Dawson v The Queen

High Court of Australia|1961-07-01|Before: Owen JJ

The applicant was in my opinion entitled to the protection which the general rule expressed by s. 399 gives him against cross-examination as to previous convictions; he did not fall within the exception which exposes him to cross-examination of that kind if the nature or conduct of the defence is such as to involve imputations on the character of the witnesses for the prosecution. Moreover if that be wrong, then I think that the prisoner was entitled to an exercise by the judge of his discretion to disallow such a cross-examination. Further the questions appear to me to possess a sufficient degree of general importance to come within the general principle which governs the granting of special leave to appeal.

The applicant, a man of thirty years of age, was seen by police who were on patrol duty about 1 o'clock in the morning of Sunday, 9th April 1961, in Wellington Street, St. Kilda. He was sitting in a car parked outside a coffee lounge. The car contained, as well as the applicant, a woman and two other men. The car moved off and the police, who were two members of the "Consorting Squad", intercepted it. They found a suitcase in the back seat between two men. One of these was the applicant; the other a man named McKay. The woman drove the car and the other man, whose name was Cook, sat beside her. The boot of the car and the suitcase contained a miscellany of articles, some, if not all, of which had been stolen from a house in Caulfield which had been ransacked at some time after the late afternoon of Friday, 7th April, when it was shut up. It was not until 10 o'clock in the evening of Sunday, 9th April that it was reopened. At his trial the present applicant entered the witness box but he called no other witness. His evidence was that he had no part in the robbery and knew nothing of it. He was ignorant of the contents of the suitcase and of the boot of the car. His case was, in short, that so far from assisting the felons he knew nothing about the matter. To be an accessory after the fact it was necessary that he should know that a felony had been committed and subsequently should relieve, comfort or aid a party who had taken part as a principal in committing the felony so that the latter might elude justice. Aiding in the concealment or disposal of goods that a principal offender had stolen might be enough. What is done must tend against his being brought to justice, but active assistance is necessary. To establish the charge against the applicant the prosecution relied upon incriminating admissions by him to which two members of the police force swore. A detective constable named Side and another named McLennan had intercepted the car. From their evidence it appeared that the two other men, Cook and McKay, tried to escape. The applicant was held and did not attempt to get away and McKay was recaptured. He pleaded guilty to the charge of housebreaking contained in the indictment. In other words, McKay was the principal felon. According to the evidence of Side and McLennan all parties were taken to the detective office. The police occupied a little time in looking at the scene of the housebreaking and in making other inquiries and then they took up the questioning of the applicant. McLennan and Side said that the former asked questions and the latter took notes of the answers. At the conclusion, according to their evidence, the applicant was asked to read the notes aloud. He did so and answered in the affirmative a question whether it was a true account of the interview. He refused, however, to sign the paper.

On this evidence the paper was put in as an exhibit. Its contents form the evidence by which the conviction of the applicant as an accessory after the fact is supported. It consists of questions and answers, short for the most part. For present purposes it is enough to say that it records the applicant as denying any knowledge of the place whence the goods came; it then proceeds to give an account of admissions made by him which may be summarized as follows. He said that Cook and McKay came out of the coffee lounge and asked him if he could get rid of some property they had in a car. They told him that they had "done a bust" that night. He looked at the goods in the car and said he would do his best. They then drove in a car to Fitzroy where he saw a mate of his, and after doing so went back to the coffee lounge at St. Kilda. There he asked for a few pounds for himself, to which they agreed, and they got into the car containing the goods and were about to drive to Fitzroy to get rid of the goods when the police intercepted them.

