Bataillard v The King

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The High Court ultimately rescinded the special leave to appeal.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.