Bell, P.H. v The Queen

Case [1985] FCA 614

Re: PHILLIP HAROLD BELL
And: THE QUEEN (1985) 7 FCR 555
Nos. ACTG42 and ACTG49 of 1985
Criminal Law - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Wilcox(2) and Miles(2) JJ.

CATCHWORDS

Criminal Law - appeal from ACT Supreme Court - appeal against conviction - admission of evidence - conversation between police officer and accused - whether inadmissible as disclosing previous offence - whether admissible as part of res gestae - whether cross-examination of police officer as to being a witness of truth wrongly disallowed - whether various directions to jury correct - whether leave should be given to allow amendment to notice of appeal to add ground that verdict unsafe

Poisons and Narcotic Drugs Ordinance 1978 (ACT) s.4

Evidence Ordinance 1971 (ACT) s.56

Perry v The Queen (1982) 150 CLR 580; (1982) 57 ALJR 110

Makin v The Attorney-General for New South Wales (1894) AC 57

Sutton v The Queen (1984) 58 ALJR 60

O'Leary v The King (1946) 73 CLR 566

R v Richardson (1969) 1 QB 299

R v Hanrahan (1964) 87 WN 458; (1967) 2 NSWR 717

Reg v Toohey (1965) AC 595

Chamberlain v The Queen (1984) 58 ALJR 133; (1983) 46 ALR 493

Criminal Law and Procedure - Appeal against conviction - Admissibility of confession to another offence - Similar fact evidence - Whether part of the res gestae - Cross-examination as to accusations of untruthfulness.

Evidence - Similar fact evidence - Res gestae - Cross-examination as to character - Previous allegations of untruthfulness - Poisons and Narcotics Drugs Ordinance 1978 (ACT), S 4 - Evidence Ordinance 1971 (ACT), s 56.

HEADNOTE

The appellant was convicted of possession of heroin for the purpose of supply . He appealed on the grounds, inter alia, that the trial judge wrongly allowed evidence to be given of a conversation in which the appellant admitted to having sold part of the heroin on the day before the offence; and that cross-examination of a police officer regarding previous accusations of untruthfulness had been wrongly disallowed.

Held: (1) Per Wilcox and Miles JJ. - The evidence relating to the previous sale of part of the heroin was not similar fact evidence but was evidence of facts which were probative of the purpose for which the appellant had been in possession of the remainder of the heroin. It was thus admissible.

Per Davies J. - Whilst the evidence of the previous sale was similar fact evidence, it went to the res gestae of the offence. It did not merely show propensity but was strongly probative of purpose. Even though it was undoubtedly prejudicial, it was not unfairly so.

(2) Per curiam - If evidence is to be given that a witness has a reputation of untruthfulness, it is proper that he be given an opportunity during cross-examination to refute such an allegation; however, to ask the witness whether other persons have alleged that he has lied on previous occasions…

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Details
AGLC
Bell, P.H. v. The Queen [1985] FCA 614 ((1985) 7 FCR 555)
Case
[1985] FCA 614
Decision Date

CaseChat Overview and Summary

In the case of Bell, P.H. v The Queen, the appellant sought to appeal against his conviction in the ACT Supreme Court, raising multiple grounds of appeal. The central dispute revolved around the admissibility of certain evidence, particularly a conversation between a police officer and the accused. The appellant argued that the conversation, which involved admissions about a previous offence, should not have been admitted as it disclosed an antecedent event. However, the prosecution contended that the conversation was part of the res gestae and thus admissible. Another issue was whether the trial judge had erred in disallowing cross-examination of the police officer regarding their credibility. The appellant also contested the correctness of various directions given to the jury and sought leave to amend the notice of appeal to include the ground that the verdict was unsafe.

The court examined whether the evidence in question was properly admitted and whether it was part of the res gestae. The court determined that the conversation was indeed part of the res gestae and thus properly admitted, as it formed part of the overall sequence of events. Regarding the cross-examination, the court found that the trial judge did not err in disallowing the cross-examination as it did not pertain to the officer's capacity as a witness of truth. The court also reviewed the directions given to the jury and found them to be correct. Finally, the court considered the request for leave to amend the notice of appeal to include the ground that the verdict was unsafe. The court found that the amendment would not have been appropriate given the circumstances and the lack of grounds to believe that the verdict was indeed unsafe.

In conclusion, the court dismissed the appeal and refused leave to amend the notice of appeal. The court found that the evidence was properly admitted, the cross-examination was correctly disallowed, and the jury's directions were accurate. The appeal was dismissed, and the convictions were upheld. The orders reflect the court's decisions, which will be settled and entered according to Order 36 of the Federal Court Rules.

Orders

Orders of the court

Leave to amend the notice of appeal be refused.

The appeals be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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