Stewart v R [1921] HCA 17

April 20,29. oyminalLaxe - Beidence - Admiaiilly - Beidenc of ecuned given informe tial - oeeGs, - Brienca caw cher -Micerrage of fuer Crimes At 1900 (W.8.W-}

obra Ba. (Xo, 40 of 190), ee 407 Hea, that the Criminal Appeal Act 1912 (SSW) does not erate a ne" Court, but merely directs that the Sopreme Court, constituted a therein prescribed, shall act asthe Court of Criminal Appeal, and, therefore, that an 'ppea ies from the Cour of Criminal Appeal to the High Court under see. 7

ink tia vloalary otatoments of kn sasebci pesin(stteealy ox we Bs wi han own coast, ara sda in vile gait 18 Bie senso tll forthe same offence ; thatthe fact that the statements rs Beas ear eee-exarlnation doe nt desizoy thir rhentany charac; Sawa ae A woe il he de ws mpi ek ia I pean in ant tn, otiecets mae ple apie latin onthe Git tril tending to show his bed character are irlerant,

Decision of the Supreme Court of New South Wales reversed.

from the Supreme Court of New South Wales. "At the Central Criminal Court James Stewart was tried on an jctment charging that he did without her consent ravish and ly know a certain girl. 'There was a second count charging an indecent assault, on the same girl. 'The jury having convicted him, srt appealed to the Court of Criminal Appeal, and that Court dis- "missed the appeal. "From that decision Stewart now, by special leave, appealed to the High Court. The grounds of appeal were: (1) that the verdict of the jury "was against the evidence and the weight of the evidence ; (2) that inhis summing up to the jury the presiding Judge was in error in stating that, because the prosecutrix admitted in her evidence that _ she had said to the prisoner "If I allow anybody to touch me it will be you," this admission went to prove the truthfulness of the 3 rest of her evidence as she could have easily denied that she had "ever made such a statement ; (3) that, although there were two "counts in the indictment on which the prisoner was charged, the jury in tetuming their verdict did not state on which count they found the prisoner guilty ; (4) that after the jury had been discharged 'and had dispersed the presiding Judge was in error in calling before 'him one of the alleged jurymen who represented that he was the foreman of the jury and taking from him the verdict of the jury as to the count of the indictment on which the jury had found the 'Prisoner guilty, in the absence of the rest of the jury ; (5) that there 'tas been a miscarriage of justice in that (a) the presiding Judge in his 'Summing up to the jury referred to the character of the appellant and his relationship to the prosecutrix in such a manner as was

H.C. or A. calculated to prejudice the jury against him and prevent them from

'coming to a proper conclusion on the facts, and (b) that the presiding Judge was in esror in allowing Alfred Bedford Page, the official shorthand writer, to give the following evidence - * I am an official shorthand writer of the Court. I was present at the trial of the accused, James Stewart, on Ist September last here, in the capacity of official shorthand writer. I saw him go into the box and give evidenée. I took down the evidence word for word. I have it here, I have examined the transcript of the evidence. It is word for word with what I have in my shorthand book," and in allowing him to read as part of his evidence the evidence given by the appel- lant at a former trial, 'The other material facts are stated in the judgment hereunder.

Coyle K.C, and Hammond, for the respondent, took a preliminary objection, This Court has no jurisdiction to entertain an appeal from the Court of Criminal Appeal. 'That Court, as established by the Criminal Appeal Act 1912, is a new tribunal, and is not the Supreme Court ; and, as itwas not existing at the time the Common- wealth was established, an appeal does not lie under see. 73 (11.) of the Constitution, 'That the intention of the Legislature was to create anew Court, and not to confer anew jurisdiction upon the Supreme Court, is borne out by the definition in sec. 2 of the word " Court." as meaning the Court established by this Act," and by sec. 3, whieh adopts the machinery of the Supreme Court, and by sec. 4, which provides for the appointment of officers of the Court, and by see. 28, giving power to make rules. As the Act gives a new right of appeal to the Court of Criminal Appeal, that is the only remedy that can be had (Bailey v. Bailey (1) ), and an appeal would not lie now to this Court from the original conviction.

[Sranxe J. That prineiple cannot be used to take away a right of appeal given by sec. 73 of the Constitution.

That section does not confer a right of appeal irrespective of the Provisions of State laws. [Counsel also referred to Parkin v. Tames (2).]

Covrr, without giving any binding decision on this objection, ded with the hearing of the appeal.

.. The statement made by the accused was not a yohintary tt so as to be admissible in evidence under sec. 407 of the es Act 1900, By its admission the appellant was deprived of right either to make or to refrain from making a statement. cases as to the admissibility of previous statements on oath by an accused do not apply to a new trial. In any event the tements made by the appellant in eross-examination as to his it and character were inadmissible. They would only have nadmissible if the appellant had on the second trial given evidence of good character, and then only by leave of the presiding Judge, Courts do not approve of novel methods of procedure in criminal trials (R. v. Bertrand (1) ).

