Dryburgh v R [1961] HCA 54; (1961) 105 CLR 532 (1 September 1961)

HIGH COURT OF AUSTRALIA

DRYBURGH v. THE QUEEN [1961] HCA 54; (1961) 105 CLR 532

Criminal Law

High Court of Australia
Kitto(1), Taylor(1) and Windeyer(1) JJ.

CATCHWORDS

Criminal Law - Conduct of trial - Power of trial judge to admit further evidence after completion of summing-up.

HEARING

Sydney, 1961, August 29; September 1. 1:9:1961
APPEAL from the Supreme Court of the Australian Capital Territory.

DECISION

September 1.
The COURT delivered the following written judgment:-
This is an appeal under s. 52 of the Australian Capital Territory Supreme against the appellant was that he obtained a cheque by false pretences with intent to defraud. The false pretences alleged were that the appellant was the owner of a certain motor car and that the car was free from all hire purchase agreements, bills of sale or other encumbrances. There was ample evidence to support the conviction. The Crown case was that on 3rd February 1958 the appellant approached a man called Rycroft, a director and manager of the business of a motor car selling company, that he purported to sell to the company for 600 pounds a car which he told Rycroft was his and was not subject to any hire purchase agreement or bill of sale or other encumbrance, but which in fact belonged to a company called Terms and Credits Pty Ltd and was under hire purchase agreement to the appellant; and that by this false statement he obtained from Rycroft a cheque for 600 pounds. (at p533)

2. The appellant offers several criticisms of the conduct of the trial; but he finds himself in a practical difficulty. The learned judge released him on his own bond of 10 pounds to be of good behaviour for three years and to come up for sentence if called upon. No doubt partly because of the possibility that if convicted on a second trial he might not fare so well, but also because a second trial in itself would be unwelcome to him for understandable reasons, the appellant through his counsel has made it clear that he does not wish the appeal to succeed if the result would be an order for a new trial. Counsel for the Crown, whose attitude throughout has been fair to the accused and helpful to the Court, has not found himself in a position to say that if a new trial were ordered it would not be proceeded with. In this situation, the appellant asks that unless we are prepared to quash his conviction and put an end to the matter the appeal be dismissed. Accordingly the arguments which have been submitted on his behalf are relied upon only if and so far as their acceptance would provide ground for a determination of the whole prosecution in his favour. (at p534)

3. The ground which was placed in the forefront of the argument arises out of the fact that the learned trial judge allowed evidence to be adduced by the Crown after he had concluded his summingup, and indeed after the jury had been considering its verdict for some hours. What happened was this. At the time when the jury had been out for more than five hours, they came into court and asked the judge these questions: Did the accused pay any instalments after the sale of the car; and, if so, how long after was the first instalment paid, how many other instalments were paid, and what was the date of the last instalment paid by the accused. The evidence which had been given provided no answer to any of these questions. The judge, taking the view that he had a discretion to admit further evidence even at so late a stage of the case, requested the Crown Prosecutor to ascertain whether evidence could be obtained on the subject of the jury's questions; and when informed that a witness was available who could give such evidence he allowed the witness to be called. The evidence then given tended to prove that the applicant paid one instalment under the hire purchase agreement a week after the date of the false pretence, and paid several other instalments thereafter, but that although all instalments due up to September 1958 were paid the account then fell into arrear, and so remained until 26th October 1959 when the whole amount owing (some 422 pounds) was paid by a company referred to as Auto Auctions. The jury, having heard this evidence, retired again, without receiving any further direction from the judge, and they were back ten minutes later with a verdict of guilty and a recommendation to leniency. The foreman, asked by the judge whether he wished to give a ground for the recommendation, described the "general ground" as being that the accused had made some attempt to pay off the hire purchase company after he had sold the car. (at p534)

4. It seems very likely that the jury had decided on a verdict of guilty before returning to ask their questions, and that they asked the questions in order only to decide whether to recommend leniency. The evidence which the questions evoked, one would think, cannot possibly have affected the jury's consideration of any aspect of the case except perhaps the issue as to intent to defraud; and on that issue the only effect it could have had (if it was regarded as relevant at all) was in the appellant's favour. He had made a statement from the dock to the effect that when he sold the car he did not know that he was not allowed by law to sell it, and that he had no intention of defrauding anyone; and his case on this point must have been strengthened, if it were affected at all, by evidence that for some months after the sale he made efforts to keep down the accruing instalments. (As to the question of relevance, see R. v. Carpenter (1911) 22 Cox CC 618, at p 624 ; R. v. Kritz (1950) 1 KB 82 ; Reg. v. Pellow (1956) 73 WN (NSW) 478 ). (at p535)

