Fox v Percy

The High Court decided unanimously for the respondent, Percy. The majority judgment discussed at length legal principles behind the appeal process; comments which have been cited many times since.

The majority judgement began by briefly discussing the nature of judicial appeals as statutory. They mentioned four types of appeal discussed in prior case law.^[11] They noted the meaning of the word 'rehearing' in the Supreme Court Act (NSW) as being; a proceeding on the basis of the record, with fresh evidence only to be admitted exceptionally.^[12] Further describing this generic type of appeal, the court said of its requirements:^[13]

'On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.'

They said that appellate courts must 'conduct a real review of the trial'. While allowances must be made for not having directly seen a witness; an appellate court is still required to 'weigh conflicting evidence and draw ... inferences'.^[14]

Of the dichotomy between appellate obligations and appellate restraint, the court said: "the mere fact that a trial judge necessarily reached a conclusion favoring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute". 'Incontrovertible facts' or uncontested testimony might demonstrate a trial judge's conclusions are erroneous, even when those conclusions are based on credibility findings.^[15] Additionally, in some 'quite rare' instances the court noted, an appellate conclusion may be reached that the decision at trial was 'glaringly improbable', despite an absence of facts meeting the 'incontrovertible' threshold. In such an instance, the High Court instructed that an appellate court must 'not shrink from giving effect to' its own conclusion.^[16]

One more noteworthy observation made by the court, was its comment on scientific research regarding assessments of witness credibility made by judges. They noted that such studies had cast doubt on the ability of judges to tell truth or falsehood accurately on the basis of courtroom testimony. While not eliminating the principles behind the primary role trial judges have in making credibility findings, the court noted this research might 'tend to reduce the occasions where those principles are seen as critical'.^[17]

The court noted that Fox's case relied upon the advantages that the primary judge enjoyed in seeing the parties give their evidence. It noted that the Court of Appeal had given due allowance to the trial judge's advantage.^[18] Still, the High Court found that the Court of Appeal did not make an error in overruling the trial judge; 'as the skid marks on the respondent's correct side of the road were incontrovertibly established'.^[19]

Fox v Percy is frequently cited by judges whilst discussing the legal principles which inform appeals. Although the case was a civil dispute, its principles are understood to have (somewhat qualified) relevance in a criminal appeal context.^[20] The proper role of trial judges in making credibility findings is a matter of debate among jurists and scholars.^[21]

The majority's comments about the weaknesses judges face in making demeanor based findings, were tacitly endorsed by the Kiefel Court in Pell v R.^[22] Interestingly, in Pell, the intermediate appellate justices had decided to watch the witness testimony directly; and made their own credibility findings de novo.^[23] The High Court remarked negatively upon the CoA's decision to watch the videos in this way. They held in their unanimous acquittal of Cardinal Pell that 'the Court of Appeal ... acted too much like jurors'.^[24]

The case is the 15th most cited High Court case of all time.^[1][2] Many of its citations are found in appeals of Magistrate court decisions.