Solicitors for Crown: Director of Public Prosecutions

Certificate of conviction of the principal offender is inadmissible upon the trial of the accused.

UNDERWOOD J The accused is charged with one count of being an accessory after the fact of armed robbery. The Code s6(1), requires the Crown to establish that (inter alia) the crime of armed robbery or one of the statutory alternatives was committed by the principal offender. Using the provisions of the Evidence Act, s76, the Crown wants to put in evidence a certificate of conviction of the principal offender for the crime of armed robbery. Counsel for the accused Triffett consented to the admission of this certificate and even invoked the provisions of the Evidence Act, s113A. However, notwithstanding that the certificate of conviction is in admissible form and, notwithstanding the consent given by counsel for the accused, I should only permit it to go to the jury if it is relevant to an issue between the Crown and the accused Triffett. It will only be so relevant if it tends to prove that the principal offender in fact committed the crime to which the certificate relates.

2. The general rule in civil proceedings, established by Hollington v F Hewthorn and Co Ltd (1943) 1 KB 587, is that proof of a conviction for an offence is not admissible in subsequent civil proceedings to prove actual commission of that offence. Until the rule is abrogated by statute or the Court of Criminal Appeal or Full Court of this State decides otherwise, Hollington v F Hewthorn and Co Ltd (supra) is still good law in Tasmania. The decision has been the subject of much criticism. See Barclays Bank Ltd v Cole (1967) 2 QB 738; McIlkenny and Ors v Chief Constable of the West Midlands (1980) QB 283. It has not been followed in Western Australia. See Micklenberg and Anor v The Director of Perth Mint (1986) WAR 365.

3. As a matter of principle, the rule in Hollington v F Hewthorn and Co Ltd (supra) applies to criminal proceedings to which the convicted person is not a party, as is the case in the present trial. This is acknowledged by the authors of the fourth Australian edition of Cross on Evidence at 162. However, the learned authors say:

"On the other hand there is a long established rule that,

upon the trial of a person on a charge of having been an

accessory to the commission of a felony, proof of the

conviction of the alleged principal offender is admissible,

and constitutes prima facie evidence that the felony was

committed by him. This must be treated as an anomalous

exception to the general rule."

4. On the other hand, the learned authors of Phipson on Evidence (13th edn) (before the 1984 UK statutory enactments) state the contrary at 657:

"Similarly it is thought that where A and B are alleged to

have taken part in a joint criminal enterprise and are not

charged jointly, the conviction of A is irrelevant at the

trial of B, whether A was principal and B accessory, or B

was principal and A accessory, or where A and B were joint

principals."

5. The authority for the statement in Cross is R v Dawson [1961] VicRp 117; (1961) VR 773, a decision of the Full Court of Victoria. In that case the appellant and one McKay were jointly charged, the latter with shop breaking and stealing and the former with being an accessory after the fact to the commission of those crimes. Upon arraignment the principal offender pleaded guilty. The appellant proceeded to trial and was convicted. The first ground of appeal was that the trial judge erred in admitting evidence "not sufficient to make me an accessory after the fact in law". Relevantly, Lowe and Smith JJ (with whose reasons the other member of the court agreed) said at 774:

"In support of this ground it was contended, in the first

place, that though there was evidence that the felony

charged against McKay had been committed, there was no

evidence that McKay was the person who committed it. But it

appears to be a sufficient answer to this that the Crown

called evidence before the jury that McKay, when arraigned

upon his presentment, had pleaded guilty to the felony

charged against him therein; for it is a rule long

established that upon the trial of a person on a charge of

having been an accessory to the commission of a felony,

proof of the conviction of the alleged principal offender is

admissible, and constitutes prima facie evidence that the

felony was committed by him."

6. Their Honours relied upon the following authorities. Foster, Crown Law (1809), 3 ed, at 365; R v Smith (1783), 1 Leach 288; R v Prosser [1783] EngR 184; (1784) 1 Leach 290 (n); Cook v Field (1788), 3 Esp 133. Two things might be noted about R v Dawson (supra) namely:

1 The principal offender and the accessory were jointly

presented on an indictment.

2 The evidence given on the trial of the accessory was that

the principal offender pleaded guilty on arraignment and was

subsequently convicted by the court.