The two detectives were, of course, cross-examined by the applicant's counsel and questions were asked the tendency of which was to suggest that the evidence of the detectives as to the composition of the document and the questions and answers given was wrong or mistaken, but care seems to have been taken to ask nothing amounting to an imputation upon the character of the witnesses. The applicant was then called as a witness on his own behalf. His counsel, of course, made no opening to the jury. The defence was simply that he did not know of the breaking and entering and stealing, and that he did nothing which would make him an accessory after the fact and that he did not make the incriminating admissions attributed to him by the paper. In his evidence in chief he denied reading the paper at all. He neither read it aloud nor saw it, except as something Side wrote upon. He began his evidence by recounting his movements on Saturday afternoon and night until he met McKay and Cook outside the coffee lounge. No doubt the purpose of this evidence was to show that he could have taken no part in the housebreaking and could have known nothing of it before meeting McKay and Cook. He went on to give an account of what they did before the intervention of the police. He had not at that point gone to Fitzroy and had not looked for someone to take the goods: at an earlier stage he had gone to Fitzroy for beer. His account dealt with the details of their encounter with the police. There was conversation about his part in the affair with McLennan in the car in which he was driven to the detective office. At the detective office there was some questioning by McLennan who at length said they would get a question and answer sheet. Side obtained a piece of paper and wrote as the defendant replied to some questions by McLennan. His name and address were asked for and given and he was asked where the property came from and whether he stole it and it was suggested that he was going to sell the stuff. These questions he answered in the negative and then, according to his evidence, he told them that he did not want to say anything more about it. They had told him that he was to be charged with the breaking and entering. He was then charged and locked up. His evidence in chief proceeded: "at no time did they show me a statement. As to the question and answer sheet, according to them I read it out aloud and then refused to sign it. No, I did not read it. There were only two questions and answers on it. They were, "Did you steal the property?" And I said, "No". "Do you know where it had come from?" And I said, "No". According to that paper which has been produced by them I said that the two men asked me if I could get rid of some property they had in the car, they told me they had done a bust that night, I went across and had a look at the suitcase and the T.V. set in the boot and I said, "I don't know whether I can, but I will do my best." I did not say that. I did not say, "I got a mate to drive Des and Macko and me over to the house in Fitzroy." There is a lot that has been put in that question and answer sheet that I had said previously to Detective McLennan, telling him about my movements on the night, and it has been put in in that question and answer sheet, but they were not questions asked me or answered by me at the time when that sheet was taken, plus some of the things that are put in that - some of the things I had said in the explanation of my whereabouts to McLennan earlier, particularly about going to Fitzroy and that." After referring to something said in the car he added that he only answered two of the questions in the office and that when McLennan suggested to him that he was going to take the property and sell it he refused to answer any more.

Now in my opinion all this falls far short of satisfying the condition that the nature or conduct of the defence of the person charged must be such as to involve imputations on the character of the witnesses for the prosecution. It has been said that the words of the condition are to receive their ordinary and natural interpretation and that it is 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: R. v. Hudson [1] , per Lord Alverstone C.J. [2] , cited by Devlin J. in Reg. v. Cook [3] . The passage has been described by Dr. Cross as "the apotheosis of the strict view" of the provision: (1959) 75 L.Q.R. 177. But the view I take of the present case is not based upon any such qualification or upon any implication restraining the application of the expressions used, but upon what I think is naturally conveyed by the phrase in its context. When par. (e) (ii) speaks of the nature and conduct of the defence it is referring to the substance of the case put forward under the plea of not guilty in answer to the indictment and is calling for a consideration of its true or essential nature and an appreciation of the manner in which that defence is conducted or, as it may perhaps be said, how the defence is supported or made out forensically. The evidence of the prisoner himself may, and ordinarily will, form a source of information as to the nature of the defence, and the manner in which his counsel examines may form part of the conduct of his defence when he is defended by counsel. But it is wrong to confuse his defence with his evidence. Indeed it may be said that it is just because the accused plays the two roles of a party and of a witness that the legislature sought to resolve the dilemma between submitting his credit as a witness to full inquiry and protecting him as a defendant from prejudice, by adopting the familiar but singular compromise expressed in par. (e) (ii) of s. 399.

[1912] 2 K.B. 464. 2. [1912] 2 K.B., at pp. 470, 471. 3. [1959] 2 Q.B. 340, at p. 347.

