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Ross, David --- "Accused Introduces His Own Bad Character" [2003] DeakinLawRw 14; (2003) 8(2) Deakin Law Review 291


Accused Introduces His Own Bad Character

DAVID ROSS QC[*]

I INTRODUCTION

It happens only rarely that an accused will introduce evidence of his own bad character. Because of that rarity, it is not easy to discern with confidence that any pattern emerges on when such evidence should be sought to be admitted by defence counsel, when such evidence is properly admitted, how such evidence is to be confined and what appeal courts say on the subject.

I will argue that bad character evidence will be admissible for the defence only for a valid forensic purpose. Put another way, it must be relevant. Two such purposes which emerge from the cases may be to show that the charges were laid for no reason other than the accused’s criminal history, or that a civilian witness blamed the accused for the same reason.

While a judge might on occasions have to be astute to protect an accused from the incompetence of his own counsel who wishes to introduce such evidence for insufficient reason, the ordinary rule applies to evidence sought to be introduced by the defence that there is no judicial discretion to exclude it, at least on the ground of prejudice.

There is no such evidence as character evidence whose evidential significance encompasses all aspects of character both good and bad. Evidence of good character is sui generis. It is always admissible at the instance of an accused to show that he is unlikely to have committed the crime and that he is worthy of belief. By way of contrast, evidence of bad character sought to be admitted by an accused is no different from any other evidence: it must be relevant and admissible.

But an accused of bad character cannot expect to put only the good part of his character in evidence. So much has consistently been decided by the courts. That, however, does not deal with the further question of whether an accused can expect to put only part of his bad character in evidence and expect the rest of his bad character not to be allowed to emerge.

This article will also deal with the way in which such evidence can be used by a jury and the need for proper directions by a trial judge, and with the rules which do and should apply to a prosecutor’s cross-examination.

II COMPARISON WITH GOOD CHARACTER EVIDENCE

Evidence of good character is a special class of evidence. It is not part of this examination to determine what can amount to evidence of good character, whether it should continue to occupy its unique position in the criminal law, and how juries ought to be directed on its use. A good deal of that analysis was carried out by the High Court in Melbourne.[1] Good character evidence is sui generis. It is invariably introduced by the defence.[2] A line of judicial authority demonstrates that good character evidence bears on the unlikelihood of guilt and on the credibility of the accused in anything he may have said in or out of court in his denial of the charge.[3]

As will otherwise be noted, an accused who chooses to introduce evidence of his own good character is liable to have that evidence contradicted by the prosecution. There are any number of examples of that. The underlying thesis of the contradiction is that an accused cannot put part of his character in issue, that is to say the good part. In Winfield [4] the accused was charged with indecent assault. He was unrepresented. He called a female witness in his defence to say that his behaviour with women was exemplary. The trial judge had warned the accused of the danger in calling such evidence but the accused insisted. Later the accused himself gave evidence and was cross-examined to the effect that he had previous convictions for offences of dishonesty. Humphreys J delivering the judgment of the Court of Criminal Appeal said:

there is no such thing known to our procedure as putting half a prisoner’s character in issue and leaving out the other half...If a prisoner chooses to put his character in issue, he must take the consequences.[5]

In Stirland [6] the accused was convicted of forgery. Through cross-examination of prosecution witnesses, he put his good character in issue. He then gave evidence. In cross-examination he was asked if he quit his employment after being questioned about a signature and a forgery. That was denied. The Lords concluded that the cross-examination was irrelevant and not fair. Nevertheless there was no miscarriage of justice and the appeal was dismissed. In argument the Winfield proposition was put but was not referred to in any judgment. Viscount Simon LC delivered the leading judgment. He said:

An accused who ‘puts his character in issue’ must be regarded as putting the whole of his past record in issue. He cannot assert his good character in certain respects without exposing himself to inquiry as to the rest of his record so far as this tends to disprove a claim for good character.[7]

The trial judge retains a residual discretion to limit or stop cross-examination of an accused designed to test the good character evidence. It is no surprise that the Lords should have come to that conclusion in Stirland after forming the opinion that the crucial questions asked in cross-examination were improper.

