Da Costa v R [1968] HCA 51;

Da Costa v R [1968] HCA 51; - HCA 1968 case summary — Zoe

[11]

"The accused has said that he was lying on the ground

without anything in his hands, when the deceased approached

him and not only threatened but actually applied violence by

means of a piece of iron pipe. In that situation he grasped a

stone in one hand, threw it, and hit the deceased. Now if it

was that blow with that stone which, hitting the deceased,

caused his death, that is a text-book case of self-defence, and

if you accept that story you must find the accused not guilty

because all that he did he did in self-defence. He was lying on

the ground without a weapon, he was being attacked by a man

standing up, with an iron pipe, and he grasped a stone and

threw it. I am sure it is beyond dispute, is it not, that that

was a reasonable thing to do in the circumstances.

He was using no more force than was reasonably necessary

because, after all, he was doing his best to ward off blows with

his left leg and left arm. He was using no more force than was

actually necessary to protect himself. If - I am not expressing

an opinion one way or the other - you accept that as the truth,

and nothing else happened, but that it was the blow on the

head by the stone thrown by the accused in those circumstances

which caused the death of the deceased, then your verdict must

be one of not guilty because he has made out the defence of

self-defence and if you accept it the Crown has certainly not

satisfied you that the death was due to an act not done in

self-defence. Now that I use as an illustration to make clear

the law as to self-defence.

Perhaps I should, at this stage, develop what I have just

told you, that being the essence of the defence in this case,

that a fight developed first of all with fists, that he twisted,

slipped and fell, as he was lying on the ground, he was

threatened by the deceased with an iron bar, he took up a

stone and threw it and it hit the deceased causing him to

bleed. I am not going into it in any detail now. He then did

certain other things and he left. This amounts to saying either

the deceased died because of that blow, being hit on the head

with that stone, in which case it entitles the accused to an

acquittal because his defence is made out as self-defence -

on that hypothesis the subsequent gross injuries received

were received in some unknown manner after death; they

have nothing to do with this - or alternatively the deceased

was subsequently attacked and grave injury was done to

him by some other person, by some other means, and once

again it follows that the accused did not do any acts causing

his death."

[13]

". . . nor indeed is there any certain proof that it was these

head injuries which caused the death of the deceased. You

may think it is; you may well be satisfied beyond reasonable

doubt that it was, but it is not mathematically proved.

Indeed, the accused's story involves, on one possible

interpretation,

that the injuries were done after death because,

as I have already explained to you more than once, the

accused's defence is that either somebody else killed him with

those injuries or he died as a result 'of my stoning him' and

somebody inflicted those injuries after death.

Now there is no certainty about this at all. It is for you

to decide; not as a matter of probability - do not think it is

a question of one story being more probable than another;

the question always is: are you satisfied beyond reasonable

doubt, looking at all the evidence?

Now the rock: the Crown case is that the accused battered

the head of the deceased with some very large object. It may

well be that this object, say the Crown, was the rock of which

we have heard so much, which is in the photographs. They

say this is supported by the fact that blood was found on the

rock and this blood could have been the blood of the deceased.

It is consistent with this rock having drawn blood from the

deceased, or at any rate, the deceased's blood being on the rock.

Once again, there is no certainty. It is another circumstance

which you consider in relation to all the other circumstances.

What is certain is that the blood on the rock was not the

accused's, because it was group O whereas the accused's was

group A.

If you wish me to do so at some later stage I will read to

you the evidence about the placing of the rock and the views

of Dr. Tucker. For what it is worth I do not think I need read

you that evidence now unless you ask me to, but all that the

Crown case suggests is that this rock could have been the rock

which was used by the accused.

You heard Dr. Bromwich's evidence that such a rock dropped

from a distance of anything between a foot and ten feet, and

obviously anything more, would cause the massive injuries

described, at any rate as a matter of probability, assuming

that the head of the deceased was up against something hard

on the other side.

You have also the accused's answers to Mr. McMahon in

which he said, 'Yes, that could have been the rock'. You

will accept, as certainly I do, that he could not have thrown

it with one hand, and in particular lying down.

Even if it had been - and you will probably accept what

Dr. Bromwich says - even if it had been thrown in the way

that a shot-put is done in athletics it is unlikely perhaps that

it would have brought about the massive damage to the skull

which has been described.