In the next place when you stop to consider the significance of the hypothesis demanded by the words "when the nature or conduct of the defence is such as to involve imputations on the character of the witnesses for the prosecution" it becomes plain at once that what is referred to is not a denial of the case for the Crown, not a denial of evidence by which it is supported, but the use of matter which will have a particular or specific tendency to destroy, impair or reflect upon the character of the prosecutor or witnesses called for the prosecution, quite independently of the possibility that such matter, were it true, would in itself provide a defence. The phrase assumes that a denial of the case for the prosecution, although the evidence of the prosecution is necessarily contradicted, does not carry with it an imputation of the kind to which the provision refers. Further the word "involves" refers to what is a part of the defence or, at all events, an element or ingredient in the defence or what arises from the manner in which the defence is conducted. It is not meant to cover inferences, logical implications or consequential deductions which may spell imputations against the character of witnesses. It appears to me that upon reading par. (e) (ii) it is clear enough that it is dealing with something outside the denial of the truth of the Crown case and of the evidence by which it is supported. And that, I think, is conceded by all the decisions in spite of the "profound obscurities" of the paragraph: Professor Stone (1935) 51 L.Q.R., at p. 466. In R. v. Rouse [1] Darling J. had said that merely to deny a fact alleged by the prosecution is not necessarily to make an attack on the character of the prosecutor or his witnesses: "Such a denial is necessary and inevitable in every case , and is nothing more than a traverse of the truth of an allegation made against him; to add in cross-examination that the prosecutor is a liar is merely an emphatic mode of denial, and does not affect its essential quality" [2] . In R. v. Grout [3] , the Court said that a declaration by the accused that the constable charging him was telling lies was only an emphatic way of stating that the charge was not true, and was not an imputation upon the constable's character within the meaning of the exception contained in the paragraph. The same view was adopted by the Supreme Court of South Australia in Hewitt v. Lenthall [4] , and by the Supreme Court of Western Australia in R. v. Martinelli [5] . It appears to me that the settled rule that the condition is not satisfied by the denial by the accused upon a charge of rape that the act of intercourse took place against the will of the woman is simply an example of the same interpretation of the language of the paragraph: see R. v. Sheean [6] where Jelf J. said: "To say that a man who in clearing himself alleges consent on the part of the prosecutrix brings himself within" (the equivalent of par. (e) (ii)) "is, to my mind, a total subversion of the principle of the Act" [7] . In confirming this rule in R. v. Turner [8] Humphreys J., delivering the judgment of the Court of Criminal Appeal, said that what is commonly referred to as the defence of consent in rape is in truth nothing more than a denial by the accused that the prosecution has established one of the two essential ingredients of the charge. It is and must be the prosecution which introduces the question of consent and nonconsent. In Stirland's Case [9] Viscount Simon L.C., in delivering his opinion, in which the House concurred, expressed his fourth proposition in a way which may have been misread. I have stated my reading of it in Curwood v. The King [10] , to which I refer. I concluded as follows: "Where the injurious reflections are not more than consequential upon or incidental to the due presentation of the accused's denial of the incriminating facts, the case will fall under Lord Simon's fourth proposition [1] , read as it should be with reference to the case he mentions. But where the prisoner's answer rests upon the misconduct imputed, is based upon the imputation on character, as it must be where the defence is that evidence is fabricated, that witnesses conspire, that there is a malicious or revengeful attempt to implicate the prisoner, that the true author of the crime is a witness, or that a confession is obtained by fraud, bribery or intimidation by the witnesses who prove it, then it appears to me that it is a misreading of the Lord Chancellor's meaning to attempt to apply his fourth proposition to such a case. Doubtless these instances form but specific grounds assigned in support of the prisoner's denial of evidentiary facts or of facts in issue. But they fall within the very words of the proviso and they are also covered by the decided cases" [2] . The distinction is well illustrated by the facts of Curwood's Case [3] and I think that Clark's Case [4] properly understood provides another illustration. In Curwood's Case [3] there was a signed confession. The defence was not a denial of the signing of the confession but that it was extorted: "as an indispensable part of his case answering the incriminating evidence adduced by the prosecution, the prisoner imputed to police witnesses the extortion of the confession by duress" [5] . In Clark's Case [4] the prisoner did not deny signing the confession but said that it was not his statement but was dictated by the Chief Inspector of Police and that he signed it through fear. It does not appear what police officers were called as witnesses or whether the Chief Inspector was called as a witness but Lord Goddard C.J. speaks of the case involving an imputation against the police officers of a conspiracy to defeat the ends of justice. His Lordship said: "His defence was not that an untrue confession was got out of him but they concocted a confession which was not his confession at all" [6] . An oral confession had been sworn to and this he denied making. The Court put this aside apparently as a matter insufficient to satisfy the condition in the proviso and relied in affirming the conviction only on the imputation of misconduct in manufacturing a confession and putting him in fear so that he signed it. There was in both cases an affirmative case for the defence made to meet the uncontroverted fact of a written confession actually signed, a case that the confession ought not to be used because it was obtained by misconduct of persons called as witnesses or, in the case of Clark, presumably called as witnesses. In Reg. v. Cook [1] Lord Devlin, as he now is, speaking for the Court of Criminal Appeal, said: "In our judgment, when the prosecution's evidence of an admission is met by saying that it was extorted by means of a threat that otherwise the prisoner's wife would be charged, the defence is so conducted as to involve an imputation on the character of the police officer" [2] . Those being the facts the matter became one of discretion. Their Lordships considered that the discretion ought in the circumstances to have been exercised in the prisoner's favour, but the proofs of the prisoner's guilt were so clear that their Lordships held that there had been no miscarriage.

