High Court of Australia Barwick C.J. McTiernan, Kitto, Windeyer and Owen JJ. Niven v The Queen [1968] HCA 67 ORDER Special leave to appeal refused. Cur. adv. vult. The Court delivered the following written judgment:— Oct. 24 Barwick C.J., McTiernan, Kitto, Windeyer and Owen JJ. The applicant for special leave was convicted by the Supreme Court of Tasmania of the murder of his wife. The Court of Criminal Appeal has dismissed his appeal to that Court upon the ground that, though certain evidence tendered by the Crown in a case in reply ought not then to have been admitted, no substantial miscarriage of justice had actually occurred. The evidence called in chief for the prosecution included, in addition to the circumstantial details of the shooting of the deceased and of the accused, a number of clear admissions that the accused had deliberately shot his wife. There was no challenge to the veracity of any of the several witnesses who deposed to these admissions. But the admissions were criticized as themselves unreliable, in the sense that though they may have been made, the accused when making them was in such a physical or mental state that what he then said ought not to be acted upon. Certain internal inconsistencies and alleged inaccuracies were pointed to in support of this criticism of the admissions. There was no material either in the circumstances of the shooting or in the admissions attributed to the accused which could found a reasonable hypothesis of an accidental discharge of the gun. The accused gave evidence in which he gave an account of the happenings of the evening in question up to a certain point of time anterior to the discharge of the rifle which unquestionably caused the death of his wife. Some of the details thus given confirmed portions of the admissions attributed to him by the evidence for the prosecution. However, the accused claimed to have no memory beyond this point of time. He said he did not remember anything at all about the shooting. His next memory, he said, was of an event in hospital during his treatment for his own condition which resulted from his own endeavour to commit suicide by discharging the rifle into his mouth. Somewhat miraculously, this endeavour had failed, the bullet from the rifle, the muzzle of which had apparently been inserted in his mouth, being deflected by his teeth so that none of it penetrated any part of the brain but all of it went into the soft tissue of the face. The accused was cross-examined without objection as to statements said to have been made by him to two constables who were guarding him in hospital after he had been charged with attempted murder, that is to say, before the death of his wife which did not occur for some six days after the shooting during which time incidentally she was unconscious. He denied having made any such statements. The prosecution, after the conclusion of the Crown case, sought leave of the trial judge "to call evidence in rebuttal under s. 98 of the Evidence Act ". To the grant of this leave there was no objection. But a request was made that the evidence be confined strictly within the limits permitted by s. 98: and this was done. The statements evidenced by the two constables were to the effect that the accused had deliberately shot his wife. Thus, as well as being statements inconsistent with his testimony that he had no recollection of the shooting, they constituted admissions of guilt. They were confirmatory, but not merely confirmatory, of the prosecution's case in chief for as well they tended against the credit of the accused. The majority of the Court of Criminal Appeal was of opinion that the evidence of two constables thus tendered by the Crown after the close of the accused's case ought not then to have been admitted: but it was of opinion that none the less no substantial miscarriage of justice had actually occurred: see s. 402 (2) of the Criminal Code Act 1924 Tas.. Accordingly, the Court dismissed the applicant's appeal. The grounds of the Court's decision in relation to the dismissal of the appeal pursuant to s. 402 (2) have been fully canvassed before us. We are clearly of opinion that the Court of Criminal Appeal was not in error in taking the view that no substantial miscarriage of justice had actually occurred. The Court evidently had in mind the test formulated by Viscount Simon in Stirland v. Director of Public Prosecutions [1] , namely, that: A perverse jury might conceivably announce a verdict of acquittal in the teeth of all the evidence, but the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict. In our opinion, the Court was not in error in applying the proper principle to the facts of this case. We find it impossible to doubt that, assuming reasonableness on the part of the jury, a conviction was inevitable on the Crown case in chief. The accused's sole endeavour in defence was to attempt to create doubt as