Taylor v R [1918] HCA 68; (1918) 25 CLR 573 (18 October 1918)

HIGH COURT OF AUSTRALIA

Taylor Appellant; and The King Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

18 October 1918

Barton, Gavan Duffy and Rich JJ.

Haynes K.C. and Arthur Haynes, for the appellant.

Stow, for the respondent.

The judgment of the Court, which was delivered by Barton J., was as follows:—

Barton, Gavan Duffy and Rich JJ.

In this case we have come to the conclusion that it is our duty to order a new trial. For the purpose of discrediting his evidence at the trial of Taylor, a passage from the deposition of the witness Harrison on the preliminary examination of the other accused, Docherty, was read to the jury by the learned Judge's direction. Assuming that this could properly be done, it is objected that the passage could only be used for the purpose for which it was read, namely, the casting of doubt upon the credit of the witness. It is contended that, so far as the passage was used for any other purpose, there was a substantial miscarriage of justice. When we turn to the report of his Honor's charge to the jury we find that the passage in question was used as if it were evidence in the case. Not only so, but the references to parts of the passage are interwoven with the fabric of his Honor's charge in such a manner that the minds of the jury must have found difficulty in eliminating them, if indeed that were possible, from the purely evidentiary substance of the case. We cannot say that in these circumstances the trial was free from material fault, nor can we say that the interests of justice would be conserved if we disallowed the objection. We abstain from closer particularity, because it is essential to say nothing which may possibly prejudice a second trial. Nor is it necessary to deal with other objections which have been taken.

Appeal allowed. Order appealed from discharged and case remitted to the Supreme Court for a new trial.

Solicitors for the appellant, Richard S. Haynes & Co.

Solicitor for the respondent, F. L. Stow, Crown Solicitor for Western Australia.