[1904] 1 K.B. 184. 2. [1904] 1 K.B., at p. 187. 3. (1909) 26 T.L.R. 60. 4. [1931] S.A.S.R. 314. 5. (1908) 10 W.A.L.R. 33. 6. (1908) 24 T.L.R. 459. 7. (1908) 24 T.L.R., at p. 460. 8. [1944] K.B. 463, at p. 469. 9. [1944] A.C., at p. 327. 10. (1944) 69 C.L.R., at p. 588. 11. [1944] A.C., at p. 327. 12. (1944) 69 C.L.R., at pp. 588, 589. 13. (1944) 69 C.L.R. 561. 14. [1955] 2 Q.B. 469. 15. (1944) 69 C.L.R. 561. 16. (1944) 69 C.L.R., at p. 584. 17. [1955] 2 Q.B. 469. 18. [1955] 2 Q.B., at p. 476. 19. [1959] 2 Q.B. 340. 20. [1959] 2 Q.B., at p. 348.

The present case calls for no discussion of Reg. v. Billings [3] or, for that matter, of Brown's Case [4] . It is in my opinion the facts of the case before us which control the decision. I can see nothing in the nature or conduct of the defence which involves an imputation on Side and McLennan or either of them. The evidence of the accused was, of course, led by his counsel and consisted of question and answer, the answer doubtless sometimes being a response in the form of a statement. The material part of his evidence is reported, however, as a narrative. Now it seems to me that it is impossible to regard his denials of the facts to which Side and McLennan deposed as bringing the defence and the conduct of the defence within par. (e) (ii) of the proviso. By that I mean the denial that he was shown the paper called the question and answer sheet, that he read it or read it aloud: the denial of his having said that the two men asked him to get rid of some property they had in the car or that they told him they had "done a bust" and so on. And it is equally true, as I think, that the assertion of the accused as a witness even though in answer to a question by counsel conducting the defence, that there were only two questions and answers on the paper could not bring the case within the paragraph. Indeed apart from the statement that there were only two questions and answers on the sheet, the view of the Supreme Court was the same: for in the judgment of Lowe and Smith JJ. their Honours say: "And if the applicant has said no more than has already been narrated, it would not have been correct to say that his words could be given a meaning in which they amounted to an imputation. In order to find an imputation it would have been necessary to call in aid a process of reasoning as to what conclusion would follow if the applicant's account were true" [1] . Perhaps by way of interpolation attention should be called to the fact that their Honours are referring to the meaning which the witness' words could reasonably be given, not to the meaning they actually possessed and not to the nature or conduct of the defence.

[1961] V.R. 127. 2. [1960] V.R. 382. 3. [1961] V.R., at p. 775.

But what in their Honours' view made the difference is the assertion about the two questions and answers and the statement by the witness "There is a lot that has been put in that question and answer sheet that I had said previously to McLennan telling him about my movements on the night, and it has been put in in that question and answer sheet, but they were not questions asked me or answered by me at the time when the sheet was taken, plus some of the things that are put in that - some of the things I had said in the explanation of my whereabouts to McLennan earlier, particularly about going to Fitzroy and that".

I fail myself to see what difference is made by the addition of this express statement. It is a curious feature of the case that it was not really admissible in evidence. For according to the witness he never saw the paper as a writing: he only saw Side writing as he was questioned. He is therefore only giving his inference or, if you like, opinion. But the question whether the nature and conduct of the defence involved imputations upon the witnesses must be determined as a matter of substance.

