Tripodi v R [1961] HCA 22; (1961) 104 CLR 1 (5 May 1961)

HIGH COURT OF AUSTRALIA

TRIPODI v. THE QUEEN [1961] HCA 22; (1961) 104 CLR 1

Criminal Law

High Court of Australia
Dixon C.J.(1), Fullagar(1) and Windeyer(1) JJ.

CATCHWORDS

Criminal Law - Evidence - Larceny - Admissibility of directions given by one of several acting in preconcert with the prisoner in furtherance of common criminal design but spoken in the absence of the prisoner - Implied authority to act on behalf of prisoner arising from preconcert - Res gestae - Evidence of accomplice - Need for corroboration - Whether evidence of wife of accomplice sufficient - Sufficiency of warning to jury - False statements by accused about circumstances of crime may corroborate evidence of accomplice.

HEARING

Melbourne, 1961, March 16, 17;
Sydney, 1961, May 5. 5:5:1961
APPLICATION for special leave to appeal from the Supreme Court of Victoria sitting as the Court of Criminal Appeal.

DECISION

May 5.
THE COURT delivered the following written judgment:-
This application for special leave to appeal is made by a prisoner convicted motor cars. He applied to the Supreme Court of Victoria (Lowe, Gavan Duffy and Dean JJ.) for leave to appeal against his conviction but his application was refused and it is from the order refusing leave that the present application is made (1961) VR 186 . (at p4)

2. The first count upon which the prisoner was convicted was for the larceny on 11th May 1959 at North Melbourne of a Holden sedan car : the second upon which he was convicted was for the larceny on 28th May 1959 at Moonee Ponds of another Holden sedan car. To explain the grounds upon which the application to this Court for special leave to appeal is supported a very brief account is necessary of the facts presumably accepted by the jury as the basis of the convictions. The car the subject of the first count was a 1955 model Holden coloured grey. The owner parked it in a street in North Melbourne and while he was absent it was stolen. It was recovered by the police nine weeks or so later. It had been painted a two tone green, the engine was missing and the number plates and the registration label were gone, together with certain minor parts. Nevertheless the owner was able to identify the car without much chance of error. The car the subject of the second count, a 1953 model Holden, was left by its owner in a street in Moonee Ponds and when he returned it had been taken by a thief or thieves. This car also was recovered by the police and produced to its owner in the same way and on the same date as was the other car. The owner was able to identify it, but its engine had been changed and it had a different registration disc and number plates. The case for the prosecution was that the first car had been stolen by certain men acting in concert, of whom the prisoner was one, that they had enlisted the aid of one Tayler to sell it and that they had been prepared to furnish him for the purpose with registration papers, which, however, related to a 1953 model. Tayler pointed out that the car was a 1955 model which he could not sell on the papers of a 1953 model. Thereupon with his help the prisoner and others proceeded to look for a 1953 model Holden which would so to speak fit the papers. They found the car at Moonee Ponds and stole that ; they then changed the engine and the registration sticker and number plates. (at p5)

3. Tayler, who had pleaded guilty to an indictment charging him as an accessory after the fact of the larceny of the second car, gave evidence for the Crown against the prisoner. In spite of the nature of the charge to which he had pleaded guilty he gave evidence of being directly implicated in the theft of the car by the prisoner and another and he described how he was asked to sell what must have been the first car - the 1955 model Holden - and was shown 1953 papers. He told of the discussions and the reasons he gave for being unable to sell it and then of their seeking and stealing a 1953 model Holden. (at p5)

4. A motor mechanic was called to prove that in May the prisoner, who was a customer, came with another man bringing a Holden car of a model about 1955 coloured a two tone green and a few days later one of an earlier model, a model round about 1952. The mechanic was given instructions to do, and in consequence did, various things including changing the engine. Tayler and others came and took one of the cars away. Of these men one was proved by the evidence of another witness to have brought a Holden car, which the jury might infer to be the first Holden, for painting a two tone green. He was sent by a tradesman who was able to say that the prisoner had accompanied him on a visit when they came to that tradesman. There were several men in the party who brought the car to be painted and took it away but the evidence did not prove that the prisoner was one of them. All this evidence was let in whether the prisoner was within hearing or not on the ground that the prisoner and the others bringing the cars to be altered or painted were acting in concert in the theft and disposal of the cars. (at p5)

