Judge’s view of credibility ‘unchallengeable’

Posted: 8th July 2013

In emphasising that the purpose of the appellate process is to correct errors of law and that it is only very rarely appropriate to challenge a trial judge’s findings of fact, the Court of Appeal has roundly rejected a bank’s allegations of dishonesty against a businessman accused of involvement in a very substantial fraud.

Envelope of dollarsThe overseas bank had engaged in extensive litigation to recover in excess of $300 million in losses it claimed to have incurred as a result of frauds perpetrated by its own former chairman and others. The bank claimed that the businessman, a director of an English company, was implicated in various fraudulent transactions.

Prior to a full trial of those allegations, the bank had sought the businessman’s committal to prison for contempt of court on the basis that he had given false and dishonest evidence. The High Court was not satisfied beyond reasonable doubt that he had been dishonest and dismissed the application.

The bank appealed on the basis that the judge’s ruling was contrary to the weight of the evidence and plainly wrong. Dismissing the challenge, the Court emphasised that, although legally possible, it was very rare for an appellate court to interfere with a trial judge’s assessment of a witness’ credibility.

Describing the bank’s appeal as ‘most unusual’, the Court noted that the trial judge’s decision could only be overturned on grounds of perversity if he had ‘lamentably’ failed in his assessment of the businessman’s credibility and if it could be shown that a finding of dishonesty was inevitable on the evidence.

The bank had taken on an ‘extraordinarily difficult task’ in mounting the appeal and it was ‘wholly inappropriate’ to expect the Court to comb through voluminous evidence or to substitute its own assessment of the businessman’s credibility for that of the trial judge whose decision was, in the circumstances, ‘unchallengeable’.