Report No. 69
III. Legislative Precedents
83.7. Law in England.-
Let us, at this stage, turn to a few legislative precedents from other countries. In England, by section 1 of the Criminal Evidence Act, 1898, the accused was made a competent witness for the defence.1 That section then set out a series of provisos regulating his appearance as a witness. We shall refer only to so much of the section as is material for the present purpose. Proviso (e) to the section abolished the privilege of the accused in respect of incrimination of the crime in question, in these terms:-
"(e) a person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged".
As to cross-examination in regard to credit, proviso (f) to section 1 of the Act enacts that "a person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character. This proviso is itself restricted by three exceptions. The first exception deals with a situation where character evidence is relevant by some other provision of law in proof of the offence wherewith he is charged. This is not the text of the proviso, but shows its main object The actual language used is-
"The proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is charged".
This exception may bring up, for example, evidence of similar facts were such evidence is relevant, having regard to the questions at issue (e.g. state of mind).
Under the second exception, proviso (f) does not apply where the accused himself has made an attempt to establish his own good character or has challenged the character of the prosecutor or of a prosecution witness. The actual text reads as follows:-
"Has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution."
The third exception relates to the case where the accused "has given evidence against any other person charged with the same offence". The exception, as is obvious, is mainly intended to empower the other co-accused to put questions as to the credit of the accused who has given evidence. On its wording, it appears to cover cross-examination by the prosecution as well.2
1. Section 1, Criminal Evidence Act, 1898 (English).
2. Nokes Introduction to Evidence, (1967), p. 156.
83.8. It is unnecessary to add that the English Act does not exclude relevant evidence. In Makin v. A.G. for New South Wales, 1894 AC 65. Lord Merschell, L.C. observed-
"the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged if the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."
In R. v. Kennaway, (1917) 1 KB 29: (1916-17) All ER Rep 653. Lord Reading, C.J. said:
"It is not necessary to repeat what has often been stated in this court, that evidence which is otherwise admissible will not be inadmissible merely because it may show that the prisoner has committed other offences."
83.9. When Lord Herschell used1 the term "relevant to an issue before the jury", he meant, of course, an issue on facts relevant to the accused's guilt of the offence with which he was charged; he did not mean to include an issue about the accused's character, credit or credibility as shown by matters unconnected with that offence.
1. Para. 83.8.
83.10. To complete this discussion of English law, it may be noted that exclusionary rules are applied even to trials by a professional judge sitting alone, such a stipendiary magistrate hearing a case summarily, or a recorder trying a case on appeal.1 In a magistrate's courts, the law of evidence is supposed to be the same as in trials on indictment.2
1. R. v. Orimsby Borough, (1956) 1 QB 36: (1955) 3 All ER.
2. Davies v. Griffiths, (1937) 2 All ER 671.
83.11. Law in Australia.-
In Australia, many jurisdictions associated with the common law have a provision1 similar to that in section 1(f) of the Criminal Evidence Act, 1898, of England, permitting the previous convictions of the accused to become an issue only if, inter alia, the nature or conduct of his defence is such as to involve imputations on the character of prosecution witnesses. Even if the provision becomes applicable, there is a discretion in the trial judge whether to allow cross-examination of the accused as to his record. In Victoria, the relevant provision contains a proviso that the permission of the judge, to be applied for in the absence of the jury, must first be obtained before the cross-examination is allowed.
The proviso, as Dixon, C.J. observed in Dazvson's case,2is taken to confer complete discretion on the trial judge. In that case, the accused had done little more than deny that a document alleged to contain material by way of admissions in question and answer form was an accurate record of what he had told the police, and to deny having made any admission. The High Court held that neither the nature of the defence nor the conduct of it involved imputations upon the prosecutor or the Crown witnesses, and even if that were not so, discretion ought to have been exercised against allowing the cross-examination.
1. Mr. Justice Neasey (Supreme Court of Tasmania) Rights of the Accused, etc., (1969) 43 Aust. 1,J 482, 499.
2. Dawson v. Queen, 106 CLR 1.
83.12. New South Wales.-
The position in New South Wales is interesting. By Statute 55 Vict. No. 5 section 6 (1891), it was enacted that every person charged with an indictable offence:
"shall be competent, but not compellable, to give evidence in every court on the hearing of such charge:
Provided that the person so charged shall not be liable to be called as a witness on behalf of the prosecution, not to be questioned on cross-examination without the leave of the Judge as to his or her previous character, or antecedents."1
1. Emphasis supplied.
83.13. The statutory provision quoted became proviso No. 1 to section 407 of the Crimes Act, 1900 (New South Wales). Thus, the Judge in New South Wales is given a discretion on general considerations of justice and fairness as they appear to him.
