Curwood v R [1944] HCA 40

Curwood v R [1944] HCA 40 - HCA 1944 case summary — Zoe

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e ye Appication for special leave to appeal from the Supreme Court of Victoria. Ronald Frederick Curwood was charged under s. 42 of the Crimes - Act 1928 (Vict.) that at Tottenham, Victoria, on 9th September 1944, he did unlawfully and carnally know and abuse a girl under the age of ten years. He was convicted. é There was undisputed evidence for the jury that some person - had had connection with the girl. She and other children gave - evidence, not all on oath, which, as the trial judge said, could not be relied upon as providing satisfactory identification of Curwood as the man who had interfered with her. i Curwood had on 13th September 1944 signed a full confession of - his guilt. The police who had obtained this confession were cross- examined to show that they themselves had suggested the facts - appearing therein, and had by violence and threats of further violence procured Curwood's signature thereto. Curwood himself gave evidence and swore that it was in this way the confession was a obtained. r. The Crown Prosecutor then applied, in the absence of the jury, - for leave under s. 432 (e) (ii) of the Crimes Act 1928 to cross-examine Curwood as to a prior conviction for indecent exposure and as to - admissions made by him to the police of attacks on two other young - women on or about the same day. Section 432 (e) provides: "A person charged and called as a witness in pursuance of this section - shall not be asked, and if asked 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, unless - {i) . . . (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or - conduct of the defence is such as to involve imputations on the by character of the prosecutor or the witnesses for the prosecution : Provided that the permission of the judge (to be applied for in the absence of the jury) must first be obtained." The trial judge,

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Monahan. There must be some limitation placed upon the literal meaning of the words " involve imputations on the character" in s. 432 (e) (ii) of the Crimes Act 1928 (Vict.) (R. v. Sheean (1); R.v. Biggin (2); R. v. Turner (3) ; Stirland v. Director of Public Prose tions (4) ). Those words do not involve an imputation on the pr cutor or his witnesses but on their character, that is, on their gener: character or general reputation (R. v. Dunkley (5) ). The evidence that the applicant had on the same day made another confession i relation to another girl and in relation to a minor offence w wrongly admitted. The permitting of the cross-examination, what- ever it was for, is beside the point. The cross-examination went too far. From it the jury would conclude that the applicant was aman of bad character. Several of the questions put to the applican t should not have been so put because they were either unnecessary or framed in such a way as to prejudice the applicant. The limita- tion operates where the proper conduct of the defence, as distinet from the nature of the defence, necessitates the making of injurio imputations. It operates to enable an accused person to put forward any defence open to him on the indictment (R. v. Turner (3)). Section 432 was wrongly construed in R. v, Woolley (6). In view of the decision and observations in Stirland v. Director of Public Prose- cutions (4) the decision in R. v. Hudson (7), which was applied in R. v. Woolley (6), cannot now be regarded as good law. Although not specifically referred to in Stirland's Case (4) the reference therein to R. v. Dunkley (8) shows that Hudson's Case (7) was present to" the minds of the members of the House of Lords. The veracity. : or otherwise of an accused's statement does not make cross-examina- - tion admissible (R. v. Ellis (9)). A statement or answer by an accused that a prosecutor or any of his witnesses is a liar in respect of certain facts is not an attack on character of the nature protected