But, of course, it is not crucial to the Crown case that that

rock was used. It is suggested as a possible explanation, but

the Crown case does not stand or fall by that rock. It may

have been some other object." (at p190)

[15]

4. The statements of the prisoner to the police as recounted by the police witnesses and the prisoner's testimony at the trial are stated at length in the summing up. This material is too long for quotation here but, of course, all the details of it require careful attention. The question whether it was right not to give a direction to the jury on the question of provocation depends on the material contained in this police evidence and the prisoner's testimony. I think it was clearly open to the jury on such evidentiary material if they had been directed to consider the question of provocation, to accept the view that the prisoner was provoked by the deceased's assault on him with the piece of iron pipe to lose his self-control. A reasonable jury would expect that a provocative act of that kind, done where the prisoner and the deceased were and in the circumstances in which the prisoner found himself, would have thrown an ordinary man into a state of great excitment and trepidation and caused him to lose his self-control. A jury could, on the evidence, find that under emotions of that kind the prisoner threw the stone believing that the deceased intended to attack him again with the piece of iron pipe and the prisoner lost control of himself. It is clear on the prisoner's story that he threw the stone at the deceased without any premeditated design. On the evidence of the prisoner the defence of provocation was legally available to the prisoner. In my opinion it was a miscarriage of justice to deprive the prisoner of the chance that the jury might have a reasonable doubt as to his being guilty of murder and accordingly reducing his criminal liability to manslaughter. It follows that the judge's direction that there must be an absence of self-defence, but not provocation which is not mentioned, is not complete as far as this case is concerned. Nor are the directions as to self-defence, because they leave no room for the principle in Reg. v. Howe [1958] HCA 38; (1958) 100 CLR 448 . I think that the direction in respect of manslaughter, which is towards the end of the summing up, is not right. The judge said in the course of this direction: "No evidence has been adduced in this case suggesting that that" (i.e. manslaughter) "is the proper inference to draw in law on what happened. Nothing has been said by the accused or on his behalf which suggests that possibility. The defence is an absolute defence." I find it difficult to reconcile all that is in this statement with views expressed on both sides in the addresses of counsel, in the absence of the jury, to the Court on the question of leaving provocation to the jury. But apart from this the direction cannot be supported. Dixon J. (as he then was) in Packett v. The King [1937] HCA 53; (1937) 58 CLR 190, at pp 213, 214 said:

[17]

I think the direction on manslaughter as a whole must have left upon the jury the impression that they could hardly do otherwise than find the prisoner guilty of murder or acquit on the ground that self-defence was made out. I think it is appropriate in this case to refer to what Dixon J. (as he then was) said in Packett v. The King [1937] HCA 53; (1937) 58 CLR 190, at p 217 , regarding the distinction between self-defence as a ground of justification and provocation as a ground on which the accused's offence could be found to be manslaughter or might be reduced to manslaughter. I think that it cannot be affirmed as true that the jury rejected the evidence of the prisoner that he threw a stone at the deceased man, and that they rejected the possibility that fatal injury to the deceased's brain was caused by the blow. In other words it does not necessarily follow from the finding of guilty of murder that we ought to proceed on the assumption that the prisoner did not throw a stone with his hand at the deceased during a fight involving both of them and thereby inflict a mortal wound on the deceased. The judge put this to the jury as an issue on which they could find for or against the prisoner. It is consistent with the verdict of guilty of murder that the jury took the view that the standard of justification which the judge instructed them was needed to make out self-defence was not made out. The verdict of guilty of murder therefore does not avoid the objections that provocation was withdrawn from the jury and a misdirection was given in respect of manslaughter. These objections to the charge to the jury are of a substantial nature. I considered that they were appropriate grounds upon which to grant special leave to appeal and were matters which weighed with me in forming my opinion that special leave should be given. They are the reasons why I think that the verdict should be set aside and a new trial had. I do not think this is a suitable case to apply s. 47 (4) of the Northern Territory Supreme Court Act 1961. In the view I take of the case it is not necessary to deal with the objection to the regularity of the trial on the ground that s. 25A of the Oaths Ordinance 1939-1967 was not observed. But I do not mean that I would not regard the omission as a serious one. The omission was of course not deliberate, it was due entirely to inadvertence. My impression on reading the appeal book is that this was an arduous trial and the learned judge conducted it with conspicuous fairness. (at p193)

[31]