83.14. The legislative intention underlying this provision conferring judicial discretion may be gathered from the speech of the Attorney General when he was introducing the Bill in the Legislative Council of New South Wales. This is what he said1:
"However, I think it desirable, as I said before that this provision should be surrounded with safeguards; and so I propose that no person charged with the commission of a criminal offence shall be questioned, on cross-examination, as to his or her previous character or antecedents without the leave of the Judge. It is necessary that that provision should be inserted, otherwise a prisoner who is giving evidence on his own behalf, and who is perfectly innocent of the offence with which he is charged today, might be placed in this position:
Some twenty, or fifteen, or ten years ago he might have committed some offence against the law, and if he were asked when giving evidence today upon his trial for a particular offence, whether ten years ago he was not found guilty of another offence, a great deal of harm and great injustice might be done. I provide, therefore, that he must not be asked as to his antecedents, as to whether so many years ago be did not do this or that. But whilst I provide that, as a matter of course, he must not be asked questions with reference to previous convictions, or as to his antecedents, I reserve power to the Judge to allow such questions if he thinks that the interests of justice require that the person should be so examined.
A Judge also-just as much as a Crown prosecutor; possibly more so-is imbued with a very strong sense of doing justice to the people who are unfortunately accused with the commission of certain offences, and a judge will always see that no question is allowed to be put to a prisoner which might do him an injustice unless really the public interests require it. If it is necessary for the conviction of a person who, in all probability, is guilty, and is likely to be acquitted by reason of those questions not being asked-if a judge thinks no unfair advantage will be taken of the man, he will allow the questions to be asked."
1. Speech of Attorney-General, Mr. O.B. Simpson.
83.15. The relevant section in Victoria is 399 of the Crimes Act, 1958 substantially on the same lines as New South Wales. Incidentally, one of the exceptions to that section reads:
"Unless the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witness for the prosecution:
Provided that the permission of the Judge (to be applied for in the absence of the jury) must first be obtained."
On this exception the decision of the High Court in Dawson v. The Queen, 106 CLR 1, is of considerable importance. The accused was charged with being an accessory after the fact to a burglary. He denied any knowledge of the crime, and that he had made the incriminating admissions sworn to by two police officers, and claimed that a contemporary record of interrogation produced contained much more than the couple of questions which he had been asked and answered. The trial judge had taken the view that the Crown prosecutor should be allowed to cross-examine as to previous offences. The Victorian Supreme Court upheld the conviction, but the High Court allowed an appeal, quashed the conviction and ordered a new trial.
83.16. The then Chief Justice, Sir Owen Dixon, in a characteristically powerful and lucid judgment, expressed the opinion that the cross-examination should not have been allowed, as not being within the exception of the sub section, or alternatively, if that view was wrong, that it was an improper exercise of the Judge's discretion. He was of the view that the facts fell far short of satisfying the condition of the sub-section. He analysed the language to show that what is referred to is not a denial of the case for the Crown nor of the evidence by which it is supported, but the use of matter which will have a particular or specific tendency to destroy, impair or reflect upon the character of the prosecutor, etc. He considered that the word "involve" was not meant to cover inferences, logical implications or consequential deductions which may spell imputations against the character of witnesses.
83.17. On the question of the exercise of the discretion (the alternative basis of his judgment). Dixon, C.J. was firmly of the view that it had been erroneously exercised. Amongst the considerations which led him to this view, the following are very important:
(a) It was necessary for the judge to consider whether the interests of justice were not best served by excluding evidence of the accused's convictions or bad character in order that his guilt should be judged on the facts of the case and not upon the propensities which his past disclosed or the prejudices his character or career might engender.
(b) It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused.
(c) In England and Victoria, the accused is protected against the disclosure of a discreditable past, unless in exceptional conditions, and he could not see on what ground consistent with the general policy of the proviso, the discretion was exercised in this case against the accused.