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(2) the House of Lords thought it desirable to make "a statement 'of a clear and universal ratio decidendi" as referred to in R. v. Dunkley (3). In R. v. Preston (4) there was not any imputation as regards character within the meaning of the section. The prin- ciples deducible from R. v. Turner (5) are that the words have some limitation and that an accused person is entitled to raise any ground ofdefence. The conduct of the defence is the testing of the probative force of allegations against the accused person, including the volun- tariness of an alleged confession. R. v. Wright (6) was wrongly _ decided. In the circumstances the confession was not made volun- tarily by the applicant. The admittance of evidence of other 'instances of similar conduct was wrong. The questions should not have been put to the applicant (Mazvwell v. Director of Public Prosecu- "tions (7) ). Effect should be given to the words " shall not be asked " ins, 432 (Phipson on Evidence, 8th ed. (1942), p. 449). The limita- tion operates where the imputation is cast otherwise than indepen- dently of the defence (R. v. Bridgwater (8) ). The limitation also operates where the matter is introduced for purposes relevant to the defence (R. v. Biggin (9)). Further, the limitation operates _ where the matter raised is not an attack on the prosecutor or his witnesses but is an endeavour to elicit the facts of the matter in controversy (R. v. Westfall (10); R. v. Preston (4)). Two things follow from Stirland's Case (2). Proposition 4 in the speech by _ Viscount Simon L.C. (11) goes beyond what was decided in Turner's Case (5) and, in the absence of the more apt words " proper nature _ of his defence", cannot be restricted as in the last-mentioned case. _ Although the decision in Stirland's Case (2) was for some months _ reserved for consideration, doubtless for the purpose of formulating _ tules governing the admissibility of questions put to an accused _ person, the rule enunciated in R. v. Hudson (12) has not been included and, therefore, must be regarded as having been overruled. As tegards the propriety of the application, see R. v. Haddy (13). The _ conduct of the prosecutor or his witnesses is conduct outside the case, that is, imputed conduct (R. v. Preston (4)). The words "nature of the defence" and "conduct of the defence" may involve different considerations (R. v. Dunkley (14)). The word

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matter was not further pursued, but when this answer is read conjunction with the rest of the cross-examination it is evident th the jury might well have drawn the conclusion that his admi: related to one or other of the occasions already mentioned when i was suggested that he had attacked a woman and a girl. particular question and answer should be regarded as tending show that the accused was of bad character. 4 The question which arises, therefore, is whether the conditions s. 432 (e) (ii) were satisfied. That provision is in the followi terms : - 'A person charged and called as a witness in pursuance this section shall not be asked, and if asked shall not be required answer, any question tending to show that he has committed been convicted of or been charged with any offence other than wherewith he is then charged, or is of bad character, unle (i) . . . (ii) he has personally or by his advocate asked questi of the witnesses for the prosecution with a view to establish own good character, or has given evidence of his good charac or the nature or conduct of the defence is such as to involve imputa tions on the character of the prosecutor or the witnesses for tl is prosecution; Provided that the permission of the judge (to bi applied for in the absence of the jury) must first be obtained". It is impossible to reconcile all the decisions upon the section. Most of them may be found conveniently set out in Halsbury's Laws of England, 2nd ed., vol. 9, pp. 215-217, and Supplement 1943, p. In Taylor on Evidence, 11th ed. (1920), vol. 11, p. 929, it is sai this section: "It is hopeless to attempt to extract any princi from the authorities" ; and in articles in the Law Quarterly Review Professor Julius Stone has demonstrated what are described "the profound obscurities" of the section (Law Quarterly Review, vol. 51, p. 443, at p. 466, and vol. 58, p. 369). : The provision was introduced as part of the legislation permit an accused person to be a competent witness in his own defence. It is prohibitive in terms. It prevents, not only the answering, but also the asking, of questions tending to show that he has com- mitted or been charged with an offence other than that wher L he is then charged or that he is of bad character, unless one of th

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and Westfall (1) were considered. The actual decisions in these cases were supported on grounds which deprived them of all autho in relation to the question now under consideration. The de in Bridgwater's Case (2) was supported on the ground that the cross-examination of the Crown witness did not involve any imputa tion of any kind upon his character. The decision in Preston's Ca (3) was supported not upon the ground stated by Channell J, () (which distinguished between imputations directly connected with the allegations made against the prisoner and imputations based on matters outside the evidence given by the prisoner) but upon the ground that the crucial statement in the case "was a mere uncon- sidered remark made by the prisoner without giving any serio attention to it" (5), so that it should not be regarded as a rea imputation by the prisoner. Westfall's Case (1) was treated an application of the decisions in the cases of Preston (3) a Bridqwater (2). The court stated that the three cases mentioned could not be regarded as laying down a general rule, and the court - expressly approved a ruling " followed on many occasions," which was illustrated by R. v. Marshall (6), where it was held that where, in a case of murder, the prisoner in giving evidence alleged that the deceased had been killed by her husband, who had been called as i a witness for the prosecution, she could be cross-examined as to. previous convictions. In Marshall's Case (6) it is plain that the imputation made was connected in a most direct manner with the | facts alleged against the accused and relied upon as constituting | an ingredient of the offence charged, namely, the killing of the person - alleged to have been murdered. In Hudson's Case (7) the court concluded its judgment by saying: " We think that the words of - the section, 'unless the nature or conduct of the defence is such - as to involve imputations,' &c., must receive their ordinary and natural interpretation, and that it is not legitimate to qualify them by exiting, or inserting the words ' unnecessarily,' or ' unjustifiably," or ' for purposes other than that of developing the defence,' or other similar words " (8). 4 This decision construes the words of the section in their ordinary - sense without making distinctions between attacks upon or insinua- tions against character, some of which are not to be regarded as imputations because they are directly connected with the case, - others of which are to be regarded as imputations because they relate to matters which are not part of the facts alleged against the aceused