Coyle K.C, The evidence given by the appellant on the first 'was admissible on the second trial whether given on examina- ' cross-examination, 'The evidence given by him on cross- xamination as to his credit and character, having been relevant n given, was relevant on the second trial, and was therefore perly admitted. The prosecution was entitled to put in the eof the statement made by the appellant. [Counsel referred oR. v. Eriheim (4); R. v. Mechan (5); R. v. Colpus (6); B. v. Hunt (7); R. v. McCoy (8); R. v. Sharpe (9); R. v. Chapman

(9) 5 WALR,, 125. (lo) 29 TLR., 117. (1) 15 TLR, 26. (2) 20 TLR 10

Tue Covnr delivered the following written judgment : -

This is an appeal by special leave from the judgment of the Court of Criminal Appeal (New South Wales) which dismissed the appeal of the prisoner from his conviction at the Central Criminal Court holden at Sydney on 30th November last. The indiet- ment contained two counts, the first charging rape and the second indecent assault. There had been a previous trial of the prisoner 'on the same charges on Ist September last, and he had been convicted, but the conviction was set aside because of the improper reception of evidence. On the first trial the appellant gave evidence on oath on his own behalf, and was cross-examined among other matters as to his character. At the second trial the Crown Prosecutor tendered, through an official shorthand writer, the whole of this evidence. Counsel for the prisoner objected to so much of it as consisted of cross-examination as to character, but the whole was admitted. In this evidence, during his examination-in- chief, the prisoner admitted having had connection with his niece, but stated that it was with her consent. In the course of his examination-in-chief he also said : - " It is correct what has been said by my niece, that I was away on service with the Forces, First of all in Egypt, and then on the Western Front. I obtained my majority in the ranks, and also got decorated. When I was away 1 was in hospital three times in all - in Egypt and twice in England. At Denmar Hill, England, 1 was in hospital through shell-shock. I remember 4th June this year." In eross-examination the prisoner said: - "I am decorated for services in the Mechanic Warfare Department. I was never left to protect women and children anywhere except in Franee. . . . I ama married man, I am not living with my wife. I was born in New South Wales. My father isa farmer. In my marriage certificate I described my father asa colonel. I supplied the information that he was a colonel of the 7th Seaforth Highlanders, I did it for a reason [interrupted] - I did it. 1 also supplied the information that my birthplace was Aberfeldy, Perthshire, Scotland. All that is quite untrue." 'The 'ross-examination then continues : - Question - '" Do you know that this information is not taken just for the purpose of knowing about 'colonels in Scotland ? It is supposed to be information that is true

iu will notice my age on it. My age is incorrect on that. I was nineteen years of age, and I put my age down as twenty that, whatever my reason was, most of the information was untme, Just now I took the Scotch oath, Tt does not matter if "Tamnot a Scotchman, Tan take an oath, My father is nota " Seoichman, I do not know if he was bom in County Mayo,

Ireland, I took the Scotch oath merely because it was more bind- ing upon my conscience than any other. I have heard the Scotch tathtaken before, 'That was not.a Scotch oath, I did take a form of

Scotch oath. I used the wrong text of the words, I know the Scotch cath and have used it before, 'The oath I took is binding on me." At the second trial the presiding Judge in his summing-up dealt with " theevidence in this way : - " The statement as to his marriage certifi- 'ate you can consider as to whether he is a truthful person; but it

isamatter of knowledge to us all that persons give false information 'when about to be married, so that the marriage shall be solemnized. If they were not of age and could not get consent, the marriage 'would not be performed. So over and over again people make false "declarations in this regard. Jt was not only in regard to his age that hemade that, but for some reason he wanted to make out that his father was a colonel and lived in Scotland. It may throw some light on his character for truthfulness."

Before the Court of Criminal Appeal four written grounds of appeal (the same as those taken before us) were argued, but counsel for the appellant was also allowed to argue generally a fifth ground, namely, that there had been a miscarriage of justice. It Wasnot then argued that the evidence already set forth was inadmis- sible and that the learned Judge was in error in commenting upon it ina sense unfavourable to the appellant. The appellant now contends that there has been a miscarriage of justice (a) in that the Presiding Judge, in his summing up to the jury, referred to the character of the appellant and his relationship to the prosecutrix _ inguch a manner as was calculated to prejudice the jury against him

nd prevent them from coming to a proper conclusion on the facts ; nd (2) in that the presiding Judge was in error in allowing Alfred Belford Page, the official shorthand writer, to give the following

'hich people may act." Answer - ' I did not know it at the time, H.C. or A.

