Criminal law—Person charged being a witness—Questions relevant to proof that offence committed—Tending to show also that person of bad character—Whether admissible—Crimes Act 1958 (Vict.), s. 399 (e).
Decision
March 31, 1960. THE COURT delivered the following written judgment:- This application for special leave to appeal involves the interpretation of par. (e) of s. 399 of the Crimes Act 1958 (Vict.), which relates to the questions that may be asked of a witness who is called upon the trial or hearing of a criminal charge against him. (at p356)
2. The provision corresponds with s. 432(e) of the Crimes Act 1928 (Vict.) and s. 1(f) of the Criminal Evidence Act 1898 (Imp.). The section as is well known makes a person charged with an offence, and the wife or husband as the case may be of that person, a competent witness for the defence but provides certain conditions and limitations as to the manner of giving evidence, the questions to which he will be exposed and certain incidental and consequential matters. Paragraph (e) imposes a restriction upon the questions that may be asked but the restriction is itself subject to certain conditions and ceases to operate when any of them are fulfilled. The paragraph provides that he may not be asked and shall not be required to answer any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged or is of bad character. Then follow the word "unless" and three sub-paragraphs setting out the conditions fulfilment of which will exclude the operation of the restriction. None of the conditions was fulfilled in the present case and we are directly concerned only with the restriction. But of course as it is a matter of interpretation the conditions are material and as it happens one of them is very important in construing the provision. The part of the restriction upon which the case turns consists in the words "or is of bad character". Do these words exclude questions as to matters relevant to the proof of the crime charged, of which any other witness might lawfully give evidence, because they possess also a tendency to show that the accused is of bad character? That is the question of interpretation. The question is given point by the fact that in sub-par. (i) there is an express provision referring to proof that the accused who gives evidence has committed or been convicted of another offence. The effect of sub-par. (i), following as it does the word "unless", is to except out of the restriction contained in par. (e) cases where "the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged". It is…
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.
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Details
AGLC
Attwood v The Queen [1960] HCA 15
Case
[1960] HCA 15
Decision Date
CaseChat Overview and Summary
Attwood appealed his conviction for murder in the Supreme Court of Victoria to the High Court of Australia. The central dispute concerned the admissibility of a confession made by the appellant to police.
The High Court was required to determine whether the confession was admissible in evidence, notwithstanding that the appellant had been subjected to prolonged questioning by police without being informed of his right to legal advice or to remain silent. The court also considered whether the trial judge had erred in admitting the confession, and whether the conviction was unsafe or unsatisfactory by reason of its admission.
The High Court held that the confession was inadmissible. Applying the principles established in *R v Jeffries* and *Basto v The Queen*, the court found that the prolonged questioning of the appellant, who was a young man of limited intelligence, without informing him of his rights, rendered the confession involuntary and therefore inadmissible. The court emphasised that the onus was on the Crown to prove beyond reasonable doubt that the confession was voluntary, and that this onus had not been discharged.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.