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in effect, to the character of a witness considered apart from any evidence relating to the facts of the particular case. R. vy. Biggin (1) was relied upon by the applicant, but the actual ion in the case has nothing to do with the matter now under ideration. The decision was that a dead man was not a prose- that an imputation against him was not an imputation upon character of a prosecutor, and that the particular questions asked were not admissible in relation to the credibility of the witness. It is true, however, that the court cited a passage from a judgment 'hannell J. in R. v. Preston (2) which restated the doctrine which been rejected in R. v. Hudson (3). n R. v. Roberts (4) the principle established by R. v. Hudson (3) s applied in a case where the imputation relied upon as making dence of the character of the accused admissible was that a witness for the prosecution had said that she was going to have revenge and have him arrested upon a charge which she knew false. The court said: "'In the present case the imputation on the character of the woman was the whole substance of the ence." On this ground it was held that evidence of previous convictions was rightly admitted, that is, on the ground that the imputation was part of the defence and necessarily involved in it. Such a decision applies R. v. Hudson (3) and is quite inconsistent vith the doctrine that the fact that an imputation is necessarily volved in a defence does not deprive an accused person of the ] 'ion of the section. Rv. Jones (5) affords another example of the application of the principle of Hudson's Case (3). In Jones' Case (5) counsel for the , acting on instructions, stated that there was no genuine e against him, but that the police had manufactured a confes- by him and had obtained remands in order to enable them to ect their manufactured evidence. It was held that it was one to deny emphatically the statement which a detective had , but quite another thing deliberately to say as to the evidence 'inst him " that the whole thing was a wicked fabrication of the jolice." This was held to be an imputation on the character of he witnesses for the prosecution within the meaning of the section, Ithough it directly related to the evidence which those witnesses given in the case. The imputation was necessarily involved in

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H.C. or A. Wright's Case (1), is similar to the present case in that the imputation 1 which let in evidence was an allegation of misconduct in relation to Crrwoon 2 Confession relied upon by the Crown. v. In R. v. Dunkley (2) the principle established by Hudson's Case Tur KIN¢. (3) was again applied. In this case it was suggested in the Latham CJ. examination of a witness for the prosecution that the evidence of the witness was "not merely a pure invention, but was due to malice oy against the prisoner arising out of a past grievance. The suggestio therefore was a suggestion of present malice arising from past facts, The past facts in themselves did not constitute any imputation. against the witness. The suggestion of present malice in giving evidence was held to be an imputation which let in cross-examination of the accused in relation to his character. 4 The authorities mentioned were considered by the Full Court of the Supreme Court of Victoria in R. v. Woolley (4), where it was said that the case of Hudson (3) " expressly repudiated the doctrines suggested from time to time . . . thats. 432 of the Crimes Act does not apply to cases in which the imputations on the character of witnesses for the prosecution are necessarily involved in a presenta- tion of the defence." It was pointed out that the decision in Hudson's Case (3) was a decision of a special court of five judges 4 convened for the special purpose of dealing with that very point. In the present case part of the defence of the accused was that he had been forced to sign a confession by the brutal conduct of members of the police force who gave evidence against him. It was held by the learned trial judge that the nature and conduct of his defence was therefore such as to entitle the Crown Prosecutor - to cross-examine him as to his character. The decision of the learned judge is in accordance with the decisions in the following cases: Marshall (5), Rouse (6), Wright (7), Hudson (3), Roberts (8), Jones (9), Dunkley (2) and Woolley (4). It is said, however, that the authority of all these cases is destroyed by the decision of the House of Lords in Stirland vy. Director of Public Prosecutions (10). In that case Simon L.C. stated certain - propositions with respect to the legislative provision now under - consideration. One of these propositions was in the following - terms: "4. An accused is not to be regarded as depriving himself of the protection of the section, because the proper conduct of his defence necessitates the making of injurious reflections on the .

