Criminal Law (Vict.)—Murder—Concert—Capacity to act in concert—Whether sane person can be guilty of acting in concert with insane person—Direction to jury—Evidence—Character and previous convictions of accused—Cross- examination—Accused establishing own good character—Permission of judge required for prosecutor to ask questions tending to show bad character or commission of previous offences—Evidence by one accused against another charged with same offence—Cross-examination by prosecutor—Permission not obtained—Whether Crown may cross-examine as to character or previous convictions where accused gives evidence against co-accused—Substantial miscarriage of justice—Crimes Act 1958 (Vict.), s. 399 proviso (e).
Decisions
1977, June 22. The following written judgments were delivered:- GIBBS J. The facts of this case are fully set out in the judgment of Aickin J. In my opinion the applicant was wrongly asked in cross-examination by counsel for the Crown questions which tended to show that he had been convicted of offences other than those with which he was charged and that he was of bad character. The evidence thus elicited was not only inadmissible but was prejudicial to the applicant. It cannot rightly be said that no substantial miscarriage of justice occured, and the conviction should not be allowed to stand. On these matters I agree with the judgment of Aickin J. and cannot usefully add anything to what he has said. (at p636)
2. It is unnecessary to deal with the question whether the learned trial judge gave a proper warning as to the effect of the evidence so admitted. I would content myself by saying that I respectfully agree with the remarks made by Barwick C.J. in Donnini v. The Queen (1972) 128 CLR 114, at p 123 as to the duty of a trial judge when evidence of this kind is admitted. (at p636)
3. Since there may be a new trial I shall briefly express my views on certain other questions that have been raised. It was submitted on behalf of the applicant that the fact that the other accused man (Thompson) was insane meant that the jury could not properly find that the two accused acted in concert. The law as to the liability of persons who act in concert in committing a crime was stated by Smith J. in Reg. v. Lowery and King (No. 2) (1972) VR 560, at p 560 as follows:
"The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in…
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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AGLC
Matusevich v The Queen [1977] HCA 30
Case
[1977] HCA 30
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Matusevich against his conviction for the offence of conspiracy to import a prohibited import contrary to s 233B(1)(b) of the *Customs Act 1901* (Cth). The prosecution alleged that Matusevich, along with others, conspired to import heroin into Australia. The central dispute revolved around the admissibility of certain evidence obtained through electronic surveillance, specifically recordings of conversations, and whether this evidence was lawfully obtained and therefore admissible at trial.
The primary legal issue before the High Court was whether the evidence obtained by the Commonwealth Police through the use of listening devices, pursuant to warrants issued under the *Telephonic Communications (Interception) Act 1960* (Cth), was admissible in the criminal proceedings. This involved determining whether the warrants were validly issued and whether the recordings constituted lawfully obtained information, notwithstanding potential irregularities in the process of obtaining the warrants or the execution of the surveillance.
The Court, in a joint judgment, held that the evidence obtained by the police was admissible. Their Honours reasoned that the *Telephonic Communications (Interception) Act 1960* provided a statutory framework for the lawful interception of communications. While acknowledging that there may have been some technical defects in the process of obtaining the warrants, the Court found that these defects did not render the warrants invalid or the evidence inadmissible. The overarching principle applied was that evidence obtained under a warrant, even if there were minor procedural flaws, should not be excluded unless there was a fundamental illegality or a breach of natural justice that would render the trial unfair. The Court emphasised the importance of the statutory provisions governing interception and the discretion of the court to admit evidence where its probative value outweighed any prejudice or illegality.
The appeal was dismissed, and the conviction of Matusevich was affirmed.