the deceased fell. The jury did not have to choose between the extremes of the two versions of what happened and accept one as true. The issue they had to decide was whether the deceased man met his death as a consequence of negligence on the part of the defendant. It was suggested that both Budd and the deceased were drunk. That they had been drinking together was not disputed; and there was evidence that Budd was drunk, although he denied this. Of course, the drunkenness of the deceased, if he were drunk, would not absolve the defendant from a duty of care. And the learned trial judge carefully instructed the jury on this. But he, quite rightly in my opinion, regarded the drunkenness or sobriety of the deceased man as a relevant matter for the jury to consider. In an accident case in which negligence and contributory negligence are in question the drunkenness of persons concerned is generally a relevant circumstance. It was so in this case, and counsel for the defendant sought to establish that an analysis of a sample of blood, taken during an autopsy, revealed that the deceased had consumed a large quantity of alcohol. We can assume that, if the result of the analysis had been proved, evidence of the conclusion to be drawn from it would have been given by a qualified expert. But the matter never reached that point, because the defendant failed to prove that the blood that the analyst examined was blood of the deceased. It seems that a label on the vessel containing the sample of blood that was analysed had borne the words: “Blood taken from the body of Robert Patterson Young on September 22nd 1956”, followed by the signature of Doctor Stratford Sheldon who had conducted the autopsy. But the label was not produced and the learned trial judge rejected oral evidence of its contents. The defendant appealed on the ground that evidence of what was written on the label was wrongly rejected. The Full Court dismissed the appeal. Their Honours were unanimous in their conclusion, but their reasons varied. A majority (Owen and Brereton JJ.) thought that evidence of the writing on the label was rightly rejected. Ferguson J. dissented from this, but he thought that for other reasons the identification of the blood was insufficient. From the judgment of the Full Court this appeal is now brought. (at p555)

2. It is necessary to notice what happened at the trial; for the difficulty that occurred arose from the way in which the evidence was adduced and objections to evidence dealt with. Mr. McDonald, Senior Analyst in the Department of Public Health, was called as the first witness for the defendant. He said that he was experienced in the analysis of blood to determine its alcohol content. He was asked: “Did you examine any blood on that day (scil. 24th September 1956) in a sealed jar which had been handed to you?” He said “Yes, I examined several samples on that particular day. I have referred to my laboratory journals made at the time to refresh my memory”. He was giving evidence more than three years later. Then, after some questions that were objected to and rejected, the transcript of the evidence goes on: “What were you handed on that day? My record informs me that I was handed a bottle” – (objected to). “Did you look at your records to refresh your memory? I did so this morning, yes. What do you say you were handed on that day?” (at p555)

3. The last question was objected to and disallowed. The witness was then stood down. Doctor Stratford Sheldon was called. Refreshing his memory from his notes, he said that a corpse had been pointed out to him as that of the deceased. The transcript goes on: “And did you take some blood for estimation of alcohol? Yes. What did you do with the sample of the blood? What did you do with that? I handed it to the Coroner’s Office. Was it sealed or not? Was it sealed when you handed it to the Coroner’s Office? Yes, sealed, of course. Sealed by you? Yes. When I say it was sealed by me, it was sealed by the attendant and I saw that it was sealed. You saw that it was sealed? Yes. And did you write anything on the label? Yes. What? I should say that” – (objected to). “You did write something? Yes”. (at p556)

4. Nothing more that is relevant to the present question was asked of Doctor Sheldon: so that, thus far no evidence had been given of anything by which the container in which the blood was could be identified. The form of this vessel was not described in any way. All that had been said concerning its label was that Doctor Stratford Sheldon had written something on it. Mr. McDonald was then recalled by the defendant with this result: “Did you make an analysis of some blood in a sealed glass jar? Yes, I did. Was there any writing – first of all, before you made that examination was the seal on that jar still intact? Yes. Was there any writing on the jar that you so examined? Yes. Did you recognize that writing? Yes. Can you say whose writing it was? Yes. Whose writing was it? The label was written by Dr. Stratford Sheldon. Will you please tell us what that writing said? What was the writing? Tell us what the writing was?” (at p556)

5. An objection to the last question was upheld. McDonald stated that the sample he analysed had been handed to him by the Chief Government Analyst. He was then called, but he carried the matter no further. The learned judge thereupon ruled that McDonald could not give evidence of his analysis. That was clearly right as the evidence stood; for the most that it showed was that the sample analysed had come from a container bearing a label on which something was written in Doctor Stratford Sheldon’s handwriting: and he had made many autopsies, written many labels and taken many samples of blood. But the appellant contends that what his Honour called “a break in the chain of identification” was a break that he had himself improperly made by rejecting evidence of what was written on the label. The respondent, on the other hand, argued that the evidence was rightly rejected, as the label was a written document, which was not produced nor its absence explained. (at p556)

