Phillips v The Queen

Phillips v The Queen - [1985] HCA 79 - HCA 1983 case summary — Zoe

[11]

The provisions are a substantial re-enactment of s. 618A of the Criminal Code Q.. They correspond to substantially similar provisions in other Australian jurisdictions. They follow the course set by the Criminal Evidence Act 1898 U.K., s. 1(f) as part of the notable reform enlarging the right of an accused person to be a competent witness in his own defence whereby he is protected from the exposure in cross-examination to questions tending to reflect upon his character. In Curwood v. The King [1] , Latham C.J. said of the section there in question (Crimes Act 1928 Vict., s. 432(e)(ii)): It is prohibitive in terms. It prevents, not only the answering, but also the asking, of questions tending to show that he has committed or been charged with an offence other than that wherewith he is then charged or that he is of bad character, unless one of the three conditions specified in the section is satisfied. But it has long been established that not every assertion by an accused person which reflects injuriously upon the prosecutor or witnesses for the prosecution will have the effect of bringing into play the discretion of the trial judge to allow cross-examination of him with respect to other offences or to his bad character. A mere denial, even an emphatic denial, of the existence of facts alleged against him will not be sufficient, notwithstanding that imputations on the character of the prosecutor or of a prosecution witness may necessarily be implied (R. v. Rouse [2] ) nor will a defence of consent to a charge of rape involve an imputation on the character of the complainant within the meaning of the section: R. v. Turner [3] ; see also Curwood , per Latham C.J. [4] and per Dixon J. [5] ; Reg. v. Brown [6] per Smith J.; Selvey v. Director of Public Prosecutions [7] . 1. (1944) 69 C.L.R. 561, at p. 568. 2. [1904] 1 K.B. 184. 3. [1944] K.B. 463. 4. (1944) 69 C.L.R., at pp. 569-578. 5. (1944) 69 C.L.R., at pp. 587-589. 6. [1960] V.R. 382, at pp. 396-397. 7. [1970] A.C. 304, at p. 339.

[13]

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 adding or inserting the words "unnecessarily", or "unjustifiably", or "for purposes other than that of developing the defence", or other similar words. This view has been repeatedly reaffirmed and applied in the United Kingdom in more recent decades: Reg. v. Cook [10] ; Selvey [11] ; and in this Court in Curwood [12] and in Dawson v. The Queen [13] . Although in Dawson Dixon C.J. was in dissent on the question whether the discretion to admit the cross-examination arose at all on the facts of the case, his Honour's elaboration of the reasoning underlying the first of the two exceptions we have mentioned is, in our view, entirely consistent with the trend of authority. His Honour said [14] : what is referred to [by "the nature or conduct of the defence" etc.] 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. 1. (1944) 69 C.L.R., at p. 584. 2. [1912] 2 K.B. 464, at pp. 470-471. 3. [1959] 2 Q.B. 340. 4. [1970] A.C. 304. 5. (1944) 69 C.L.R. 561. 6. (1961) 106 C.L.R. 1. 7. (1961) 106 C.L.R., at pp. 9-10.

[20]