The question is not one depending upon forms of expression, the use of phrases, the stating explicitly what is implicit. The defence here was of the simplest kind and was nothing but a denial of the facts upon which the charge depended and of the evidence led to support the essential elements of the charge. Because that evidence consisted of admissions imputed to the prisoner, that meant a denial by him as a witness that he made the admissions. Because Side and McLennan swore what the accused had said was written down and that what was written down was handed to him and read by him aloud, the document became admissible in evidence. He denied this and swore that it was not so and of course upon his evidence the document was not admissible. But because it was in evidence it at once became obvious that if his account were correct, the document contained more than had been said by way of question and answer on the occasion when the two detectives questioned him at the detective office. This obvious fact he expressed, of course in the passage on which so much reliance is placed for the Crown. To me it does not appear to matter whether he meant to convey or did convey that his belief or inference was that after the document had been written in his presence it had been extended or expanded and that either Side or McLennan had done it. It may, however, be pointed out that it is not what he said and is nothing but an inference from what he said and for that matter not one supported by the strictest logic. I say that it does not matter because it is only an open statement by the witness of an inference implied in the circumstances arising from a comparison of his version with the version of the two witnesses and the exhibit put in evidence. It really forms nothing but an incidental part of a detailed traverse of the evidence that had been led in support of the charge against him. A detailed traverse or denial on oath by a witness of evidence which cannot readily be explained by mistake means, as a matter of accessory or natural deduction, a reflection on the witnesses contradicted, but that is not what is meant by the expression in the paragraph, "the nature or conduct of the defence is such as to involve imputations on the character of witnesses", and it does not seem to me to make any difference if the implication is developed expressly by the witness who does the contradicting. In the first place it does not change the nature of the defence; so much seems not to be disputed by the Crown. And I cannot see how because of it the "conduct of the defence" is affected so that it involves such an imputation. The words "nature and conduct of the defence involves an imputation upon the character of the witnesses" appear to me to mean something quite different, namely a defence which either because of its very nature or the manner in which it is conducted rests, at least in part, upon an imputation against the character of the Crown witnesses or some of them.

I am not at all sure that the Supreme Court would have adopted the view that the case fell within par. (e) (ii) of the proviso to s. 399, had it not been for two matters of law in the first of which I take a very different view and in the second of which I am inclined to think there may be an implication with which I am unable to agree.

In dealing with the earlier part of the accused's evidence in the passage relied upon for the Crown, which I have already discussed, Smith and Lowe JJ. refer to the principle which they say is laid down in Reg. v. Billings [1] . That principle is that it is necessary and sufficient to show on a balance of probabilities that a reasonable jury would construe, as making the imputation, the matter relied upon by the Crown. Their Honours say: "It makes the test what they [the words] would mean to the jury or in other words upon what answer the jury would give to the question "What is he saying?" " [1] . I think that this is to substitute for the test prescribed by the statute another test, one that is quite distinct in meaning. It appears to be one contemplating the meaning of the witness as a jury would interpret it. But the question is entirely for the judge and the test is expressed in absolute terms; the test is whether the defence in fact is of such a nature or so conducted as to involve &c. It is not whether a jury may think that the defence by its nature or conduct involves imputations against the character of the witnesses. Again it is necessary to point out that, important as the evidence of the accused may be in deciding the question set by the statute, the inquiry set is into the imputations involved by the nature and conduct of the defence, not the meaning of what the accused may say in the witness box. The second matter is that their Honours adopted the view, for which they cited Reg v. Cook [2] ; Reg. v. Brown [3] , that now (i.e. since Curwood's Case [4] ), the necessity exists for finding the main safeguard in the manner of the exercise of the discretion. I do not think that their Honours are to be understood as meaning that, subject to the discretion, a different application of par. (e) (ii) should be made but rather that Curwood's Case [4] removed other safeguards. (Curwood's Case [4] of course, did decide against the restrictive implications that had been made or suggested). But at the same time I have not been able to escape the impression that their Honours may have shared in the view that the real source of protection for the accused now lies almost wholly in the existence of the discretion and may thus have been led to give less significance than I do to the exact words of par. (e) (ii) and the meaning which, as it seems to me, they naturally convey. If so, it is in this I disagree. It is perhaps enough to say that I do not think that Lord Devlin, as he now is, meant any more or less than he said in the following passage from his judgment in Reg v. Cook [2] : "The attempt to give the words a limited construction has led to decisions which it is difficult to reconcile; now that it is clearly established that the trial judge has a discretion and that he must exercise it so as to secure that the defence is not unfairly prejudiced, there is nothing to be gained by seeking to strain the words of the sub-section in favour of the defence. We think, therefore, that the words should be given their natural and ordinary meaning and that the trial judge should, in his discretion, do what is necessary in the circumstances to protect the prisoner from an application of the sub-section that would be too severe" [1] . There is, I know, a notion that the whole question is or should be reduced to discretion. But that is not what the legislature has said, and means re-writing the statute. Before the discretion arises for exercise, one or other of the tests provided by par. (e) (ii) of the proviso to s. 399 must be satisfied, and in the case of the material part of the paragraph the essential words I have discussed must be satisfied. But when, as the learned trial judge and the Supreme Court held in the present case, the words are satisfied, it became necessary to consider whether the interests of justice were not best served by excluding evidence of the accused's convictions or bad character in order that his guilt should be judged on the facts of the case and not upon the propensities which his past disclosed or the prejudices his character or career might engender. In my opinion the discretion in the present case was quite wrongly exercised. Of course one realizes that what was the truth of the applicant's connexion with the breaking and entering and afterwards with McKay and Cook is necessarily quite uncertain. But on the evidence led at the trial there was simply a case against him as accessory after the fact resting on admissions. Even so, his overt acts as an accessory had not gone far and in that sense the case was thin. The conflict with the witnesses Side and McLennan was direct and really nothing was involved but a conflict of testimony with the two witnesses and the consequential reflections upon them which might follow the acceptance of the accused's version. On the other side was the disclosure to the jury of a sordid criminal career covering half of the accused's thirty years.

