Pointon and Constable, Regina v [1967] PGSC 37; [1967-68] PNGLR 395 (8 August 1968)

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CRIMINAL LAW - Evidence - Cross-examination of accused to show previous convictions - Whether denial by accused of case for prosecution involves imputations on character of prosecutor or witnesses for prosecution - Cross-examination of accused as to previous convictions and character - Evidence and Discovery Ordinance 1913-1964, s. 58(1) (v) (b)^*[cdlxxxix]1.

A denial by the accused of the truth of the Crown case and of the evidence with which it is supported does not �involve imputations on the character of the prosecutor or the witnesses for the prosecution� within the meaning of s. 58(1) (v) (b) of the Evidence and Discovery Ordinance 1913-1964; the section deals with the use of matter which will have a particular or specific tendency to destroy, impair or reflect upon the character of the prosecutor or witnesses for the prosecution independently of the possibility that such matter if it were true would in itself provide a defence.

The facts and arguments of counsel appear sufficiently from the judgment hereunder.

MINOGUE J:� In this case the learned Prosecutor applied for leave to cross-examine the accused Constable as to his antecedents or as to his character under the provisions of s. 58 of the Evidence and Discovery Ordinance of Papua. That section is the same in terms as s. 1 of the Criminal Evidence Act 1898 of England and of its analogues in the various Evidence or Crimes Acts of the States of Australia, with one important difference in that in the English and Australian Acts there is a proviso that leave shall not be given except with the permission of the judge first obtained, such permission to be obtained in the absence of a jury. It is this proviso which has in England and Australia led to a great deal of law concerning the exercise of judicial discretion whether or not to allow such cross-examination. The application was based on two grounds. Firstly, that there had been cross-examination directed to establish and evidence led of his good character. That ground I have already dealt with and rejected the application of the Prosecutor. I said that I would postpone my ruling on the second ground until later in the trial, and it is that ruling which I now give.

The second ground of the application was that the nature and conduct of the defence was such as to involve imputations on the character of the prosecutor or his witnesses. I am I think accurately using the words of the section although I have not the section before me. The matter arises in this way. The accused man when giving evidence sought to explain, or to explain away, evidence given by the two investigating officers of police. Their evidence in effect was that the accused man was interrogated at the Central Police Station at Boroko, an interrogation which began at about 1.30 in the afternoon upon his arrival from Daru and which concluded at about 3 o�clock. According to each of the police officers concerned, in the early part of the interrogation he was questioned about other matters and then was asked if he would make a statement concerning this offence. The form in which the evidence was given has led to a great deal of confusion and has led me to be concerned as to the presentation of the case. It is clear that when the police officers were conducting such interrogation as they did conduct of the accused Constable they were dealing with a number of specific matters and that when they gave evidence in the form in which they did that they were concerned principally with a charge in relation to the stealing of some timber from the Port Moresby Freezing Company joinery and its sale to one Salerni.

There were a number of other allegations of stealing timber from the Port Moresby joinery and its disposal to other persons, that is persons other than Salerni. And it seems clear that the police brief was prepared on the basis that each of the police officers would be giving evidence in relation to the charge in respect of the Salerni timber, if so I can describe it. There was not present to their minds when conducting the interrogation any question of conspiracy. This as I have said has led to a good deal of confusion because it is now clear that the other matters which they initially said they were interrogating the accused man upon are matters which may well form the very substance of this case �of this charge of conspiracy. Because it is clear that when evidence was given of the accused�s man�s oral statement, everything in that statement dealt with matters which Sub-Inspector Fitzgibbon who actually conducted the interview had specifically dealt with in the course of the interview, and of course they were not �other matters� at all in relation to the conspiracy charge, if the evidence which has been led in the long run proves to be relevant to that charge. Evidence was given of the verbal statement in which admissions appeared in respect of transactions by the accused man Constable with one McClune of a firm called M & F Constructions, with one Ridderbeks, and with men named MacDonald, Goode and Poetzcher. And I might add that no cross-examination was, as I recollect it, at that stage directed to either of the officers in relation to those transactions. When the accused man came to give evidence, as he elected to do, he explained the material before the Court by saying that on arrival at the police office at Boroko a number of cheques were put before him�which is substantially true�and he was questioned individually about these cheques. In the course of his evidence he gave an exculpatory explanation in relation to each such cheque and in relation to each such transaction as to which he was questioned. And implicit in that exculpatory matter of course is the inference that the police officers were not telling the truth. As Mr. Gajewicz put it, even more strongly, there was involved an inference that the police officers had put their heads together and concocted or fabricated the story, which was a very serious allegation in respect of members of the police force. And in his submission there was a clear imputation involving the character and conduct of the police officers.

