APPEALS from the Supreme Court of Queensland and MOTION to rescind leave to appeal.

BARWICK C.J. In my opinion, these appeals should be dismissed. The issue not the plaintiff, prior to his arrest, had used offensive language. The plaintiff in chief made no statement as to whether or not he complained to any police officer superior to either of the defendants to the effect that he had been arrested without cause: but in cross-examination he was asked whether he had made any complaint as to his treatment to any other officers of police at the watchhouse whither he was taken by the arresting constables. He said that it would not have done him much good to make a complaint. The effect of his evidence was that he did not do so. (at p167)

"You were thinking about it along those lines - 'It will

not do me any good because I will not be let out'? - That is

correct.

Was there any other reason why you did not make a

complaint?

- Yes, because of an incident I witnessed there.

Because of an incident you witnessed there. You were

asked about these matters when last you gave evidence? -

Yes."

Thereafter an account of that incident was elicited from him which involved a claim to have seen violent conduct on the part of police at the watchhouse towards other persons that evening. (at p167)

3. Subsequently, evidence contradicting the plaintiff's account of the incident was admitted, some without objection but the bulk of it, after objection. Further, the question of whether or not the plaintiff's or the defendant's witnesses' account of this incident was the more credible was left to the jury by the learned trial judge: but, as he said, only as a matter going to the plaintiff's credit. "The only thing that can be said against the character of the plaintiff is that he gave an account which is not correct of what happened at the watchhouse" was an expression used by the trial judge in the summing up. He also said:

"If a person had been subjected to the kind of treatment

the plaintiff said he received, he might be expected to complain

about it at the first opportunity. The plaintiff admits he did

not complain about it at the watchhouse. He gave as a reason

that he did not because of the treatment he saw meted out

to a person at the watchhouse, and he said someone was given

a push in the face and someone fell over."

and the trial judge expanded upon the evidence which had been given in denial of the plaintiff's account of the incident which had been elicited from him in cross-examination. (at p168)

4. In expressing the reasons of the Full Court for ordering a new trial, Hoare J. said (1967) Qd R 592, at p 597 :

"Now the point as to the plaintiff having failed to make a

complaint at the watchhouse was relevant to the issues before

the court. The question as to whether or not the sergeant

had assaulted other persons was not relevant to these issues.

The defendants were entitled to establish that the plaintiff

had not made any complaint at the watchhouse and that

there were officers of police present, senior to the defendants,

to whom such a complaint could have been made. In the

ordinary course it would have been proper for a party who

had failed to complain, to be asked why he did not, because

his state of mind at the time would have been relevant to the

reason for his action in that respect. This is for the reasons

stated earlier in this judgment. But the circumstances of the

instant case were that it was clear that the plaintiff's counsel

was not disputing the fact that no complaint was made and

was not disputing the fact that an opportunity for such

complaint existed. Consequently it was clear that an

appropriate inference could properly be drawn from the failure

to make that complaint. Clearly the plaintiff was not setting

up any explanation why he did not complain." (at p168)

5. With great respect, in my opinion, the fact that the plaintiff did not complain at the watchhouse was not relevant to the issue of whether or not, prior to arrest, he used the offensive words attributed to him, and, in my opinion, the defendants would not have been entitled to establish by their own evidence his failure to complain. Whether or not the fact of his failure to complain in the circumstances bore on the plaintiff's credit was a question to which the trial judge would need to give attention. The same may be said as to questions directed in cross-examination as to the plaintiff's reasons for not having complained. But I would respectfully disagree with the passage which I have quoted from the trial judge's summing up if it is to be regarded as of general application. I cannot think that the failure of an arrested man to complain of having been arrested necessarily bears upon the credit to be given to his account upon some issue arising in the trial. Much must depend on the issue and the circumstances. Generally speaking, a man is entitled to be silent. (at p169)

6. As there is to be a new trial, I would say no more than that whether the absence of a complaint or protest at the watchhouse bears on the plaintiff's credit would need careful consideration in the light of the then state of the evidence. Having said so much, I am prepared otherwise to accept the reasons advanced by Hoare J. for ordering a new trial. The evidence which ought to have been rejected in this case clearly tended to and quite likely did divert the attention of the jury when considering the real issue. It set up a false issue with which the trial ought not to have been encumbered. (at p169)

McTIERNAN J. It was not necessary for the plaintiff to prove as an element of his cause of action that he made a complaint to someone in the watchhouse or elsewhere that it was not proper for the police to arrest him. Nor was it pertinent to the defence having regard to the issues in the action that the plaintiff made no such complaint unless the fact that he did not do so could amount to an admission by conduct of disbelief on his part as to a material fact. I think it was not open to the jury to infer from the circumstances or from the circumstance that the plaintiff did not make the complaint, if they did so infer, that the plaintiff had given the police cause for arresting him on the charge in question. I think therefore that because of the introduction of so much evidence referable to the fact that the plaintiff did not complain, there was a mistrial because the jury's attention was diverted from the real issues in the case. I think the order of the Full Court of the Supreme Court of Queensland for a new trial should stand. (at p169)

KITTO J. I agree. The Chief Justice has expressed the reasons for which I think the appeals should be dismissed.

MENZIES J. I agree that in the circumstances disclosed here evidence that the plaintiff did not, at the police station, complain of his arrest was not relevant to any matter in issue in the action and that evidence to contradict the plaintiff upon the happenings at the police station was accordingly inadmissible. Whether, at a new trial, questioning of the plaintiff about any absence of complaint until the day following the arrest will go to his credibility will depend upon the course the cross-examination takes. (at p170)

2. I agree that the appeals should be dismissed for the reasons stated by the Chief Justice. (at p170)

WINDEYER J. I agree that these appeals should be dismissed. I do not wish to add anything to what has been said by the Chief Justice. (at p170)

Motion to rescind leave dismissed. Appeals dismissed with costs.

Solicitors for the appellant Ready, Pattison & Barry.

Solicitors for the appellant Mahony, J. J. O'Connor, Duncan & Co.

Solicitors for the respondent, O'Sullivan, Currie & Co.

M.G.M.