Killick v R [1981] HCA 63; (1981) 147 CLR 565 (25 November 1981)

HIGH COURT OF AUSTRALIA

KILLICK v. THE QUEEN [1981] HCA 63; (1981) 147 CLR 565

Criminal Law

High Court of Australia
Gibbs C.J.(1), Murphy(1), Aickin(1), Wilson(2) and Brennan(2) JJ.

CATCHWORDS

Criminal Law - Evidence - Procedure - Reopening Crown case after closing of defence - Alibi raised for first time at trial after closing of Crown case but raised in previous proceedings - Whether Crown permitted to call rebutting evidence.

HEARING

Adelaide, 1981, August 19, 20;
Canberra, 1981, November 25. 25:11:1981
APPLICATION for special leave to appeal from the Supreme Court of South Australia.

DECISION

November 25.
The following written judgments were delivered: -
GIBBS C.J., MURPHY AND AICKIN JJ. The question for decision on this South Australia is whether a trial judge may permit the Crown to adduce evidence after the close of the case for the defence to rebut an alibi sworn to by the accused in the course of his evidence, and not previously the subject of evidence at the trial, but which the Crown ought reasonably to have foreseen would be raised by the accused at the trial, because it had been put forward by him in earlier legal proceedings. (at p567)

2. The applicant was convicted on four counts of armed robbery. One of the robberies, the subject of the fourth count, took place at Plympton, a suburb of Adelaide, on 16 June 1978. There is no doubt that at some time on the evening of that day the applicant, who lived in Sydney and was on bail, reported to the police station at Chatswood, a suburb of Sydney. The Crown case was that after the robbery the applicant travelled from Adelaide to Sydney by an aircraft which arrived in Sydney at 8.03 p.m., and that he reported to the Chatswood police station at approximately 8.30 p.m. The accused gave evidence that he was in Sydney for the whole of 16 June. He said that at about 10.00 a.m. on that day he took his child to a Mrs Eyles, at Croydon, to be minded by her, that he picked up the child from Mrs Eyles again in the afternoon and later had tea with his wife and reported to the Chatswood police station at 8.00 p.m. His evidence was corroborated by that of his wife. The applicant had previously given evidence to the same effect when he appeared before a special magistrate in Sydney as respondent to extradition proceedings and had given the same version of events in an affidavit filed in support of an application for bail made to a judge of the Supreme Court. Although at the committal proceedings the applicant, who did not give evidence, did not refer to his alibi, the Crown should have foreseen that it was probable that he would raise it again at the trial. The Crown called no evidence in chief to rebut the alibi but after the case for the applicant had been closed called Mrs Eyles and her son, Kym Eyles, to show that it was not the applicant, but his wife, who delivered and picked up the child on 16 June. The sole question raised on the application before this Court is whether that evidence was rightly admitted. (at p568)

3. The principles that govern the admission of evidence adduced by the Crown in rebuttal after the close of the defence case have been authoritatively stated by this Court in Shaw v. The Queen [1952] HCA 18; (1952) 85 CLR 365 . In that case Dixon, McTiernan, Webb and Kitto JJ. said (1952) 85 CLR, at pp 379-380 :
"Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. . . . It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence . . . Further . . . the English cases make it plain enough that generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen. Again, it may be pointed out that even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved."
Fullagar J., who delivered a separate judgment, said (1952) 85 CLR, at pp 383-384 :
" . . . it remains true and important that the Crown should be permitted to adduce evidence after the close of the case for the defence only in exceptional circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the admission of the evidence. A wide discretion must be conceded to the judge presiding at the trial, but it should be regarded as limited in that way, and it is to be remembered that the practical effect of evidence on the minds of a jury may differ according as the evidence is adduced in chief or by way of replication. But the discretion ought not to be regarded as further limited or as governed by any rigid rule or formula."
The general rule that all available evidence on which the prosecution intends to rely in proof of the guilt of the accused should be presented before the close of the case for the Crown is not merely a technical rule, but an important rule of fairness. Evidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. The very fact that the last piece of evidence which the jury hears is given in contradiction of evidence already given by or on behalf of the accused tends to tilt the scales in favour of the prosecution. (at p569)

