RESPONDENT. Counsel-Criminal prosecution-Evidence of confession by accused-Interview between
prisoner and counsel-Privilege-Duty of counsel. Criminal Law-Evidence-Comment by Judge on prisoner's failure to give evidence
- Act No. 245 (S.A.), sec. 1.
Sec. 1 of Act No. 245 (S.A.), which is in force in the Northern Territory, enables a person accused of an offence to give evidence on his own behalf but it provides that no presumption of guilt shall be made from the fact of such person's electing not to give evidence.
An accused, who was a completely uncivilized aboriginal native, was charged with the murder of a police constable in the Northern Territory. During the trial counsel for the accused interviewed his client at the suggestion of the Judge to ascertain whether the accused agreed with evidence given by a witness for the Crown of a confession alleged to have been made by the accused to the witness. After interviewing the accused, his counsel in open Court said that he was in the worst predicament that he had encountered in all his legal career. During his summing up to the jury the trial Judge commented on the failure of the accused to give evidence. The accused was found guilty of murder.
Held, by the whole Court, that the conviction should be quashed; by Gavan Duffy C.J., Dixon, Evatt and McTiernan JJ., that the Judge's comment alone was sufficient to render the conviction bad; by Starke J., that the actual charge given to the jury in the circumstances of the case denied the substance of fair trial to the accused.
Per Gavan Duffy C.J., Dixon, Evatt and McTiernan JJ.: Counsel had a plain duty, both to his client and to the Court, to press such rational con- siderations as the evidence fairly gave rise to in favour of complete acquittal or conviction of manslaughter only.
After the prisoner was convicted his counsel made a public statement in Court to the effect that the accused admitted that the evidence called by the Crown of a confession made by the accused to a witness was correct.
Held, by the whole Court, that counsel should not have divulged the informa. tion thus acquired.
APPEAL from the Supreme Court of the Northern Territory.
This was an appeal by leave from a conviction of murder before the Supreme Court of the Northern Territory, and from the sentence of death pronounced by the Court.
The facts are fully set out in the judgments hereunder. Fullagar K.C. and Dethridge, for the appellant. The Supreme Court Ordinance (N.T.), No. 12 of 1918, enables the High Court to grant leave, and gives the High Court the fullest jurisdiction in the matter, empowering it to make any order it thinks just (Porter v. The King Ex parte Yee 1 ). The South Australian Criminal Law Consolida- tion Act 1876 is the relevant criminal code. Secs. 5 and 6, as modified by ordinance No. 10 of 1934, apply to convictions of aboriginal natives.
[DIXON J. referred…
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
Tuckiar v The King [1934] HCA 49
Case
[1934] HCA 49
Decision Date
CaseChat Overview and Summary
The case of *Tuckiar v The King* concerned an appeal to the High Court of Australia from a conviction for murder in the Supreme Court of the Northern Territory. The appellant, Tuckiar, was a completely uncivilised Aboriginal native charged with the murder of Constable McColl. The Crown's case relied on alleged confessions made by Tuckiar to two other Aboriginal men, Parriner and Harry. During the trial, the judge suggested that Tuckiar's counsel interview his client to ascertain the truth of the alleged confessions, a discussion that led counsel to express being in a "worst predicament." The trial judge also commented on Tuckiar's failure to give evidence.
The legal issues before the High Court included whether the trial judge's comments on the appellant's failure to give evidence constituted a misdirection, whether the admission of evidence regarding the deceased constable's good character was proper, and whether the overall conduct of the trial, particularly the judge's summing up and the actions of the appellant's counsel, denied the appellant a fair trial. The Court was also required to consider the admissibility and weight of the confessional evidence, given the interpreter's role and the cultural context of the accused.
A majority of the High Court (Gavan Duffy C.J., Dixon, Evatt, and McTiernan JJ.) held that the conviction should be quashed, primarily on the ground that the judge's comment on the appellant's failure to give evidence was a sufficient misdirection. They reasoned that this comment, especially in light of the circumstances surrounding the interview between the appellant and his counsel, invited the jury to make a presumption of guilt, contrary to the statutory provision that no such presumption should be made. Starke J. found that the judge's summing up, in the specific circumstances of the case, denied the appellant the substance of a fair trial. Furthermore, the Court unanimously held that counsel should not have divulged the information acquired during the privileged interview with his client, deeming this action indefensible.
The High Court allowed the appeal, quashed the conviction and judgment, and directed that a verdict and judgment of acquittal be entered. This outcome was influenced by the trial judge's own assessment that, due to the public disclosure of the confession to counsel, a new trial would be practically impossible to conduct fairly.