Matusevich v The Queen [1977] HCA 30

High Court of Australia Gibbs, Stephen, Mason, Murphy and Aickin JJ. Matusevich v The Queen [1977] HCA 30

ORDER Application for special leave to appeal granted. Appeal allowed. Order that verdict of guilty of and conviction for murder and sentence thereon by the Supreme Court of Victoria be quashed and in lieu thereof order that the matter be remitted to that Court for retrial.

Cur. adv. vult.

The following written judgments were delivered:—

1977, June 22 Gibbs J.

The facts of this case are fully set out in the judgment of Aickin J. In my opinion the applicant was wrongly asked in cross-examination by counsel for the Crown questions which tended to show that he had been convicted of offences other than those with which he was charged and that he was of bad character. The evidence thus elicited was not only inadmissible but was prejudicial to the applicant. It cannot rightly be said that no substantial miscarriage of justice occurred, and the conviction should not be allowed to stand. On these matters I agree with the judgment of Aickin J. and cannot usefully add anything to what he has said.

It is unnecessary to deal with the question whether the learned trial judge gave a proper warning as to the effect of the evidence so admitted. I would content myself by saying that I respectfully agree with the remarks made by Barwick C.J. in Donnini v. The Queen [7] as to the duty of a trial judge when evidence of this kind is admitted.

1. (1972) 128 C.L.R. 114, at p. 123.

Since there may be a new trial I shall briefly express my views on certain other questions that have been raised. It was submitted on behalf of the applicant that the fact that the other accused man (Thompson) was insane meant that the jury could not properly find that the two accused acted in concert. The law as to the liability of persons who act in concert in committing a crime was stated by Smith J. in Reg. v. Lowery and King [No. 2] [1] as follows: