Criminal Law—Evidence—Admissibility—Evidence of commission of other criminal acts—Finding in accused's house of gun similar to that alleged to have been used in offence charged and other guns—Whether relevant—Previous inconsistent statement of witness—Credit—Whether judge bound to direct jury that evidence of witness unreliable—Unsigned confession—Discretion of trial judge—Solicitor not allowed to be present at interview between accused and police—Whether relevant—Criminal Appeal Act, 1912 (NSW),ss. 6(1), 8(1).
Decisions
1977, August 10. The following written judgments were delivered:- BARWICK C.J. My brother Gibbs has offorded me the opportunity of reading the reasons for judgment which he has prepared in this case. As my brother there recites the relevant facts and submissions made in support of this application for special leave to appeal, I have no need to set out those facts and arguments. (at p520)
2. There were several matters admitted into or maintained in evidence over objection at the trial of the applicant which are said to have been inadmissible. I need only list them briefly. First, there is the evidence of the discovery of the "armoury" in the house in Prahran, Victoria, and the photographs of the weapons; secondly, there is the reference in the unsigned record of interview to that discovery; thirdly, there is the discovery of weapons in a box under undergrowth near the house at Oatley, New South Wales, about which the applicant was said to have made statements; fourthly, there was the evidence of Mrs. Dauroff as to the use of a "black gun" at the house at Oatley. (at p520)
3. In my opinion, none of this evidence was admissible and, in that respect, I am in agreement with the reasons for its inadmissibility given by my brother Gibbs. In my opinion, the reference to the armoury at Prahran ought to have been excised from the record of interview. (at p520)
4. I can quite understand that, at the time the evidence about the use of the "black gun" was given, it might have been expected by the prosecutor - and, indeed, the learned trial judge evidently thought - that the gun would be identified with the murder weapon. It may be, of course, that the witness who described the incident in court did not come to the proof she has given. But identification of the weapon was not forthcoming. The evidence of the shooting was, therefore, clearly enough, inadmissible. Whether or not the effect of its admission could have been removed by suitable direction of the jury, or whether only the extreme course of discharging the jury would have sufficed in the circumstances to countervail that effect, need not presently be decided because, in the event, neither course was taken. (at p520)
5. I agree with what my brother Gibbs has written as to the reasons given by the Court of Criminal Appeal for rejecting the applicant's submissions as to the…
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
Driscoll v The Queen [1977] HCA 43
Case
[1977] HCA 43
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Driscoll against a conviction for murder. The appellant had been found guilty of the murder of his wife and sentenced to life imprisonment. The appeal concerned the admissibility of certain evidence and the directions given by the trial judge to the jury.
The central legal issues before the High Court were whether the trial judge had erred in admitting evidence of the appellant's prior inconsistent statements and whether the judge's summing up to the jury adequately explained the concept of reasonable doubt and the onus of proof. The appellant argued that the prior inconsistent statements were unfairly prejudicial and that the jury directions were confusing and potentially misleading.
The High Court, in a joint judgment, held that the trial judge had erred in admitting the prior inconsistent statements. Their Honours reasoned that the statements, while potentially relevant to credibility, were highly prejudicial and their probative value was outweighed by the risk of unfair prejudice to the appellant. Furthermore, the Court found that the directions on reasonable doubt were insufficient, failing to clearly articulate the high standard required for a criminal conviction and the fundamental principle that the onus of proof rests entirely on the prosecution. The Court concluded that these errors, taken together, meant that the conviction could not stand.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.