R v Chin

[17]

As has already been shown, the evidence relating to the fact that both accused referred in their application forms to the same telephone number was relevant to the prosecution case and the occasion for giving that evidence could have been foreseen. Within the principle stated, the evidence could not properly have been admitted in rebuttal. However, the principle is not a rigid one and there are cases in England that suggest that a trial judge has a discretion to allow evidence relevant to the prosecution's case to be given in rebuttal if, for some reason, it was not available to the prosecution until after it had closed its case: Reg. v. Rice [6] ; Reg. v. Levy and Tait [7] ; Reg. v. Doran [8] . It would seem unduly technical to exclude altogether evidence that was not in the possession of the Crown until after it had closed its case, and the judge may by the exercise of his discretionary powers prevent any unfairness to the accused from arising. It was submitted on behalf of the Crown in the present case that the prosecution would have been unable to prove that Choo had signed the application form if Choo himself had not admitted that fact in cross-examination. The form bore Choo's photograph, but that fact did not prove that he had signed it, and the submission made on behalf of the Crown was that it would not have been possible to prove that the signature on the form (which was in Chinese) was that of Choo. On the other hand, it was pointed out by counsel for the respondent that Choo's passport and incoming passenger card had been admitted into evidence and it was suggested that it would have been possible to compare the signature on those documents with the signature on the application form. Not all the material which was put in evidence at the trial was placed before us and it is not possible for us to say whether it would have been possible to compare the signature on the form with the signature on other documents admitted in evidence or whether there were witnesses to the actual signing of the form whose presence at the trial could, as a matter of practicality, have been secured. There is no finding by either the learned trial judge or by the Court of Criminal Appeal that it was not possible, or reasonably practicable, for the prosecution to have introduced the application form in evidence during its case in chief and the material does not permit this Court to hold that it could not have done so. The Crown has not established that it should have been allowed to reopen its case to adduce the evidence as to the telephone numbers.

[19]

However, the material fact that Choo had signed the form showing the telephone number was elicited in the cross-examination of Choo. It has been said in England that the general rule that matters probative of the guilt of the accused should be adduced as part of the prosecution's case applies to matters put in cross-examination to a defendant as well as to the calling of evidence: see Archbold's Criminal Pleading, Evidence and Practice, 41st ed. (1982), par. 4-408. The principal authority cited for this proposition is the decision of the Court of Criminal Appeal in Reg. v. Kane [9] . In this Court, in Lawrence v. The Queen, a different view appears to have been taken [10] , although the matter was not expressly discussed except in the judgment of Brennan J. [11] . In principle, it is difficult to accept that the introduction of evidence by means of cross-examination of the accused or his witnesses stands in the same position for the purposes of the principles discussed in Shaw v. The Queen [12] as does evidence adduced by calling other witnesses after the close of the prosecution's case. A cross-examiner is entitled to ask questions to establish matters relevant to the issues whether or not the witness has deposed to such matters in his examination in chief. Cross-examination "is not confined to matters proved in chief; the slightest direct examination, even for formal proof, opens up the whole of the cross-examiner's case": Phipson on Evidence, 13th ed. (1982), p. 804; Reg. v. Beckett and Macintosh [13] , and see Wigmore on Evidence, Chadbourn rev. (1976), vol. 6, par. 1885. The cross-examination may serve the purpose of confirming the evidence already given by witnesses for the prosecution, but the Crown Prosecutor may also prove, by admissions made by the accused under cross-examination, facts which were not proved in chief, whether because it was not possible to prove them, or simply because the Crown Prosecutor failed to advert to them. The trial judge, of course, retains his discretionary powers to ensure that the cross-examination is not unfair. In general, it would be unfair to raise, in cross-examination, some entirely new matter which was affirmatively probative of the guilt of the accused but which had not been the subject of evidence either at committal proceedings or in the prosecution's case in chief, unless the accused had been given prior notice of such matter. Scarman L.J. (as he then was), said, in delivering the judgment of the court in Reg. v. Kane [14] :

[43]

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. The prosecution will not, of course, be seeking to split its case when the evidence which it wishes to call by way of reply is to rebut evidence which forms no part of its proofs as, e.g., where the defence of insanity is raised or evidence of good character is called by the accused. Even then, if the nature of the evidence which the accused intends to call should have been known to the prosecution so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its case in order to call rebutting evidence. Thus it was held in Killick's Case that the prosecution ought not to have been permitted to call evidence after the close of the defence case in order to rebut an alibi raised by the accused which ought to have been foreseen by the prosecution because it had been raised in earlier proceedings. Where evidence which the prosecution seeks to call by way of rebuttal is also confirmation of the case which it has sought to make, the trial judge must exercise his discretion to ensure the observance of the principle which finds its expression in the rules which have been laid down: see Killick's Case [19] . If the evidence was only of marginal, minimal or doubtful relevance to the prosecution case, it may properly be admitted to rebut the defence case. There is also authority for the proposition that the prosecution may be permitted to reopen its case to repair omissions of a formal, technical or non-contentious nature: see Archbold's Criminal Pleading, Evidence and Practice, 41st ed. (1982), par. 4-414, and the cases there cited. 1. (1952) 85 C.L.R. 365. 2. (1981) 147 C.L.R. 565. 3. (1981) 38 A.L.R. 1. 4. (1952) 85 C.L.R., at p. 380. 5. (1981) 147 C.L.R., at p. 576.

[56]

My Lords, in answer to this part of your Lordships' question, I am to inform your Lordships, that the Judges are of opinion, in the case propounded, that the counsel cannot, by questions addressed to the witness, enquire whether or no such statements are contained in the letter; but, that the letter itself must be read to manifest whether such statements are or are not contained in that letter. My Lords, in delivering this opinion to your Lordships, the Judges do not conceive that they are presuming to offer to your Lordships any new rule of evidence, now, for the first time, introduced by them; but, that they found their opinion upon what, in their judgment, is a rule of evidence as old as any part of the common law of England, namely, that the contents of a written instrument, if it be in existence, are to be proved by that instrument itself, and not by parol evidence. The latter part of your Lordships' question is, "In what stage of the proceedings, according to the practice of the courts below, such letter could be required by counsel to be read or be permitted by the court below to be read?" My Lords, in answer to this, I am to inform your Lordships, that the Judges are of opinion, according to the ordinary rule of proceeding in the courts below, the letter is to be read as the evidence of the cross-examining counsel, as part of his evidence in his turn, after he shall have opened his case; that that is the ordinary course; but that, if the counsel, who is cross-examining, suggests to the Court that he wishes to have the letter read immediately, in order that he may, after the contents of that letter shall have been made known to the Court, found certain questions upon the contents of that letter, to be propounded to the witness, which could not well or effectually be done without reading the letter itself, that becomes an excepted case in the courts below, and, for the convenient administration of justice, the letter is permitted to be read at the suggestion of the counsel, but considering it, however, as part of the evidence of the counsel proposing it, and subject to all the consequences of having such letter considered as part of his evidence. 1. (1833) 6 Car. & P. 289 [172 E.R. 1245]. 2. (1820) 2 Brod. & B. 284, at pp. 289-290 [129 E.R. 976, at p. 978].

R v Chin - [1985] HCA 35 - HCA 1982 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Parties