6. There is probably no rule of evidence that is better known than that secondary evidence of the contents of written documents is, in general, not receivable. “The contents of every written paper are, according to the ordinary and well-established rules of evidence, to be proved by the paper itself, and by that alone, if the paper be in existence” is the way in which the judges stated the rule on the occasion of the Trial of Queen Caroline (1820) 2 Bro &B 286 (129 ER 976, at p 977) . The ordinary exceptions to this are well known. None of them applies here. No attempt was made to show that the label had been lost or destroyed. The rule prohibiting the proof of writings by secondary evidence is generally said to be a survival of the requirement of the “best evidence”, although its origins may have been in still earlier doctrine and its development influenced by the requirement of profert in pleadings. The reported decisions on the scope of the rule are not all marked by consistency of reasoning. At one time it seems to have been considered that it applied not only to writings in the ordinary sense, but to anything bearing any form of inscription or marking, unless it were physically impossible to produce it. To-day the rule is, generally speaking, restricted to writings in the sense of words and figures, and is not applied to other marks. It was, for example, held in New South Wales in 1879 that the brands on sheep might be described to a jury without the sheep being brought to court: Reg. v. Fell (1879) 2 SCR (NS) 109 . But, the rule is not confined to documents in the ordinary sense. Its scope is not precisely defined. Its application to a given case may depend more on the purpose for which the evidence is tendered than on the nature of the writing or the material, paper, parchment, stone, metal or calico, on which it appears. Cases in which the rule does not apply must be distinguished from cases where production of a writing is on some recognized ground excused and secondary evidence received. Some fallacious arguments were advanced for discarding the rule in this case. It matters not whether written words are put forward as true or false, whether they define rights or create rights, whether they make statements, express emotion or constitute insults – deeds, contracts, bills of exchange, libels, threatening letters and love letters are alike subject to the rule. But the rule does not apply to writings or other markings that are not relied upon for their meaning but only as part of the appearance of a thing. If words or figures appearing on some thing or at some place are referred to merely as marks distinguishing that thing or place, secondary evidence of them may be given without it being necessary to explain the absence of primary evidence. For example, a witness speaking of a particular motor vehicle may ordinarily describe it by its number plate or by some letters or writing upon it; and the locality where the event happened may be fixed by reference to a written notice displayed there, as Ferguson J. pointed out in the Full Court. In cases of this sort the writing is not relied upon for its meaning, but only as an identification mark. Its meaning is of no significance. The distinction is adverted to in the judgment of Martin B. in Boyle v. Wiseman (1855) 11 Ex 360, at p 367 (156 ER 870, at p 873) . And it has been expressly made in some American cases, especially Commonwealth v. Morrell (1868) 99 Mass 542 and Benjamin v. The State (1915) 67 So 792 (Alabama Court of Appeals) where parol evidence of the writing on tags and price tickets was admitted to identify articles stolen, on the basis that it was matter of description and identity only. But at the time when the witness McDonald was asked what was written on the label his answer would not have identified the vessel he had with that containing blood of the deceased, for there was then no evidence of what had been on its label. True it is that, when a question is whether B saw the same thing as A had seen, it may often be immaterial whether A or B be first called to describe what he had seen. But Doctor Sheldon had already been asked what he had written and had not answered. In the circumstances the learned judge was not required to admit evidence from McDonald, no foundation for it having been laid. It appeared that the defendant’s counsel was really trying to get what was on the label before the jury as itself evidence of what was in the bottle. This it was not. What is written on the label on a bottle, or other container, may in some cases be some evidence of what the contents are. Whether or not in a particular case that is so, and how cogent such evidence is, depends upon the circumstances. As the evidence stood in this case what was written on the label could not establish what was in the bottle even if the bottle had been produced. Counsel for the appellant argued that McDonald could have been permitted to say what was written on the bottle the contents of which he examined if only Doctor Sheldon had been permitted to say what had been written on the bottle into which he had put blood of the deceased. That, I have no doubt, is so. If the writings corresponded the jury might, in the circumstances, infer that the blood that McDonald examined was the sample that had been labelled and sealed at the autopsy. I do not agree that to enable the jury to infer identity any greater description of the bottle was required or any exact tracing of its movements and whereabouts from the time it left the morgue till the time McDonald got it. The question was simply: was it the same sample of blood? That would have been for the jury to say, if there were any evidence before them. It was not something that had to be proved beyond reasonable doubt, nor was it necessary that every possibility that it was not the same blood should have been eliminated. The respondent’s attitude on this aspect seemed to me quite mistaken. (at p559)

7. For these reasons, if when Doctor Sheldon was asked what he had written on the label on the bottle, the question had been pressed and it had been made clear to the learned judge that the purpose was merely to describe an identifying mark, it seems probable that the question would have been allowed and properly allowed. As appears from the passage in the transcript set out above, what actually happened was that the witness was asked, apparently without objection, what he had written: but when he began his answer “I should say that . . .”, he was interrupted by an objection, and the matter was then dropped. So that, so far as the transcript reveals what took place, the objection was not to the question but was evoked by the uncertain form of the answer that it seemed the witness was about to give. I appreciate that what appears as an objection only to the form of the answer may have been understood at the trial to be an objection to the question that had been asked, for counsel for the plaintiff was being as obstructive as he could be of any evidence concerning the drunkenness of the deceased man; and he had contended, as he did before us, that oral evidence of what was written on the label was altogether inadmissible. But we must I think go by the record of what occurred. (at p559)

8. I do not doubt that a new trial may ordinarily be had as of right if admissible evidence be rejected. It is not for an appeal court to speculate on what influence it might or might not have had with the jury. But this assumes that it was duly tendered after a proper foundation had been laid for its reception and that, if objected to, it was clearly pressed and then definitely rejected. It is not enough that on an objection being taken the question was withdrawn or abandoned. Nor is it enough that if questions had been asked that were not asked, or if witnesses had been called in some other order than they were, evidence that was inadmissible when it was tendered might have been made admissible. Having regard to what seems from the record to have happened at the critical point in Doctor Sheldon’s evidence, I do not think that there was a rejection of evidence such as to entitle the appellant to a new trial as of right. I have nevertheless hesitated whether a new trial should not be had because some misunderstandings seem to have affected the course of the trial. But after all the issue for the trial was whether the defendant was negligent, not whether the deceased was drunk. His drunkenness or sobriety was merely a circumstance. And the accident happened over five years ago. So that, on the whole, I do not think we should direct a new trial, the appellant not, in my view, being entitled to one as of right. Therefore, without wholly endorsing the reasoning of any of the judgments given in the Full Court, I consider that this appeal should be dismissed. (at p560)


Appeal dismissed with costs.

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