These dicta have been referred to with approval in Australia. In Stalder, Street CJ quoted what was said in the English cases:

This statement of the law establishes the technical admissibility of every element in an accused person’s past tending to establish or refute his good character. It still leaves open to the trial judge, however, the very real duty of determining, where objection is taken, whether as a matter of discretion any particular matter should be disallowed or excluded if in the circumstances the judge thinks it unfair.[8]

He then quoted the authority of Stirland to support his last proposition of the exercise of the judge’s discretion.[9]

In Hamilton [10] Hunt CJ approved Stirland and Stalder.

From these cases it can be seen that where an accused introduces evidence of his own good character, the prosecution can rebut that evidence subject to the discretion of the trial judge to disallow or confine such rebuttal.

This short summary points out the difference between an accused’s introduction of his own good character, and an accused’s introduction of his own bad character. The first and most obvious difference is that bad character must be shown to be relevant to be admissible.

III RELEVANCE OF ACCUSED’S EVIDENCE OF HIS OWN BAD CHARACTER

An accused can introduce evidence of his own bad character as he would seek to introduce evidence of any sort. First of all he must satisfy the trial judge that it is relevant. One of the most concise descriptions of relevance is:

Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: i.e. whether it increases or diminishes the probability of the existence of a fact in issue: Director of Public Prosecutions v Kilbourne {1973] AC 729 at 757...[11]

More precisely, in Funderburk Henry J set forth the heads of evidence which the defence may call. He said:

The authorities show that the defence may call evidence contradicting that of the prosecution witnesses where their evidence:
- goes to an issue in the case (that is obvious);...
- [prior inconsistent statement - not relevant to this part];
- shows bias in the witness;....
- shows that the police are prepared to go to improper lengths to secure a conviction...[12]

In practice, evidence of an accused’s character is often elicited through cross-examination of prosecution witnesses as well as through evidence called by the defence. In this respect at least, good character evidence and bad character share a similar mode of proof.

For the purpose of this examination I am assuming that the introduction by the accused of his own bad character is deliberate and not accidental, and is done for a legitimate forensic purpose. The contrary can be illustrated by examples from the law reports. An accidental introduction of an accused’s bad character occurred in Knape. The unrepresented accused was examining his own witness in chief. ’How long have you known me?’ The witness answered: ‘About 1960. I met him at Bendigo Training Prison.’[13] It is clear that such an accidental revelation of the accused’s bad character ought to have resulted in the discharge of the jury. There had been no discharge and the appeal succeeded.

An example of an illegitimate and deliberate introduction by an accused of his bad character occurred in Coman.[14] The trial judge reported to the Court of Criminal Appeal that in his view the accused had deliberately introduced evidence of his own bad character in an attempt to abort the trial. The report was accepted and the appeal dismissed.

IV EXPLANATION OF PROSECUTION EVIDENCE

It will sometimes happen that an accused will try to explain prosecution evidence and introduce his bad character for that purpose.

In Jones[15] the accused was charged with murder. In two separate accounts the accused told police that on the night in question he had been with his sister-in-law. In a third account he told police that the first two alibis were incorrect, and that the true story was that he had been in London, had gone to a restaurant, had picked up a prostitute and had got home even later than he should have owing to car trouble. The falsity of the first two alibis was admitted by the third, and also at trial. The explanation for the false alibis was this. When he found out that his car was of a type seen near the scene of the murder he set up a false alibi because he had been ’in trouble with the police in the past’. That proposition was put by the defence in cross-examination of the sister-in-law. The police were cross-examined to the effect that he said he had given the false alibi for that same reason. The accused himself gave evidence and the reason repeated.

In Vaitos[16] the accused had been convicted of sixteen counts, thirteen of which were sexual offences. A treasure trove of stolen property was found in his possession. The essence of the defence was that the accused had not raped anyone. At the relevant times he was burgling houses.[17]

In Anderson [18] the accused, said to be a member of the IRA, was convicted of conspiracy to cause explosions in different parts of England. Various forged documents had been found in her possession including a passport and driving licence. In her handbag was ₤1,150 and a hand-gun and ammunition. The accused gave sworn evidence. She denied any plan to cause explosions. The incriminating items in her possession were intended to be used in a conspiracy to smuggle men who escaped from the Maze prison in Ireland. She was to play the part of the innocent female escort in getting the men through Scotland to Copenhagen. The false documents were to be used to dupe various immigration authorities. The money was for expenses. The hand-gun was not separately explained.

