Phillips v R [1985] HCA 79; (1985) 159 CLR 45 (12 December 1985)

HIGH COURT OF AUSTRALIA

KEVIN WILLIAM PHILLIPS v. THE QUEEN [1985] HCA 79; (1985) 159 CLR 45

Criminal Law

High Court of Australia
Mason(1), Wilson(1), Brennan(1), Deane(2) and Dawson(1) JJ.

CATCHWORDS

Criminal Law - Evidence - Rape - Imputations on character of prosecutrix - Cross-examination of accused about prior convictions for offences involving dishonesty - Discretion of judge - Evidence Act 1977 (Q.), s. 15(2).

HEARING

1985, April 18; December 12. 12:12:1985
APPEAL from the Supreme Court of Queensland.

DECISION

MASON, WILSON, BRENNAN, DAWSON JJ.: The applicant seeks special leave to appeal from a unanimous decision of the Court of Criminal Appeal in Queensland dismissing an appeal from his conviction on two charges, one of breaking and entering a dwelling house with intent to commit a crime and the other of rape. Only one ground is advanced in support of the application: it is that the trial miscarried when the learned trial judge wrongly permitted the prosecutor to cross-examine the applicant on his previous convictions.

2. Evidence led for the prosecution showed that at about 3.00 am on 9 July 1983 a male person broke and entered a flat in a suburb of Brisbane. At the time a young woman was the sole occupant of the dwelling. Entry to the premises was gained by removing a flywire screen from a kitchen window and opening the window. The intruder went to the bedroom where the young woman was asleep and placed a cloth over her face. When she awoke he got into the bed and had sexual intercourse with the woman without her consent. She did not resist the man because she was afraid. At all material times her eyes were covered and consequently she was unable to describe in any detail the appearance of her assailant. The only evidence capable of identifying the applicant as the offender was the presence of his fingerprints on the aluminium frame of the flywire screen that had been removed from the kitchen window at the time of the unlawful entry. When detectives questioned him a day or two later, the applicant denied emphatically and more than once that he had ever visited the premises in question, although it did emerge that he lived only a short distance away and had met the woman casually on a number of occasions. When asked what he knew of her the applicant indicated, among other things, that on one occasion she had asked him if he could get her "two pound of dope" for someone who was leaving that night for Melbourne. He said that he had replied in the negative.

3. In the course of his evidence at the trial, the applicant testified that the woman had visited his home occasionally and that they had smoked marihuana there. He said also that a short time prior to 9 July 1983 she had asked him if he could get her two pounds of marihuana for some friends from down south who were staying with her. He promised to let her know. He claimed in evidence that in order to fulfil that promise he had gone to the woman's flat one afternoon to tell her that he could not help her. He described how he had knocked on the front door of the premises. As there was no response he said he had gone to the kitchen window and leaned on the flywire screen in trying to see into the room in order to confirm that she was not there. His defence to the charges included the explanation that in executing this manoeuvre he must have left his fingerprints on the frame of the screen. In her evidence the woman denied that she had ever smoked marihuana with the applicant or that she had ever asked him to get some marihuana for her.

4. It was in these circumstances that the prosecutor during her cross-examination of the applicant, sought and obtained the permission of the trial judge to question him concerning a number of previous convictions suffered by him for offences involving dishonesty.

5. The present application requires a consideration of the provisions of s.15(2) of the Evidence Act 1977 (Q.) ("the Act"). They are in a familiar form and, so far as material, read as follows:

"(2) Where in a criminal proceeding a person
charged gives evidence, he 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 with which he is there charged, or
is of bad character, unless -

(b) ...

(c) ... the nature or conduct of the defence is
such as to involve imputations on the
character of the prosecutor or of any witness
for the prosecution or of any other person
charged in that criminal proceeding:

Provided that the permission of the court to ask
any such question (to be applied for in a trial
by jury in the absence of the jury) must first be
obtained; or

(d) ... ".

The provisions are a substantial re-enactment of s.618A of the Criminal Code (Q.). They correspond to substantially similar provisions in other Australian jurisdictions. They follow the course set by the Criminal Evidence Act 1898 (U.K.), s.1(f) as part of the notable reform enlarging the right of an accused person to be a competent witness in his own defence whereby he is protected from the exposure in cross-examination to questions tending to reflect upon his character. In Curwood v. The King [1944] HCA 40; (1944) 69 CLR 561 Latham C.J., at p 568, said of the section there in question (Crimes Act 1928 (Vict.), s.432(e)(ii)):

"It is prohibitive in terms. It prevents, not only
the answering, but also the asking, of questions
tending to show that he has committed or been
charged with an offence other than that wherewith
he is then charged or that he is of bad character,
unless one of the three conditions specified in the
section is satisfied".

But it has long been established that not every assertion by an accused person which reflects injuriously upon the prosecutor or witnesses for the prosecution will have the effect of bringing into play the discretion of the trial judge to allow cross-examination of him with respect to other offences or to his bad character. A mere denial, even an emphatic denial, of the existence of facts alleged against him will not be sufficient, notwithstanding that imputations on the character of the prosecutor or of a prosecution witness may necessarily be implied: R. v. Rouse (1904) 1 KB 184; nor will a defence of consent to a charge of rape involve an imputation on the character of the complainant within the meaning of the section: R. v. Turner (1944) KB 463. See also Curwood, per Latham C.J. at pp 569-578 and per Dixon J. at pp 587-589; Reg. v. Brown [1960] VicRp 62; (1960) VR 382, per Smith J. at pp 396-397; Selvey v. Director of Public Prosecutions (1970) AC 304, at p 339.