H.C.oF A. evidence - "I am an official shorthand writer of the Court. I was

present at the trial of the accused, James Stewart, on Ist September last here, in the capacity of official shorthand writer. I saw him go

_ into the box and give evidence. I took down the evidence word

for word. I have it here. I have examined the transcript of the evidence. It is word for word with what I have in my shorthand book," and in allowing him to read as part of his evidence the evidence given by the appellant at a former trial.

A preliminary objection was taken that this Court had no juris- diction, under sub-sec. 11 of sec. 73 of the Constitution, to hear an appeal from the Court of Criminal Appeal, which was said to be a new Court established in 1912 by the Criminal Appeal Act 1912, and not one of the Courts from which an appeal lay to this Court. In our opinion, that Act does not create or constitute a new Court distinct from the Supreme Court, but merely directs that the Supreme Court shall act as the Court of Criminal Appeal (see. 3). The statute prescribes how the Court shall be constituted for hearing appeals (sec. 3); gives certain supplemental powers (sec. 12), and prescribes the procedure to be followed in the Court (see. 10). But all this is as consistent with the view that the Supreme Court is to act as a Court of Criminal Appeal as with the view that a new Court is created by the statute. If there can be no appeal to this Court unless the Supreme Court and the Court of Criminal Appeal are one, the Legislature evidently thought they were one, because sec. 24 (2) assumes that an appeal lies to this Court.

Another preliminary point was that this Court could not entertain the grounds now relied on as constituting a miscarriage of justice, as it had no jurisdiction to entertain an objection which was not taken below. The question raised in Hicks v. The King (1) does not arise in this ease, because, as we have already pointed out, the question of miscarriage of justice was allowed by the Supreme Court to be argued generally, although the reasons now relied on as con- stituting miscarriage were not placed before that Court. We come, therefore, to the substantial point of appeal. We do not doubt that the voluntary statements of a prisoner on a trial for an offence, which has been inconclusive, may be used on a second trial for the

amination does not destroy their voluntary character. 'The tent to which such evidence can be used is the question here, In first place, it is proper to observe that the evidence above set relates to the prisoner's character, or, more precisely, to his tmathfulness, and was extracted under cross-examination because

the prisoner gave no evidence whatever. Evidence of a er's bad character is clearly inadmissible, as a general rule,

-fiveevidence of the prisoner's want of character or untruthfulness ? Beatie Crown Prosecutor sai (1) thatthe prisoners statement must be taken as a whole and admitted as a whole, and (2) that his

'statement bearing on his character was relevant on the occasion on ME esainado and was therefore relevant onal other oooasions! 7 particularly on the second trial. No doubt a party who has given evidence is entitled to insist that his opponent who tenders that 'evidence on another occasion shall prove the evidence as a whole -tdnotin a detached form. Even this right is subject to limitations 'in respect of statements wholly unconnected with the statements "lied upon by. the party using the evidence. (See Prince v. Samo (I).) But the Crown was not, in the present case, in this position, nd could not rely upon any such principle. It was bound to prove 'the charge laid against the prisoner by evidence relevant to that charge, and by no other evidence. Evidence of character was inelevant, for the prisoner on the second trial had given no evidence "good character. 'The suggestion that the relevancy of the evidence

which it was first given is quite untenable, The Crown must

tender evidence relevant to the charge on which the prisoner is

'offence. 'The fact that the statements were made under H.C. or A.

H.C.orA. presented, and not merely relevant on another occasion and in 1921.

wholly different circumstances. The statements derogatory to srewanr the prisoner's character contained in his evidence on the first trial 'Tux Kixo, Ought, therefore, to have been excluded. No difficulty arose in doing

• so in this ease; they were wholly unconnected with the relevant portions of that evidence. (See R v. Coulter (1).) The effect of the evidence was accentuated in a manner unfavourable to the prisoner by the charge of the learned trial Judge.

It is unnecessary for us to discuss the other grounds taken by the learned counsel for the prisoner, but we feel bound to say that there are some general observations of the learned trial Judge, in his charge to the jury, affecting the prisoner's moral character, which might have been omitted without any prejudice to the proper administration of justice.

In the ciroumstances, there has been a miscarriage of justice, or,to adopt what was said in Ibrahim v. The King (2) (citing R. v. Bertrand (3)), there has been something which has deprived the accused of the substance of fair trial and the protection of the law, or whieh in 'general tended to divert the due and orderly administration of the law into a new course which might be drawn into an evil precedent in future,

For the reasons already given we have come to the conelusion that it is our duty to order a new trial,

Appeal allowed. Order appeated from discharged. Conviction set aside and new trial to be had. Case remitted to the Supreme Court for that purpose,

Solicitor for the respondent, J. V. Tillett, Crown Solicitor for New South Wales, BL

(1) 5 Cr, App. R,, 147. (2) (1914) A.C, at p. 615. (@) LR.1 PG, 520.