In Phillips [19] the accused was convicted of the rape of a woman in her own flat. His fingerprint was found on the frame of a flywire screen over a window through which the rapist had gained entry. It did not get there he said because I committed this crime, he said. The woman had earlier asked me to get some marijuana for her. I was unable to and went to her house to tell of my lack of success. She did not seem to be at home. I even looked in the window to check, and that is how my fingerprints must have been put there.

In Peters and Heffernan,[20] the two accused had been charged and acquitted of conspiracy to supply heroin. The defence was that their taped conversations referred to the disposal of stolen cigarettes and the supply of cannabis leaf. As to the heroin found in their possession, they had said that it had been planted by the police. The case is reported for their vain attempts to halt the charges they mounted in their defence.

In Juric the accused was charged with the murder of the deceased at the deceased’s own house. The accused claimed an alibi. He was never at the deceased’s house. That night he and a friend were away finalising a drug deal.[21]

V AN EXPLANATION FOR FALSE EVIDENCE

Earlier criminal conduct has been held to be relevant as an explanation for a prosecution witness giving false evidence.

The obvious example of the admission of this evidence is to be found in B.[22] The accused had been charged with sexual offences against his daughter between December 1985 and December 1988. He denied the offences. By cross-examination of the daughter, and by his own sworn evidence, the accused said that in 1984 he had committed acts of indecency with the daughter, had been charged and pleaded guilty to those offences. He was thereafter away from the family home until the daughter rang him and invited him to return. Evidence of the prior indecency was introduced to show that the accused had returned home repentant and had fallen victim to false allegations by a rebellious daughter to force him from the house.

In Lewis [23] the accused denied that he had killed his girlfriend’s parents. He said that she had killed them and put the blame on to him because of his criminal record. She had made him help her with the bodies and said that if he did not she would go to the police who would believe her rather than him. Teague J ruled that the prosecution had leave to cross-examine the accused on his prior convictions. His Honour took into account that defence counsel had also cross-examined the prosecution witnesses on character and noted that in an earlier trial of the matter in which the jury could not agree, Cummins J had made a similar ruling.

In a number of cases the defence of the accused has been that the police falsely charged him. The reasons for the false charge were because his criminal record, and that alone, made him a prime suspect, because it would be difficult and expensive for him to defend himself, and because if he had not committed this crime he had certainly committed many others for which he had not been charged. It matters not for this purpose whether there is independent evidence of a crime having been committed, such as where the suggestion is that the police have ’planted’ property on the accused, particularly drugs.

An unfortunate example of such a defence gone wrong is Sarek.[24] The accused had been convicted of trafficking in heroin. The evidence against him was that the accused was found in possession of $350 which he said he won at cards. He was taken to the police station and searched. A matchbox containing foils of heroin fell from his underpants. The accused gave sworn evidence. He said the police themselves produced those foils which he had never seen before. He denied he had ever been involved with drugs. Defence counsel elicited in chief that the accused had been in trouble with the police before, that he had convictions but never over drugs. In the successful appeal McInerney J said of this evidence:

It is difficult to believe that it was ... necessary for the defence to elicit the fact that the applicant had prior convictions...[25]

The appeal succeeded not because this evidence was wrongly admitted but because the prosecutor had cross-examined the accused on his prior convictions without first obtaining the leave of the trial judge. That is a feature of many of these cases, and one which will be examined below. As will be seen, the proper law in Victoria is that the judge’s leave must always be obtained before such a cross-examination.

A parallel problem arose in Couper.[26] The accused was charged with counts of inflicting violence on five different people as part of one long episode. The defence was automatism. The accused was seen by two psychiatrists. When the accused gave evidence he was asked in chief if he had given the psychiatrists his prior criminal history including a prison term. Of this evidence Street CJ said:

I am totally at a loss to comprehend how or why counsel for the appellant came to invite his client to offer to give details of his past record...As I see it, the details of the appellant’s criminal record were as irrelevant as they were prejudicial. [27]

As in Sarek, the vice which caused the Couper appeal to succeed was the cross-examination by the prosecutor on the details of the appellant’s criminal record.

