Special leave was granted in the present case, under the following circumstances. By the Crimes Act 1900 (No. 40), sec. 407 (2), it is provided that an accused person in a criminal proceeding shall be competent, but not compellable, to give evidence, and it is enacted that "it shall not be lawful to comment at the trial of any person upon the fact that he has refrained from giving evidence on oath on his own behalf." It was represented that, on the trial of the appellant on a charge of larceny, the Crown Prosecutor had called the attention of the jury to the fact that, although the appellant might have given evidence on oath, he had not done so, and that on a case reserved the Supreme Court had affirmed the conviction on the ground that a mere statement of the fact was not a comment within the meaning of the section. The language actually used by the Crown Prosecutor is thus stated in the special case: - "Bataillard's statement is a statement merely, not upon oath, and the Supreme Court of this State has gone so far as to hold that the statement cannot be regarded as evidence. It simply goes to the jury for what it is worth. A man makes a statement from the dock not on oath, not subject to the greatest of all tests - that of cross-examination. When people have their backs against the wall I don't think they will stick at telling a few lies."

When the appeal came before the Supreme Court, it was apparently thought that the case was concluded by a decision of that Court in the case of R. v. Macfarlane[5], in which the Court had held that it was not contrary to the enactment for the presiding Judge to remind the jury that a prisoner's statement in contradiction to sworn testimony was itself not on oath, the reason given being that a mere statement of fact was not a comment within the meaning of the Statute. The appellant's counsel accordingly did not argue the matter, and the conviction was affirmed. I do not see any reason for dissenting from the actual decision in Macfarlane's Case[6], but I do not assent to the suggestion that a mere statement of a fact cannot of itself be a comment. What is forbidden by the Statute is commenting upon the fact that the accused person has "refrained from giving evidence on oath on his own behalf." In my opinion, the term "refrain" imports two ideas - opportunity to give evidence on oath, and failure to take advantage of that opportunity. And I think that to call the attention of the jury to the ability of the accused to give evidence on oath, whether that ability is regarded as a matter of fact or law, and to his omission to do so, is a comment forbidden by the Statute. So far I have no difficulty. But in the application of the rule to the facts in the present case, I find great difficulty. In the reasons furnished by the learned Judges to this Court for their decision, they say that the appellant's counsel said that, "seeing the way in which the case was stated and placed before the Court, he was not prepared to argue the case." It is admitted that, when saying so, he thought the case was concluded by Macfarlane's Case[7]. But I am disposed to think that he was right for quite a different reason. I think that the words complained of are ambiguous, and need something in the nature of an innuendo to explain them. The material words are: - "A man makes a statement from the dock not on oath, not subject to the greatest of all tests - that of cross-examination." If such words had been used immediately after the passing of the Act, and when the competency of accused persons to give evidence on their own behalf was not a matter familiar to juries, they might, and probably would, have been innocent. But when the law has been in force for many years, and the trial takes place, as this did, in a Court which is in almost perpetual session, and where the spectacle of an accused person giving evidence on oath on his own behalf is familiar, I am not at all sure that it ought to be inferred that the words would not convey a reference to the fact of the accused person's competency. Again, a mere gesture on the part of the Crown Prosecutor, or a change of inflection in his voice, might have conveyed such a reference beyond all doubt. Suppose that when he used the words, "from the dock," he had pointed towards the witness box, or suppose that the person jointly indicted with the appellant had himself given evidence on oath, the inference would have been unmistakeable, for we are told that the practice in New South Wales is for accused persons to give evidence from the witness box, and not from the dock.

The only question, therefore, that, on my view of the law, arises for decision in the present case, is whether the Crown Prosecutor did, or did not, in fact invite the jury's attention to the appellant's ability to give evidence on oath. I doubt whether the case as stated affords the necessary material for answering this question. And, if I were sitting in the Supreme Court, I should be disposed to order it to be restated. But I do not think that this Court can, consistently with the rule to which I have already referred, properly entertain an appeal in a criminal case on what turns out to be a mere question of fact, on which different minds might readily arrive at different conclusions. In my opinion, the leave to appeal was improvidently granted, and should be rescinded.

The second sub-section of sec. 407 of the Crimes Act 1900 was passed after the decision in Kops v. The Queen; Ex parte Kops[8], and must be read in the light of that case. That was a special leave to appeal from a judgment of the Supreme Court upholding a conviction. The nature of the application appears from the following passage from the judgment of the Privy Council[9]: - "The point on which special leave to appeal is sought in the present case is whether upon the trial of a prisoner since the passing of the New South Wales Criminal Law and Evidence Amendment Act (55 Vict. No. 5), it is legitimate for a Judge, in commenting upon the facts proved, to refer to the capacity of the prisoner to give evidence on his own behalf, and so explain matters which would be naturally within his own knowledge, and of which an explanation would be important in view of the evidence already given. The argument would have to go, and did go, to this length - either that in no case is a Judge entitled to comment upon the prisoner having refrained from giving evidence, or that in this particular case there were circumstances rendering such a comment illegitimate in point of law."

Their Lordships refused leave to appeal, and, from what they say, evidently regarded it as a comment "to call attention to the fact that the prisoner has not tendered himself as a witness, it being open to him either to tender himself, or not, as he pleases"[10].