4. The principles in Shaw v. The Queen do not particularly refer to a case in which the accused has raised an alibi, but there is no reason why they should not apply to such a case. If the details of the alibi have not been disclosed before the trial, it will, in general, be right to say that the occasion for the calling of evidence to rebut the alibi could not have been foreseen. It is true that Avory J. said during the course of argument in R. v. Liddle (1928) 21 Cr App R 3, at p 6 that an alibi ought always to be foreseen, but his Lordship could not have intended to mean, by that rather cynical observation, that the nature of an undisclosed alibi is foreseeable, and the actual decision quashing the conviction in that case depended on the circumstances that the rebuttal evidence was called by the judge himself, after counsel for the accused had addressed the jury, and after the judge had adjourned the trial to enable the further evidence to be called. In principle it seems clear enough that, speaking generally, if an alibi the details of which have not been disclosed is raised at the trial the Crown should be allowed to give evidence to rebut it. The decisions in Reg. v. Flynn (1957) 42 Cr App R 15 ; Reg. v. Levy & Tait (1966) 50 Cr App R 198 and Reg. v. Daren & Tange (1971) 2 NSWLR 423 support this view. The situation will be different if the evidence sought to be given to rebut the alibi is merely confirmatory of the Crown case, as where the Crown attempts to rebut an alibi by evidence that the accused was near the scene of the crime at the time when it was committed: R. v. Hilditch [1832] EngR 606; (1832) 5 Car & P 299 (172 ER 986) . (at p569)

5. When the details of the alibi were disclosed before the trial, it cannot be said that the occasion for the giving of evidence to rebut it is unforeseeable. Although an alibi is not uncommonly referred to as a defence, no onus of proving an alibi rests on the accused; the prosecution must negative an alibi if one is put forward as it must negative a claim that the accused acted in self-defence or as a result of provocation: see Reg. v. Johnson (1961) 46 Cr App R 55 ; Reg. v. Taylor (1968) NZLR 981, at pp 985-986 . It is therefore difficult to see why the Crown should be allowed to take the exceptional course of calling evidence in rebuttal to refute an alibi, if details of the alibi were known and the refuting evidence could have been called in chief. In a number of cases a distinction has been drawn between alibis previously known to the Crown, and those which became known for the first time at the trial. In Reg. v. Flynn (1957) 42 Cr App R, at p 18 , Lord Goddard L.C.J. said:
"In our opinion, if in the case of an alibi evidence comes into the possession of the prosecution at a late stage, it ought, as a general rule, to be admitted, unless the alibi has been set up earlier. If an alibi has been set up earlier and the prosecution have had an opportunity of testing it, the presiding judge would say: 'You have known all about this alibi all the time. I am not going to allow you to call evidence to rebut it. You might have called any relevant evidence in chief.' But when the alibi is set up for the first time at the trial, even if the prosecution know or suspect that it is going to be set up, in nearly every case they cannot know what the alibi is going to be. If it has never been disclosed, they ought to be allowed to give rebutting evidence, which the jury may accept or not."
In Barnett v. McGregor; Ex parte McGregor (1959) Qd R 296, at p 302 , Townley J. referred to this passage with approval. In Reg. v. Milliken (1969) 53 Cr App R 330 the court seems to have recognized the importance of the distinction between alibis of which the Crown had knowledge and those first raised at the trial when it was said (1959) Qd R, at p 333 that "generally speaking, particularly since the Criminal Justice Act 1967 came into force, an alibi is to be anticipated." In Reg. v. Daren & Tange (1971) 2 NSWLR, at p 436 , Lee J. said that "provided the Crown puts forward the whole of its evidence as to the accused's guilt (and this would in may instances require evidence refuting a suggested alibi where the alibi is known to the Crown or becomes known to it before it closes its case), it is always entitled to call evidence directly rebutting evidence given in the defence case." On the other hand, in R. v. Froggatt (1910) 4 Cr App R 115 the court held that evidence contradicting an alibi was properly given in rebuttal notwithstanding that the accused had raised the alibi before the committing magistrate. During the course of argument Phillimore J. said (1910) 4 Cr App R, at p 118 :
"In some cases it would be impossible for the prosecution to deal with the alibi except by way of rebutting evidence, because the prosecution does not know that at the trial the prisoner may not set up some defence other than and inconsistent with an alibi, even though before the justices he set up an alibi."
This statement, although no doubt true in some cases, does not profess to be true in all. In many cases it will be possible for the Crown to discover, simply by inquiry directed to counsel for the accused whether or not the accused intends to present evidence at the trial of the alibi which was set up in earlier proceedings or revealed in the course of an earlier conversation. (at p571)