VI ALIBI

An accused is of course allowed to lead evidence of alibi. But germane to this discussion are the cases where an accused leads evidence that he was in jail or in police custody when the offence is alleged to have occurred. It is not enough to say that the evidence of alibi is either good or it is not; it is either accepted or it is rejected. If it is accepted of course the accused must be acquitted. But if the jury have doubts about the acceptance of the alibi, they already know that the accused has been in jail or in custody on another matter. Although an alibi is often regarded as a defence, where there is evidence to support it, the ultimate onus of negativing the alibi rests upon the prosecution.[28] An alibi of being in jail or in custody that a jury may not accept will of course be the subject of direction by a trial judge. The direction will be that the rejection of the evidence of alibi will not supply proof of guilt except in the rare case that the sole purpose of a fabricated alibi was to deceive.[29] Nevertheless such rejected evidence will bear an obvious potential prejudice.

In McNair the defence was that the accused could not have committed the three armed robberies at 1.30 pm because he had been arrested 2½ hours earlier. The jury must have rejected that account for he was convicted.[30]

In H the accused was convicted of two counts of rape. He did not give notice of alibi but as part of his defence he called an officer from the Department of Correctional Services who produced records to show that at the time of the alleged offence the accused was in prison.[31] Juries were discharged and there were retrials. The prosecutrix changed the dates and details. Ultimately the Court of Criminal Appeal allowed his appeal and entered a verdict of not guilty.[32]

VII AN ACCUSED FACES THE INEVITABLE

An accused who introduces evidence of character, good or bad, is likely to be faced with a prosecutor’s application to cross-examine on bad character. That is, of course, if there is available evidence of bad character.

It was pointed out at the beginning of this examination that the rules on admission of good character evidence are sui generis and of themselves play no part in the present analysis. There have been occasions however when an accused has himself introduced evidence of his own bad character to spike the guns of a prosecutor who has been given leave to contradict good character evidence.

An example of an accused who introduced evidence of bad character in this setting is Donnini. The accused was convicted of armed robbery. The prosecution called the accused’s landlady who said that the name he gave her was Michael Thomas. In cross-examination by defence counsel she was asked whether she had formed an estimate of his character. She said ‘he was quite a shy young man. He was always very pleasant when we said good morning.’ The accused gave evidence denying any offence. At the end of the examination-in-chief the prosecutor applied for and was granted leave to cross-examine on character. That was because the trial judge ruled that the cross-examination of the landlady had introduced character. During cross-examination, but before any reference to character, the accused volunteered that he had given a false name because he had prior convictions which he described and that he had been released from prison on parole and was trying to make a go of things. In fact there was only faint cross-examination on character. The Court of Criminal Appeal dismissed the appeal.[33] Whether the trial judge was correct in allowing cross-examination on character will be dealt with below. But as to the mode of the receipt of the evidence, Smith J in dissent in the Court of Criminal Appeal noted the difficulty faced by an accused once the leave was granted. An accused would take the view that it was inevitable that his prior convictions would emerge. Better then that he volunteer them than have them seemingly dragged out of him. Smith J said:

The information thus volunteered he must have realized was likely to prejudice him greatly in the eyes of the jury; for he had heard his counsel try to persuade the Judge not to permit the Crown to prove his convictions and imprisonment. It, therefore, seems highly improbable that he would have chosen to disclose these matters to the jury if he had not believed that they were going to be brought out in any event pursuant to the leave that had been granted.[34]

In fact the accused was rather unlucky to lose the point that the trial judge had properly granted leave to cross-examine on character. As has been mentioned, in the Court of Criminal Appeal, Smith J in dissent held that the leave was wrongly granted. Gowans J found it properly granted. Nelson J said, ‘The peg on which the prosecutor hung his application... was certainly a very thin one.’ [35] His Honour went on to say that even if the trial judge had erred there was no miscarriage of justice. In the High Court[36] Barwick CJ and McTiernan J said the grant of leave was not erroneous. Menzies J said that although leave should not have been granted, there was no prohibited cross-examination and the trial therefore did not miscarry. Walsh and Mason JJ dissented, saying that leave should not have been granted with the result that they could not be satisfied that such erroneous grant of leave had no relevant effect.[37] I argue that it was the dissentients who were correct for the reasons they propounded.

