R v Ellis - [1925] HCA 56

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Criminal LawTrialAccused persons tried together-Comment made by one on

fact that another has refrained from giving evidence-Substantial miscarriage of justice-New trial-Crimes Act 1900 (N.S.W.) (No. 40 of 1900), secs. 402, 405, 407-Oriminal Appeal Act 1912 (N.S.W.) (No. 16 of 1912), sec. 6.

A comment made by one of two accused persons being tried together upon the fact that the other has refrained from giving evidence on oath on his own behalf is within the prohibition of sec. 407 (2) of the Crimes Act 1900 (N.S.W.), which provides that " it shall not be lawful to comment at the trial of any person upon the fact that he has refrained from giving evidence on oath on

That comment having been made and the accused in respect of whom it was made having been convicted, there is a miscarriage of justice, but that mis- carriage of justice is not necessarily substantial within the meaning of sec. 6 of the Criminal Appeal Act of 1912 (N.S.W.).

Special leave to appeal from the order of the Supreme Court of New South Wales (Full Court): R. v. Ellis, (1925) 25 S.R. (N.S.W.) 575, rescinded.

APPEAL from the Supreme Court of New South Wales,

John Matthew Ellis and James Beresford Harvey were on 30th September 1925 tried together before the Supreme Court in its

37 CLR 148

criminal jurisdiction at Lismore on a charge of conspiracy. Ellis

was represented by counsel, but Harvey was not and conducted his own defence. Ellis made a statement from the dock, and did not go into the witness-box. Harvey gave evidence on oath on his own behalf, and at the conclusion of his case addressed the jury, When referring to certain of the evidence he said to the jury: "I wish to call your attention to the fact that Ellis has not gone into the witness-box." Ralston A.-J., before whom the trial took place, immediately stopped Harvey in his address, and said to him:-""That is a matter to which you are not allowed to refer. It is prohibited by the provisions of the Crimes Act." Harvey made no further reference to the matter, and apologized for having done anything he ought not to have done. Ralston A.-J. then said to the jury :-""The remark which Harvey has just made to you ought not to have been made, and anybody is prohibited from referring to such a matter. It is your duty not to allow the remark he made to influence your minds in any way in considering any part of the case, and you ought as far as possible to dismiss it from your consideration and treat it as if it had not been made." Both the accused were convicted and were sentenced each to imprisonment with hard labour for eighteen months.

Ellis appealed to the Court of Criminal Appeal from his conviction and sentence on the ground that Harvey, in addressing the jury, had…

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 R v Ellis

Details

AGLC: R v Ellis [1925] HCA 56
Case: [1925] HCA 56
Decision Date: 18 December 1925

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales (Court of Criminal Appeal). The appeal arose from the joint trial of John Matthew Ellis and James Beresford Harvey for conspiracy. Harvey, who was unrepresented, made a comment during his defence addressing the jury about Ellis not giving evidence. The trial judge immediately intervened, instructing the jury to disregard the comment. Both accused were convicted. Ellis appealed his conviction to the Court of Criminal Appeal, which allowed his appeal and ordered a new trial, finding that Harvey's comment constituted an unlawful comment under section 407(2) of the Crimes Act 1900 (NSW) and that a miscarriage of justice had occurred. The Crown then appealed this decision to the High Court.

The legal issues before the High Court were twofold: first, whether section 407(2) of the Crimes Act 1900 (NSW), which prohibits comment on an accused person's failure to give evidence, extended to comments made by a co-accused during a joint trial; and second, if such a comment was made, whether the Court of Criminal Appeal had erred in finding that a substantial miscarriage of justice had occurred, thereby necessitating a new trial, or if the proviso to section 6 of the Criminal Appeal Act 1912 (NSW) allowed for the dismissal of the appeal.

The High Court, in a majority decision, rescinded the special leave to appeal. While there was some division on the interpretation of section 407(2), with some judges finding the literal interpretation prohibiting comment by a co-accused to be correct and others expressing doubt, the Court ultimately focused on the second issue. The majority held that the Court of Criminal Appeal's finding of a substantial miscarriage of justice was not necessarily a foregone conclusion simply because a statutory prohibition had been breached. They indicated that the Court of Criminal Appeal should have more thoroughly considered whether the comment, despite being unlawful, had actually led to a substantial miscarriage of justice, referencing English authorities where similar breaches did not automatically lead to a new trial. However, given the limited grounds for special leave and the fact that the Court of Criminal Appeal's decision on the interpretation of section 407(2) was upheld by the majority, the appeal was rescinded.

Orders