6. Before us, on behalf of the Crown, it was submitted that it was doubtful whether the evidence of Mr. and Mrs. Eyles could have been given by the Crown as part of its case in chief. It was said that it was doubtful whether the evidence would have been admissible as proof that the applicant had put forward a false alibi and in that way had shown a consciousness of guilt, and that the evidence was not admissible at that stage on any other basis. We cannot accept this argument. Whether or not the evidence would have been admissible to show consciousness of guilt, it would, in our opinion, have been admissible as part of the Crown's case in disproof of the alibi which the applicant intended to set up. Of course, the Crown cannot, to use Lord Sumner's words in Thompson v. The King (1918) AC 221, at p 232 , "credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice". It cannot give evidence in disproof of an alibi which the accused has no intention of raising. However, in this, as in many other cases, there will be no difficulty in asking counsel for the accused whether or not it is intended to set up the alibi at the trial. Counsel of course is not bound to give the information sought, but if he declines to give the information, or says that there is no intention to set up the alibi, and evidence in support of the alibi is then given at the trial, the circumstances will be such as to justify the presiding judge in allowing the Crown to give the evidence in rebuttal. On the other hand, if counsel for the accused states that it is intended to set up the alibi, the Crown can then give in chief the evidence to disprove it. If the Crown is aware of the details of the alibi, and knows that it is intended to rely on it at the trial, there is no more justification for withholding until the close of the defence case evidence to refute the alibi, than there would be for withholding evidence to refute a claim that the accused acted in self-defence. (at p572)

7. In argument on behalf of the Crown reliance was also placed on the distinction, drawn in such cases as Reg. v. Levy & Tait (1966) 50 Cr App R, at p 202 and Reg. v. Welden (1977) 16 SASR 421, at p 437 , between evidence clearly relevant to the case for the prosecution, which cannot properly be admitted after evidence has been given for the defence, and evidence which has only marginal, minimal or doubtful relevance which, it was said, a trial judge may in his discretion allow to be given in rebuttal. No doubt the circumstance that evidence if presented in chief would have been only marginally, minimally or doubtfully relevant is a matter to be considered in deciding whether the occasion is special or exceptional within the principles stated in Shaw v. The Queen [1952] HCA 18; (1952) 85 CLR 365 , although there can be no rigid rule that in those circumstances evidence will be admitted in rebuttal. In the present case the evidence of Mr. and Mrs. Eyles would certainly have been of only slight relevance if the applicant had not raised the alibi that he did, but it was of clear and strong relevance when tendered in disproof of that alibi. (at p572)

8. In our opinion, the circumstances in which the evidence of Mr. and Mrs. Eyles was tendered in rebuttal were not very special or exceptional. It was foreseeable that the applicant would set up the alibi at the trial. Full details of the alleged visits to Mrs. Eyles had been given at the extradition proceedings. The Crown took none of the steps that were open to it to ascertain whether the applicant would persist in relying on the alibi. The evidence of Mr. and Mrs. Eyles, when given after the case for the applicant had closed, dealt a fatal blow to the applicant's case - a blow which unfairly gained force from the time when it was delivered. (at p572)

9. For some reason, which remains unexplained, the appeal brought by the applicant to the Court of Criminal Appeal was against his conviction on the first and second counts only. Notwithstanding this fact, the ground on which the present application is based was one of the grounds taken before the Court of Criminal Appeal and it of course relates directly to count four. We are told that at the hearing before the Court of Criminal Appeal counsel for the applicant expressly disclaimed any appeal on count three. However, before us counsel for the Crown, with proper frankness, agreed that the evidence given would have been devastating on all counts and that no rational ground exists for distinguishing count three from the other counts. At the trial the learned trial judge told the jury that it seemed to be probable that if they were to find the applicant not guilty of the fourth count, this might inevitably lead them to find him not guilty of the other three counts. In the particular circumstances of the case, if the giving of the evidence in rebuttal should cause the conviction on count four to be set aside, the interests of justice will require all four convictions to be quashed. (at p573)

10. We have given anxious consideration to the question whether this is a proper case in which to grant special leave to appeal. For the reasons given we consider that the learned trial judge should not have allowed the Crown to give the evidence in rebuttal. When given the evidence was likely to have been decisive of the jury's verdict. No suggestion has been made that this is a case that calls for the application of the proviso on the ground that no substantial miscarriage of justice has occurred. It seems to us that this Court should ensure the strict observance of the principles in Shaw v. The Queen [1952] HCA 18; (1952) 85 CLR 365 . In the circumstances we have concluded that the case is one in which special leave to appeal should be granted. (at p573)

11. We would grant the necessary extension of time and would grant special leave to appeal. We would allow the appeal, quash the convictions on all counts and order a new trial. (at p573)