Schneidas raised a problem of a slightly different sort. He was convicted of the jail murder of a prison officer. Of course the jury would have assumed prior convictions from the very fact that the accused was a prisoner. He was unrepresented at trial. In his unsworn statement to the jury he said that he had ’iron-barred’ prison officers before and had pleaded guilty to those offences. The reason he had not pleaded guilty to this offence was because he had not done it.[38] He went on to say that he had also assaulted other prisoners in the past and had pleaded guilty to those offences too. He later entered the witness box. The prosecutor was given leave to cross-examine Mr Schneidas on his prior convictions. No point is made of that here because he himself had cross-examined prosecution prisoner witnesses on their prior convictions and emotional and psychiatric disorders. What may be noted however is that Street CJ made no comments about the irrelevance of the accused’s account of his own bad character as he later did in Couper.[39] That may be because the whole atmosphere of the Schneidas trial was of prisoners who were violent and disturbed.

VIII CAN SUCH BAD CHARACTER EVIDENCE CORROBORATE THE CHARGES

Where bad character evidence is introduced by the defence for a legitimate forensic purpose, the question arises whether such evidence is capable of corroborating the case for the prosecution. There is no answer to such question which has general application. For the purpose of this investigation I leave to one side the cases where the accused or his counsel should not have introduced such evidence. Reference has already been made to the irrelevance of such evidence in Sarek and Couper.

Where the accused has raised good character for the purpose earlier described, cross-examination of the accused by leave is designed to impeach the attempt to establish good character. That is particularly so where the offences which are the subject of cross-examination are different in nature from the offence charged. A good example is Donnini.

Where the accused puts his own previous improprieties into evidence the issue of how to deal with such evidence arises where the impropriety is similar to the offence charged. Schneidas, earlier discussed is an example. The offence charged was murder of a prison officer by striking with an iron bar, and it was earlier offences using the same weapon against the same victims about which the accused spoke to the jury.

It was in B however that this matter was directly addressed by the High Court. It was in that case that the accused denied sexual improprieties with his daughter, saying that he had earlier committed a sexual impropriety with her and her present false allegation was that of a rebellious daughter who wanted him out of the house again. The only other fact of importance is that the prosecution did not try to introduce evidence of the earlier incident although they may have been able to argue its admission to show an unnatural passion between father and daughter. Such an argument would have been based on Ball [40] and the many cases in which that proposition has been applied. Another basis might have been similar facts such as was described by Lord Cross in Boardman[41] and the cases in which it too has been applied.

The justices all agreed that the appeal should be allowed. It was the reasoning which varied. Mason CJ said that once the evidence was admitted it was capable of being corroborative of the prosecution case. He allowed the appeal because the trial judge in his directions to the jury had understated the extent to which the daughter’s evidence ought to have been subjected to scrutiny. He otherwise agreed with Brennan J. In the next judgment, Brennan J said that a piece of evidence once admitted can be used in proof of all relevant matters. The trial judge had been correct in saying that the accused’s evidence could corroborate the evidence of the daughter. His error was to deprive them of a real opportunity to regard that evidence as relevant to the proof of the daughter’s mendacity. For that reason he allowed the appeal. Deane J agreed with Brennan J. Dawson and Gaudron JJ delivered a joint judgment. They said that because the prosecution did not rely on the earlier act, the father’s evidence on the subject was not capable of corroborating the daughter’s evidence. That fundamental defect in the summing up caused them to allow the appeal.

The result would seem to be this: where bad character evidence is introduced by an accused the evidence must be relevant to an issue in the trial. Depending on the evidence and the nature of the case, it may be relevant to more than one issue including the proof of the prosecution case. An accused cannot confine the use of the evidence for the reason only that it was he who introduced it and not the prosecution. A trial judge must properly direct the jury on the way or ways in which the evidence can be used.

