Curwood v The King - [1944] HCA 40

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF Criminal aw-Evidence-Cross-examination of accused-Questions tending to show

character of accused and previous convictions- Nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or witness for the prosecution "-Allegation by accused that confession obtained by police officers by duress-Crimes Act 1928 (Vict.) (No. 3664), S. 432 (e) (ii).

The applicant was convicted upon a charge under S. 42 of the Crimes Act MELBOURNE, 1928 (Vict.) of unlawfully and carnally knowing and abusing a girl under the age of ten years. The case implicating the applicant depended upon a written confession signed by him and proved by the officers of the police who took it. His defence was, inter alia, that the confession was not voluntarily made because it was extorted from him by threats and physical violence on the part of the officers of police and he gave evidence to this effect. Upon the applica- tion of the Crown prosecutor the trial judge applied S. 432 (e) (ii) of the Crimes Act and allowed cross-examination of the applicant as to his character. The applicant refused to answer certain questions as to occasions on which it was suggested that he had attacked a woman and a girl on the ground that the answers might incriminate him and the jurors were warned that his refusal should not be allowed to affect their minds in any way. He, however, did say that on the occasion when he signed the confession upon which the prosecution relied he also signed another statement in which he admitted that he was "guilty of the little one but not of the rape."

Held, by Latham C.J., Starke and Dixon JJ. (McTiernan and Williams JJ. dissenting), that the conduct of the defence was such as to involve imputa- tions on the character of witnesses for the prosecution within the meaning of 8. 432 (e) (ii) of the Crimes Act 1928 (Vict.); therefore the applicant was liable to be cross-examined as to his previous character.

R. v. Woolley, (1942) V.L.R. 123, approved.

69 CLR 562

R. v. Hudson, (1912) 2 K.B. 464, Stirland v. Director of Public Prosecutions, (1944) A.C. 315, and R. v. Turner, (1944) K.B. 463, considered.

Special leave to appeal from the decision of the Supreme Court of Victoria (Full Court): R. v. Curwood (1945) V.L.R. 133, by majority, refused.

APPLICATION for special leave to appeal from the Supreme Court of Victoria.

Ronald Frederick Curwood was charged under S. 42 of the Crimes Act 1928 (Vict.) that at Tottenham, Victoria, on 9th September 1944, he did unlawfully and carnally know and abuse a girl under the age of ten years. He was convicted.

There was undisputed evidence for the jury that some person had had connection with the girl. She and other children gave evidence, not all on oath, which, as the trial judge said, could not be relied upon as providing satisfactory identification of Curwood as…

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 Curwood v The King

Details

AGLC: Curwood v The King [1944] HCA 40
Case: [1944] HCA 40
Decision Date: 22 December 1944

CaseChat Overview and Summary

The applicant, Ronald Frederick Curwood, was convicted in the Supreme Court of Victoria of unlawfully and carnally knowing and abusing a girl under the age of ten years. The prosecution's case relied heavily on a written confession signed by Curwood. Curwood's defence asserted that this confession was not voluntary, alleging it was extorted through threats and physical violence by the police officers who obtained it. Consequently, the Crown prosecutor applied under section 432(e)(ii) of the Crimes Act 1928 (Vict.) to cross-examine Curwood regarding his character and previous convictions. The trial judge granted this application, and Curwood was subsequently cross-examined about alleged attacks on other women and girls.

The central legal issue before the High Court was whether the conduct of Curwood's defence, specifically his allegation that his confession was obtained by duress from police officers, constituted an imputation on the character of the prosecution's witnesses such as to permit cross-examination as to his own character under section 432(e)(ii) of the Crimes Act 1928 (Vict.). This section generally prohibits such cross-examination unless the defence involves imputations on the character of the prosecutor or witnesses for the prosecution, or the accused has put their own good character in issue.

A majority of the High Court, comprising Latham C.J., Starke and Dixon JJ., held that Curwood's defence, by alleging that the police officers obtained his confession through threats and violence, did involve imputations on the character of those officers, who were witnesses for the prosecution. The Court reasoned that such allegations, regardless of whether they were necessarily involved in challenging the confession's voluntariness, fell within the scope of section 432(e)(ii). This interpretation aligned with previous decisions such as *R. v. Woolley* and the majority considered that the House of Lords' decision in *Stirland v. Director of Public Prosecutions*, relied upon by the applicant, did not overrule the established line of authority that allowed such cross-examination when the defence directly attacked the character of prosecution witnesses.

The High Court, by majority, refused special leave to appeal. The dissenting judges, McTiernan and Williams JJ., would have allowed the appeal.

Orders