Taylor v The King

[1918] HCA 68

25 CLR 573

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA. EvidenceCriminal trial-Witness-Credit-Inconsistent statements--Reading de.

position taken before magistrate--Misdirection.

On the trial of a person accused of rape a witness gave evidence with which a previous statement contained in a deposition made by him before a magis- trate was inconsistent. The passage in the deposition was read to him by direction of the Judge, but he adhered to his testimony as given before the jury, The Judge in his charge to the jury used the passage from the deposition as if it were evidence against the accused. The accused was convicted. On appeal to the High Court,

Held, that the passage had been misapplied, and, therefore, that there had been a substantial miscarriage of justice, and that there should be a new trial.

Decision of the Supreme Court of Western Australia: Taylor v. The King, 20 W.A.L.R., 47, reversed.

APPEAL from the Supreme Court of Western Australia.

At the Perth Criminal Court before Rooth J. and a jury, Sidney George Taylor, together with another man named Docherty, was tried on an indictment with having on 28th June 1917 committed rape upon Emily Lawson. Taylor, having been convicted, appealed to the Court of Criminal Appeal on several grounds, but the appeal was dismissed: Taylor v. The King 1.

120 W.A.L.R., 47. 25 CLR 574

From that decision Taylor now, by special leave, appealed to the High Court.

It appeared that Taylor and Docherty were soldiers, and the defence of the former at the trial was an alibi. On the preliminary hearing of the charge against Docherty, a witness named Harrison detailed a conversation between Docherty and himself, containing a statement by Docherty implicating Taylor and mentioning him by name. On the trial Harrison's evidence with regard to the same conversation was as follows " He' (Docherty) "said another soldier came up. He mentioned no name. Docherty said another soldier came up and asked what was the matter, and he said ' all right, you're next." The passage from his deposition was read to Harrison by direction of the learned Judge, but he adhered to his testimony as given before the jury. In charging the jury, his Honor dealt with this passage along with and as part of the evidence,

Haynes K.C. and Arthur Haynes, for the appellant. Stow, for the respondent. The judgment of the COURT, which was delivered by BARTON J., was as follows :-

In this case we have come to the conclusion that it is our duty to order a new trial. For the purpose of discrediting his evidence at the trial of Taylor, a passage from the deposition of the witness Harrison on the preliminary examination of the other accused, Docherty, was read to the jury by the learned Judge's direction. Assuming that this could properly be done, it is objected that the passage could only be used for the purpose for which it was read, namely, the casting of doubt upon the credit of the witness. It is contended that, SO far as the passage was used for any other purpose, there was a substantial miscarriage of justice. When we turn to the report of his Honor's charge to the jury we find that the passage in question was used as if it were evidence in the case. Not only so, but the references to parts of the passage are inter- woven with the fabric of his Honor's charge in such a manner that

25 CLR 575

the minds of the jury must have found difficulty in eliminating H. them, if indeed that were possible, from the purely evidentiary substance of the case. We cannot say that in these circumstances the trial was free from material fault, nor can we say that the interests of justice would be conserved if we disallowed the objection. We abstain from closer particularity, because it is essential to say nothing which may possibly prejudice a second trial. Nor is it necessary to deal with other objections which have been taken.

Appeal allowed. Order appealed from discharged

and case remitted to the Supreme Court for a new trial. Solicitors for the appellant, Richard S. Haynes &Co. Solicitor for the respondent, F. L. Stow, Crown Solicitor for Western Australia.