6. On the other hand, it is also well established that the foregoing instances are of limited operation. The debate that has taken place from time to time during the past century (and which found its expression in the division of opinion in this Court in Curwood) as to whether the reference in the section to imputations on the character of the prosecutor or the prosecution witnesses should be confined to material "advanced for the purpose of destroying or impairing confidence in them as persons who would tell the truth" (per Dixon J. in Curwood at p.584) as distinct from material relevant to the issues pertaining to the indictment would seem to have been put finally to rest. The issue was determined first by an enlarged Court of Criminal Appeal in R. v. Hudson (1912) 2 KB 464 when in the judgment of the Court at p 470-471 it was said:

"We think that the words of the section,
'unless the nature or conduct of the defence is
such as to involve imputations,' &c., must receive
their ordinary and natural interpretation, and that
it is not legitimate to qualify them by adding or
inserting the words 'unnecessarily', or
'unjustifiably', or 'for purposes other than that of
developing the defence', or other similar words".

This view has been repeatedly reaffirmed and applied in the United Kingdom in more recent decades: Reg. v. Cook (1959) 2 QB 340; Selvey; and in this Court in Curwood and in Dawson v. The Queen [1961] HCA 74; [1961] HCA 74; (1961) 106 CLR 1. Although in Dawson Dixon C.J. was in dissent on the question whether the discretion to admit the cross-examination arose at all on the facts of the case, his Honour's elaboration of the reasoning underlying the first of the two exceptions we have mentioned is, in our view, entirely consistent with the trend of authority. His Honour said, at pp.9-10:

"... what is referred to (by 'the nature or conduct
of the defence' etc.) is not a denial of the case
for the Crown, not a denial of 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 or witnesses called for the prosecution,
quite independently of the possibility that such
matter, were it true, would in itself provide a
defence. The phrase assumes that a denial of the
case for the prosecution, although the evidence of
the prosecution is necessarily contradicted, does
not carry with it an imputation of the kind to
which the provision refers. Further the word
'involves' refers to what is a part of the defence
or, at all events, an element or ingredient in the
defence or what arises from the manner in which the
defence is conducted. It is not meant to cover
inferences, logical implications or consequential
deductions which may spell imputations against the
character of witnesses".

7. In the present case the submissions for the applicant do not challenge the existence of a discretion in the trial judge to permit the prosecutor to cross-examine the applicant on his previous convictions. In other words, it is not in contest that the nature or conduct of the defence was such as to involve an imputation on the character of a witness for the prosecution. What is in contest are the principles that govern the exercise of the discretion to permit the questions. Counsel for the applicant advances two propositions:

1. The discretion should be exercised adversely to an
accused person only in exceptional circumstances.

2. As a general rule, the discretion should not be
exercised adversely to an accused person where the
very nature of the defence necessarily involves an
imputation.

8. Section 15(2)(c) of the Act provides expressly that any questioning as contemplated by that provision shall be subject to the permission of the court. Not all statutes dealing with the subject in Australia contain such a proviso but undoubtedly it not only expresses a rule of practice which should always be observed in all jurisdictions (cf. Matusevich v. The Queen [1977] HCA 30; (1977) 137 CLR 633) but gives statutory recognition to the basic discretion inherent in all criminal trial judges to exclude evidence otherwise admissible if it would unfairly prejudice the accused person. See R. v. Christie (1914) AC 545; Noor Mohamed v. The King (1949) AC 182. In the United Kingdom, the relevance of the discretion to the operation of s. 1(f) of the Criminal Evidence Act 1898 was first mentioned by Viscount Sankey L.C. in Maxwell v. Director of Public Prosecutions (1935) AC 309, at p 321 and later by Viscount Simon L.C. in Stirland v. Director of Public Prosecutions (1944) AC 315, at p 324. The considerations affecting its exercise were discussed at some length by Singleton J. in R. v. Jenkins (1945) 31 Cr.App.R 1, at p 15, in a passage to which we will return. In Cook, at pp 345-348, the Court of Criminal Appeal emphasized the importance of the discretion as a means of ameliorating what might otherwise be a harsh operation of the statute.

9. It must be said that the propositions advanced for the applicant derive no support from present authority in the United Kingdom. Save for a few years during the 1960's when effect was given to a ruling by the Court of Criminal Appeal in Reg. v. Flynn (1963) 1 QB 729 that as a general rule the discretion should be exercised in favour of an accused person when the imputations made on prosecution witnesses were necessarily involved in the nature or conduct of the defence, the weight of authority has been heavily in favour of a discretion that is entirely unfettered. Its exercise must depend on the particular circumstances of each case. In the passage in Jenkins to which we have referred, Singleton J. said (at p.15):

"Such an application (that is, an application for
leave to ask questions of an accused person
touching his character) will not always be granted,
for the Judge has a discretion in the matter. He
may feel that even though the position is
established in law, still the putting of such
questions as to the character of the accused person
may be fraught with results which immeasurably
outweigh the result of questions put by the defence
and which make a fair trial of the accused person
almost impossible. On the other hand, in the
ordinary and normal case he may feel that if the
credit of the prosecutor or his witnesses has been
attacked, it is only fair that the jury should have
before them material on which they can form their
judgment whether the accused person is any more
worthy to be believed than those he has attacked.
It is obviously unfair that the jury should be left
in the dark about an accused person's character if
the conduct of his defence has attacked the
character of the prosecutor or the witnesses for
the prosecution within the meaning of the section.
The essential thing is a fair trial... ".

This statement was approved by an enlarged Court of Criminal Appeal in Cook (at pp.346-347) and by the House of Lords in Selvey (per Viscount Dilhorne at pp.340-341 and per Lord Pearce, with whom Lord Wilberforce agreed, at pp.357, 361).