WILSON AND BRENNAN JJ. The applicant was convicted in the Supreme Court of South Australia on four counts of armed robbery. At his trial before Mitchell J. and jury he gave evidence that on the day when the robbery charged in the fourth count was committed, Friday 16 June 1978, he was in Sydney for the whole of the day and that he could not have been a party to that robbery which occurred at Plympton in South Australia. His alibi was of considerable significance to the verdict which the jury was to return on the first three counts as well as on the fourth count. Each count related to an armed holdup by two masked men of either a bank or a T.A.B. shop; in no case was there eye-witness identification of the robbers and the evidence led at the trial caused Mitchell J. to observe to the jury: "it seems to me probable that if you were to find the accused not guilty of the fourth count, this might inevitably lead you to find him not guilty of the other three counts. The reverse does not apply." (at p573)

2. The jury rejected the alibi and convicted the applicant on all counts. No doubt the Crown case overall was strengthened by the jury's opinion, to which the verdict testifies, that the applicant put forward a false alibi at his trial. That opinion was amply supported by the evidence, to which a brief reference is necessary. (at p574)

3. In his evidence, the applicant said that on the morning of Friday 16 June 1978 he saw his wife off to work after breakfast at their home in Sydney, and at about 10.00 a.m. he took his young son to a Mrs. Eyles at Croydon, a Sydney suburb, and left him with her to be cared for, and then the applicant went back home. During the afternoon, he called on some other people, rang his wife, picked up the child and had tea with his wife and child at home. He finished that meal at about 6.30 p.m., went to the Chatswood police station to report his presence at 8.00 p.m. in accordance with a condition of a bail bond, and then went to a night trotting meeting. His wife corroborated this evidence so far as she was able, deposing inter alia to receiving during the day a telephone call from the applicant informing her that the child was with Mrs. Eyles, and to her husband's departure for the Chatswood police station at about 7.00 p.m. Mrs. Eyles is the mother of one Gregory Eyles who, according to the Crown case, was the second robber involved in the robbery at Plympton on 16 June 1978. She heard of her son's arrest on 18 June 1978. (at p574)

4. After the defence case closed, the Crown called three witnesses: Mrs. Eyles, another of her sons, Kym Eyles, and Constable Clarke of the Chatswood police station. Mrs. Eyles said that the applicant had delivered the child to her on Thursday afternoon 15 June and the child had been collected by Mrs. Killick the same evening. She was adamant that on Friday 16 June 1978 Mrs. Killick had brought the child to her, and that Mrs. Killick again collected the child between 5.30 and 6 o'clock that evening. Kym Eyles had spent the night of Thursday 15 June with his mother and he stated that he saw Mrs. Killick collecting the child on the Thursday evening and delivering the child again on the Friday morning. This evidence was inconsistent with the applicant's and Mrs. Killick's evidence by which they had sought to establish that the applicant was in Sydney during the day of Friday 16 June. (at p574)

5. During Crown case in chief, evidence had been given that the applicant had admitted travelling from Adelaide to Sydney on the late afternoon of Friday 16 June on a flight which arrived in Sydney shortly after 8.00 p.m. It was intended to call Constable Clarke to prove that the applicant did not report at the Chatswood police station until approximately 8.30 p.m. on that Friday, but as Constable Clarke was not available to give evidence during the Crown case in chief, by consent his evidence was held over until after the close of the defence case. No complaint is now made of that. (at p575)

6. The applicant's argument, succinct and clear, is that the trial was vitiated by allowing the Crown to call Mrs. Eyles and Kym Eyles after the defence case was closed. It is said that her Honour allowed the Crown to split its case contrary to the principle which this Court laid down as governing the conduct of criminal trials in Shaw v. The Queen [1952] HCA 18; (1952) 85 CLR 365 . In that case Dixon, McTiernan, Webb and Kitto JJ. said (1952) 85 CLR, at p 380 :
". . . It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence . . . the English cases make it plain enough that generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen." (at p575)