[1961] V.R. 127, at p. 132. 2. [1961] V.R., at p. 775. 3. [1959] 2 Q.B. 340. 4. [1960] V.R. 382. 5. (1944) 69 C.L.R. 561. 6. (1944) 69 C.L.R. 561. 7. (1944) 69 C.L.R. 561. 8. [1959] 2 Q.B. 340. 9. [1959] 2 Q.B., at p. 347.

It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused. When in the United States an accused takes the stand or in Canada enters the box, he is, generally speaking, left in the same position as any other witness and his credit is open to inquiry accordingly: Wigmore on Evidence 3rd ed. (1940) vol. 3, s890, p. 380; R. v. Dalton [2] . But that course has never been taken in England or in Victoria and his position as an accused person is protected accordingly against the disclosure of a discreditable past, unless in exceptional conditions. In Victoria an express proviso, taken to confer a complete discretion, is added to the English prototype of par. (e) (ii). I cannot see on what ground consistent with the general policy of the proviso the discretion was exercised in this case against the accused. I can see many grounds why judges experienced in criminal trials should not find their minds going with the policy of the section. But that is not to the point. In the Supreme Court the attempt on the part of the applicant to impugn the learned trial judge's exercise of his discretion was dealt with by Lowe and Smith JJ. by first saying that it appeared that all the factors had been considered and then proceeding as follows: "And although it is not easy to see on the face of the transcript any sufficient reasons for saying that this was an exceptional case, it is not possible for this Court to be sure that all the material considerations appear upon a perusal of the transcript. The atmosphere of the trial and the demeanour and appearance of the persons concerned would be factors which might well be important. The exercise of a discretion cannot be reviewed by this Court unless error is clearly established; and although the circumstances here may cause some misgiving, it does not seem possible for this Court to find that his Honour's conclusion was erroneous" [1] . I am not able to regard this as a satisfactory answer to what I consider the clear prima facie error of the course taken by his Honour. I think the matter must be determined upon the positive factors that do appear upon a very complete record and that the speculative hypothesis of atmosphere, demeanour (presumably of the accused) and appearance (perhaps of Side and McLennan) is inadmissible. To my mind the recent decision of the Court of Criminal Appeal in Reg. v. Flynn [2] lends considerable support to the conclusion that there has been in this case an erroneous exercise of the discretion given by the proviso, an exercise of discretion that ought to have been reviewed. Cook's Case [3] properly considered is to the same effect. To say that the learned judge took into consideration all the material factors in the case cannot mean that his conclusion can stand. Once the circumstances of the case are taken into account and considered with the purpose of the discretion I think it appears that the cross-examination of the accused about his convictions should have been disallowed, and that the judge's discretion necessarily miscarried.