10. Notwithstanding this impressive body of authority in the United Kingdom, counsel for the applicant argues that the approach taken in certain cases in the High Court and in some Supreme Courts supports the propositions for which he contends. Before turning to those cases, it may be observed that in Curwood, although the existence of the discretion was noticed (by Latham C.J. at p.578, by Starke J. at p.580 and by Dixon J. at p.587), the members of the Court did not have occasion to discuss the principles which govern its exercise. The earliest case upon which counsel relies is that of Brown, a decision of the Full Court of the Supreme Court of Victoria. At p.398 Smith J., in a passage with which Lowe J. expressed himself to be in general agreement, enumerated the matters that he considered to be relevant to the exercise of the discretion in that particular case. His Honour said:

"The judgment in R. v. Cook, supra, shows, I
consider, that it was necessary for his Honour, if
he came to exercise the statutory discretion in the
present case, to take into account, inter alia, the
following considerations: (a) That the legislation
is not intended to make the introduction of a
prisoner's previous convictions other than
exceptional. (b) That the prejudicial effect on
the defence of questions relating to the accused's
long criminal record needed to be weighed against
such damage as his Honour might think had been done
to the Crown case by the imputations. (c) That, on
the issue of credibility, it might be unfair to the
Crown to leave the Crown witnesses under an
imputation while preventing the Crown from bringing
out the accused's record. (d) That the actual
prejudicial effect of the cross-examination, if
allowed, might far exceed its legitimate
evidentiary effect upon credit. (e) That great
efforts had been made by the defence to make it
clear that memory only and not honesty was the
subject of attack. (f) That counsel for the
defence had not been warned, but had been refused
advice when he sought it from his Honour".

While items (e) and (f) had particular relevance to the circumstances of the case then under consideration, items (a) to (d) provide a valuable guide which is likely to be relevant in most cases. But the passage does not suggest that his Honour was laying down rules which were to govern the exercise of the discretion in every case. Nor does the first-mentioned consideration support the submission for the applicant that the discretion is only to be exercised against an accused person in exceptional circumstances. Item (a) refers to the legislative context. His Honour begins with that context in order to make the fundamental point, which is plainly right, that ordinarily a criminal trial is to proceed without the disclosure to the jury of prejudicial material which is unrelated to the facts of the case. In order to make that point, the statute declares that a person charged and called as a witness 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, unless one or other of the stipulated conditions is established, whereupon an exception may be permitted in the discretion of the trial judge to the fundamental exclusionary rule adumbrated at the beginning of the subsection. Earlier in his judgment his Honour made the same point even more clearly when (at p.394) he said:

"As was pointed out in R. v. Cook, supra, the
provision was intended to be a protection to an
accused person (p.100), and its terms show that
the introduction of his previous convictions was
not meant to be other than exceptional (p.99)".
(Our emphasis).

Strong support for the approach of Smith J. in this case is to be found in the decision of this Court in Matusevich in the judgment of Aickin J. (with whom Gibbs, Stephen and Mason JJ. agreed in this respect) at p.658. Brown and Matusevich rightly emphasize that, although the nature or conduct of the defence is such as to attract the discretion, the primary exclusionary rule remains of importance in determining the manner of its exercise. Although these cases show that there is no prima facie rule that "in the ordinary and normal case" (to use the phrase of Singleton J.) the discretion should be exercised in favour of the Crown, they do not support the submission that the discretion should be exercised against the Crown unless the circumstances can be described as exceptional. The discretion is at large but the primary exclusionary rule is a factor always relevant to its exercise.

11. Counsel for the applicant then seeks support from some observations of Dixon C.J. in Dawson. The central issue in that case was whether the nature or conduct of the defence involved an imputation against the character of detectives, called for the prosecution, in circumstances where the accused challenged the conduct of the detectives with respect to admissions allegedly made by him. The Court held by majority (Taylor and Owen JJ.; Dixon C.J. dissenting) that it was open to the trial judge to find that the evidence involved an imputation that the detectives had improperly tampered with the notes of the interview. However, after dealing with that central issue and emphasizing that one or other of the tests provided by the statute must be satisfied before the discretion arises for exercise, the Chief Justice, at pp.16-17, continued:

"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. When
in the United States an accused takes the stand or
in Canada enters the box, he is, generally
speaking, left in the same position as any other
witness and his credit is open to inquiry
accordingly: Wigmore on Evidence 3rd ed. (1940)
vol. 3, 890, p 380; R. v. Dalton (1935) 3 DLR
773. But that course has never been taken in
England or in Victoria and his position as an
accused person is protected accordingly against the
disclosure of a discreditable past, unless in
exceptional conditions. In Victoria an express
proviso, taken to confer a complete discretion, is
added to the English prototype of par. (e)(ii)".

Counsel relies on the reference in this passage to "exceptional conditions" as supporting the implication of a fetter upon the exercise of discretion once the conditions of s.15(2)(c) are satisfied. But we do not think that this is so. In our view it is plain from the context of this passage that the Chief Justice was expounding the broad thesis of English law to which he had referred. In that context, the statute expresses the "exceptional conditions" in which the blanket prohibition may be departed from. That his Honour is not there imposing limits on the scope of the discretion is made plain by the reference in the following sentence to it as a "complete discretion". It is an unfettered discretion governed, once it fairly arises under the statute, solely by what the interests of justice require in a particular case.

12. A similar response must be forthcoming to the attempted reliance by counsel for the applicant upon a passage in the judgment of Mason J. in Donnini v. The Queen [1972] HCA 71; (1972) 128 CLR 114. At p 144, his Honour said:

"The discretion reposed in the judge by s.399(e)
(ii) should be exercised so as to ensure that there
is a fair trial (see Dawson v. The Queen [1961] HCA 74; (1961) 106
CLR 1; Reg. v. Selvey per Lord Pearce (1970)
AC 304, at p 358 ...

