ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF Criminal Law-Evidence-Procedure-Reopening of Crown case after close of case High Court-Criminal appeal-Special leave-Judiciary Act 1903-1950 (No. 6 of
1903-No. 80 of 1950), S. 35 (1) (b).
Although the judge presiding at a criminal trial has a discretionary power to allow the Crown to reopen its case and adduce further evidence after the close of the case for the defence, it is only in very exceptional circumstances that such a course should be permitted.
A rigid formula would be unsafe in view of the almost infinite variety of difficulties that may arise at a criminal trial but the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence.
Dictum of Tindal C.J. in R. v. Frost, (1839) 4 St. Tr. (N.S.) 86, at p. 386; 9 Car. &P. 129, at p. 159 [173 E.R. 771, at p. 784], commented on as an expression of the rule.
Some evidence having been given in the course of the Crown case that a prisoner who was being tried on a charge of murdering a woman who had been killed by manual strangulation had referred, in the presence of officers of the police, to the deceased's having been throttled", the prisoner when called on his own behalf admitted that he had used the expression. When asked why he had used that word he said: "I heard the police talking about it and I took it she had been throttled"; and he added that, apart from what the police had said, he had, when he used the word, no knowledge of the cause of the death. It was suggested for the Crown that the prisoner's use of the word " throttled a time at which there had been no investi- gation of the cause of death-showed guilty knowledge; and application
was made to the presiding judge for leave to recall police witnesses in order to show that there had been no discussion which would have indicated to the prisoner that the deceased had been throttled. The judge gave leave; and the witnesses were recalled and gave evidence after the close of the
THE QUEEN.
case for the defence. The prisoner was convicted of murder.
Held that the reopening of the Crown case was not justified the judge had wrongly exercised his discretion, and the conviction should be set aside
Circumstances in which the High Court will grant special leave to appeal in criminal matters under S. 35 (1) (b) of the Judiciary Act 1903-1950
In re Eather v. The King, (1915) 20 C.L.R. 147, referred to. Decision of the Court of Criminal Appeal of Victoria reversed.
APPLICATION for special leave to appeal, and APPEAL, from the Court of Criminal Appeal of Victoria.
In the Supreme Court of Victoria, before…
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
Shaw v The Queen [1952] HCA 18
Case
[1952] HCA 18
Decision Date
CaseChat Overview and Summary
The case of *Shaw v The Queen* concerned an appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of Victoria. The appellant, Stanley Henry Shaw, had been convicted of murder in the Supreme Court of Victoria. The central issue on appeal was whether the trial judge had erred in allowing the Crown to reopen its case and adduce further evidence after the defence had closed its case.
The legal issues before the High Court were whether the trial judge had wrongly exercised his discretion in permitting the Crown to recall police witnesses to give further evidence after the close of the defence case, and whether this decision, along with the admission of other potentially inadmissible evidence, had resulted in a substantial miscarriage of justice. The Court was required to consider the principles governing the reopening of a Crown case in criminal trials, particularly in light of the dictum in *R. v. Frost* and the provisions of the Victorian Crimes Act 1928.
The High Court, in a joint judgment, held that the reopening of the Crown case was not justified and that the trial judge had wrongly exercised his discretion. The Court reasoned that while a judge has a discretionary power to allow the Crown to reopen its case, this should only occur in very exceptional circumstances. The principle is that the prosecution must present all its evidence before the defence is called upon. The Court found that the circumstances in this case, where the Crown sought to adduce evidence to counter an unexpected admission by the prisoner regarding the use of the word "throttled," did not meet the threshold of exceptionality required to depart from this principle. The Court also noted the presence of other inadmissible evidence, which, combined with the improper reopening of the Crown case, likely operated unfavourably to the prisoner.
Consequently, the High Court granted special leave to appeal, treated the appeal as instituted and heard instanter, allowed the appeal, set aside the refusal of leave to appeal by the Supreme Court, and in lieu thereof granted leave, set aside the conviction and sentence, and ordered a new trial. Justice Fullagar, in a separate judgment, agreed that special leave should be granted and that the Crown ought not to have been permitted to adduce further evidence after the close of the defence case, finding it highly probable that the trial judge exercised his discretion wrongly.