5. Nevertheless the contention has been submitted that the conviction should be set aside on the ground that there is an absolute rule that in a criminal trial no evidence can be admitted (save perhaps at the instance or by consent of the accused) after the summing-up has ended. Lord Goddard C.J. did indeed lay down such a rule in speaking for the Divisional Court in Reg. v. Owen (1952) 2 QB 362; (1952) 36 Cr App R 16 ; and in later cases such as Reg. v. Wilson (1957) 41 Cr App R 226 and Reg. v. Flynn (1957) 42 Cr App R 15 he insisted rigorously upon its observance, other learned judges concurring with him. The appellant would have us accept the rule in all its strictness, and hold that the breach of it in this case vitiated the trial. If it were not for his insistence that there be no new trial, we should have to decide whether in truth the rule has a place in the common law - there is no statutory basis for it - or whether the true principle is not that the trial judge has a discretion in the matter. If he has, it is necessarily a discretion to be exercised with such jealous concern for the obvious possibilities of injustice that only in rare cases can it be right to admit the belated evidence. All the considerations against reopening the Crown case which were adverted to in Shaw v. The Queen [1952] HCA 18; [1952] HCA 18; (1952) 85 CLR 365 would apply with a force even greater than they had in Shaw's Case [1952] HCA 18; (1952) 85 CLR 365 . But there would be much to be said for the opinion expressed by Barry J., speaking for Gavan Duffy and Dean JJ. as well as for himself, in Reg. v. Hodgkinson (1954) VLR 140 . His Honour there spoke of Lord Goddard's rule as too absolute (1954) VLR, at p 148 . See also Wigmore on Evidence, 3rd ed. (1940) vol. VI, p. 526, para. 1880. But this is not the occasion for a final pronouncement on the point; for even if Lord Goddard's strict rule were to be accepted and applied to the case before us, with the result that the conviction should be quashed, the proper order would be for a new trial. In England the situation is different, because the Court of Criminal Appeal there has not the power to direct a new trial; but this Court has the power: Sparre v. The King [1942] HCA 19; (1942) 66 CLR 149 . (at p535)

6. The appellant's counsel, in his helpful address, proceeded to other grounds of objection to the trial, not only for such intrinsic force as they might have, but in order to suggest that the cumulative weight of all matters of complaint might suffice to justify an out-and-out quashing of the conviction. He submitted that after the evidence which was called to deal with the jury's questions had been given, the judge ought to have supplemented his summing-up by a direction on the possible bearing of the new evidence upon the question of intent to defraud. He pointed, too, to the lack of prominence given in the summing-up to the nature of the criminal standard of proof. Further, he submitted, citing Reg. v. Denton (1957) 75 WN (NSW) 86 , that by reiterated contrast of the appellant's "unsworn statement" from the dock and the "sworn evidence" of the principal Crown witness, and by pointed remarks upon the fact that the Crown witness had been cross-examined, the judge, even if what he said did not amount to an implied comment upon the failure of the appellant to give evidence - a comment forbidden by s. 407 of the Crimes Act, 1900 (N.S.W.) in its application to the Territory - had come so close to making such a comment that the verdict ought not to stand. (at p536)

7. We do not say that these submissions are without force; and it is only right that we should consider them against the background of the general character of the summing-up, which was wholly unfavourable to the appellant and presented the judge's views on questions of fact with emphasis. But separately and together the considerations that have been mentioned provide at most only arguments for a new trial. The Crown had a strong case, both in the direct evidence which it adduced and in the evidence of statements made by the appellant himself, orally to a detective sergeant and by letter to Terms and Credits Pty. Ltd. If the conviction should be set aside for any or all of the suggested reasons, the interests of justice would plainly require an order for a new trial. (at p536)

8. In these circumstances, and in accordance with the appellant's request, we must dismiss the appeal. (at p536)

ORDER

Appeal dismissed.