It has always been accepted that the
introduction of evidence of bad character is
exceptional. The long-standing policy of the law
is against the reception of such evidence on the
question of guilt. The section in making provision
for cross-examination on prior convictions and bad
character is making provision for the reception of
that evidence in exceptional conditions. In
exercising the discretion it was for the learned
judge to consider the prejudice which would be done
to the applicant by the reception of evidence of
his prior convictions and his experience with drugs
and the risk that they would excite the suspicion
that the applicant was of restless and
irresponsible character and to evaluate the
advantage which the applicant might gain from the
question put to Mrs. Brading and the answer which
she gave. To my mind, the risk of unfair prejudice
to the applicant was far greater than the prospect
that he would derive advantage from Mrs. Brading's
evidence, for that evidence was of little value".

There is absolutely no support to be derived from this passage for the propositions advanced for the applicant. The reference to "exceptional conditions" is plainly a reference to the terms of the statute and the circumstances that will give rise to the exercise of the discretion rather than to the manner of its exercise.

13. There are a number of decisions of the Full Court of the Supreme Court of Victoria subsequent to the decision in 1960 in Brown which support the first proposition advanced for the applicant. The approach is described very lucidly in this passage from the joint judgment of Lowe and Smith JJ. in Reg. v. Dawson [1961] VicRp 117; (1961) VR 773, at p 776:

" ... before exercising his discretion in favour of
the Crown, he (the trial judge) should be satisfied
that the case is an exceptional one among cases in
which the statutory discretion arises. He should
ask himself the question: 'In what way is this
case an exceptional one among such cases?' And
unless he feels that a convincing answer is
forthcoming, it will not be proper for him to grant
the Crown's application".

Although the decision of the Supreme Court, which upheld the exercise of discretion by the trial judge, was reversed on appeal to this Court, the appeal concerned another aspect and no attention was directed to this passage in the judgments of the Court. The approach has been followed consistently in Victoria since that time (cf. Reg. v. Clark [1962] VicRp 92; (1962) VR 657; Reg. v. Crawford [1965] VicRp 75; (1965) VR 586), although later cases appear to confine the necessity for exceptional circumstances to cases where the imputation on the character of a prosecution witness which attracts the exercise of the discretion forms a necessary part of the defence (cf. Reg. v. White [1969] VicRp 25; (1969) VR 203; Reg. v. Cutajar, unreported, delivered 12 December 1980; Reg. v. McCaul and Palmer (1983) 2 VR 419).

14. With great respect, we think that to impose a fetter on the exercise of the discretion in terms of exceptional circumstances is apt to mislead. It tends to inscribe a further proviso to the legislative provision which is not expressed and which would be in direct contradiction to the clear ruling of this Court in Curwood. Although, under the influence of the decision of the Court of Criminal Appeal in Reg. v. Flynn, currency was given to the notion that where

"the very nature of the defence necessarily
involves an imputation, against a prosecution
witness or witnesses, the discretion should, in the
opinion of this court, be as a general rule
exercised in favour of the accused, that is to say,
evidence as to his bad character or criminal record
should be excluded" (Flynn, at p.737)

(cf. Clark; Reg. v. Matthews (1965) Qd R 306), the operation of that factor as a general rule was rejected by the House of Lords in Selvey. It remains, of course, as a valid consideration to be weighed in the scales when considering the exercise of the discretion. Indeed, this appears to be the way in which Gibbs J. dealt with it in Reg. v. Gramanatz (1962) QWN 41. Having referred to the then recent decision in Flynn, his Honour said (at p 95):

"If the accused makes quite gratuitous
imputations - accusations that are not necessarily
involved in the proper conduct of his defence - the
court will no doubt be more ready to exercise its
discretion in favour of allowing cross-examination
as to previous convictions or bad character than it
would in a case where the accused in making
imputations against prosecution witnesses is not
doing anything more than presenting his defence".

But if s.15(2) is elevated to the status of a general exclusionary rule the result is to fetter the exercise of the discretion in a manner which precludes consideration of other factors which may be relevant to the securing of a fair trial.

15. It is right to stress the exceptional character of a case in which the credibility of an accused person is open to be attacked by reference to his bad character or previous convictions and it is undoubtedly right that the discretion of a trial judge to permit such an attack be sparingly and cautiously exercised. Although the purpose for which such evidence is admitted is confined to questions touching the credibility of an accused person and is not to be accepted by the jury as persuasive of his guilt of the offence charged and notwithstanding that the trial judge will direct the jury clearly as to the use to which the evidence may be put and the use to which it may not be put (cf. Reg. v. Beech (1978) 20 SASR 410, at pp 420-423) there will always be a keen appreciation that the admission of the evidence may in the absence of countervailing considerations operate unfairly to his prejudice. The operation of the statute as construed in Curwood and confirmed in Dawson will determine when the statutory discretion arises. When that occurs, the sole criterion governing its exercise is what fairness requires in the circumstances of the particular case. We point again to the approval of this Court in Matusevich of the course followed by Smith J. in Brown and to the range of considerations which his Honour found to be relevant in that case.

16. Although we have chosen, in our examination of the submissions advanced for the applicant, to confine our attention primarily to Australian decisions it will be apparent that our conclusions correspond to the law as settled for the United Kingdom by the decision of the House of Lords in Selvey. Having regard to the common origin of the statutory provisions that we have been discussing and to the pervasive character of the law of evidence it is clearly desirable that there should be uniformity upon such an important topic of that law. It may be noted that, pending clarification of the law for Australia by this Court, a number of the Supreme Courts of the States have followed Selvey: Matthews v. The Queen (1973) WAR 110; Reg. v. Jessop (1974) Tas SR 64; Reg. v. Langford (1974) Qd R 67; Beech; Reg. v. Bransden (1981) 27 SASR 474.