At that time there were in force two special provisions with reference to the trial of an accused person. The first was contained in sec. 470 of the Criminal Amendment Act 1883, and is now repeated, so far as revelant to this case, in sec. 405 of the present Crimes Act; the other was found in sec. 6 of the Criminal Law and Evidence Amendment Act 1891, in the following terms: - "Every person charged with an indictable offence, and the husband or wife, as the case may be, of the person so charged, shall be competent, but not compellable, to give evidence in every Court on the hearing of such charge: Provided that the person so charged shall not be liable to be called as a witness on behalf of the prosecution nor to be questioned on cross-examination without the leave of a Judge as to his or her previous character or antecedents." In July 1898, an Evidence Act was passed, which made further provisions regarding the protection of persons accused in criminal proceedings. This so far left the law as laid down in Kops' Case[11] still subsisting. But in November 1898, a short Act was passed, called the Accused Persons Evidence Act 1898 (No. 30 of 1898), and enacting by sec. 1 that - "It shall not be lawful to comment at the trial of any person upon the fact that he has refrained from giving evidence on oath on his own behalf." Sec. 407 now contains the enactments of 1898. The legislature appears to have taken the very words "comment" and "refrained" from the Privy Council's judgment in Kops' Case[12], and, reading the legislation by the light of that judgment, it appears to me to be plain. A new opportunity had been afforded to a prisoner to establish his innocence if he could. But reasons other than a sense of guilt, such as timidity, weakness, a dread of confusion or of cross-examination, or even the knowledge of a previous conviction, certainly in a summary proceeding, and perhaps in the case of a trial for an indictable offence, might easily prevent the accused person from availing himself of the new means permitted by law. Hence the legislature determined to prevent the enactment, if not used by the prisoner, from being employed as a means of inculpation. This leads me to the conclusion that sub-sec. 2 of sec. 407 is a limitation of the power of comment only so far as relates to the rest of that section, and contains no prohibition regarding sec. 405. It is necessary to bear this distinction in mind. So far as the latter-mentioned section is concerned, the law remains unchanged, and comment may still be made, either that the prisoner has not made any statement as permitted by that section, or that the statement, if made under it, is not on oath, and therefore may not be considered as weighty as the evidence of witnesses under oath. If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, "refrained from giving," evidence on oath, there would be a contravention of the sub-section now under consideration. The question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used.

Here we have nothing but the case as stated before us, and on full consideration I think the words complained of, standing alone, and without any circumstances pointing to a further meaning than appears on their face, do not contain any express or implied statement or suggestion that the accused had the right, if he chose, to give evidence on oath, and yet abstained from doing so. In other words, they do not in themselves exceed the legitimate comment that a prisoner exercising his right (and for all that appears from the words in question the only right he has) of merely stating facts on his own behalf, is likely to overstep the truth to save himself, and that his statement, not being on oath, is not capable of being tested by cross-examination. The Supreme Court relied on Rex v. Macfarlane[13]. With the judgment in that case I agree, though it is plain that the fact of a prisoner's statement not being on oath may well be presented as to amount to a comment, that it might have been made more reliable by being given on oath. However, as I cannot see that any wrong principle of law has been applied to the facts of this case, and for the purpose of indicating the proper practice in such matters, I agree that the right order is to rescind the leave given.

I concur in the order proposed. The words used by the Crown Prosecutor have been set out in the judgment of the Chief Justice. According to the case as stated, there is no complaint against the Crown Prosecutor, except that he exceeded his duty by merely using the words. Nothing is alleged against him but the bare words. The New South Wales Crimes Act 1900, sec. 407, enables an accused person to give evidence on oath, but provides in sub-sec. (2) that "it shall not be lawful to comment at the trial of any person upon the fact that he has refrained from giving evidence on oath on his own behalf." The comment must be on the refraining - on the fact that he could have given evidence on oath and has not done so. In this case, I cannot find any such comment. Under another section - sec. 405 - the prisoner can make a statement without oath; and the Crown Prosecutor merely pointed out to the jury, as he was entitled to point out, that this statement was not on oath, was not subject to cross-examination, and was made under such circumstances as to strongly tempt a prisoner to tell an untruth. There is no suggestion in the words of the Crown Prosecutor - so far as I can find - to the effect that the prisoner was at liberty to give evidence on oath, or that he had failed to avail himself of such a privilege. I am not able to take the view that a mere statement of the fact that the prisoner had this power, and failed to use it, cannot, under any circumstances, be a "comment," as the Full Court seem to have thought in Rex v. Macfarlane[14]. But I agree with the Full Court in the result, that the Crown Prosecutor did not in this case, or in Macfarlane's Case, exceed the limits of his duty.

I should like to add that the Full Court seems to have treated Mr. Breckenridge as having abandoned his appeal. I should have felt great difficulty in entertaining this appeal in the face of the expressions used to this effect by their Honors, but for Mr. Browning's frank admission. Mr. Breckenridge, it seems, merely intimated that, in view of the decision of the Full Court in Macfarlane's Case[15], he would not take up the time of their Honors with arguments which they had already overruled.

I understand that it has been the practice of the High Court to rescind the leave to appeal in such a case as the present; and I see no sufficient reason for departing from this practice under the circumstances.

Solicitor, for the respondent, The Crown Solicitor for New South Wales.

[10] (1894) A.C., 650, at p. 653.