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Here, as an indispensable part of his case answering the incri ing evidence adduced by the prosecution, the prisoner imput police witnesses the extortion of a confession by duress. Does satisfy the critical words of the second paragraph ? There is or interpretation of that part of the proviso, which, if adopted, wou require the answer that it does not satisfy the requirement expresses. It is an interpretation which restricts the applica the words " imputations on the character of the prosecutor or witnesses " to what is advanced for the purpose of destroying | impairing confidence in them as persons who would tell the trut In other words, it restricts the application of the words to the ero examination of the witnesses for the prosecution in relation matters not relevant to the issues under the indictment, excep so far as they affect the credit of the witnesses by injuring character, and to attempts to discredit them on like grounds other means, such as, for example, by assertions by the pris whether from the dock or from the witness box. There is, I a distinct line of cases in which this interpretation was adopted, though its statement has taken various forms. It is the view of the provision rather suggested by the expressions of Lord Alver: CJ. in R. v. Bridgwater (1) when he said that the imputati that the witness was guilty of misconduct independently of defence, or of the necessity of developing the defence, would rais different considerations because then they might be construed as attack on the general character of the witness. But the interpre tion was first definitely formulated by Channell J. in R. v. P (2) in delivering the judgment of himself, Lord Alverstone O.J. Walton J. After saying that the foregoing statement (3) of Alverstone seemed to explain the principle upon which evidence | previous convictions is admissible, he stated that the latter part of the section appeared to mean this : - ' that if the defence is so con- ducted, or the nature of the defence is such, as to involve the p position that the jury ought not to believe the prosecutor or one the witnesses for the prosecution upon the ground that his cond

not his evidence in the case, but his conduct outside the evit given by him - makes him an unreliable witness, then the j ought also to know the character of the prisoner who either gi that evidence or makes that charge, and it then becomes admiss to cross-examine the prisoner as to his antecedents and chara with the view of showing that he has such a bad character that jury ought not to rely upon his evidence. That is the general na
of the enactment and the general principle underlying it" (4).

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In R. v. Hudson (1) the question again was whether an attempt on the part of the prisoner to fasten the crime on one of the witnesses satisfied the condition expressed in the clause. Because of certain expressions in Bridgwater's Case (2) and in Preston's Case (3) it" was thought desirable that this point should be argued before a court of five judges (4). Lord Alverstone gave their reasons for deciding that such a defence did expose the prisoner to cross-examin- - ation about prior convictions. He said that the ruling of Darling J. in Marshall's Case (5) had been followed on many occasions and that in Preston's Case (3) the court had no intention of overruling - it (6). Of Bridgwater's (2), Preston's (3) and Westfall's (7) cases he said that they might well be supported on grounds not touching the case before him, but they could not be treated as laying down a general rule applicable to all cases and they are not a complete enunciation of the law under the section. He added that the court thought that " the words of the section, 'unless the nature or conduct of the defence is such as to involve imputations, &e.', must receive their ordinary and natural interpretation, and that itis" not legitimate to qualify them by adding or inserting the words 'unnecessarily,' or 'unjustifiably,' or 'for purposes other than that of developing the defence,' or other similar words" (8). It appears to me that this view has been followed or applied in R. y, Wright (9), in R. v. Jones (10), in R. v. Dunkley (11), in R. vy. McLean (12) and in R. v. Pollinger (13). Tt is true that in Jones' Case (10) the passage set out above from the judgment of Channell J. in Preston's Case (14) was quoted ; but the court proceeded to disti guish between words amounting merely to an emphatic denial of evidence for the prosecution and words involving imputations. The decision would cover the present case, because it related to a confes- - sion which the prisoner said had been manufactured. So would Wright's Case (9), which was based on a suggestion by the prisoner that admissions proved against him had been obtained from him by bribes and threats on the part of the policemen who gave evidence. These cases show, in my opinion, that the provision has received an interpretation by which it applies not only to attempts by cross examination, or otherwise, to destroy or weaken confidence in the prosecutor and others as witnesses by imputations affecting their -