17. It remains now to consider the manner in which the trial judge exercised his discretion. It is accepted that the nature or conduct of the defence was such as to involve imputations on the character of the principal witness for the prosecution, namely, the woman who testified that she had been raped. The imputations were that the woman had smoked marihuana with the applicant at his home and that she had requested the applicant to obtain a substantial quantity of marihuana for her to supply to some friends of hers. The trial judge gave detailed reasons for exercising his discretion to allow the prosecutor to cross-examine the applicant on his previous convictions. He described the circumstances of the alleged rape with particular reference to the absence of any resistance on the part of the woman, noting that they exhibited

"some unusual features or, at least, might be
thought by some jurors, at least, to present an
unusual set of circumstances in a case of rape".

He noted that the relevant issues were, firstly, whether the woman was subjected to sexual intercourse without her consent and, secondly, the identity of the person who had sexual intercourse with her. He stressed the importance of the jury's view of the credit-worthiness of the woman on the issue of consent having regard to the unusual circumstances to which he had referred and his belief that the imputations would reflect seriously upon her credit. Although it may be arguable that the imputations were not necessarily involved in the defence (because the admitted casual relationship between the applicant and the woman prior to the night in question would have explained a friendly call by him on her at her home), his Honour nevertheless accepted that it was necessary for the applicant to make the imputations in the course of explaining the reason why he had gone to her home, an explanation which was integral to the issue of identity. Finally, he noted that the convictions on which it was proposed to cross-examine the applicant related to offences of dishonesty. His conclusion, having regard to all of the circumstances of the case and to the manner in which the defence had been conducted, was to allow the cross-examination.

18. In our opinion, the applicant has failed to show that the discretion was exercised wrongly. Whilst it is not for us to consider how we might have exercised the discretion we would observe that a critical consideration on the facts of the case was the weighing of the prejudicial effect on the defence of the admission of the evidence of prior convictions against the potential damage to the prosecution case of the imputations (cf. Brown, at p.398; Matusevich, at p.658; Donnini, at p.144). The applicant's record of dishonesty would not be expected to evince any propensity to commit rape and given the appropriate directions to the jury as to the use to be made of the evidence there was no reason to anticipate any prejudice accruing to the applicant such as would outweigh the effect on the prosecution case of the imputations against the woman and render the result unfair.

19. We would grant special leave to appeal but dismiss the appeal.

DEANE J.: The principle that "the prior convictions or bad character of a person charged with an offence cannot be proved by cross-examination or otherwise before a tribunal which is concerned with the question of his guilt or innocence of the offence charged" is "fundamental in the administration of criminal justice" (see per Fullagar J., Hall v. Braybrook [1956] HCA 30; (1956) 95 CLR 620, at p 648). "It seems to have appeared as a rule of evidence towards the close of the seventeenth century and under the influence of judicial practice and statutory enactment gradually to have hardened into a principle, a principle to any infringement of which all concerned in the criminal law are highly sensitive because of the prejudice to the issue of guilt which is thought inevitably to ensue" (per Dixon C.J., Hall v. Braybrook, at p 628). In England, it was said by Willes J. in 1865 that, though such evidence is relevant to the issue of guilt, it is excluded for reasons of policy and humanity "because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety-nine" (Reg. v. Rowton (1865) Le. & Ca. 520, at p 541 [1865] EngR 53; (169 ER 1497, at p 1506), quoted by Dixon C.J. in Hall v. Braybrook, at p 628). The long experience of the common law is that such evidence in a jury trial is liable to besmirch justice with the ugly stain of prejudice or prejudgment.

2. The most significant qualification of that general principle is that which relates to cross-examination to credit of an accused who gives evidence. When, in 1891, the New South Wales Parliament established the right of an accused to give evidence in his or her own defence upon his or her trial, it conferred a general discretion upon the trial judge to permit cross-examination to credit of an accused who elected to give evidence by providing that such an accused should "not be liable ... to be questioned on cross-examination without the leave of the Judge as to his or her previous character or antecedents" (Criminal Law and Evidence Amendment Act 1891 (N.S.W.), 55 Vic. No. 5, s.6; note, as to habitual offenders, the U.K. statute 6 & 7 Will. IV c.111 (1836), adopted in New South Wales by 8 Will. IV No. 2 (1837) and, as to summary proceedings, Evidence in Summary Convictions Act 1882 (N.S.W.), 46 Vic. No. 3). The Crimes Act 1891 (Vict.) allowed cross-examination of an accused as to credit only if he or she had "given evidence of good character" (see 55 Vic. No. 1231, s.34). The United Kingdom Act of 1898 permitting an accused to give evidence in his or her own defence introduced a comprehensive set of rules governing the circumstances in which an accused person could be cross-examined about his or her character or past record in a criminal trial (Criminal Evidence Act 1898 (U.K.), 61 & 62 Vic. c.36, s.1). Those rules have, subject to some variations (cf., e.g., Crimes Act 1900 (N.S.W.), ss.407, 413A, 413B), subsequently been adopted either by legislative enactment or by judicial analogizing in the States and internal Territories of this country (cf., generally, the helpful discussion in the judgment of O'Brien J. in Reg. v. Heydon (1966) 1 NSWR 708, at pp 737ff.). In their forefront from the point of view of importance, there lies the provision dealing with cross-examination of an accused as to credit in circumstances where "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" (Criminal Evidence Act 1898 (U.K.), s.1(f) (ii)). Section 15(2)(c) of the Evidence Act 1977 (Q.) ("the Act"), whose operation is in question in the present application for special leave to appeal, contains such a provision.

