Attwood v The Queen

Attwood v The Queen - [1960] HCA 15 - HCA 1960 case summary — Zoe

[6]

The provision corresponds with s. 432 (e) of the Crimes Act 1928 Vict. and s. 1 (f) of the Criminal Evidence Act 1898 Imp.. The section as is well known makes a person charged with an offence, and the wife or husband as the case may be of that person, a competent witness for the defence but provides certain conditions and limitations as to the manner of giving evidence, the questions to which he will be exposed and certain incidental and consequential matters. Paragraph (e) imposes a restriction upon the questions that may be asked but the restriction is itself subject to certain conditions and ceases to operate when any of them are fulfilled. The paragraph provides that he may not be asked and shall not be required to answer any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged or is of bad character. Then follow the word "unless" and three sub-paragraphs setting out the conditions fulfilment of which will exclude the operation of the restriction. None of the conditions was fulfilled in the present case and we are directly concerned only with the restriction. But of course as it is a matter of interpretation the conditions are material and as it happens one of them is very important in construing the provision. The part of the restriction upon which the case turns consists in the words "or is of bad character". Do these words exclude questions as to matters relevant to the proof of the crime charged, of which any other witness might lawfully give evidence, because they possess also a tendency to show that the accused is of bad character? That is the question of interpretation. The question is given point by the fact that in sub-par. (i) there is an express provision referring to proof that the accused who gives evidence has committed or been convicted of another offence. The effect of sub-par. (i), following as it does the word "unless", is to except out of the restriction contained in par. (e) cases where "the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged". It is to be noticed that this sub-paragraph does not speak of "bad character" nor for that matter of the accused being "charged with" any other offence, the two other matters expressly covered by the restriction in par. (e). It is suggested in support of the application for special leave that sub-par. (i) by its positive statement about the case of proof of the commission or conviction of another offence being admissible evidence of the offence charged and its omission of any similar provision as to "character" confirms the contention that where facts reflect upon the accused's character he cannot be asked about them as a witness notwithstanding that the facts are relevant to the proof of the offence for which he is being tried.

[13]

"Bad character" may be regarded as the contrary of good character. But as a separate and independent fact or matter it can be proved on a criminal trial only in answer to evidence adduced of the accused's good character. It is not excluded as irrelevant to proof of guilt. It is excluded as a matter of policy, policy deeply rooted in principle. "The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety nine": per Willes J. (diss.) [1] . But according to the rules of evidence at common law an ordinary witness may be discredited by cross-examination among other things tending to show that he is of bad character. The expression is not a description of a category of admissible cross-examination. A witness may be cross-examined in various ways to show that because of his personal qualities his testimony should not be relied upon. But although, for example, to cross-examine him to show that his eyesight, hearing, memory, apprehension or prepossessions should lead to the distrust of his evidence may "go to credit" it does not reflect on character. On the other hand to cross-examine him to show that the honesty of his testimony cannot be trusted goes equally to credit but it may require going into his past conduct in a way involving "bad character". One may be sure that the primary object of prohibiting "any question tending to show that he (the accused) is of bad character" was to preserve the principle to which Willes J. alludes as one of "policy and humanity" at the expense of the rule of the common law exposing a witness to cross-examination to credit on the ground that his past conduct or his bad behaviour or reputation make him an untrustworthy witness. The provision certainly prohibited what the common law excluded from the proofs of guilt as evidence of character which though tending to make an inference of guilt more probable, ought not to be allowed both in fairness to the accused and consistently with the practical conduct of an inquiry into defined and limited issues. Does the prohibition in s. 399 (e) under the words in question go further?

[18]

One argument against that interpretation is to be found in sub-par. (i) of par. (e) of s. 399. Why, it is naturally asked, should the express provision be made in favour of allowing questions as to the commission of offences and convictions of offences where relevant if without any provision expressly permitting it the accused as a witness may be asked questions simply because they are relevant to proof of the ingredients of the crime, notwithstanding that they do affect his character? The reason is, one may reasonably suppose, that the draftsman saw the two things in different lights. When he expressly prohibited proof of the commission of an offence or of a conviction of an offence the draftsman saw that he was expressly prohibiting proof of a fact he definitely identified independently of its operation or of the ground of introducing it in evidence. On the other hand, in the case of "questions tending to show that he (the accused) is of bad character" the draftsman was dealing with a description of cross-examination going to credit which he thought of as, ex hypothesi, outside the field of relevancy altogether. In other words, in the case of strictly relevant facts he was regarding them as open to proof as part of the Crown case and as necessarily, or at least as naturally, the subject of evidence by the accused if he were called as a witness on his trial and he regarded them as not matter going to the bad character of the accused but as matter going to proof of his guilt. The words describe questions as to that kind of evidence excluded at common law upon the trial of criminal issues as a matter of policy but allowable in the cross-examination to credit of an ordinary witness. It follows that in so far as the questions excepted to in the case of the present applicant were relevant to the issues they were not excluded by the operation of s. 399 (e). But it is anything but clear that all the questions excepted to are relevant to the proof of guilt. On the contrary the connexion between the issues and some matters put to the accused is tenuous in the extreme and in others the connexion does not exist. It is needless, however, to pursue in detail this divergence; for this is an application for special leave to appeal and we must be guided by the principles which govern our discretion to grant such application. It is enough to say that the evidence properly received against the applicant possessed great probative force and raised a strong presumption of guilt and the questions asked of him which ought not to have been allowed, when weighed with the evidence against him, could have no logical operation in persuading a reasonable man of his guilt and moreover, in the circumstances, are unlikely in fact to have played any part in influencing the verdict.

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Before

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Judgment (19 paragraphs)

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