The judgment in Reg. v. Cook shows, I consider, that it was necessary for his Honour, if he came to exercise the statutory discretion in the present case, to take into account, inter alia, the following considerations: (a) That the legislation is not intended to make the introduction of a prisoner's previous convictions other than exceptional. (b) That the prejudicial effect on the defence of questions relating to the accused's long criminal record needed to be weighed against such damage as his Honour might think had been done to the Crown case by the imputations. (c) That, on the issue of credibility, it might be unfair to the Crown to leave the Crown witnesses under an imputation while preventing the Crown from bringing out the accused's record. (d) That the actual prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit. (e) That great efforts had been made by the defence to make it clear that memory only and not honesty was the subject of attack. (f) That counsel for the defence had not been warned, but had been refused advice when he sought it from his Honour. While items (e) and (f) had particular relevance to the circumstances of the case then under consideration, items (a) to (d) provide a valuable guide which is likely to be relevant in most cases. But the passage does not suggest that his Honour was laying down rules which were to govern the exercise of the discretion in every case. Nor does the first-mentioned consideration support the submission for the applicant that the discretion is only to be exercised against an accused person in exceptional circumstances. Item (a) refers to the legislative context. His Honour begins with that context in order to make the fundamental point, which is plainly right, that ordinarily a criminal trial is to proceed without the disclosure to the jury of prejudicial material which is unrelated to the facts of the case. In order to make that point, the statute declares that a person charged and called as a witness 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 one or other of the stipulated conditions is established, whereupon an exception may be permitted in the discretion of the trial judge to the fundamental exclusionary rule adumbrated at the beginning of the sub-section. Earlier in his judgment his Honour made the same point even more clearly when he said [32] : As was pointed out in Reg. v. Cook [33] , the provision was intended to be a protection to an accused person [34] , and its terms show that the introduction of his previous convictions was not meant to be other than exceptional [35] . (Our emphasis.) Strong support for the approach of Smith J. in this case is to be found in the decision of this Court in Matusevich in the judgment of Aickin J. [36] (with whom Gibbs, Stephen and Mason JJ. agreed in this respect). Brown and Matusevich rightly emphasize that, although the nature or conduct of the defence is such as to attract the discretion, the primary exclusionary rule remains of importance in determining the manner of its exercise. Although these cases show that there is no prima facie rule that "in the ordinary and normal case" (to use the phrase of Singleton J.) the discretion should be exercised in favour of the Crown, they do not support the submission that the discretion should be exercised against the Crown unless the circumstances can be described as exceptional. The discretion is at large but the primary exclusionary rule is a factor always relevant to its exercise. 1. (1944) 69 C.L.R., at p. 578. 2. (1944) 69 C.L.R., at p. 580. 3. (1944) 69 C.L.R., at p. 587. 4. [1960] V.R. 382. 5. [1960] V.R., at p. 398. 6. [1960] V.R., at p. 394. 7. [1959] 2 Q.B. 340. 8. [1959] 2 Q.B., at p. 100. 9. [1959] 2 Q.B., at p. 99. 10. (1977) 137 C.L.R., at p. 658.

[35]

It remains now to consider the manner in which the trial judge exercised his discretion. It is accepted that the nature or conduct of the defence was such as to involve imputations on the character of the principal witness for the prosecution, namely, the woman who testified that she had been raped. The imputations were that the woman had smoked marijuana with the applicant at his home and that she had requested the applicant to obtain a substantial quantity of marijuana for her to supply to some friends of hers. The trial judge gave detailed reasons for exercising his discretion to allow the prosecutor to cross-examine the applicant on his previous convictions. He described the circumstances of the alleged rape with particular reference to the absence of any resistance on the part of the woman, noting that they exhibited "some unusual features or, at least, might be thought by some jurors, at least, to present an unusual set of circumstances in a case of rape". He noted that the relevant issues were, first, whether the woman was subjected to sexual intercourse without her consent and, secondly, the identity of the person who had sexual intercourse with her. He stressed the importance of the jury's view of the credit-worthiness of the woman on the issue of consent having regard to the unusual circumstances to which he had referred and his belief that the imputations would reflect seriously upon her credit. Although it may be arguable that the imputations were not necessarily involved in the defence (because the admitted casual relationship between the applicant and the woman prior to the night in question would have explained a friendly call by him on her at her home), his Honour nevertheless accepted that it was necessary for the applicant to make the imputations in the course of explaining the reason why he had gone to her home, an explanation which was integral to the issue of identity. Finally, he noted that the convictions on which it was proposed to cross-examine the applicant related to offences of dishonesty. His conclusion, having regard to all of the circumstances of the case and to the manner in which the defence had been conducted, was to allow the cross-examination.