[1935] 3 D.L.R. 773. 2. [1961] V.R., at p. 776. 3. [1961] 3 W.L.R. 907. 4. [1959] 2 Q.B. 340.

For the foregoing reasons I think the conviction cannot stand.

There is one other matter that ought to be mentioned. A complaint is made concerning the learned judge's direction as to the standard of persuasion of the accused's guilt which the jury must reach before convicting. In framing some explanation of the phrase "satisfied beyond reasonable doubt" the judge is reported to have expressed himself in language which, if analysed, would be calculated to mislead. One may doubt whether he actually expressed himself as reported and whether in any case the jury would be left under any misapprehension. But the incident makes it proper to say that in my view it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions: see Thomas v. The Queen [1] .

In my opinion, special leave should be granted and the conviction quashed. There should be a new trial.

The facts in this case are fully set out in the reasons of the Chief Justice and it is unnecessary to repeat them. The first question is whether on those facts it could properly be said that the "nature or conduct of the defence" was "such as to involve imputations on the character of" the two police officers who gave evidence that the prisoner had made oral confessions of guilt. It has long been a general rule of English law that it is not permissible to look at the past record of a person charged with the commission of a crime when considering his guilt or innocence. There is, of course, the exceptional type of case in which evidence can be given of similar acts to rebut a hypothesis of accident or to identify the criminal by showing that he has a characteristic style of committing crimes of a particular kind and that the crime charged is of that particular kind and bears marks of his style, but cases of that kind have no relevance to the questions that arise here. We think that it is with this general rule in mind that the courts, in so many cases, have laid down that a denial, no matter how emphatic, by a prisoner of the truth of the evidence led for the prosecution is not to be regarded as involving an imputation upon the character of Crown witnesses so as to justify the removal of the protection which the law gives to a prisoner against the disclosure of his past record. To destroy that protection means that there is placed before a jury evidence of a most prejudicial character which in law is no evidence that he is guilty of the crime charged but which, despite all warnings to the contrary, may lead a body of laymen to consider that he is. Accordingly, before such a step can be taken it must be shown that the nature or conduct of the defence is such as to involve imputations on the character of one or more of the witnesses called by the Crown. And, if proof of one or other of these conditions is forthcoming, a further safeguard is provided by the discretion vested in the trial judge to refuse to allow the prisoner to be cross-examined on his record. In the present case we can see nothing which could satisfy the first of these conditions. The defence was a denial of the commission of the offence. Its nature was not such as to involve an imputation on the character of the police officers concerned. A good illustration of what is covered by the phrase "the nature of the defence" will be found in Reg. v. Flynn [1] where the prisoner, being charged with the theft of money from X, set up the defence that X had made improper overtures to him which he had rejected and that the money in question had been given to him by X to induce him to say nothing of what had happened.

Turning then to the question whether "the conduct of the defence" could be held to be such as to involve imputations on the character of the police officers, the answer must depend upon the view taken of the evidence given by the prisoner in the course of his denial that he had admitted his guilt. The learned Judges in the Full Supreme Court were of opinion that that evidence involved an imputation that the police officers had improperly tampered with what was described as the "question and answer sheet" by adding to it a number of statements, some of them incriminating, alleged by them to have been made by the prisoner during his interrogation, statements which, according to the latter, he had not made then or indeed as to some of them, at any other time. It is sufficient, however, for us to say that we think, in the circumstances, it was open to the learned trial judge to make such a finding (cf. Curwood v. The King [2] ).

If these had been the only questions raised before us, we would not have thought that the case was one for the grant of special leave to appeal but a further submission was made on behalf of the applicant which seems to us to raise a matter of sufficient general importance to justify the grant of special leave.

This submission was based upon observations in Reg. v. Billings [3] where the Full Court of the Supreme Court of Victoria was called upon to consider the nature of the issue of fact to be determined when an application is made to cross-examine a prisoner on his previous record. Their Honours said: "It is the judge who must decide whether the exception applies in any given case, and it is clear enough that it must be for him, and not the jury, which is absent, to determine any question of fact upon which that decision turns. It is, therefore, for him alone to decide the mixed question of law and fact whether the nature or conduct of the defence involves such imputations as are referred to" [1] . And with this we agree.

