Killick v The Queen

[1981] HCA 63

High Court of Australia|1978-06-16|Before: Brennan JJ, Aickin JJ, Kitto JJ, Fullagar J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1978-06-16

Before

Brennan JJ, Aickin JJ, Kitto JJ, Fullagar J

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

The applicant was convicted on four counts of armed robbery. One of the robberies, the subject of the fourth count, took place at Plympton, a suburb of Adelaide, on 16 June 1978. There is no doubt that at some time on the evening of that day the applicant, who lived in Sydney and was on bail, reported to the police station at Chatswood, a suburb of Sydney. The Crown case was that after the robbery the applicant travelled from Adelaide to Sydney by an aircraft which arrived in Sydney at 8.03 p.m., and that he reported to the Chatswood police station at approximately 8.30 p.m. The accused gave evidence that he was in Sydney for the whole of 16 June. He said that at about 10.00 a.m. on that day he took his child to a Mrs. Eyles, at Croydon, to be minded by her, that he picked up the child from Mrs. Eyles again in the afternoon and later had tea with his wife and reported to the Chatswood police station at 8.00 p.m. His evidence was corroborated by that of his wife. The applicant had previously given evidence to the same effect when he appeared before a special magistrate in Sydney as respondent to extradition proceedings and had given the same version of events in an affidavit filed in support of an application for bail made to a judge of the Supreme Court. Although at the committal proceedings the applicant, who did not give evidence, did not refer to his alibi, the Crown should have foreseen that it was probable that he would raise it again at the trial. The Crown called no evidence in chief to rebut the alibi but after the case for the applicant had been closed called Mrs Eyles and her son, Kym Eyles, to show that it was not the applicant, but his wife, who delivered and picked up the child on 16 June. The sole question raised on the application before this Court is whether that evidence was rightly admitted.

[2]

[3]

Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence Further the English cases make it plain enough that generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen. Again, it may be pointed out that even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved. Fullagar J., who delivered a separate judgment, said [3] : it remains true and important that the Crown should be permitted to adduce evidence after the close of the case for the defence only in exceptional circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the admission of the evidence. A wide discretion must be conceded to the judge presiding at the trial, but it should be regarded as limited in that way, and it is to be remembered that the practical effect of evidence on the minds of a jury may differ according as the evidence is adduced in chief or by way of replication. But the discretion ought not to be regarded as further limited or as governed by any rigid rule or formula. The general rule that all available evidence on which the prosecution intends to rely in proof of the guilt of the accused should be presented before the close of the case for the Crown is not merely a technical rule, but an important rule of fairness. Evidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. The very fact that the last piece of evidence which the jury hears is given in contradiction of evidence already given by or on behalf of the accused tends to tilt the scales in favour of the prosecution. 1. (1952) 85 C.L.R. 365. 2. (1952) 85 C.L.R., at pp. 379-380. 3. (1952) 85 C.L.R., at pp. 383-384.

[7]

In our opinion, if in the case of an alibi evidence comes into the possession of the prosecution at a late stage, it ought, as a general rule, to be admitted, unless the alibi has been set up earlier. If an alibi has been set up earlier and the prosecution have had an opportunity of testing it, the presiding judge would say: "You have known all about this alibi all the time. I am not going to allow you to call evidence to rebut it. You might have called any relevant evidence in chief." But when the alibi is set up for the first time at the trial, even if the prosecution know or suspect that it is going to be set up, in nearly every case they cannot know what the alibi is going to be. If it has never been disclosed, they ought to be allowed to give rebutting evidence, which the jury may accept or not. In Barnett v. McGregor; Ex parte McGregor [12] , Townley J. referred to this passage with approval. In Reg. v. Milliken [13] the court seems to have recognized the importance of the distinction between alibis of which the Crown had knowledge and those first raised at the trial when it was said [14] that "generally speaking, particularly since the Criminal Justice Act 1967 came into force, an alibi is to be anticipated." In Reg. v. Daren & Tange [15] , Lee J. said that "provided the Crown puts forward the whole of its evidence as to the accused's guilt (and this would in many instances require evidence refuting a suggested alibi where the alibi is known to the Crown or becomes known to it before it closes its case), it is always entitled to call evidence directly rebutting evidence given in the defence case." On the other hand, in R. v. Froggatt [16] the court held that evidence contradicting an alibi was properly given in rebuttal notwithstanding that the accused had raised the alibi before the committing magistrate. During the course of argument Phillimore J. said [17] : In some cases it would be impossible for the prosecution to deal with the alibi except by way of rebutting evidence, because the prosecution does not know that at the trial the prisoner may not set up some defence other than and inconsistent with an alibi, even though before the justices he set up an alibi. This statement, although no doubt true in some cases, does not profess to be true in all. In many cases it will be possible for the Crown to discover, simply by inquiry directed to counsel for the accused whether or not the accused intends to present evidence at the trial of the alibi which was set up in earlier proceedings or revealed in the course of an earlier conversation. 1. (1961) 46 Cr. App. R. 55. 2. [1968] N.Z.L.R. 981, at pp. 985-986. 3. (1957) 42 Cr. App. R., at p. 18. 4. [1959] Qd R. 296, at p. 302. 5. (1969) 53 Cr. App. R. 330. 6. [1959] Qd R., at p. 333. 7. [1971] 2 N.S.W.L.R., at p. 436. 8. (1910) 4 Cr. App. R. 115. 9. (1910) 4 Cr. App. R., at p. 118.

[8]

Before us, on behalf of the Crown, it was submitted that it was doubtful whether the evidence of Mr. and Mrs. Eyles could have been given by the Crown as part of its case in chief. It was said that it was doubtful whether the evidence would have been admissible as proof that the applicant had put forward a false alibi and in that way had shown a consciousness of guilt, and that the evidence was not admissible at that stage on any other basis. We cannot accept this argument. Whether or not the evidence would have been admissible to show consciousness of guilt, it would, in our opinion, have been admissible as part of the Crown's case in disproof of the alibi which the applicant intended to set up. Of course, the Crown cannot, to use Lord Sumner's words in Thompson v. The King [18] , "credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice". It cannot give evidence in disproof of an alibi which the accused has no intention of raising. However, in this, as in many other cases, there will be no difficulty in asking counsel for the accused whether or not it is intended to set up the alibi at the trial. Counsel of course is not bound to give the information sought, but if he declines to give the information, or says that there is no intention to set up the alibi, and evidence in support of the alibi is then given at the trial, the circumstances will be such as to justify the presiding judge in allowing the Crown to give the evidence in rebuttal. On the other hand, if counsel for the accused states that it is intended to set up the alibi, the Crown can then give in chief the evidence to disprove it. If the Crown is aware of the details of the alibi, and knows that it is intended to rely on it at the trial, there is no more justification for withholding until the close of the defence case evidence to refute the alibi, than there would be for withholding evidence to refute a claim that the accused acted in self-defence.