3. Whether or not the evidence of the two aboriginal witnesses ought to have been admitted is a question which involves matters of fact referred to in s. 25A of the Oaths Ordinance 1939-1967 (N.T.). It involves also the operation and effect of that enactment, the facts being ascertained. I think therefore that the ground of appeal founded on what happened when the aboriginal witnesses entered the witness box cannot be said to "involve a question of law alone". To consider it this Court had first to ascertain facts. We did so from the written transcript and from the statements of counsel, confirmed by a report furnished by the learned trial judge. From the cumulative effect of this material it is established that his Honour was not aware of the alteration in the law made by s. 25A. Neither the Crown Prosecutor nor counsel for the defence informed him of it, for they too it seems were ignorant of it. His Honour told each of the aboriginal witnesses that he must tell the truth, that all that he should say must be true and his Honour was, it seems, satisfied that they each understood this admonition. He did not expressly tell them that if they did not tell the truth they would be liable to punishment. Whether or not they understood from his Honour's direction to them to tell the truth that they were liable to be punished if they told lies, we do not know. It seems probable that they would have taken that to be the effect of his Honour's words because one must assume them to be aware of rewards and punishments in this world and they were being told by the judge what they must do. But that does not shew that the need for his Honour to be satisfied that they knew of their liability to punishment was met. Not being aware of s. 25A, he did not turn his attention to that. However, no suggestion was made by the defence at the trial that the evidence of the aboriginal witnesses about finding the body was not in fact true; nor is it now suggested that what they said is disputed. What they said was relevant. But in the way the case developed, it ceased to be important. In these circumstances I think that leave to appeal should certainly not be given on the ground that the jury were allowed to hear what they had to tell. (at p196)

[41]

To meet the needs of justice, for both white settlers and aboriginal natives, the Legislative Council tried in 1839 to remedy this by its enactment 3 Vict. No. 16: see Callaghan's Statutes of New South Wales, vol. 1, p. 1. But the Act was disallowed by the Crown on the recommendation of the Home Government. The Law Officers reported that it was "contrary to the principles of British jurisprudence". Their curious report is printed in the Historical Records of Australia, Series 1, vol. 20, p. 756. Nevertheless soon afterwards the Imperial Act The (Colonies) Evidence Act, 1843 6 & 7 Vict. c. 22, s. 1, enabled colonial legislatures to deal with the topic by statute to be reserved for the royal assent. But no statute was passed in New South Wales, perhaps because, as Dixon J. said in Cheers v. Porter (1931) 46 CLR, at p 533 , no statute appears to have been needed. At all events, from 1876 onward the matter was met in New South Wales by 40 Vict. No. 8, s. 3. Persons adjudged incompetent to take an oath were allowed instead to make a promise to tell the truth. This in New South Wales met the case of aboriginals, young children and others: see e.g. Reg. v. Paddy (1876) 14 SCR (NSW) 440 . In Queensland too the general enactment in 1884, which I have mentioned above, apparently sufficed. But in Western Australia in 1841 (by 4 & 5 Vict. No. 22), in South Australia in 1848 (by No. 3 of 1848), in Victoria in 1854 (by 17 Vict. No. 11, s. 7) special provisions were enacted for taking the unsworn evidence of aboriginals. Some of these enactments were taken up and continued in later legislation. The law of South Australia became law in the Northern Territory on 1st January 1911. The South Australian enactment No. 3 of 1848 remained in force in the Territory until 1939 when it was repealed by the Oaths Ordinance 1939, s. 2. On the same date the Evidence Ordinance (No. 2) 1939 commenced. It inserted ss. 9A, 9B and 9C into the earlier Evidence Ordinance 1939. As the slate was thus wiped clean at the same time as s. 9A was written, the subsequent repeal of s. 9A cannot revive the earlier South Australian enactment, whatever be the effect of the combined Interpretation Ordinance 1931-1959, s. 4, and the Acts Interpretation Act (Cth). The last stage in the story for the Northern Territory is that the Oaths Ordinance 1967 inserted s. 25A into the Oaths Ordinance 1939-1965; and two months later ss. 9A and 9B of the Evidence Ordinance 1939-1965 were expressly repealed by the Evidence Ordinance 1967. The result is that at the time of the trial of this case s. 25A was the only statutory provision in the Northern Territory by which an oath or affirmation could be dispensed with in the case of a witness who did not understand the nature of these solemnities. (at p199)

[55]

