Attorney-General (NSW) v Jackson - [1906] HCA 90

THE ATTORNEY-GENERAL OF THE

STATE OF NEW SOUTH WALES

MARGARET JACKSON

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Evidence-Deposition of witness in preliminary investigation-Admissibility at trial

after death of witness-Portion of statement omitted-Crimes Act (N.S.W.), (No. 40 of 1900), secs. 406, 409-Justices Act (N.S.W (No. 27 of 1902) SYDNEY,

sec. 36, Sched. 2 (F1). April 10, 11,

Practice-Appeal - by Crown in criminal cases-Special leare-Conviction quashed by

Supreme ourt-Grounds open on case stated-Prisoner no longer in custody- Motion to rescind special leave.

Sec. 409, sub-sec. (1), of the Crimes Act 1900 provides that a deposition purporting to be signed by the justice by or before whom it purports to have been taken may be read in evidence in the prosecution at the trial of an accused person upon proof on oath that the witness is dead, and that the deposition was taken in the presence of the accused, and that the accused or his attorney or counsel had a full opportunity of cross-examining the witness, unless it is proved that the deposition was not in fact signed by the justice purporting to sign it. Sub-sec. (3) provides that depositions taken on the preliminary or other investigation of any charge of felony or misdemeanour shall be admissible in evidence on the trial of the accused for any other offence, although of a higher or different nature, if they would be admissible on his trial for the offence in respect of which they were taken.

Held, that a deposition taken in the form prescribed by the Justices Act, and as to which the requirements of sec. 409 were complied with, was not rendered inadmissible by reason of the omission from the deposition of certain state- ments made by the witness during the examination. Such an omission may, if the words omitted subsequently turn out to be material, afford ground for comment on the value of the deposition as evidence, but it in no way touches its admissibility.

3 CLR 731

Reg. v. Hendy, 4 Cox C.C., 243, followed. An accused person was charged with a certain offence at a Police Court, and was then brought to a room where a witness was lying dangerously ill and was again charged and informed that the witness was about to give evidence. The deposition of the witness was then taken in the form prescribed by the Justices Act. Subsequently the accused was committed for trial on the offence charged before the same justice.

Held, that the deposition was taken on a preliminary or other investigation within the meaning of sub-sec. (3) of sec. 409, and was admissible in evidence on the trial of the accused for an offence of a more serious nature.

Reg. v. De Vidil, 9 Cox C.C., 4, followed. Sec. 406 of the Crimes Act 1900 provides for the taking of the depositions of a person dangerously ill in certain cases, and prescribes certain conditions which must be fulfilled before such a deposition can be given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (NSW) v Jackson

Details

AGLC: Attorney-General (NSW) v Jackson [1906] HCA 90
Case: [1906] HCA 90
Decision Date: 12 April 1906

CaseChat Overview and Summary

The Attorney-General of New South Wales appealed to the High Court of Australia after the Supreme Court of New South Wales quashed a conviction. The central dispute concerned the admissibility of a deposition taken during a preliminary investigation, following the death of the witness who had given that deposition. The deposition in question was a portion of a statement made by the deceased witness.

The High Court was required to determine whether the Supreme Court had erred in quashing the conviction. Specifically, the court had to consider the admissibility of the deposition under sections 406 and 409 of the *Crimes Act 1900* (NSW) and section 36 of the *Justices Act 1902* (NSW), given that the witness was deceased and a portion of their statement had been omitted from the deposition. The court also considered whether special leave to appeal should be rescinded, given the prisoner was no longer in custody.

The High Court held that the deposition was admissible. The court reasoned that section 406 of the *Crimes Act* permitted the use of depositions of witnesses who had died, provided the deposition was taken in the presence of the accused and the accused had an opportunity to cross-examine. The court found that the deposition met these requirements. Furthermore, the court determined that the omission of a portion of the witness's statement did not render the entire deposition inadmissible, as the admitted portion was relevant and properly taken. The court also found that the prisoner no longer being in custody did not necessitate the rescission of special leave to appeal, as the appeal raised important questions of law.

Orders