5. Tayler's wife was also called as a witness. She said that on one night in May 1959 about midnight two men called at Tayler's house for her husband ; one of them was the prisoner. Her husband left home with them : they were away for an hour or an hour and a half and returned together. The visitors departed about 2.30 a.m. and she then noticed a Holden car parked on their grass plot. It was a 1953 or 1954 model, light green or grey. This evidence of Mrs. Tayler was relied upon by the Crown as sufficient corroboration of the evidence of her husband, Tayler, who of course was an accomplice, on his own showing. Reliance was also placed upon certain false answers which the prisoner gave when later he was questioned by the police : the falsity of these answers was said to amount to corroboration. The answers falsely denied the prisoner's knowledge of Tayler and also of others who according to the evidence which must be taken to have been accepted by the jury were concerned in taking the cars to the mechanics and to the ducoer and some of whom indeed were concerned in the thefts. On the foregoing circumstances, which are very briefly stated, counsel for the prisoner made three points in support of his application for special leave to appeal. Upon the direction of the learned judge at the trial to the jury concerning the use of Tayler's evidence he raised a further question as to the nature of the warning which ought to be given to the jury against reliance on the uncorroborated evidence of an accomplice. (at p6)

6. The first point made is that no sufficient ground existed for admitting the evidence of what was done and said about the cars in the absence of the prisoner or out of his hearing. This relates to the instructions for the alteration of the cars and the reducoing and the conversations then taking place. It is urged that the rule under which upon charges of conspiracy evidence is admitted of what is done and said by the parties to the combination in furtherance of the conspiracy is a rule of a special nature and is incapable of application to charges of a sustantive offence. In the Supreme Court the contrary view was adopted and moreover a very wide rule was laid down. It is a mistake to think that the rule the chief application of which is in charges of conspiracy is a special rule of evidence confined to that offence. But at the same time it may well lead to error if the question of the admissibility of such evidence in any given case is treated exactly in the same manner as it might be on a charge of conspiracy. For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment. When that is so evidence may readily be let in of what each party to the conspiracy alleged may do or say in furtherance of the common purpose. But when a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. In The King and The Attorney-General of the Commonwealth v. Associated Northern Collieries (the Coal-Vend Case) [1911] HCA 73; (1911) 14 CLR 387 Isaacs J. said of evidence of the acts of individuals done in furtherance of a preconcerted common design in cases of conspiracy what is doubly true when such evidence is tendered in proof of a charge of a substantive crime committed by several acting in preconcert : "It is an error to say that acts of one defendant, however numerous, and however pointedly in furtherance of the prohibited purpose, are necessarily admissible as overt acts of (an) offence against a co-defendant charged with conspiring with the first. They are not so admissible unless the two defendants are shown to be associated for that purpose, so as to make the purpose common to both." (1911) 14 CLR, at p 400 . It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or pre-concert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts. It is customary at criminal trials simply to treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of any of its usefulness. But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts. It is easy to understand therefore that preconcert confederacy or combination may make such directions and the like admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design. In the present case the things said and done when the prisoner was not present or within earshot are for the most part of this character and are admissible as part of what was done in furtherance of the common criminal purpose. Indeed the evidence let in at the trial by reference to the rule in question includes little that was inadmissible and certainly nothing the reception of which would justify the grant of special leave to appeal. This point therefore fails. (at p8)