8. The first two persons called were the aboriginals to whom I have referred. They were described by his Honour as "unsophisticated" and each was questioned by his Honour for the purpose of determining whether he understood the nature of an oath. One said that he had never been to school and was not a Christian, the other that he had never been to school and did not understand what was meant by a Christian. In each case his Honour, with the assent of counsel for the defence, said that he thought that the witness need not take an oath and went on to tell him that he must tell the truth. The evidence of these two witnesses, one of whom answered to the name of Pompie Turner and the other to the name of Sleepy Charlie and who were stockboys on a Northern Territory cattle station, was to the effect that on a date which neither specified but which from other evidence in the case seems to have been 13th February 1968, they were driving along the Barkly Highway from Avon Downs Station when their car broke down about nine miles from Soudan Station. They walked along the road to look for water and while doing so noticed a smell which they thought came from a dead beast. They went to investigate the source of the smell and close by the side of the road they came upon the dead body of a man lying close to a small tree. The body was partly covered with broken bushes and leaves and was clothed in a singlet and underpants. They did not touch it. They then walked back in the direction of Avon Downs Station and were later picked up by another car and taken to the station where they reported their discovery. On the following day they went with a police officer named Cox to the place where they had seen the body and pointed it out to the officer. No suggestion was made in cross-examination that the two men were not telling the truth. From other evidence - which was not disputed - it appeared that the dead man (who was later identified as Andreas Koklas) had suffered very serious injuries. A large area of his skull had been crushed in and on one side of his chest seven ribs and on the other side ten ribs had been crushed and fractured. These injuries, if inflicted while Koklas was alive, would have caused immediate death. The body was in a state of decomposition and when moved by police officers and a doctor who was shortly afterwards brought to the scene, parts of the body disintegrated. The injuries could have been caused if a heavy stone had been dropped on the head and body of the deceased while he was lying on the ground and a stone about fourteen to sixteen inches in length and ten to twelve inches in width and depth and weighing thirty-five pounds was found close to the body. On its undersurface dried blood stains were found and the blood belonged to the same group as that to which the deceased's blood belonged, the appellant's blood belonging to a different group. (at p204)

[57]

10. In December 1967 the appellant and Koklas had driven to Melbourne in a utility truck belonging to Koklas and early in January 1968 they had set out together in the truck to drive back from Melbourne to Darwin. They reached Camooweal and from there on 13th January had set out along the Barkly Highway en route to Darwin. Sometime in the late afternoon of 13th January the appellant was seen in Koklas' truck some miles short of a place called Frewena and was later in the day at a place called Three Ways. Both these places were on the Barkly Highway and the road to them from Camooweal along the Highway passed the place where the body was later found. The appellant was then the sole occupant of the truck and, in the evening of that day, he sold to the licensee of a roadhouse at Three Ways a movie camera and projector and offered to sell him a watch. He also sold a transistor. These articles were the property of Koklas. From Three Ways the appellant, instead of going on to Darwin, drove the truck south and eventually reached Melbourne where on 22nd January, using the name of Koklas, he sold it to a used car dealer. A number of articles including some clothing were in the truck when it was sold and these were identified as having belonged to Koklas. On 30th January, representing himself to be Koklas, the appellant presented a Bank of New South Wales Savings Bank book, issued by that Bank's Darwin branch in the name of Andreas Koklas, to a branch of the Bank in Fremantle and sought to withdraw $150 from the account. He was paid $30 and told by the Bank's accountant that before paying him any further sum it would be necessary for the Bank to communicate with its Darwin branch by telephone and that that would take a little time. The Bank officer told the appellant to call back on the following day and retained the Bank book. The appellant left the Bank but did not return. He was later interviewed by police officers at a hotel in Fremantle at which he was staying. In his room the officers found a number of articles including a Northern Territory driver's licence in the name of Andreas Koklas and some clothing which included a pair of brown trousers marked with the latter's name. In the course of the interview the appellant produced some cash and said that he had withdrawn it from the Bank and that the Bank book had been retained by the Bank. The officers then took him to the Bank where Koklas' Bank book was produced and the appellant said that he had used the book to make the withdrawal of $30 on 30th January. Asked whether there was such a person as Andreas Koklas he replied that Koklas was a Greek whom he had known in Darwin but who had returned to Greece and that he, the appellant, had used Koklas' name to open the account. He said that he had taken out the driving licence and opened the Bank account in the name of Koklas to avoid having to pay maintenance to his wife. During the next few days further interviews took place between police officers and the appellant. At one of them, on 17th February, he was told that the body of a man named Andreas Koklas had been found on the side of the road on the Barkly Highway. The appellant asked "Is Koklas dead?" and was told that he was. Asked when he had last seen Koklas, he replied that they had travelled together to Melbourne and that he had seen him there shortly after Christmas. He said that he had opened the Bank account and taken out the driving licence in Koklas' name because he did not want his wife to know how much money he had. He was questioned about clothing bearing Koklas' name which had been found in his suitcase at the hotel and said that Koklas had given it and some shoes to him. His attention was drawn to an entry in the Bank book showing that $150 had been withdrawn from the account at the Ipswich branch of the Bank in Queensland on 11th January 1968 and said that he had made the withdrawal. He said that he knew nothing of the whereabouts of Koklas' truck and denied that he had been driving it in the Northern Territory on 13th and 14th January. He said also that he knew nothing about Koklas' death. Later in the day the appellant told one of the officers that he wished to tell the truth about the Bank book. He was given the customary caution and said that he had stolen the Bank book from Koklas while they were on their way from Darwin to Melbourne in Koklas' truck. On 19th February at another interview with the police and after being cautioned he was told that it was understood that Koklas was "killed by a rock and it is possible that there was a fight". The appellant replied that he did "not know anything about how he died" and repeated that he knew nothing about the truck or about Koklas' death. Later on the same day he made a statement which was typed out by the police and signed by him. In some respects it differed from what he had earlier told the police officers. For example, according to the typed statement he said that it was Koklas who had withdrawn the money from the Bank in Ipswich and that it was shortly after that withdrawal had been made that he had stolen the Bank book from the glove box in Koklas' truck. He said that he had driven with Koklas from Melbourne to Ipswich and had there met a truck driver whom he knew as "George" who was on his way to Melbourne. He had asked "George" whether he would give him a lift back to Melbourne. "George" had agreed to do so and he had thereupon moved his suitcases from Koklas' truck to "George's" truck and had been driven back to Melbourne by "George", leaving Koklas in Ipswich. He had done this because he had stolen the Bank book. He said that he had last been on the Barkly Highway in July 1967 and had last seen Koklas at Ipswich. He said that he knew nothing about Koklas' death and denied that he had been driving Koklas' truck in the Northern Territory on 13th January 1968. (at p206)