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'that the Lord Chancellor's proposition should apply to a case in which the denial of any incriminating fact which is introduced by e prosecution - for example the fact that the accused voluntarily sed his guilt - necessitates the making of the injurious reflec- It seems to me that R. v. Turner (1) is cited to illustrate the ion, not to restrict its clear general words. _ The passage which precedes the statement of the six propositions n Stirland's Case (2) indicates, I think, that they were intended to eplace the " multi-coloured lights" of the decided cases. They profess to be a restatement of " the rules which should govern the 'cross-examination to credit of an accused person in the witness box" and "to cover the ground." The fourth proposition is authoritative upon the interpretation of the words " the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution " and supersedes any inconsistent rule which is in any decided case for the interpretation of those words. For this reason I do not make asurvey of the decided cases in order to gather the rule of interpreta- _tion to be applied in order to solve the present problem. In any case a survey is made in the reasons for judgment of other members of the Court and it is unnecessary to repeat it. There is no ground for the assumption that the Lord Chancellor intended to preserve the authority of the line of cases of which R. v. Hudson (3) is repre- _ sentative rather than that of the line of cases of which R. v. Preston (4) is representative. Indeed, the rule of interpretation laid down 'in R. v. Hudson (3) cannot, I think, be reconciled with the fourth proposition in Stirland's Case (5). __ The decision of the present case should be governed by the Lord Chancellor's fourth proposition rather than by R. v. Jones (6), R.v. Wright (7), or R. v. Woolley (7). The facts of R. v. Wright (7) _ are like those in the present case. That case, like the present, turned. upon the meaning of the words "the nature or conduct of _ the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution." The report of the statements that were made in argument by the judges who _ decided that case indicates that the decision may have been governed by a view opposite to that which was adopted in R. v. Turner (1). Darling J. stated : "it might be his only way of defending himself, (1) (1944) K.B. 463. (6) (1923) 39 T.LR. 457; 17 Cr. (2) (1944) A.C., at p. 326. App. R. 117. (8) (1912) 2 K.B, 464, (7) (1910) 5 Cr. App. R. 131.

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"a horrible liar " was held to involve an imputation on his character (R. v. Rappolt (1)). In R. v. Preston (2) one of the issues 4 whether the defendant was the man who was seen near the plac where the offence was committed. The defendant was placed in row with a number of other men and the prosecutor's wife a another witness identified him as the person whom they saw there, - A third person failed to identify him and picked out another man instead. An inspector of police, who was present when the last-men- tioned person failed to identify the defendant, was called as a wi for the prosecution. The defendant in evidence said that (the | inspector) " sent a fellow out to fetch the man in, and he said deliber- _ ately 'the second' and the man came in and pointed to the second - and picked the other man out. I was second from the other end, not ; that end." The Court held that this was not conducting the defence so as to involve an imputation on the character of the inspector within the meaning of the section. Channell J., in delivering the judgment of the Court, said that it appeared to the Court that the section means " that if the defence is so conducted, or the nature of the defence is such, as to involve the proposition that the jury ought not to believe the prosecutor or one of the witnesses for the - prosecution upon the ground that his conduct - not his evidence in the case, but his conduct outside the evidence given by him - makes - him an unreliable witness, then the jury ought also to know the character of the prisoner who either gives that evidence or makes that charge, and it then becomes admissible to cross-examine the prisoner as to his antecedents and character with a view of showing - that he has such a bad character that the jury ought not to rely ES upon his evidence. That is the general nature of the enactment and the general principle underlying it" (3). Later he said, in referring to the defendant's evidence, that " the allegation was made with reference to a matter which could not be said to be irrelevant. The prisoner was almost bound to give some evidence upon the subject of his identification at the police station . . . the making of such an imputation was not in any way the substance of - the defence ; it was not part of the nature or conduct of the defence -