7. The second point taken in support of the application for special leave to appeal is that Tayler was an accomplice whose evidence was not corroborated unless his wife's confirmatory evidence could be relied upon for the purpose of corroborating his testimony, which was denied by counsel for the prisoner. Tayler was indeed an accomplice and his evidence clearly fell within the rule requiring that the judge at the trial should warn the jury that it is dangerous to convict upon such evidence unless it is corroborated. The evidence of Tayler's wife did however confirm his evidence in at least one very material particular implicating the prisoner and it would suffice to satisfy the rule, if a wife of an accomplice is qualified to provide the corroborative evidence for which the rule looks. In a trial before Sir Alan Park J. in 1835 that learned judge in effect directed the acquittal of a prisoner against whom the evidence was that of an accomplice corroborated only by the testimony of the latter's wife. The report of the case is brief and may be set out in full. "The prisoners were indicted for stealing a sheet, the property of Alban Bull. It appeared that the stolen sheet was found in the house of William Brain, who was admitted king's evidence ; and William Brain gave evidence to show that the prisoners stole the sheet. Park J. - What evidence have you, Mr. Walesby, to confirm the accomplice's statement? Walesby, for the prosecution - The wife of the accomplice. Park J. - Have you any other confirmation? Walesby - No, my Lord. Park J. - Confirmation by the wife is, in a case like this, really no confirmation at all. The wife and the accomplice must be taken as one for this purpose. The prisoners must be acquitted" : Reg. v. Neal and Taylor (1835) 7 C & P 168 [1835] EngR 561; (173 ER 74) . In R. v. Willis (1916) 1 KB 933 the Court of Criminal Appeal threw doubt upon the decision of Park J. in Reg. v. Neal and Taylor (1835) 7 C & P 168 [1835] EngR 561; (173 ER 74) and expressed the view that it "did not decide so broad a proposition as that the evidence of the wife of an accomplice cannot be corroboration". The Court observed that the proceedings in that case could not be correct as reported because what Park J. should have done, if there was no corroboration, was to warn the jury of the danger of convicting on the evidence of the accomplice, not direct an acquittal. In R. v. Payne (1913) 29 TLR 250; (1913) 8 Cr App Rep 171 the Court of Criminal Appeal took the same view as in R. v. Willis (1916) 1 KB 933 . In R. v. Eberts (No. 1) (1912) 7 DLR 530, at p 533 , Harvey C.J. of Alberta said of R. v. Neal and Taylor (1835) 7 C & P 168 [1835] EngR 561; (173 ER 74) that he felt no hesitation in saying that he considered such a decision as entirely out of harmony with our present law and views on the subject of evidence. But in an Irish case, Attorney-General v. Durnan (1934) Ir R 308 the view was taken that where the only corroboration of the evidence of an accomplice is the testimony of his wife, the judge should give the same warning as to her corroborative evidence as he should give as to the evidence of the accomplice. This view was followed in British Columbia in R. v. Munevich (1942) 3 DLR 482 . In principle it is impossible to understand why the wife of an accomplice should be incompetent as a witness to corroborate his testimony. It is said that wife and husband are considered one for many purposes of the law. That doctrine perhaps never formed part of the common law and was nothing more than a somewhat irrational rationalization of independent rules. But be that as it may the doctrine could hardly intrude into a modern rule of caution devised by the judges and hardening within living memory into a rule of practice as imperative as a rule of law. In fact there is no reason why a wife should not be admitted to testify and add the weight of her evidence to that of her husband or why the weight of her evidence should not suffice to fulfil the requirement of the caution administered to the jury. It is easy to imagine cases in which the very circumstances disclosed by the evidence would make it inadvisable for the jury to depend on the wife's confirmation and it may be assumed that as a matter of course the judge will when that occurs so advise the jury. But this is not such a case. It was suggested that Mrs. Tayler was herself an accomplice but this suggestion is not supported by the evidence nor does there seem to be any sound ground for saying that in any case the jury should have received some special caution against reliance upon Mrs. Tayler's evidence: cf. Reg. v. Prater (1960) 44 Cr App Rep 83 . In fact the presiding judge told the jury that they should examine her evidence with care. But of course that would not have sufficed in the case of an accomplice and in any case were she an accomplice her evidence could not be regarded as sufficient corroboration of her husband. (at p9)

8. The learned judge left it to the jury to say whether the prisoner had not lied to the police about his knowledge of certain of the witnesses and of the persons referred to as taking part in the alteration of the cars and reducoing one of them, and directed the jury that they might consider that corroboration. It was objected that false statements by an accused person about the circumstances of the crime are not necessarily corroboration of an accomplice and that in any case proof of the falsity of some of the statements rested on the very testimony to be corroborated. In the present case however the prisoner denied knowledge of some of the very persons with whom Tayler's evidence associated him in a way that if true would implicate him. Too wide a proposition ought not to be formulated about the effect of the false statements of a prisoner as corroboration of an accomplice; it must all depend on circumstances. But in the present case some of the statements made to the police touched his knowledge of persons with whom Tayler's evidence connected him and if the falsity of these statements was proved that might be regarded by the jury as corroboration. There was evidence outside Tayler's evidence which tended to prove the falsity of such answers and that is enough. It is true that more may have been included in the learned judge's direction than false statements so proved or false statements connected in the manner described with subjects of Tayler's evidence; but that is not a matter for special leave to appeal. The same observation may be made of the fourth and last ground upon which the application for special leave was based, namely that the warning against convicting on the uncorroborated testimony of an accomplice was not administered in terms as strong and specific as the usual formulation of the rule of practice demands. This may at once be conceded. For this is what the judge said: "Well now, gentlemen, it is obligatory on me to tell you that the evidence of an accomplice has to be scrutinized by the jury with great care. That does not mean that you are to reject it. You can act on it alone if you think proper, but you should look at it very carefully and be hesitant to act upon it unless you find corroboration. I will tell you what corroboration means in a moment. That is a rule of prudence." There is not in this an express reference to the danger which is said to lie in acting on the uncorroborated testimony of an accomplice. But the comparative weakness of the warning given is not a matter which in such a case as the present this Court should regard as a ground for granting special leave. A caution was administered. There appears to be quite sufficient corroboration and in other respects the case against the prisoner is by no means circumstantially weak, particularly as to the second count. (at p11)

9. For all these reasons the application for special leave to appeal should be refused. (at p11)

ORDER

Special leave to appeal refused.