[41]

The most significant qualification of that general principle is that which relates to cross-examination to credit of an accused who gives evidence. When, in 1891, the New South Wales Parliament established the right of an accused to give evidence in his or her own defence upon his or her trial, it conferred a general discretion upon the trial judge to permit cross-examination to credit of an accused who elected to give evidence by providing that such an accused should "not be liable to be questioned on cross-examination without the leave of the Judge as to his or her previous character or antecedents": Criminal Law and Evidence Amendment Act 1891 N.S.W., 55 Vict. No. 5, s. 6; note, as to habitual offenders, the U.K. statute 6 & 7 Will. IV c.111 (1836), adopted in New South Wales by 8 Will. IV No. 2 (1837) and, as to summary proceedings, Evidence in Summary Convictions Act 1882 N.S.W., 46 Vict. No. 3. The Crimes Act 1891 Vict. allowed cross-examination of an accused as to credit only if he or she had "given evidence of good character": see 55 Vict. No. 1231, s. 34. The United Kingdom Act of 1898 permitting an accused to give evidence in his or her own defence introduced a comprehensive set of rules governing the circumstances in which an accused person could be cross-examined about his or her character or past record in a criminal trial: Criminal Evidence Act 1898 U.K.. Those rules have, subject to some variations (cf., e.g., Crimes Act 1900 N.S.W., ss. 407, 413A, 413B), subsequently been adopted either by legislative enactment or by judicial analogizing in the States and internal Territories of this country: cf., generally, the helpful discussion in the judgment of O'Brien J. in Reg. v. Heydon [71] . In their forefront from the point of view of importance, there lies the provision dealing with cross-examination of an accused as to credit in circumstances where "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": Criminal Evidence Act 1898 U.K., s. 1(f)(ii). Section 15(2)(c) of the Evidence Act 1977 Q. ("the Act"), whose operation is in question in the present application for special leave to appeal, contains such a provision.

[47]

The considerations which a trial judge is required to take into account in the actual exercise of the discretion and their relative weight will, of course, vary from case to case. Where the criminal record of an accused is a serious one however, there is one consideration which will always be relevant and which will commonly provide the proper starting point. That consideration is the likelihood that proof, by cross-examination to credit, of an accused's serious criminal record will introduce a substantial risk of unfair prejudice. The reason is that such evidence ordinarily, when admitted, goes only to the credit of the accused as a witness or to negative or qualify positive evidence of good character and cannot itself properly be used as positive evidence for the purpose of proving guilt, whether by suggesting propensity or otherwise: cf. Dixon C.J.'s statement of "the thesis of English law" in Dawson v. The Queen [76] and, generally, Attwood v. The Queen [77] , Donnini [1] , but note, e.g., the Act, s. 15(2)(a), Criminal Evidence Act 1898 U.K., s. 1(f)(i). Regardless of the care with which the trial judge may direct the jury to that effect however, the risk will remain that the influence upon the jury of evidence of a serious criminal record will, at least subconsciously, extend beyond the strictly limited purposes for which such evidence can ordinarily be properly used: "the actual prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit": per Aickin J., Matusevich [2] , quoting Smith J. in Reg. v. Brown [3] . That being so, cross-examination of an accused to credit should only be permitted in a case where, from the viewpoint of the interests of the administration of justice including the need to ensure that the particular trial is a fair one, any risk of unfair prejudice to the accused is outweighed, in the overall circumstances of the case, by other relevant considerations: cf. the approach taken in Donnini [4] , and in Dawson [5] . Those other considerations will ordinarily include the extent and the nature of any damage done to the Crown case by the imputations and the circumstances in which any relevant imputations on the character of the prosecutor or prosecution witnesses came to be made.

