Titheradge v The King

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, Frederick Titheradge, had been convicted on one count of indecent assault. The central dispute concerned the actions of the presiding Judge at the trial, who, without the express consent of the accused, called and examined a witness, and subsequently recalled other witnesses to contradict that witness's testimony.

The legal issues before the High Court were whether the trial Judge had the power to call and examine a witness of his own motion without the consent of the accused in a criminal trial, and whether the Judge's subsequent actions in examining the witness and recalling others to contradict him constituted a miscarriage of justice under section 6 of the Criminal Appeal Act 1912 (NSW). The Court was also required to determine if, assuming a miscarriage of justice had occurred, it could be more adequately remedied by ordering a new trial.

The High Court held that a presiding Judge in a criminal trial has no power to call and examine a witness of their own motion without the consent of the accused. The Court reasoned that a trial is a proceeding between parties, and the conduct of evidence is primarily the concern of those parties. While exceptional circumstances might justify a Judge taking a more active role, this must be done with extreme caution and, in a criminal case, requires the express consent of the accused, as provided for by section 404 of the Crimes Act 1900 (NSW). The Court found that the Judge's actions in calling and examining the witness Payne, and then using material supplied by the Crown Prosecutor to cross-examine him and subsequently recalling witnesses to contradict him, constituted a substantial irregularity and a miscarriage of justice.

Consequently, the High Court allowed the appeal, set aside the conviction, and ordered a new trial. The Court concluded that, in light of all the circumstances, a new trial was the most appropriate remedy for the miscarriage of justice that had occurred.