The Bikie Wars – The high threshold for discrediting an injured Plaintiff
As lawyers, we are often left to assess the credibility of a
Plaintiff based upon the paper trail they leave in their wake – pasting
together prior inconsistent statements, medical records and documentary
irregularities to conclude that ‘this guy is a liar’!
The Queensland District Court was recently asked to grapple
with this dilemma – whether a Plaintiff was an honest and reliable witness – in
the matter of Mashaghati v Anderson &
Allianz.
The Facts
The Plaintiff (Mr Mashaghat or ‘Magic’ to his friends and
colleagues), alleged he suffered various injuries when he crashed his Harley
Davidson into a parked car whilst taking evasive action to avoid a collision
with the Defendant. Liability was not contested.
The Plaintiff alleged that as a consequence of the accident
he suffered injuries to his head, cervical spine, lumbar spine, broken teeth,
left ankle, chest, left pelvis and a psychological injury. He claimed he was unable
to return to work on a full time basis as a mechanic because of the injuries
stemming directly from the accident.
The Court was asked to consider whether the Plaintiffs
reported levels of pain and disability were genuine and directly related to the
collision, or whether the Plaintiff was, as suggested by Defence Counsel “a liar and convicted perjurer who has no
credit and who has sustained a minor injury, exaggerating its effect to pay off
debts to the Hell’s Angels.”
The Unusual Facts
There were many unusual aspects to both the Plaintiff and
the case. These include:
- The Plaintiff, a German national, did not admit
himself to hospital after the accident despite alleging he sustained serious
orthopaedic injuries in the collision, but instead travelled to Germany for 10
days to receive treatment, before returning to Australia.
- The Plaintiff again returned to Germany some
time later, at which point his Australian visa cancelled. He was unable to
return to Australia for the trial and gave evidence via video link
- The Plaintiff had a criminal history in Germany
prior to the incident that included collaborative assault and battery,
embezzlement, fraud and perjury. The Plaintiff was also convicted of importing
narcotics into Germany in 2014 and of breaching a Domestic Violence Order in
2013 in Australia.
- The Plaintiff’s friendship circle and business
associates included Nuno Da Silva (convicted drug trafficker), Bruno Da Silva
(convicted drug trafficker), Nigel Munt (convicted drug trafficker and Brisbane
‘identity’) and Errol Gildea (Hell’s Angel member).
- The Plaintiff, despite being a single father on
a limited income, had $100,000 cash savings that he accrued over a period of several
years. Judge Morzone did not consider this anomalous financial position as
anything more than “a matter of mystery,
intrigue and conjecture”, notwithstanding the evidence, noted below, led by
the Defendants at trial.
The Plaintiffs
Credibility
The Defendants argued that the Plaintiff had demonstrated an
indicia of dishonesty that permeated the veracity and genuineness of all his evidence
and reported symptoms and therefore rendered him a wholly unreliable, if not
dishonest, witness.
At first glance, the Plaintiff had:
- Lied in his Notice of Claim. The Plaintiff
failed to disclose a significant prior history of lumbar spine pain and injury,
despite signing a statutory declaration that the contents of the Notice were
true and correct;
- Engaged in undesirable behaviour with previous
employers, such as bullying and harassment and doing competitive work. There
was also a suggestion of some fraudulent tax activity;
- A history of serious criminal offences, including
dishonesty offences,
- Exaggerated and embellished his pre-injury
qualifications, telling various practitioners that he held a Mechanical
Engineering degree, was a lecturer and teacher at University of Queensland and
was a consultant engineer to the university. (In reality, the Plaintiff had a
trade certificate as a motor mechanic and no formal tertiary qualifications).
- Presented as a hostile and rude witness when
giving evidence.
- A history of association with known criminals
and bikies.
The Findings
This amalgam of apparent dishonesty and criminality was
insufficient for the Court to find that the
Plaintiff’s evidence should be rejected outright. Judge Morzone:
- Accepted the Plaintiff’s evidence that he did
not complete the Notice of Claim, and that this was done by his solicitors, of
whom he was disparaging. Judge Morzone considered the declaration of prior injuries
to be “relative and subjective” and not determinative of credibility;
- Accepted the Plaintiff’s claim that he had not
engaged in any wrongdoing with his previous employer, in the absence of any
other corroborative evidence led by the Defendants;
- Accepted the Plaintiff’s various explanations
and minimisations for his criminal history, in the absence of secondary
evidence contradicting the Plaintiff’s, such as:
(a) Collaborative Assault and Batters – a failure to dispute an excessive force complaint whilst running a security company;
(b) Embezzlement – a misunderstanding about a mobile phone whilst operating a phone shop;
(c) Fraud – a dispute with a customer about a mobile phone;
(d) Perjury – an inability to identify an instigator of a fight to police;
(e) Importing narcotics – they were not mine.
- Found the Plaintiff did not deliberately
embellish his resume, but rather had “merely
sought to equate his leaning and experience [in Germany] with a recognised Australian
equivalent.”
- Was forgiving of the Plaintiff as a witness, as
“whilst his demeanour occasionally
appeared arrogant, argumentative and curt, much of this was manifest by his
heavy accent, passionate personality and the style of cross examination”
- Was not prepared to tar the Plaintiff with the
same brush as his infamous associates, and excused the Plaintiff of any ‘guilt
by association’.
The Court ultimately concluded that some of the credit
issues raised by the Defence diminished the Plaintiffs credibility but only where
his evidence was unsupported by other testimony or documents. In the end, Judge
Morzone was not prepared to reject the Plaintiffs evidence as a whole.
The Plaintiff was awarded $155,993 in damages.
What can we learn?
At first glance, the Defendants had a solid credibility case
against the Plaintiff. The Plaintiff seemed an incredible litigant – a
convicted criminal, a suspected bikie, and a witness with a laissez faire
approach to the truth.
However, the Plaintiff on paper was not the Plaintiff that
was assessed by the Court. In this instance, the Court had the opportunity to
examine the Plaintiff in person (albeit via vieolink) and in doing so tended to
forgive many of the issues that were so damning on paper.
The Plaintiff also, throughout the trial, was given ample
opportunity to explain away and justify conduct that otherwise had the
potential to be damaging to his credit.
There are valuable lessons to be learned when running a
credit case against a Plaintiff. In order to mount a sound credibility case
against a Plaintiff, defendants should:
- Meet the
Plaintiff: Properly assess how the Plaintiff may present at trial with as
much objectivity as possible during pre-proceedings. Is the plaintiff likeable
or charming? Do they engender sympathy? This assessment may include robust participation
in settlement conferences, and the opportunity to see the Plaintiff in person.
- Have more
than one bow in your quiver: A Court is unlikely to damn a witness for a one-off
lie or small inconsistencies in their evidence. In recent cases, the Queensland
Courts have only dismissed Plaintiff evidence when there is a sustained,
comprehensive and proven dishonesty
on the part of the Plaintiff.
- Prepare
for Everything. Do not rely on documentary evidence alone to prove
dishonesty. Play devil’s advocate and foreshadow explanations and justifications
for dishonesty and ensure key witnesses are available to give evidence at the
trial that can refute the Plaintiff’s story;
- Get
Creative. Seek out secondary, corroborative evidence that is outside the
traditional legal sphere. Social media accounts and the odd google search that
demonstrate activity that are inconsistent with reported disability can be
another chink in the Plaintiffs armour.