Attwood v The Queen [1960] HCA 15

High Court of Australia Dixon C.J. McTiernan, Fullagar, Taylor and Menzies JJ. Attwood v The Queen [1960] HCA 15

ORDER Application for special leave to appeal refused.

Cur. adv. vult.

The Court delivered the following written judgment:—

Mar. 31, 1960 Dixon C.J., McTiernan, Fullagar, Taylor and Menzies JJ.

This application for special leave to appeal involves the interpretation of par. (e) of s. 399 of the Crimes Act 1958 Vict., which relates to the questions that may be asked of a witness who is called upon the trial or hearing of a criminal charge against him.

The provision corresponds with s. 432 (e) of the Crimes Act 1928 Vict. and s. 1 (f) of the Criminal Evidence Act 1898 Imp.. The section as is well known makes a person charged with an offence, and the wife or husband as the case may be of that person, a competent witness for the defence but provides certain conditions and limitations as to the manner of giving evidence, the questions to which he will be exposed and certain incidental and consequential matters. Paragraph (e) imposes a restriction upon the questions that may be asked but the restriction is itself subject to certain conditions and ceases to operate when any of them are fulfilled. The paragraph provides that he may not be asked and shall not be required to answer any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged or is of bad character. Then follow the word "unless" and three sub-paragraphs setting out the conditions fulfilment of which will exclude the operation of the restriction. None of the conditions was fulfilled in the present case and we are directly concerned only with the restriction. But of course as it is a matter of interpretation the conditions are material and as it happens one of them is very important in construing the provision. The part of the restriction upon which the case turns consists in the words "or is of bad character". Do these words exclude questions as to matters relevant to the proof of the crime charged, of which any other witness might lawfully give evidence, because they possess also a tendency to show that the accused is of bad character? That is the question of interpretation. The question is given point by the fact that in sub-par. (i) there is an express provision referring to proof that the accused who gives evidence has committed or been convicted of another offence. The effect of sub-par. (i), following as it does the word "unless", is to except out of the restriction contained in par. (e) cases where "the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged". It is to be noticed that this sub-paragraph does not speak of "bad character" nor for that matter of the accused being "charged with" any other offence, the two other matters expressly covered by the restriction in par. (e). It is suggested in support of the application for special leave that sub-par. (i) by its positive statement about the case of proof of the commission or conviction of another offence being admissible evidence of the offence charged and its omission of any similar provision as to "character" confirms the contention that where facts reflect upon the accused's character he cannot be asked about them as a witness notwithstanding that the facts are relevant to the proof of the offence for which he is being tried.