Dawson v The Queen [1961] HCA 74

High Court of Australia Dixon C.J. Taylor and Owen JJ. Dawson v The Queen [1961] HCA 74

ORDER Grant special leave to appeal from the order of the Supreme Court sitting as a Court of Criminal Appeal. Order that the appeal be treated as heard instanter. Allow appeal. Discharge the order of the Supreme Court sitting as aforesaid. In lieu thereof quash the conviction and order that a new trial be had.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 23 Dixon C.J.

This application for special leave to appeal involves two questions. One concerns the manner in which the Supreme Court has applied the expression in par. (e) (ii) of the proviso to s. 399 of the Crimes Act 1958 Vict., namely "the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution". The other question relates to the use to which the discretion arising under the proviso to that paragraph was put by the judge at the trial. The applicant labours under the disadvantage of having suffered many convictions for larceny and for other offences usually taken to betoken a life of crime. His conviction on the occasion with which we are concerned was for an offence that he might well regard as assigning him an unusual second place, namely of being an accessory after the fact, the fact itself being the breaking and entering of a dwelling-house and stealing therein. Perhaps the applicant's claim to the exercise by this Court of its special discretion to admit an appeal may be considered by some as too handicapped by his lack of apparent merit and the fact that he is threatened with no hardship to which he has not long since been inured, but after all, justice for everyone must be done according to law and for my part I think that there were, in his case, departures from the law which make it proper for us to intervene.