3. The effect of s.15(2)(c) of the Act is not to make cross-examination automatically allowable in a case where the specified circumstances are found by the trial judge to exist but to remove the prohibition upon such cross-examination with the consequence that the question whether such cross-examination should be permitted becomes a matter for the discretionary decision of the trial judge. Any room for doubt that the overall effect of the qualification or exception is so limited is removed by the overriding proviso, in s.15(2)(c), that "the permission of the court to ask any such question (to be applied for in a trial by jury in the absence of the jury) must first be obtained". That proviso makes plain that cross-examination of an accused as to credit remains forbidden unless the trial judge is persuaded that, as a matter of discretion, it should be allowed. As Aickin J. observed, with the concurrence of Gibbs, Stephen and Mason JJ., in Matusevich v. The Queen [1977] HCA 30; (1977) 137 CLR 633, at p 658 when speaking of the corresponding provision (now s.399(5) and (6)) in the Crimes Act 1958 (Vict.):

"It overstates the matter to say that a 'right
arose in the Crown to cross-examine (the accused)
as to his character'. Under the Victorian section,
what arose was a right in the prosecutor to apply
to the Court to cross-examine (the accused) as to
his character and prior convictions, and it was
then the function of the trial judge to decide
whether or not in the circumstances such
cross-examination could be embarked upon. The
failure to apply and obtain such permission is more
than a mere irregularity. It is to embark upon the
asking of inadmissible questions and the
introduction of inadmissible evidence, without
affording the trial judge an opportunity to
exercise his discretion".

4. It is not disputed by the applicant that the circumstances of the present case satisfied the condition of s.15(2)(c) that the nature or the conduct of the defence was such as to involve imputations on the character of a witness for the prosecution. That being so, it is common ground that the learned trial judge had a discretion to allow cross-examination of the applicant about his previous criminal convictions. The applicant's attack upon the decision of the learned trial judge to permit cross-examination to credit took the form of two related submissions. The first of those submissions is a general one to the effect that the discretion to permit such cross-examination should be exercised adversely to an accused person only in "exceptional circumstances". The second is the more limited submission that the discretion should not, "as a general rule", be exercised adversely to an accused in a case where any imputations on the character of the prosecutor or of any witnesses for the prosecution are limited to imputations which constitute an integral part of the accused's actual defence. Since the learned trial judge expressly, and in my view correctly, found that the making of the relevant imputations was "integral to the nature of (the applicant's) defence" the second, and narrower, proposition would, if accepted, be applicable to the present case. As will appear however, I am unable to accept either proposition in the terms in which they were formulated on behalf of the applicant.

5. In my view, the discretion conferred upon a judge to permit cross-examination in the circumstances specified in s.15(2)(c) cannot properly be confined by the imposition either of some formula restricting its exercise adversely to an accused to "exceptional circumstances" or of some "general rule" that it be not so exercised in particular classes of case. The discretion is a general one to permit such cross-examination in a case where the trial judge is satisfied of the existence of the circumstances specified in the paragraph. It will only arise in an "exceptional" case in the sense that one or other of the statutory conditions precedent to its existence must be satisfied. Once the discretion has arisen, it will be for the prosecution to persuade the trial judge that he should permit cross-examination of the accused to credit in the circumstances of the case. It may well be that, in some classes of case, experience will demonstrate that it is likely to be more than ordinarily difficult to persuade the trial judge that the discretion should be exercised adversely to the accused. The discretion is not, however, fettered or confined, either generally or in particular classes of case, by any presumptive rule or principle of law that it ought or ought not to be exercised in a particular way (cf. per Bray C.J., Reg. v. Pfitzner (1976) 15 SASR 171, at p 181; Reg. v. Beech (1978) 20 SASR 410, at p 418). That does not mean, of course, that a trial judge is free to act arbitrarily in permitting or refusing to permit such cross-examination. The discretion is a judicial one which must be exercised for the purpose for which it was conferred, namely, that of ensuring that the trial of an accused is a fair one from the point of view of both the defence and the prosecution (cf. Donnini v. The Queen [1972] HCA 71; (1972) 128 CLR 114, at p 144). It must also be exercised in the context of relevant legal principle and with due regard being paid to relevant considerations.

6. The considerations which a trial judge is required to take into account in the actual exercise of the discretion and their relative weight will, of course, vary from case to case. Where the criminal record of an accused is a serious one however, there is one consideration which will always be relevant and which will commonly provide the proper starting point. That consideration is the likelihood that proof, by cross-examination to credit, of an accused's serious criminal record will introduce a substantial risk of unfair prejudice. The reason is that such evidence ordinarily, when admitted, goes only to the credit of the accused as a witness or to negative or qualify positive evidence of good character and cannot itself properly be used as positive evidence for the purpose of proving guilt, whether by suggesting propensity or otherwise (cf. Dixon C.J's statement of "the thesis of English law" in Dawson v. The Queen [1961] HCA 74; (1961) 106 CLR 1, at p 16 and, generally, Attwood v. The Queen [1960] HCA 15; (1960) 102 CLR 353, at pp 359ff., Donnini, at p 123, but note, e.g., Act, s.15(2)(a), Criminal Evidence Act 1898 (U.K.), s.1(f)(i)). Regardless of the care with which the trial judge may direct the jury to that effect however, the risk will remain that the influence upon the jury of evidence of a serious criminal record will, at least subconsciously, extend beyond the strictly limited purposes for which such evidence can ordinarily be properly used: "the actual prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit" (per Aickin J., Matusevich, at p.658, quoting Smith J. in Reg. v. Brown [1960] VicRp 62; (1960) VR 382, at p 398). That being so, cross-examination of an accused to credit should only be permitted in a case where, from the viewpoint of the interests of the administration of justice including the need to ensure that the particular trial is a fair one, any risk of unfair prejudice to the accused is outweighed, in the overall circumstances of the case, by other relevant considerations (cf. the approach taken in Donnini, at pp.135, 144 and 130, and in Dawson, at pp.16-17). Those other considerations will ordinarily include the extent and the nature of any damage done to the Crown case by the imputations and the circumstances in which any relevant imputations on the character of the prosecutor or prosecution witnesses came to be made.