7. This question was recently considered by the Court of Criminal Appeal in Queensland in Carter and Savage v R (1990) 47 A Crim R 55. In this case, the appellants were charged as accessories after the fact to murder. The learned trial judge refused to admit evidence that the principal offender had entered a plea of guilty when arraigned and refused to admit a certificate of his conviction. In result the Crown entered a nolle prosequi and the matter came to the Court of Criminal Appeal upon an Attorney-General's reference. The first question was whether Dawson's case represented the law in Queensland. By a majority, the court answered that question as follows:

"Upon the trial of an accessory after the fact proof of the

conviction of the principal offender is admissible and

constitutes prima facie evidence that the principal offender

did the acts and possessed the state of mind (if any)

necessary to constitute the principal offence."

8. Carter J, with whose reasons Kelly SPJ agreed, discussed at some length the authorities relied upon in Dawson and concluded at 67:

"The citation from Foster's Crown Law and the above cases

amply support the proposition stated by the Full Court in

Dawson and I am not persuaded to depart from it. Apart from

being seen as a principle of long standing, and on that

account not to be lightly discarded, it also appeals as a

rule of logic and good sense. If a person is charged with

murder - perhaps the most serious of crimes - and

unequivocally acknowledges his guilt by his plea of guilty,

proof of that fact may logically be seen to permit of the

inference that that person did the acts necessary to

constitute that offence and that proof of the fact of that

conviction upon his plea of guilty in criminal proceedings

against an accessory, where it is necessary to prove the

commission of the offence by the principal, should be

regarded as prima facie evidence that the principal did the

acts necessary to constitute the offence of, in this case,

murder."

9. His Honour went on to say that such evidence of course, is not conclusive evidence against accessories. However, the terms of the answer given to the case stated are much wider than the reasoning of Carter J, the culmination of which is set out above.

10. With respect to the authorities relied upon in Dawson, R v Smith (supra) is clear authority for the proposition that a receiver is entitled upon his trial to give evidence denying the guilt of the thief whose conviction had been given in evidence to prove that the goods were stolen. See also Blick (1830) 4 Car and P 375; [1830] EngR 262; 172 ER 747. At best, Smith's case does no more than infer that evidence of the thief's conviction was admissible for the stated purpose. The report of R v Prosser (supra) is so brief that it is difficult to gain much from it and Cook v Field (supra) also carries no more than an implication that proof of conviction of a principal offender is admissible on the trial of the accessory to prove commission of the principal crime. These authorities are discussed by Derrington J in Carter and Savage v R (supra at 59) and his Honour concluded:

"The court in Dawson was entitled to take into account these

authoritative statements of the general principle in

relation to accessories but because of its reliance upon

them without further discussion and particularly without

reference to other more modern authorities which might be

regarded as throwing doubt upon the principle if not

conflicting with it, the weight of its conclusion must be

diminished."

11. The modern authorities to which his Honour was referring were R v Kempster (1989) 1 WLR 1125; Moore v R (1956) 40 Cr App R 50; Taylor v Wilson (1911) 106 LT 44 and Spinks v R (1982) 74 Cr App R 263. The observation of the Court of Criminal Appeal in Spinks (supra at 266) was to the effect that proof of conviction is not evidence tending to establish commission of the crime but it was obiter dicta and made without reference to Dawson or the older authorities upon which Dawson was based. Also, Kempster (supra) is not really in point, for the offence in respect of which the conviction related was not an ingredient in the crime charged against the appellant and in any event, was decided after the UK statutory enactment enabling evidence of conviction to be evidence that the person convicted committed the offence. Similarly, in Taylor v Wilson (supra) the conviction sought to be proved and held admissible was not a necessary ingredient in the crime charged.

12. However, Derrington J considered that the very old authorities were in conflict with the others just referred to and resorted to basic principle to resolve the conflict.

13. Basic principle lies in the maxim res inter alios acta alteri nocere non debt. The existence of the principle is not in doubt, the question is whether there is an exception to it in the case of accessories and if so the nature and extent of that exception.

14. For my part, I am unpersuaded that the principle should be abrogated, at least in cases where the principal offender and the accessory are tried at separate times, on separate indictments and the guilt of the principal offender is established after a plea of not guilty. Having regard to the facts in each case, neither Dawson nor Carter and Savage warrant such a wide abrogation and, having regard to the antiquity of the authorities relied upon in Dawson, none of them justify departure from principle in those circumstances.

15. Accordingly, I rule that the certificate of conviction of the principal offender is inadmissible upon the trial of the accused.