to the reliability of the detail of the admissions attributed to him by the witnesses for the Crown, and to do so by asserting his own lack of memory of some of the events of which those admissions spoke. So that without doubt the admission of the evidence in rebuttal could have had no other practical result in the minds of a reasonable jury than that of serving s. 98 and thus removing what little, if any, persuasiveness the accused's evidence might otherwise have had. We are therefore of opinion that special leave to appeal ought not to be granted in this case. 1. [1944] A.C. 315, at p. 321. However, having regard to the difference of opinion evinced in the judgments of the Court of Criminal Appeal, we should express our opinion upon the matters of law thus in dispute. Section 371 (i) of the Code provides: The following rules shall apply to the proceedings upon the trial of an indictment: (i) Evidence in rebuttal may be called by the Crown if the judge is of opinion that in the circumstances of the particular case it should be allowed; Section 98 of the Evidence Act 1910, in terms familiar in the States of Australia, provides: 98 (1) Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it. (2) The same course may be taken with a witness upon his examination in chief, if the judge is of opinion that the witness is hostile to the party by whom he was called and permits the question. In our opinion, s. 371 (i) of the Code applies to the calling of any evidence by the prosecution after the closing of the case for the accused. Whilst perhaps it may be that evidence made admissible by s. 98 in strictness does not always rebut the case made by the accused, yet the policy evidently expressed in s. 371 (i) would require a wide construction of the expression "evidence in rebuttal". It calls, in our opinion, for the exercise of the trial judge's discretion in relation to all evidence sought to be adduced by the Crown after the accused's defence is complete, that is to say, in what could be called a case in reply. There remains a question as to the relationship between s. 371 of the Code and s. 98 of the Evidence Act. The latter section renders admissible evidence of a prior inconsistent statement, the making of which the witness in his testimony has denied. We are clearly of opinion that an accused who gives evidence in a trial is a witness within the meaning and operation of this section. But, though evidence to contradict his denial is made admissible thereby, s. 98, in our opinion, does not confer upon the party seeking to call the evidence any paramount right to have it admitted, and, particularly, to have it admitted at any particular point in the course of a trial or hearing. Evidence made admissible by s. 98 is in relation to s. 371 (i) in the same case as any other admissible evidence sought to be called by the Crown after the conclusion of the case for the accused. It is to be regarded, in our opinion, as evidence in rebuttal within the meaning of s. 371 and subject to the same discretion of the trial judge as any other evidence. However, the fact that cross-examination of the accused has taken place in order to provide a basis for the evidence to be called to establish the making of the prior inconsistent statement, will no doubt be material to be borne in mind if and when the Crown seeks an exercise in its favour of the discretion under s. 371. It would therefore be advisable, in our opinion, for a trial judge as well as for the prosecutor, to bear in mind at the time the cross-examination is being entered upon that a serious problem may later arise if the prosecutor seeks to adduce evidence to establish the prior inconsistent statement, particularly if that statement amounts to or includes an admission by the accused of guilt or of some significant fact in relation to its proof. We would add that the exercise by the trial judge of the discretion given him under s. 371 is a substantial matter and should follow upon a full consideration by the judge of the possibility of prejudice to the accused as well as of prejudice to the prosecutor which could have been avoided by appropriate action taken at an earlier point in the trial. Further, the matters pointed out by this Court in Shaw v. The Queen [1] should be borne in mind in a case in which they are apposite. 1. (1952) 85 C.L.R. 365. Having regard to our opinion that the Court of Criminal Appeal was not shown to be in error in using the discretion given by s. 402 (2), there is no need for us to express any opinion upon the question whether or not the transcript of the proceedings is consistent with the trial judge having applied his mind to the matters which ought to be considered when exercising the discretion under s. 371 (i) or upon the question whether, if it is, it could properly be said that the trial judge was wrong in permitting the introduction of the evidence of the two constables.