7. The extent of the damage done to the prosecution case by imputations on the character of a prosecution witness will largely depend on the content of the imputations and the importance of the evidence of the particular witness. The extent of that damage will plainly be relevant to a consideration of the question whether cross-examination to credit should be permitted. The relationship between the evidence of the particular witness and the evidence of the accused will, however, also be relevant to a consideration of that question. Thus, it is likely to be more readily apparent that the objective of securing a fair trial from the point of view of both accused and prosecution requires that cross-examination to credit of a witness be permitted in a case where the evidence of the particular prosecution witness is in conflict with the actual evidence of the accused than in a case where no such conflict exists. In the former case, cross-examination to credit of the accused may well be necessary to avoid the false impression that the conflict of evidence falls to be resolved on the basis that the witness is a person of bad character while the accused is a person whose character is not suggested to be other than unblemished. In the latter case, the considerations favouring the permitting of such cross-examination are likely to be less cogent since, putting to one side illegitimate use of it, evidence of the bad character of the accused will not be directly relevant to the question whether the evidence of the particular witness should be accepted.

8. There was, for a considerable period, a degree of conflict in the cases about whether imputations on the character of prosecution witnesses made by an accused as an integral part of his defence against the prosecution case exposed the accused to cross-examination to credit at all. It was possible to point to authority to support the view that the words "imputations on the character of the prosecutor or of any witness for the prosecution" in provisions such as s.15(2)(c) should be construed as referring to imputations advanced for the purpose of destroying or impairing confidence in the prosecutor or any witness for the prosecution as a person who would tell the truth. As Dixon J. pointed out in Curwood v. The King [1944] HCA 40; [1944] HCA 40; (1944) 69 CLR 561, at p 585), this restrictive view of the effect of the relevant qualification of the prohibition upon cross-examination to credit had much to commend it on the ground of fairness to an accused and was readily comprehensible in that it depended "upon (the) everyday distinction between cross-examining to the issue and cross-examining to credit that could readily be applied". That question was, however, resolved for this country by the decision of the majority of the Court in Curwood to the effect that the mere fact that an imputation on the character of a prosecution witness (which goes beyond a simple denial - no matter how emphatic - of an ingredient of the prosecution case) forms an integral part of the defence does not preclude fulfilment of the condition precedent of the discretionary power to permit cross-examination (see, generally, Curwood, at pp 584ff. and Selvey v. Director of Public Prosecutions (1970) AC 304, at pp 339, 344-345, 353ff.): "it is not legitimate to qualify (the relevant words) by adding or inserting the words 'unnecessarily,' or 'unjustifiably,' or 'for purposes other than that of developing the defence,' or other similar words" (per Latham C.J., Curwood, at p.572, quoting the English Court of Criminal Appeal in R. v. Hudson (1912) 2 KB 464, at p 471, but note the possibly special, and not presently relevant, rules relating to cross-examination as to consent in a rape case). That does not mean, however, that it is irrelevant to the actual exercise of the discretion in pursuance of the overall objective of ensuring a fair trial that any imputation on the character of a witness for the prosecution was made only as a necessary ingredient of presenting the case for the defence. In following the "guiding star" of fairness, that circumstance will inevitably be a valid and cogent factor militating against the grant of permission for cross-examination of the accused to credit (cf. Selvey, at pp 352, 360; Dawson, at p 17; Reg. v. Gramanatz (1962) QWN No. 41).

9. In the present case, the applicant was charged with having broken and entered a dwelling house (i.e. burglary) and with having raped a young woman who was alone in the premises. The complainant was the principal prosecution witness at the trial. The defence was not concerned to dispute the occurrence of either the breaking and entry or the rape but denied, with the support of an alibi, that the applicant was the offender. The offences had occurred at night after the complainant had retired and she had not had the opportunity of seeing her attacker. She was unable to identify the applicant as the offender. The main prosecution evidence on identity concerned the finding of the applicant's finger prints on a fly screen over a window through which the assailant had apparently broken and entered the premises. The applicant's explanation of the presence of the finger prints was that the complainant had asked him to obtain a quantity of marijuana for "some people staying at her place ... from down south somewhere"; that he had visited her flat "to let her know" that he was unable to comply with that request; that the complainant had not answered the door; that he had attempted to look through the kitchen window and, in so doing, had placed his hand on the fly screen where his finger prints were subsequently found. A record of interview which was tendered in evidence by the prosecution disclosed that the applicant had, in answering a police interviewer's question about his knowledge of the complainant, stated, among other things, that she had asked him about obtaining "two pound" of marijuana for someone else. In examination in chief, the complainant was asked if she had "ever" inquired "whether (the applicant) could get marijuana or any other drugs" for her and whether she had "ever smoked marijuana or any other drugs" with the applicant. She denied both matters and repeated her denials under cross-examination. Subsequently, in his evidence, the applicant asserted both matters. That cross-examination of the complainant and evidence of the applicant about marijuana are the only aspect of the defence case which is suggested to have involved any imputation on the character of any witness for the prosecution.

