Principle laid down by the Privy Council in In re Dillet, 12 App. Cas., 459, at p. 467, as to granting special leave to appeal in criminal cases, applied.

Sec. 407 of the Crimes Act 1900 of New South Wales provides, inter alia, that every accused person in a criminal proceeding shall be competent, but not compellable, to give evidence, but that it shall not be lawful to comment at the trial of any person upon the fact that he has refrained from giving

Held, that the question whether a Crown Prosecutor, by referring to the fact that the accused had made a statement merely, not upon oath, did in fact under the particular circumstances of the case invite the jury's attention to the accused person's ability to give evidence on oath, was a question of fact, on which different minds might come to different conclusions, and, therefore, when the Supreme Court, on a special case stated for their opinion, held that under the circumstances there had not been a comment within the meaning of the section, special leave to appeal from their decision should be

But held, that, though a mere statement of the fact that what the accused person had said in his own defence was not on oath did not in itself amount to a comment, yet if it were accompanied by any circumstance calculated to inform or remind the jury of the fact that the accused person had the right to give evidence on oath, and yet failed to do so, it would be a contravention of

Rex v. Macfarlane, (1907) 7 S.R. (N.S.W.), 149, SO far as it purported to lay down a contrary principle, dissented from.

Circumstances under which such a statement of fact would amount to a comment, considered.

Special leave to appeal from the decision of the Supreme Court rescinded.

APPEAL from a decision of the Supreme Court of New South Wales on a Crown case reserved.

The prisoner, when on his trial at the Quarter Sessions on a charge of larceny, made a statement from the dock, without being sworn, under sec. 405 of the Crimes Act 1900. He was convicted, but the learned Chairman of Quarter Sessions stated a special case for the Supreme Court, on the question whether certain remarks made at the trial by the Crown Prosecutor in addressing the jury amounted to a comment on the fact that the prisoner had refrained from giving evidence on oath, within the meaning of sec. 407 of the Act.

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 Bataillard v The King

Details

AGLC: Bataillard v The King [1907] HCA 17
Case: [1907] HCA 17
Decision Date: 27 May 1907

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, Bataillard, had been convicted of larceny in the Quarter Sessions. Following his conviction, the Chairman of Quarter Sessions reserved a case for the Supreme Court, questioning whether remarks made by the Crown Prosecutor during the trial constituted an unlawful comment on the fact that the accused had refrained from giving evidence on oath, contrary to section 407(2) of the Crimes Act 1900 (NSW). The Supreme Court, following its own precedent, held that the remarks did not amount to a comment within the meaning of the section and upheld the conviction. Special leave to appeal to the High Court was granted.

The central legal issue before the High Court was whether the Crown Prosecutor's statement, referring to the accused's statement from the dock as "a statement merely, not upon oath," and further noting it was "not subject to the greatest of all tests—that of cross-examination," and concluding with "When people have their backs against the wall I don't think they will stick at telling a few lies," constituted a comment on the accused's failure to give evidence on oath, thereby contravening section 407(2) of the Crimes Act 1900 (NSW). This section prohibited any comment on the fact that an accused person had refrained from giving evidence on oath.

The High Court ultimately rescinded the special leave to appeal. The majority reasoned that the question of whether the Crown Prosecutor's words invited the jury's attention to the accused's ability to give sworn evidence, and his failure to do so, was a question of fact. They held that such factual determinations, where different minds could reach different conclusions, were not grounds for the High Court to entertain an appeal in a criminal case, adhering to the principle that appeals in criminal matters are generally limited to questions of law and substantial injustice. While acknowledging that a mere statement of fact could, in certain circumstances, amount to a prohibited comment, the Court found that the specific words used in this case, as presented in the special case, were ambiguous and did not provide sufficient material to definitively conclude that a contravention of the Act had occurred. The Court also noted that the Supreme Court's decision in *Rex v. Macfarlane* was not necessarily wrongly decided, but that the application of the principle to the facts of this case was problematic.

Orders