[1961] V.R. 127. 2. [1961] V.R., at p. 132.

They went on to say: "But we think that the question of fact which the judge must ask himself upon an application to him under s. 399 (e) (ii) is what meaning the evidence or other matter pointed to by the Crown counsel would naturally convey to a reasonable jury. For to whom is the accused's defence addressed? Unless it is in substance wholly legal - e.g. a plea of autrefois acquit, or of an act of indemnity, and therefore incapable of involving imputations on the character of the prosecutor or the witnesses for the prosecution, though even in such cases some minor matters of fact would have to be determined by the jury - it is necessarily designed to combat in the jury's minds the effect of the evidence for the Crown" [1] A little later, speaking of the issue which the learned trial judge must propound for himself, their Honours said: "It may perhaps not be enough to attract the exception (since it is privative of a very important right of an accused person) for the judge merely to hold that the jury, or some members of it, may possibly reasonably consider the words used, or other matter relied on by the Crown as attracting the exception, to involve imputations in the necessary sense. One might, perhaps, take refuge in a statement that the imputations must be clear to a reasonable jury, but such a proposition begs the question of the standard of proof, or "persuasion", which the judge should apply. It is the prosecution which applies for leave upon the basis that the exception applies, and we consider that it is necessary, but also that it is sufficient, for it to show on the balance of probabilities that a reasonable jury would construe, as making the imputation, the matter relied on by the Crown" [1] . Possibly some minds may be tempted to think that the views of a "reasonable jury" and a reasonable judge as to whether the conduct of some particular case involves imputations in the necessary sense would coincide. But the distinction is substantial and important and with all respect to their Honours the statement is misleading. The question is not whether a jury would think that the nature or conduct of the defence involved an imputation against the character of a Crown witness but whether the judge is of the opinion that it does. The position is not unlike that which arises when it is claimed by the defence that a statement has been obtained from a prisoner in circumstances which would prevent it being used in evidence. In such a case it is for the judge to decide whether the statement is admissible and, to enable him to do that, he has to decide what are the facts surrounding the making of it. Was the prisoner, for example, induced to make it by threats or promises? That question the judge must decide for himself and it is not to the point to enquire whether a jury might reach the same conclusion. In a case such as the present, it is his duty to decide whether evidence of the prisoner's record is to be admitted and before he can decide that it is admissible he must satisfy himself that the nature or conduct of the defence involves an imputation on the character of the Crown witnesses. It is only when he has done that that the question of discretion arises. The relevance of this to the present case is that the learned trial judge reached his conclusion that a case had been made out for permitting the prisoner to be cross-examined on his record "in the light of the case of R. v. Billings [1] " and there seems no doubt that he applied the test there propounded. That being so we are of opinion that he misdirected himself as to the issue for his decision and it cannot therefore be said that his discretion was properly exercised.

[1961] V.R., at p. 132. 2. [1961] V.R., at p. 132. 3. [1961] V.R. 127.

Two other matters we think remain to be mentioned. The first is that, although we are of the opinion that it was open to the learned trial judge, on proper principles, to make the finding which he did, the statement upon which that finding would have been justified seems to have been nothing more than a bare and unostentatious expression of what was so clearly implicit in the earlier denials of the prisoner. As such, it was of little, if any, significance in the case and we would, ourselves, find great difficulty in treating it, in the circumstances of the case, as sufficient justification for an exercise of discretion against the prisoner and the granting of leave to the Crown to cross-examine on his record.

The second matter to which we think we should refer is again concerned with the case of Reg v. Billings [1] . That case seems to treat Reg. v. Cook [2] as requiring some modification of the principles laid down in Curwood v. The King [3] . In our view no such modification is required and we did not understand the Crown to contend to the contrary. In the circumstances, we think it proper to say that we think the relevant principles were correctly stated in Curwood's Case [1] .

[1961] V.R. 127. 2. [1959] 2 Q.B. 340. 3. (1944) 69 C.L.R. 561. 4. (1944) 69 C.L.R. 561.

For these reasons we agree with the orders proposed by the Chief Justice.

High Court of Australia Dixon C.J. Taylor and Owen JJ. Dawson v The Queen [1961] HCA 74

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