IX CROSS-EXAMINATION OF THE ACCUSED ON HIS BAD CHARACTER EVIDENCE

For the purpose of this part, I put to one side those cases where the accused, in addition to leading evidence of his own earlier misdeeds, had also cross-examined prosecution witnesses on character. The best examples are Schneidas and Lewis. Where the nature of the defence has been to involve imputations on the character of a prosecution witness and the accused gives evidence, the accused can be asked questions tending to show his bad character or the commission of other offences. Before such cross-examination can occur the leave of the trial judge must be obtained.[42] For that last reason I also put to one side the cases where the prosecutor cross-examined without leave. That was the complaint in Sarek and Couper which have been referred to earlier.

In Sarek, McInerney J, with whom Kaye J agreed, made some observations on the limits of cross-examination of an accused who had introduced evidence of his own bad character. His Honour said:

Even if...Jones v DPP...could be accepted as good law in Australia, I am of the view that it would not justify what was done by the prosecution in this case. In this case the prosecution did not merely cross-examine about the convictions which the applicant disclosed in his evidence in chief. The cross-examination went much further and disclosed that the applicant had been convicted on many more occasions than those disclosed in the evidence-in-chief...[43]

In Couper, Street CJ with whom Finlay J agreed, made similar observations:

Plainly enough, the Crown was placed in a difficulty in consequence of the offer made during evidence-in-chief to furnish details of his criminal record. The Crown was not, however, justified thereby in repudiating the specific prescription in s 413A forbidding cross-examination on the criminal record. [44]

I note that in Lewis, Teague J in a ruling made the elliptical comment that he had noted what was said on Jones v DPP by McInerney J in Sarek and went on that he would not have accepted that position if he had to do so.[45] It is not clear what precise part of McInerney J’s judgment is being referred to.

The point made by McInerney J and intrinsic in the judgment of Street CJ is a sound one. Evidence of bad character introduced by an accused must like any other evidence be relevant. If a prosecutor wants to cross-examine he must confine himself to the issue raised by that evidence. If he wants to cross-examine to elicit other details of character then the statutory rules apply and leave of the trial judge must be sought and granted. In the application of those rules it is clear that leave will only be granted in an exceptional case.[46]

A trial judge has power to limit or refuse a cross-examination of an accused when the prosecution seeks to impeach the accused’s assertion of his good character.[47] He should have no less power when a prosecutor seeks to bring out the details of bad character which an accused himself has introduced. Certainly under the relevant statutes the prosecutor must seek leave for such cross-examination.

X CONCLUSION

Evidence introduced by an accused of his other misdeeds must, like other evidence be relevant and admissible. It will not be easy for a judge to be alert to vet such evidence because, even if the prosecution is forewarned, it is impossible to imagine an objection. The judge however must assume that a prosecutor could cross-examine the accused on that evidence only in an exceptional circumstance.

In his directions to the jury, the judge must be careful to warn that they are not to reason that a person of bad character is liable to have committed this offence. He must give precise directions on how to use and how not to use the evidence.


[*] Member of the Victorian Bar.

[1] Melbourne v The Queen (1999) 198 CLR 1.

[2] See, for example Barrow v The State [1998] UKPC 16; [1998] AC 846.

[3] The most terse expression of this proposition is to be found in R v Murphy (1985) 4 NSWLR 42, 55, a judgment of a five member Court of Appeal.

[4] R v Winfield (1939) 27 Cr App R 139.

[5] Ibid 141.

[6] Stirland v Director of Public Prosecutions [1944] AC 315.

[7] Ibid 326-327.

[8] R v Stalder [1981] 2 NSWLR 9, 19 (CCA) (‘Stirland’).

[9] Stirland, above n 6, 324.

[10] R v Hamilton (1993) 68 A Crim R 298, 299 (NSW CCA).

[11] R v Chee [1980] VicRp 32; [1980] VR 303, 308. This stands as a sound proposition notwithstanding the castigation by the High Court of the application of the principle by the Victorian Court of Criminal Appeal: Perry v The Queen (1982) 150 CLR 580, 586 (Gibbs CJ) and 603-604 (Wilson J).

[12] R v Funderburk [1990] 1 WLR 587, 591 (CACrD).