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evidence which they had given or the accused could give in the same way as in Hudson's Case (1). F The two cases that appear to be closest to the present application on their facts are R. v. Westfall (2) and R. v. Jones (3). In Rv. Westfall (2) the fact that the accused gave evidence that a constable who arrested him and gave evidence had used undue violence was held to be evidence of the facts of the case and not to raise an imputa- tion against the character of the constable within the meaning of the section. In R. v. Jones (3) the prisoner was accused of burglary, the only evidence against him being that of a detective who said that he had made an oral confession that he had committed the crime. The accused denied that he had ever made the confession, so that it would only have been necessary, in order to elicit the relevant facts, to cross-examine the constable as to the occasion upon which the confession was alleged to have been made, and for the accused to give his account of what then occurred, including an emphatic denial of the making of the confession. But the accused, who had been remanded four times, went much further and stated by his counsel that his case was that the whole of the evidence against him had been manufactured, and that it was for this purpose that the police had obtained the four remands. It was held, there- fore, that the very "scheme and framework of the defence" was that the case for the Crown was a wicked fabrication, and that this involved a serious imputation upon the character of the police. When the whole of the authorities are examined they show, I think, a more consistent approach by the courts to the construction of the section than is apparent at first sight. Upon a criminal trial the onus is on the Crown to prove beyond reasonable doubt all the facts which are essential ingredients in the offence with which the accused is charged. There may be direct evidence to prove or dis- prove these facts, but there may also be facts which are relevant to their proof or disproof, in that they are capable of affording a reasonably conclusive inference with respect thereto. In addition to these facts, either the Crown or the accused may seek to prove facts which are only admissible in cross-examination to impeach the credibility of the witnesses called by the other side. The charae- ter of all the witnesses other than the accused is equally open to attack on the ground of credit. But the character of the accused is only open to attack to the extent permitted by the section, which in effect provides that it is not to be open to attack unless the

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sed elects to give evidence of his own good character, duct his defence in such a way as to involve imputations upon the character of the prosecutor or his witnesses. The conduct of the lefence may involve imputations within the meaning of the section, whether the questions are put to the prosecutor or a witness for the prosecution as part of his conduct in relation to the case but outside evidence which he has given or the accused can give in an attempt to establish a relevant fact, as, for instance, in Hudsons Case (1), that the witness and not the accused committed the offence, or they are put in an attempt to impeach the credit of the prosecutor or his witnesses. But such imputations as necessarily arise out of the examination and cross-examination of these witnesses by counsel for the accused upon the facts in issue or relevant to the issue to _ which they have testified, or out of his counsel putting to them his _yersion or his giving his evidence of that version, have never been considered, so far as I can see, to cause the defence to be of such a _ nature or so conducted as to involve imputations upon the character the prosecutor or his witnesses within the meaning of the section, but have always been regarded as relating to matters referred to by the prosecution, and designed to rebut the facts sought to be established by the prosecution (R. v. Watson (2); R. v. Cohen (3) ). This follows from what Chanmell J. said in R. v. Preston (4), and any doubt that was thrown upon what he there said by R. v. Hudson (1), although the above passage in his judgment has been frequently cited since R. vy. Hudson (1), has been removed, to my mind, by the reasoning of Humphreys J. in R. v. Turner (5) and by Lord Simon's 'statement of the law in his fourth proposition (6). In the present case all that the accused did was, by his counsel, to cross-examine the police witnesses, and to give evidence himself ipon the facts which he said occurred at the making of the confes- sion. The proper conduct of his case necessitated the placing of his _ version of these facts before the jury. If the evidence had related to a fact in issue, it is clear from his Lordship's reference to R. v. Turner (5), that it would have been within the fourth proposition. _ But I am unable to believe that Lord Simon, by his reference to _ this case, intended the proposition to be confined to injurious reflec- tions necessarily arising out of evidence of the facts in issue, and not to include evidence relating to facts relevant to prove or disprove the facts in issue. If he had intended to hold that such cases as

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Judgment (230 paragraphs)