[62]

Asked what was the argument that he had had with Koklas, he replied to the effect that Koklas had earlier told him that he would not have to pay any part of the cost of the journey to and from Melbourne but that at Camooweal they had had an argument on the subject in the course of which Koklas had asked him to contribute to the cost and threatened that unless he did so he, Koklas, would leave him there. He said that they had then left Camooweal and driven along the Barkly Highway. The engine of the car had overheated and they had pulled into the side of the road and stopped under a tree. Koklas had again asked him for money. An argument ensued and Koklas hit him. He then hit Koklas "and I panicked. I ran away. Then I came back to the vehicle". He said that Koklas had hit him with the handle of the car jack and that he had hit Koklas, who was standing up, with a "rock" which he had picked up. He thought that he had hit Koklas on the head with the "rock". Koklas' head was bleeding after being hit. He said that he had then run away. Koklas was wearing, he said, brown trousers and a white shirt. He was shown a photograph of the large stone which had been found near the body and said that he could not say whether that was the "rock". Later when shown a photograph of the body with the large stone lying close to it, he said "Yes, that is the rock. That is where I left it". He said that the place shown in the photograph "could be the place I hit him" and that when he left him Koklas "was lying under a tree. He was standing up when I hit him with the rock. When he dropped he did not move and I did not touch him any more. I then put the leaves over him". Looking at the photograph he said "I put those leaves there". He was told that the body when found was only clothed in underpants and singlet and was asked whether he had removed any clothing. He denied having done so and said that he had covered Koklas with leaves because "Andreas had blood coming out of his head. It was very hot. I thought he might die". Asked why he had not taken Koklas back to Camooweal if he thought he might die, he said "I just panicked and wanted to get away". He said that it had happened on a Saturday afternoon and that "it was the same day that I sold the camera and things at Three Ways". In answer to further questions he said Koklas had given him two pairs of trousers and a pair of shoes. He was shown some clothing which had been found in his suitcases and said that a pair of charcoal pants and a coloured shirt were those which he had been wearing at the time of the fight with Koklas. He said that he and Koklas were both wearing "scuffs" on their feet and that he had left his in the truck when he sold it in Melbourne and had while in Melbourne "got rid of" the scuffs which Koklas was wearing. He was shown the camera and a watch which had been identified as having belonged to Koklas and said that the camera had been in the truck and he thought it belonged to Koklas and that the watch was his own. On 26th February, whilst being flown to Darwin in custody, he made a further statement to the police officer who was with him. After being cautioned, he said:

[78]

18. Next it was submitted that the learned trial judge should have directed the jury that if they thought that the appellant had killed Koklas but that the act causing death had been done as the result of provocation offered by Koklas they should find a verdict of guilty of manslaughter and not of murder. At the close of the evidence and in the absence of the jury, counsel for the defence raised this question with his Honour and some discussion took place. In the course of it his Honour said that he proposed to direct the jury - as he afterwards did - that if Koklas' death was caused by the appellant throwing a stone and hitting Koklas after being attacked by the latter, they must acquit on the ground that the appellant had acted in self-defence. In such case he pointed out that a direction as to provocation would be entirely unnecessary. He put it to counsel that the question of provocation could be relevant only on the hypothesis that the appellant had killed Koklas by dropping the large stone on his head and body. Defending counsel agreed that this was so and his Honour expressed doubt whether, in these circumstances, there was evidentiary material upon which provocation could be raised, pointing out that evidence of a provocative act by Koklas without more would not be enough. Counsel then addressed the jury but made no reference to provocation and, at the close of his address, his Honour, in the absence of the jury, referred to this and said that if the defence wished to raise that issue he would allow counsel to re-open his address to the jury in order to do so. Counsel replied that he did not desire to add anything to what he had already said and in this his attitude was understandable. He had submitted to the jury that the appellant had not killed Koklas and that some other person must have done so and, alternatively, that if Koklas' death had been caused by being struck by a thrown stone, it had been thrown by the appellant in defending himself against attack. In these circumstances counsel would obviously have thought it would be unwise to ask the jury to consider yet a further alternative defence, namely provocation, based upon the hypothesis that his client had dropped the heavy stone on Koklas and thus killed him. Nevertheless if the evidence did disclose sufficient material to justify the jury in finding the appellant guilty of manslaughter rather than murder upon the ground of provocation it would have been the duty of the learned trial judge to put that issue to the jury notwithstanding the fact that counsel had not done so (Mancini v. Director of Public Prosecutions (1942) AC 1, at pp 7, 8 ). (at p213)

[90]

It is agreed by all concerned, including the learned trial judge who has been good enough to supply us with a report on the matter, that his Honour, being unaware of these amendments, did not direct his mind to the question whether each of the witnesses in fact understood that he would be liable to punishment if he gave false evidence nor did he declare in what manner the evidence of those witnesses should be taken. The evidence was therefore wrongly admitted (Reg. v. Paul (1890) 25 QBD 202, at pp 207, 208 ). But when the whole of the evidence is examined and regard is had to the way in which the case developed, it seems plain that the admission of the unsworn evidence could have had no influence on the result of the trial. No suggestion had been made in cross-examination that what the two aboriginals had said was untrue or that they had caused the injuries to the head and chest. The facts that the body was found in February 1968 and the place where and the condition in which it was found were overwhelmingly established by other evidence and were not matters as to which any dispute arose. The contested issues were whether the appellant had killed Koklas and, if he had done so, whether he had acted in self-defence. The provisions of the Northern Territory Supreme Court Act relating to appeals to the High Court in criminal cases do not, however, contain any proviso such as is commonly found in Criminal Appeal Acts which confer upon an appellate court a discretion to dismiss an appeal against a conviction upon the ground that no substantial miscarriage of justice has occurred. (See, for example, s. 4 (1) of the English Criminal Appeal Act, 1907.) We were referred to s. 75 of the Judiciary Act which provides that a conviction cannot be set aside upon the ground of the improper admission of evidence if it appears to the court that the evidence was merely of a formal character or not material but that section has no application to an appeal such as the present one. When it is read with ss. 72, 73, 74, 76 and 77 it is clear that it is limited in its application to appeals of the kind to which these sections refer, namely where the court before which a person is tried upon an indictment charging an offence against the laws of the Commonwealth reserves a question of law for the consideration of an appellate court and it is to be remembered that at the time those sections were enacted the type of appeal for which s. 47 (1) of the Northern Territory Supreme Court Act provides was unknown. (at p217)

At a glance

Court

Decision date

Before

Source

Judgment (95 paragraphs)

Da Costa v R [1968] HCA 51; (1968) 118 CLR 186 (22 August 1968)

Parties

Legislation Cited (9)

Cases Cited (7)