Attwood v The Queen

This application for special leave to appeal involves the interpretation of par. (e) of s. 399 of the Crimes Act 1958 Vict., which relates to the questions that may be asked of a witness who is called upon the trial or hearing of a criminal charge against him.

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.

In the present case the applicant upon his trial gave evidence on his own behalf and he was asked in cross-examination questions which, if considered so to speak in isolation from the circumstances of the crime, would be regarded as tending to show that he was of bad character. It is said, however, for the Crown that the questions all related to facts or circumstances relevant to the proof of the crime charged. Whether that is true of all of the questions is disputed but it is a matter that must be dealt with independently of the contention as to the meaning of s. 399 (e); for it is not denied that many of the questions possessed what may be called the double aspect, namely of having a direct reference to facts relevant to the commission of the crime and at the same time of having a tendency to show that the accused was of bad character.

The crime with which the applicant was charged and of which he was found guilty was murder. He was convicted before Sholl J. in the Supreme Court of Victoria of having murdered a young married woman named Irene Mary Pappas at Geelong on 9th June 1959. She was killed by strangling on that morning at a hotel where she and he had been living as man and wife for the past three or four days. She was strangled by manual pressure upon the throat. If a written statement signed by him which the police produced were accepted she was killed by his hands deliberately for reasons he declined to give. If the evidence he gave upon his trial were accepted he signed this statement without reading its contents, it was untrue, he had no intention of killing the girl but meant only to stop her talking and unintentionally caused her death. It is the antecedent facts leading up to the homicide which give rise to the question now to be decided; for those facts provide the subject matter of the questions which are said to violate the prohibition contained in s. 399 (e).

It is not necessary for present purposes to give more than the briefest account of the facts. The applicant, who had a wife from whom he was separated and a child both living in Sydney, met the deceased woman and her husband, Pappas, at Morwell in Victoria where they lived. They were a young married couple without children. He became a boarder in their house. Two or three months later, Mrs. Pappas, apparently with her husband's consent, set out on a journey by car with the applicant to Sydney. On the journey the car broke down and the two of them put up at an hotel as man and wife. They returned to Morwell by train and Pappas drove them back to retrieve the car they had left on the journey to Sydney. The applicant resumed his residence in Pappas' house in Morwell but Pappas asked him to leave. That was early in the year 1959. Apparently the guilty relationship between Mrs. Pappas and the applicant was renewed from time to time in Melbourne and elsewhere. The point for present purposes arising from the meetings is that more than once the applicant according to the evidence attacked Mrs. Pappas with violence, on at least one occasion seizing her throat.

During his cross-examination the applicant was asked questions tending to show that he had so behaved. He was in fact cross-examined very fully about the incidents. But he was also asked questions having a prejudicial tendency in various other respects which perhaps it is enough to enumerate in very brief terms. First there were questions as to where and how he lived, his movements and his intermittent employment. These tended to give the impression that he was a shiftless person with no settled means of livelihood. Connected perhaps with this were questions as to his borrowing money - £10 it turned out to be - from another young woman and having failed to repay it. Then he was asked about a maintenance order for the maintenance of his wife and child and the amount unpaid under it. This was associated with questions concerning a statement he had made as to the deceased's having said the child was not his but was illegitimate and his resentment and anger at the statement. Next he was asked whether he had not opened a bank account at Geelong and drawn cheques which there would be no funds to meet. He was asked about borrowing money from the deceased, £100 it was suggested, £50 he admitted. Of the borrowing evidence had been given in the course of the Crown case. There were some other matters put to the applicant on his cross-examination but it is enough to mention the foregoing in order to show what are the questions of law involved.

In so far as they are relevant as proof of guilt the allowability of the questions depends upon the interpretation of the restriction contained in s. 399 (e) of the Crimes Act 1958. Are such questions excluded by the words "tending to show that he is of bad character"? The expression "bad character" in relation to a witness has no technical or legal meaning. The expression "good character" has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg. v. Rowton [1] . Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn C.J. said: "The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried" [2] .

1. (1865) Le. & Ca. 520 [ 169 E.R. 1497]. 2. (1865) Le. & Ca., at p. 530 [ 169 E.R., at p. 1502].

"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?

1. (1865) Le. & Ca., at p. 541 [ 169 E.R., at p. 1506].

In practice the words have always been applied as limiting what may be asked in cross-examination to credit but not as affecting cross-examination to strictly relevant facts and this seems to be in accordance with the natural reading of the provision. The words "bad character" although possessing no technical meaning are apt to describe a head of exclusion already known and understood. At common law no motives of policy or humanity or fairness excluded the proof of facts and circumstances forming the parts and details of the transaction and the incidents or matters tending to explain, identify or lead up to the occurrences forming the subject of the issue, in short what we commonly embrace under the term "relevant facts"; it did not exclude such evidence notwithstanding that it might disclose acts or conduct on the part of an accused person which would be considered inconsistent with good character.

The exclusory words in s. 399 (e) do not naturally relate to a fact, matter or circumstance which is in itself directly relevant to the proof of the issues although its occurrence or existence incidentally tells against the possession by the accused of a good character or may be the ground of attributing to him a bad character. This view was expressed by Angas Parsons J. in the Supreme Court of South Australia speaking for the Full Court. His Honour said of the cross-examination there objected to: "Such questions are not directed as to the accused's bad character, but to prove his guilty knowledge, which was one of the issues in the case, and, that being the position, they were not rendered inadmissible by reason of the fact that they might also tend to show that he was of bad character": R. v. Baxter [1] . In Reg. v. Lambert [2] Piper A.J. speaking for the Full Court adopted this statement and also said, "notwithstanding that it appears that the provisoes" (to the provision) "were enacted in order to protect accused persons from such prejudicial effects as might arise from the consequences of enacting that accused persons may give evidence in their own defence, questions which tend to show that he is of bad character may be asked of an accused person if they are relevant to the question whether he did or did not commit the offence charged" [3] . His Honour added: "or to test the veracity of his evidence in chief" [4] , but it is safer to omit this alternative as capable of a construction or application which would carry it beyond relevance into cross-examination to credit. Otherwise the passage expresses the interpretation of the provision which seems best to accord with the probable legislative intention.

1. (1927) S.A.S.R. 321, at p. 327. 2. (1957) S.A.S.R. 341. 3. (1957) S.A.S.R., at pp. 345, 346. 4. (1957) S.A.S.R., at p. 346.

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.

These considerations place the case outside the application of our discretion to grant special leave, which accordingly should be refused.