7. It may be said immediately that the present case does not come within the exception to the principle there laid down. The applicant had set up an alibi during the extradition proceedings in Sydney where he had been arrested and the Crown might well have foreseen that he would set up the alibi again at his trial. What is here in question is not the application of the exception, but the scope of the principle. The joint judgment in Shaw defined the principle in this way (1952) 85 CLR, at pp 379-380 :
"Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. The Court possesses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against reopening the Crown case unless the circumstances are most exceptional."
That enunciation of the principle as a prohibition against the splitting of the prosecution case tends to overshadow the obverse of the principle, namely, that evidence for the prosecution may be given after the closing of the defence case "where it becomes necessary to rebut matters which have been raised for the first time by the defence" (per Lord Goddard L.C.J. in Owen (1952) 36 Cr App R 16, at p 21 ). There is no inconsistency between the enunciation of the exclusionary rule in Shaw and the facultative rule expressed in the dictum in Owen. Wigmore on Evidence, 3rd ed. (1940) encompasses both by applying the exclusion to "all evidence which has not been made necessary by the opponent's case in reply" (vol. 6, par. 1873, p. 511) and in R. v. Stimpson [1826] EngR 846; (1826) 2 Car & P 415 (172 ER 188) , Garrow B. admitted so much of the testimony of a witness called in reply as went to destroy the case set up by the prisoner, rejecting the testimony which went merely in confirmation of the prosecution case. Where the defence is the first to raise at the trial a matter of exculpation, evidence which merely rebuts that matter does not split the prosecution case on any issue and Shaw furnishes no reason for excluding the evidence. (at p576)

8. There may be cases where the evidence which the Crown seeks to call in rebuttal of new matter introduced by the defence is at the same time confirmatory of the case which the Crown has sought to make. Such cases require the trial judge to exercise a discretion. He must ensure on the one hand that evidence which is clearly relevant to the Crown case - not marginally or minimally relevant - is not admitted in breach of the rule laid down in Shaw [1952] HCA 18; (1952) 85 CLR 365 merely because of its relevance to a fact first raised in the defence case (cf. Reg. v. Levy & Tait (1966) 50 Cr App R 198, at p 202 ); equally he must not exclude evidence which is in substance rebuttal evidence because some minimal or marginal relevance to the Crown case would have made it admissible in that case. The discretion must be exercised according to the circumstances of each case (cf. Reg. v. Miliken (1969) 53 Cr App R 330 ). (at p576)

9. And so the Crown is at liberty to call evidence in rebuttal of an alibi first set up by the defence in its case, at all events if the evidence does not go to confirm the prosecution case (cf. R. v. Hilditch [1832] EngR 606; (1832) 5 Car & P 229 (172 ER 986) ). The evidence of Mrs. Eyles and Kym Eyles was not confirmatory of an issue in the Crown case. To what issue could their evidence have been relevant before the applicant and his wife set up his alibi at the trial? It could not have advanced in the slightest the Crown case, which was that on Friday 16 June the applicant was committing a robbery in Adelaide, to adduce evidence that the Eyles had not seen him in Sydney on that day. (at p576)

10. It might be thought that the Crown could have adduced evidence to show that the applicant had earlier set up a false alibi, for the fabrication of an alibi may be evidence of an accused's consciousness of guilt. However, in Dearman v. Dearman [1908] HCA 84; (1908) 7 CLR 549, at p 555 , Griffith C.J. did not think that evidence of an endeavour to set up a false alibi should have been admitted in proof of adultery in divorce proceedings, though his Honour observed that if an alibi were set up in defence at the trial, its failure might strengthen a doubtful case. (at p577)

11. In England, before the Criminal Justice Act 1967 made it necessary for a defendant to give notice of particulars of the alibi which he intends to set up, the better view seems to have been that evidence which merely anticipates an alibi which an accused in expected to set up and which seeks to destroy the alibi in advance is not admissible (see per Phillimore J. in Reg. v. Froggatt (1910) 4 Cr App R 115, at p 118 ; but see Reg. v. Flynn (1957) 42 Cr App R 15, at p 18 , though it may be otherwise when a notice is given under the present practice (Reg. v. Milliken (1969) 53 Cr App R 330 ). (at p577)

12. It is not necessary to decide whether the Crown might have proved in its case the setting up of a false alibi in the extradition proceedings. It was under no obligation to do so. In fact no issue of an earlier false alibi was raised in the Crown case nor, for that matter, was that issue raised later in the trial. The only alibi raised for the jury's consideration was raised by the defence case at the trial. The only issue to which the Eyles' evidence was relevant was the truth of the alibi set up by the evidence of the applicant and Mrs. Killick in the defence case. Their evidence was relevant to disprove an alleged fact, namely, that the applicant was in Sydney during the day of Friday 16 June, and that matter had not been raised prior to the defence case. The admission of the Eyles' evidence did not split the Crown case on any issue. (at p577)

13. In our opinion special leave to appeal should be granted, and the appeal dismissed. (at p577)

ORDER

Application for extension of time in which to seek special leave to appeal granted.

Application for special leave to appeal granted. Appeal allowed.

Order of the Supreme Court of South Australia (Court of Criminal Appeal) set aside and in lieu thereof grant leave to appeal, allow the appeal, set aside the convictions on all four counts and order a new trial.