[50]

There was, for a considerable period, a degree of conflict in the cases about whether imputations on the character of prosecution witnesses made by an accused as an integral part of his defence against the prosecution case exposed the accused to cross-examination to credit at all. It was possible to point to authority to support the view that the words "imputations on the character of the prosecutor or of any witness for the prosecution" in provisions such as s. 15(2)(c) should be construed as referring to imputations advanced for the purpose of destroying or impairing confidence in the prosecutor or any witness for the prosecution as a person who would tell the truth. As Dixon J. pointed out in Curwood v. The King [6] , this restrictive view of the effect of the relevant qualification of the prohibition upon cross-examination to credit had much to commend it on the ground of fairness to an accused and was readily comprehensible in that it depended "upon [the] everyday distinction between cross-examining to the issue and cross-examining to credit that could readily be applied". That question was, however, resolved for this country by the decision of the majority of the Court in Curwood to the effect that the mere fact that an imputation on the character of a prosecution witness (which goes beyond a simple denial - no matter how emphatic - of an ingredient of the prosecution case) forms an integral part of the defence does not preclude fulfilment of the condition precedent of the discretionary power to permit cross-examination (see, generally, Curwood [7] and Selvey v. Director of Public Prosecutions [8] ): "it is not legitimate to qualify [the relevant words] by adding or inserting the words "unnecessarily," or "unjustifiably," or "for purposes other than that of developing the defence," or other similar words" (per Latham C.J., Curwood [9] , quoting the English Court of Criminal Appeal in R. v. Hudson [10] , but note the possibly special, and not presently relevant, rules relating to cross-examination as to consent in a rape case). That does not mean, however, that it is irrelevant to the actual exercise of the discretion in pursuance of the overall objective of ensuring a fair trial that any imputation on the character of a witness for the prosecution was made only as a necessary ingredient of presenting the case for the defence. In following the "guiding star" of fairness, that circumstance will inevitably be a valid and cogent factor militating against the grant of permission for cross-examination of the accused to credit: cf. Selvey [11] ; Dawson [12] ; Reg. v. Gramanatz [13] .

[52]

In the present case, the applicant was charged with having broken and entered a dwelling house (i.e., burglary) and with having raped a young woman who was alone in the premises. The complainant was the principal prosecution witness at the trial. The defence was not concerned to dispute the occurrence of either the breaking and entry or the rape but denied, with the support of an alibi, that the applicant was the offender. The offences had occurred at night after the complainant had retired and she had not had the opportunity of seeing her attacker. She was unable to identify the applicant as the offender. The main prosecution evidence on identity concerned the finding of the applicant's fingerprints on a flyscreen over a window through which the assailant had apparently broken and entered the premises. The applicant's explanation of the presence of the fingerprints was that the complainant had asked him to obtain a quantity of marijuana for "some people staying at her place from down south somewhere"; that he had visited her flat "to let her know" that he was unable to comply with that request; that the complainant had not answered the door; that he had attempted to look through the kitchen window and, in so doing, had placed his hand on the flyscreen where his fingerprints were subsequently found. A record of interview which was tendered in evidence by the prosecution disclosed that the applicant had, in answering a police interviewer's question about his knowledge of the complainant, stated, among other things, that she had asked him about obtaining "two pound" of marijuana for someone else. In examination in chief, the complainant was asked if she had "ever" inquired "whether [the applicant] could get marijuana or any other drugs" for her and whether she had "ever smoked marijuana or any other drugs" with the applicant. She denied both matters and repeated her denials under cross-examination. Subsequently, in his evidence, the applicant asserted both matters. That cross-examination of the complainant and evidence of the applicant about marijuana are the only aspect of the defence case which is suggested to have involved any imputation on the character of any witness for the prosecution.

