R v Grills [1910] HCA 68

R v Grills [1910] HCA 68 - HCA 1910 case summary — Zoe

[102]

ance, the real nature and effect of the evidence with respect to which it is alleged the jury were not properly directed, and the way in which the issues were presented to the jury for deter- mination. My learned brother, the Chief Justice, having stated fully the facts material to be considered in this case, I shall not refer to them in detail. It will be noted that the statements of the boy and the constable, as to which it is said the jury should have been warned, were referred to in the course of a conver- sation between the constable, the accused, and the boy. The main subject of conversation was the boy's visit to the cart of the accused and the occurrences on that occasion. The fact of the boy's complaint to his mother and to the constable was men- tioned by the latter, and was open to inquiry or comment by the accused during the conversation, just as .other subjects of the conversation were open. Neither the constable nor the boy said in the prisoner's presence what it was the boy stated to his mother and to the constable. It may, however, be conceded that the jury might have reasonably inferred from the whole conver- sation that the statements amounted in substance to an accusation against the prisoner of having done that for which he was being tried. The constable's account of the conversation makes it plain that the accused admitted the presence of the boy at the cart on the occasion referred to, but it is equally plain that he stoutly denied any wrong-doing. The learned Judge put the case to the jury as involving only one issue - the credibility of the boy. He told them that unless they believed his story they must acquit the accused. His only reference to the conversation with the constable was to direct the jury's attention to the corroboration of the boy's story furnished by the admission of the accused that the boy had climbed on the cart and the accused had tickled him. The learned Judges of the Supreme Court held that the direction was insufficient in not warning the jury as to the way in which they should regard the conversation. Mr. Justice Gordon puts the view of the Court definitely and

[110]

the prisoner who denied its truth. The warning was obviously necessary to prevent the jury from being misled into taking the issue to be between the truth of the statement and the credibility of the accused in denying it. To decide guilt or innocence on that issue would be to put the statement itself on the footing of evidence against the accused, which it could not be, for he had not only not admitted it to be true, but had explicitly declared it to be untrue. Now there is another and very different class of case in which statements made in the presence of the accused are admissible - those in which a witness deposes to a conversation between the accused and himself on the subject of the crime or some fact relevant thereto. In such cases there is really an interchange of statements, and the accused may speak in ad- mission, denial, or qualification of the other party's state- ments as question and answer pass between them. Apart from the statutory protection from disclosure which the law throws round confessions of guilt made under certain circumstances, the details of such conversation are always admitted in evi- dence, and are as to parts of them admitted in reality on the same ground as the statements described in my first illustra- tion. The only parts of the conversation which can be given effect to as evidence against the accused are his own statements, and those of the other party to which he has by voice or conduct assented. It is necessary, however, in order to understand what the accused has said, and to ascertain to what extent he has admitted or acquiesced in the statements of the other party, to put the whole conversation before the jury. It is possible that even in a case of that kind it may be necessary to specially warn the jury against allowing some particular statement detailed or mentioned in the conversation to weigh against the accused. But in the great bulk of cases the whole conversation is left to the consideration of the jury, without special direction as to the applicability of different portions of it to the issue of innocence or guilt. Generally speaking no other course is practicable. To ask the Judge in each case to separate those portions of the conversation which may be allowed to have effect against the accused from those which may not, is to impose on him a task often exceedingly difficult to perform adequately, and which if

[112]

There are passages in Mr. Justice Pickford's judgment in R. y. Norton (1) which would appear at first sight to favour the view that the law imposes some such obligation on the Judge pre- siding at a criminal trial. But when the real question to be determined in that case is looked at, it will be found that the judgment as a whole cannot be used as an authority in support of that view. In the two illustrations I have given I have placed side by side the instance in which a special warning to the juy is obviously one of the rights of the accused, and the instance in which it is equally obvious that he is entitled to no such right, In the actual work of the Criminal Courts the cases generally vary between these extremes. The duty of the Judge in each case can only be determined when the evidence is closed, and the issues upon which the verdict must really turn have taken definite shape. The principle on which the Judge ought, in my opinion, to deal with evidence of this kind in his direction to the jury may be stated in a few words. If a statement admitted because it was made in the presence of the accused, and not being in itself evidence against him, is of such a nature, and has been brought to his attention under such circumstances, that there may be danger of a juryman of ordinary intelligence mistaking the effeet of the evidence, and giving weight to the statement as being in itself evidence against the accused, the Judge will be bound to specifically instruct the jury as claimed in this case. Where there is no danger of jurymen being so misled no specific warning need be given. Tried by that test the direction of the learned Judge in this case was, in my opinion, substantially correct. It was clear on the prisoner's admission that the boy had been in the cart on the occasion in question, and that the prisoner had played with him, though, as the prisoner alleged, quite innocently. The vital issue as put to the jury by the learned Judge was whether they believed the boy's account of what the accused had done, and he further told them that unless they believed the boy's account the accused must be acquitted. Having regard to the emphatic and detailed denial given by the accused to the several portions of the

[118]

It is an elementary rule of law, going to the very foundation of justice, that no man shall be adjudged to be guilty of a crime upon evidence of another person's previous assertion. It matters not whether the assertion was made in the absence or the presence of the accused, as a mere assertion it cannot be regarded as any proof of the culpability of the accused or any confirmation of his accusers. But it is evident that upon such an assertion being made, and equally whether in the accused's absence or presence, he may admit its truth, and if he does, then it becomes evidence against him of his guilt, not because another has said it, but because of the admission. It is then equivalent to his own statement, and is receivable in that character. And it is further manifest that the acknowledgment of its correctness may be made in an infinite variety of ways. There may be an express and unqualified admission, or there may be a guarded admission, or there may be no direct but merely an implied acknowledgment, or there may be conduct, active or passive, positive or negative, from which, having regard to the ordinary workings of human nature, a total denial may be considered by reasonable men to be precluded, because, if innocence existed, an unequivocal or a qualified denial would in such a situation be expected. Even an express denial may be accompanied by circumstances such as " evasive responsion" : Best on Evidence, par. 575, ov hesitation or subsequent challenge without reply as in R. v. Thompson (2), which leave it open to a jury to say whether an admission of any kind ought or ought not to be inferred. 'hompson's Case (2) it is said overrules Smith's Case (3). In Thomipson's Case (2) the objec- tion was to the statement being admitted at the preliminary stage for the purpose of drawing an inference of admission of its truth. Prisoner's counsel urged, on the strength of Smith's Case (3), that unless there was active admission - which was impossible, he contended, where there was active denial - the statement

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Judgment (183 paragraphs)

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