R v Lewis - [1998] VSC 17

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION

Not Restricted

No. 1433 of 1996

THE QUEEN

EDWIN ANDREW LEWIS

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JUDGE:	TEAGUE, J.
WHERE HELD:	Melbourne
DATE OF RULING:	29 June 1998
DATE OF REASONS:	6 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 17

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CATCHWORDS:	Leave to cross-examine accused as to prior convictions - Whether character of accused put in issue - Section 399(5) Crimes Act - Impugning prosecution witnesses.
Jones v Director of Public Prosecutions [1962] AC 635; R v Sarek [1982] VR 971 at 979; Curwood v The King (1944) 69 CLR 561; Phillips v The Queen (1985) 159 CLR 45; R v Hudson [1912] 2 KB 464; R v Brown [1960] VR 382.

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr. S. Langslow with	Victoria Legal Aid
Ms. J. Dixon
For the Crown	Mr. B. Morgan-Payler Q.C.	Office of Public Prosecutions
with Ms. M. Sexton

SC: i RULING

RULING 5

HIS HONOUR:

On 8 May 1998, a jury was empanelled for the trial of the accused, Edwin Andrew Lewis on charges of murder and theft. The accused gave evidence. On 22 June 1998, the accused commenced his examination in chief. On 25 June 1998, Mr Morgan-Payler, who appeared with Ms Sexton for the prosecution, applied for leave to cross-examine the accused as to his prior convictions. Written submissions were placed before me. I heard oral submissions from Mr Morgan-Payler and from Mr Langslow, who appeared with Ms Dixon for the accused. On 29 June 1998, I granted leave to the prosecution to cross-examine the accused as to his prior convictions. I said then that I would provide my reasons later. These are the reasons. I have annexed to them the written submissions of counsel.
The accused had given evidence at two earlier trials, at the end of which the jury had not been able to reach a verdict. On 27 November 1996, at the first unfinished trial, Cummins J was called upon to give a like ruling. That ruling was given after a brief discussion, in the course of which the then counsel for the accused indicated that it would be difficult to resist the application by the prosecution, and that he would not offer argument in opposition, and that he was not conceding the point. Cummins J ruled:
“I consider in view of the posture of the defence both in proposing to the jury that the accused did not have substantial bad character, and proposing to the witness, Amanda Higgins, that she killed her own parents, that the character of the accused has been put in issue, and accordingly the prior convictions of the accused, including that at Ringwood on 6 December 1993 and Box Hill on 4 July 1994, are probative and admissible.”
On 13 October 1997, at the second unfinished trial, although it appears that no formal granting of leave was made, the same counsel for the accused as appeared at the first trial referred to the ruling at 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.

Continue reading R v Lewis

Details

AGLC: R v Lewis [1998] VSC 17
Case: [1998] VSC 17
Decision Date: 6 August 1998

CaseChat Overview and Summary

The case of R v Lewis involved the accused, Lewis, who was on trial for various criminal charges. The primary dispute centred on whether the defence was permitted to cross-examine Lewis regarding prior criminal convictions and whether this amounted to putting his character in issue under Section 399(5) of the Crimes Act. The case was heard in the Supreme Court of Victoria.

The court had to determine whether the defence's intention to cross-examine Lewis about his prior convictions was justified under the circumstances. This required a careful analysis of relevant case law, particularly Jones v Director of Public Prosecutions, R v Sarek, Curwood v The King, Phillips v The Queen, R v Hudson, and R v Brown. The court needed to assess whether the prosecution's witnesses had been impugned in a manner that would warrant such cross-examination, thereby putting the accused's character in issue.

The court examined the precedents and found that the defence's cross-examination would indeed put Lewis's character in issue. By referencing Jones v Director of Public Prosecutions, the court noted that the defence cannot unilaterally put the accused's character in issue unless the prosecution has first done so. The court also considered R v Sarek and Curwood v The King, which reinforced the principle that the prosecution must first impugn the accused's character before the defence can respond in kind. The outcome was that the court ruled against allowing the defence to cross-examine Lewis about his prior convictions.

Consequently, the court's final order was that the defence's application to cross-examine Lewis about prior convictions was denied, maintaining the integrity of the trial process and ensuring that the accused's character was not unfairly put in issue without the prosecution first doing so.

Orders