[54]

The evidence of the applicant's previous criminal record was only admissible as going to his credit as a witness. His past convictions could be used by the jury to help them assess his reliability as a witness of truth. They could not, however, properly be used as positive evidence enabling the guilt of the applicant to be inferred from his past character and tendencies. Their use in that forbidden way would be contrary to the central thesis of the criminal law to which Dixon C.J. referred in Dawson [14] and, consequently, unfair to the applicant. Yet it was precisely in that forbidden way that the impact of the applicant's prior convictions would obviously have been quite devastating in its effect upon the jury. The main evidence against the applicant was that his fingerprints had been found on the flyscreen of a window through which a criminal entry had been effected. The members of the jury, however much they tried to restrict their use of the evidence of the applicant's prior convictions to proper purposes, would inevitably have found it much easier to conclude that the applicant was guilty when they knew of his character and tendencies as a convicted burglar. Indeed, the inevitable prejudice which would be aroused by evidence that the fingerprints at the point of a burglar's entry were those of an accused who was a convicted burglar would unavoidably make it immeasurably more difficult to persuade a jury that that particular accused was not involved in that particular crime. Plainly, one would need to identify substantial considerations favouring the admission of evidence of the applicant's bad character before it could properly be held that the objective of ensuring a fair trial from the point of view of both the applicant and the prosecution would be served by permitting the applicant to be subjected to such unfair prejudice. With due respect to those who have seen and who see the position differently, it appears to me that there was a clear absence of any substantial consideration favouring the admission of such evidence in the circumstances of this case.

[55]

First, neither the nature nor the conduct of the defence involved any direct or general attack on the character of any prosecution witness. As has been said, no question was asked of the complainant to suggest that she had invented or was untruthful in her evidence that she had been raped. Secondly, the only imputations made against her were those made as an essential part of the defence case to explain how the applicant came to have placed his hands on the flyscreen at her flat. In so far as the allegation that the complainant had requested the applicant to obtain marijuana is concerned, that was made by the applicant in a responsive answer to a question asked of him by a police interviewer and was first raised in evidence at the trial by a question asked by the prosecution which was obviously intended to establish the falsity of the applicant's statement in the record of interview which the prosecution, and not the defence, tendered in evidence. Indeed, it is fair to comment that the conduct of the prosecution case left the applicant with no real alternative to pursuing that allegation. Moreover, its pursuit was necessary to enable the applicant to place his defence before the jury. In so far as the suggestion that the complainant had "smoked marijuana with [the applicant]" is concerned, that also was first raised by a question asked by the prosecution. The applicant had no choice but to give evidence of it, if it were the truth, to explain the circumstances in which the alleged request to obtain marijuana had been made. Thirdly, in the absence of any attack on the general veracity of the complainant or of any suggestion that her evidence that she was raped was exaggerated or untrue, the effect of any imputation on her character was largely peripheral. In that regard, it is relevant to note that the learned trial judge appears to have regarded the unusual nature of the prosecution case - that the complainant had been raped in her flat by a person with whom she was acquainted (and whom she had seen earlier that evening) but whom she was unable to identify - as militating in favour of, rather than against, the exercise of his discretion to permit cross-examination of the applicant about his past convictions. In truth, of course, the main significance of any unlikelihood of the prosecution case is to increase the risk that the applicant was judged not so much on the facts of a "thin" case but "upon the propensities which his past disclosed or the prejudices his character or career might engender": per Dixon C.J., Dawson [15] . Fourthly, there was nothing at all about the defence case which would have caused the jury to believe that it was being suggested that the character of the complainant was to be compared unfavourably with that of the applicant. The suggestion of smoking marijuana was as much to the discredit of the applicant as it was to the discredit of the complainant. The applicant's alleged refusal to obtain marijuana for friends of the complainant was couched not in terms of moral indignation or unwillingness but in terms of inability. In that regard, it is also relevant to note that the applicant had stated, in the record of interview which the prosecution had tendered in evidence, that he had "been busted" and had volunteered, in the course of examination in chief, that he had recently "been to court" on a charge of "possession" of marijuana.

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Court

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Before

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Judgment (58 paragraphs)

Parties