[13] R v Knape [1965] VicRp 63; [1965] VR 469, 470.

[14] R v Coman [1953] VicLawRp 76; [1953] VLR 581.

[15] Jones v Director of Public Prosecutions [1962] AC 635 (HL).

[16] R v Vaitos (1981) 4 A Crim R 238 (Vic CCA).

[17] Ibid 285-286.

[18] R v Anderson [1988] QB 678.

[19] Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45.

[20] R v Peters and Heffernan (1995) 83 A Crim R 142 and later (1996) 88 A Crim R 585, both decisions of NSWCCA.

[21] R v Juric (2002) 4 VR 411, 419 [8].

[22] B v The Queen [1992] HCA 68; (1992) 175 CLR 599. Strangely, the decision of the Federal Court from which this appeal was brought is reported as R v K [1992] FCA 48; (1992) 34 FCR 227.

[23] R v Lewis [1998] VSC 18; (1998) 103 A Crim R 304 (‘Lewis’).

[24] R v Sarek [1982] VicRp 99; [1982] VR 971 (CCA) (‘Sarek’).

[25] Ibid 253.

[26] R v Couper (1985) 18 A Crim R 1 (NSW CCA).

[27] Ibid 4.

[28] Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565, 569-570 (Gibbs CJ, Murphy and Aickin JJ).

[29] R v Turnbull [1977] 1 QB 224, 230. This was a five member court.

[30] R v McNair (Unreported, Vic CCA, 16 April 1982). The appeal was dismissed.

[31] A notice of alibi is ordinarily required as a condition precedent to the calling of such evidence: Qld: Criminal Code s 590A; WA: Criminal Code s 636A; Tas: Criminal Code s 386A; NT: Criminal Code s 331; NSW: Crimes Act 1900 s 405A; Vic: Crimes Act 1958 s 399A; SA: Criminal Law Consolidation Act 1935 s 285C. Further in R v Cooper (1979) 69 Cr App R 229, 233 the court said that where a notice was not given a judge should take the course of ‘giving leave for the evidence to be called subject to service of notice out of time and...allowing the prosecution such adjournment...to enable them to investigate the alibi and the alibi witnesses’.

[32] R v H (1995) 83 A Crim R 402 (SA CCA).

[33] R v Donnini [1973] VicRp 6; [1973] VR 67.

[34] Ibid 89.

[35] Ibid 85.

[36] Donnini v The Queen [1972] HCA 71; (1972) 128 CLR 114.

[37] Ibid 136 (Walsh J) and 144-145 (Mason J).

[38] R v Schneidas (No 2) (1981) 4 A Crim R 101, 114 (NSW CCA). (The report of the case in [1981] 2 NSWLR 713 is confined to that ground of appeal on whether the trial judge was correct in not directing the jury that they could return a verdict of manslaughter).

[39] R v Couper (1985) 18 A Crim R 1, 4.

[40] R v Ball [1911] AC 47, 71 (HL).

[41] Director of Public Prosecutions v Boardman [1975] AC 421, 457.

[42] Legislation throughout Australia embodies these propositions. Qld: Evidence Act 1977 s 15(2)(c); WA: Evidence Act 1906 s 8(1)(e)(ii); NT: Evidence Act s 9(7)(b); Vic: Crimes Act 1958 s 399(5)(b). Slightly different provisions appear in the Uniform Evidence Acts of Cth and NSW: Evidence Act 1995 s 104(6) and Tas: Evidence Act 2001 s 104(5); and in SA: Evidence Act 1929 ss 18(2) and (3). See also Matusevich v The Queen [1977] HCA 30; (1977) 137 CLR 633.

[43] Sarek [1982] VicRp 99; [1982] VR 971, 979-980.

[44] R v Couper (1985) 18 A Crim R 1, 5.

[45] Lewis [1998] VSC 18; (1998) 103 A Crim R 304, 307.

[46] In Matusevich v The Queen, above n 42, 655: ‘...cases where it may prove proper to grant such permission are likely to be extremely rare.’ (Aickin J).

[47] Stirland [1944] AC 315, 324; R v Stalder [1981] 2 NSLWR 9, 19.


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