10. The cross-examination of the applicant about his prior convictions established that he had been twice convicted of offences involving drugs and that he had other convictions, including possession of stolen property, stealing and breaking and entry. While re-examination of the applicant disclosed that some of those offences may have been comparatively trivial, the overall effect of the evidence was that the applicant had a bad criminal history including convictions for breaking and entry.

11. The evidence of the applicant's previous criminal record was only admissible as going to his credit as a witness. His past convictions could be used by the jury to help them assess his reliability as a witness of truth. They could not, however, properly be used as positive evidence enabling the guilt of the applicant to be inferred from his past character and tendencies. Their use in that forbidden way would be contrary to the central thesis of the criminal law to which Dixon C.J. referred in Dawson (at p.16) and, consequently, unfair to the applicant. Yet it was precisely in that forbidden way that the impact of the applicant's prior convictions would obviously have been quite devastating in its effect upon the jury. The main evidence against the applicant was that his finger prints had been found on the fly screen of a window through which a criminal entry had been effected. The members of the jury, however much they tried to restrict their use of the evidence of the applicant's prior convictions to proper purposes, would inevitably have found it much easier to conclude that the applicant was guilty when they knew of his character and tendencies as a convicted burglar. Indeed, the inevitable prejudice which would be aroused by evidence that the finger prints at the point of a burglar's entry were those of an accused who was a convicted burglar would unavoidably make it immeasurably more difficult to persuade a jury that that particular accused was not involved in that particular crime. Plainly, one would need to identify substantial considerations favouring the admission of evidence of the applicant's bad character before it could properly be held that the objective of ensuring a fair trial from the point of view of both the applicant and the prosecution would be served by permitting the applicant to be subjected to such unfair prejudice. With due respect to those who have seen and who see the position differently, it appears to me that there was a clear absence of any substantial consideration favouring the admission of such evidence in the circumstances of this case.

12. First, neither the nature nor the conduct of the defence involved any direct or general attack on the character of any prosecution witness. As has been said, no question was asked of the complainant to suggest that she had invented or was untruthful in her evidence that she had been raped. Secondly, the only imputations made against her were those made as an essential part of the defence case to explain how the applicant came to have placed his hands on the fly screen at her flat. In so far as the allegation that the complainant had requested the applicant to obtain marijuana is concerned, that was made by the applicant in a responsive answer to a question asked of him by a police interviewer and was first raised in evidence at the trial by a question asked by the prosecution which was obviously intended to establish the falsity of the applicant's statement in the record of interview which the prosecution, and not the defence, tendered in evidence. Indeed, it is fair to comment that the conduct of the prosecution case left the applicant with no real alternative to pursuing that allegation. Moreover, its pursuit was necessary to enable the applicant to place his defence before the jury. In so far as the suggestion that the complainant had "smoked marijuana ... with (the applicant)" is concerned, that also was first raised by a question asked by the prosecution. The applicant had no choice but to give evidence of it, if it were the truth, to explain the circumstances in which the alleged request to obtain marijuana had been made. Thirdly, in the absence of any attack on the general veracity of the complainant or of any suggestion that her evidence that she was raped was exaggerated or untrue, the effect of any imputation on her character was largely peripheral. In that regard, it is relevant to note that the learned trial judge appears to have regarded the unusual nature of the prosecution case - that the complainant had been raped in her flat by a person with whom she was acquainted (and whom she had seen earlier that evening) but whom she was unable to identify - as militating in favour of, rather than against, the exercise of his discretion to permit cross- examination of the applicant about his past convictions. In truth, of course, the main significance of any unlikelihood of the prosecution case is to increase the risk that the applicant was judged not so much on the facts of a "thin" case but "upon the propensities which his past disclosed or the prejudices his character or career might engender" (per Dixon C.J., Dawson, at p.16). Fourthly, there was nothing at all about the defence case which would have caused the jury to believe that it was being suggested that the character of the complainant was to be compared unfavourably with that of the applicant. The suggestion of smoking marijuana was as much to the discredit of the applicant as it was to the discredit of the complainant. The applicant's alleged refusal to obtain marijuana for friends of the complainant was couched not in terms of moral indignation or unwillingness but in terms of inability. In that regard, it is also relevant to note that the applicant had stated, in the record of interview which the prosecution had tendered in evidence, that he had "been busted" and had volunteered, in the course of examination in chief, that he had recently "been to court" on a charge of "possession" of marijuana.

13. In these circumstances, it appears to me that the making of the relevant imputations on the character of the particular prosecution witness could not properly be treated, "in the circumstances of the case, as sufficient justification for an exercise of discretion against (the applicant) and the granting of leave to the Crown to cross-examine on his record" (per Taylor and Owen JJ., Dawson, at p.21). Indeed, it is difficult to see any legitimate purpose which evidence of the applicant's stealing and burglary convictions would serve. That being so, the learned trial judge was in error in permitting the cross-examination. In deciding that he should grant such permission, his Honour must either have given insufficient weight to the prejudice to the applicant that was likely to result from cross-examination about his prior convictions or have given undue weight to the adverse effects which the imputations on the character of the prosecution witness would have upon the prosecution case (see per Walsh J., Donnini, at p.135). Indeed, his Honour's failure to refer at all to the prejudice to the applicant which was likely to result from cross-examination to credit may indicate that he acted upon the mistaken view "that if an accused person has placed himself by his own act or by the act of his counsel in a position where he runs the risk of such cross- examination, then prima facie leave to conduct such cross-examination ought to be granted" (ibid.).

14. Special leave to appeal should be granted. The applicant's convictions should be quashed and a new trial should be ordered.

ORDER

Application for special leave to appeal granted.

Appeal dismissed.