I have now of course had the advantage of a more detailed cross-examination of the police officers concerned, I having given leave to recall them. And the admission was made by each of them that in fact something of the general course of events described by the accused Constable did take place. There was a short interrogation in respect of a number of transactions before this alleged compendious statement was made. It must be remembered of course that earlier I decided that the document itself upon which these admissions were typed was inadmissible as it had not been acknowledged by the accused man as his statement. In support of his submission Mr. Gajewicz cited a number of authorities to me, in particular the cases of R. v. Thompson[cdxc]², R. v. Dunn[cdxci]³, and Carroll v. The Queen[cdxcii]⁴. In the course of argument I indicated that I was not persuaded by the case of Thompson because I thought there were other matters involved which led the Court to come to the conclusion which it did. Dunn�s case of course was a very strong case. It was a case decided by the Court of Criminal Appeal of New South Wales, consisting of the Chief Justice, Mr. Justice Street, Mr. Justice Owen (of the New South Wales Bench, as he then was) and Mr. Justice Herron the present Chief Justice. Those cases said Mr. Gajewicz should compel me to the view that there has been a clear breach of the section here, or rather a clear attraction of the section. The facts in Dunn�s case as far as one can gather from the report were not dissimilar to those of this case although it still must be remembered that each case depends upon its own facts and there are, perhaps small but nonetheless significant, differences from case to case. This will become of importance because of the case which I am about to rely on in a moment. There has been a great deal of difference of opinion over the approach to be adopted to applications made under this section. In England there have been two trends of authority noticeable, generally described as the literal and the liberal constructions. And as has been said by more judges than one the cases are in fact irreconcilable. I have had occasion to look at the learning on the subject displayed by Dr. Cross in his book Evidence, 2nd ed., where this particular topic is discussed and a number of cases referred to at p. 335 and the following pages. The particular portion of the section with which I am at present dealing is dealt with at p. 350 and the pages following. Dr. Cross refers to Stirland v. Director of Public Prosecutions[cdxciii]⁵�and in particular to the speech by Lord Simon in that case and the fourth proposition which he enunciated which was to this effect, that �An accused is not to be regarded as depriving himself of the protection of the section, because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witnesses.� And the learned author goes on to say that the nearest approach to guidance comes from the Scottish case of O�Hara v. H.M. Advocate[cdxciv]⁶, in which allegations of provocation and self-defence were held not to warrant cross-examination under the section although the charge was one of assaulting a constable. According to the Lord Justice Clerk, and I quote from his words, �The statute warrants a distinction being drawn between two sets of cases, however difficult it may be to say on which side of the line any particular case falls. And perhaps for that reason it is undesirable to attempt too rigid a line of demarcation. Broadly the two classes are, firstly where the cross-examination is necessary to enable the accused fairly to establish his defence to the indictment albeit it involves an invitation to the jury to disbelieve the witnesses so cross-examined insofar as they testify in support of the indictment��and I pause to note that the same remarks in my judgment would apply to evidence in chief of the accused himself as to cross-examination of witnesses for the Crown��and secondly, where the cross-examination attacks the general character of the witness.� And as Dr. Cross comments, �in the latter class of case alone does the accused throw his shield away.� There have been a number of cases in the various States of Australia in addition to the ones cited to me by the learned prosecutor, but I propose to rely and to draw strength and comfort from a comparatively recent case decided in the High Court, that is the case of Dawson v. The Queen[cdxcv]⁷, a case on appeal from the Supreme Court of Victoria and one again in which the facts bear a similarity�and indeed quite a strong similarity�to the facts of this case. There the detectives gave evidence that notes were taken of the appellant�s answers in the course of an interview and that at the conclusion of the questioning the applicant read the notes aloud and stated verbally that they were a true account of the interview. They contained admissions and they were put in evidence. The accused denied on oath at the trial that he had made the incriminating admissions attributed to him. Taylor and Owen JJ. held that it was in the circumstances of that case open to the judge to find that the evidence involved an imputation which the judge had in fact done, but they appear not to have considered the matter in any depth�at any rate they have not said anything at any length about it. They seem to have simply concluded to that effect and directed their attention more to another aspect of the law on the subject and to some authority which had been current in Victoria laid down in R. v. Billings[cdxcvi]⁸, an earlier case, and to express some views, with regard to the way in which the section should be approached and also with regard to the exercise of the discretion. I might add that in this particular case both Taylor and Owen JJ. upheld the application for special leave to appeal but on the ground that the judge had wrongly exercised his discretion to admit the evidence. That problem of course does not nor cannot arise in this case as no question of discretion arises. I must look at this case in the light of the words of the section and decide whether or not the nature and conduct of the defence comes within the four corners of the section. However Dixon C.J. at some length analysed the proper approach to the section and while he also was of the view that the judge had wrongly exercised his discretion, if discretion were material, came to the clear conclusion supported by a great deal of careful reasoning that the section was not applicable. And in his view too�and I think this fairly accurately summarizes a somewhat lengthy set of reasons�the section deals not with the denial of the truth of the Crown case and of the evidence with which it is supported but with the use of matter which will have a particular or specific tendency to destroy, impair or reflect upon the character of the prosecutor or witnesses for the prosecution independently of the possibility that such matter if it were true would in itself provide a defence. And I refer to several passages in the judgment of Sir Owen Dixon which have for me cast a considerable light upon this subject and with which I respectfully agree. To deal with the matter in a little more detail the facts of that case were that two detective constables had intercepted a car in which the applicant was. In that car was a thief who had recently stolen property and the property was also in the car. This was late at night in a suburb of Melbourne. The alleged confession which was put in, because it was said that the accused had adopted its contents, had consisted of a series of questions and answers. It recorded the applicant as denying any knowledge of the place whence the goods came and then proceeded to give an account of admissions made by him which may be summarized as follows. He said that the thief came out of a coffee lounge and asked if he could get rid of some property that he had in a car, he having told him that he had done a bust that night. He looked at the goods and said that he would do his best. They then drove in a car to another suburb, Fitzroy, where he saw a mate of his and after doing so went back to the coffee lounge. There he asked for a few pounds for himself to which they agreed and they got into the car and were about to drive off when intercepted by the police. The charge was one of being an accessory after the fact. The two detectives were cross-examined by the applicant�s counsel and questions were asked, the tendency of which was to suggest that the evidence of the detectives as to the composition of the document and the questions and answers given was wrong or mistaken but care seems to have been taken to ask nothing amounting to an imputation upon the character of the witnesses, and if I may say so�interpolating at this point�that seems to me to have been the position in this case here before me. The applicant was then called as a witness on his own behalf. The defence was simply that he didn�t know of the breaking and entering, he did nothing which would make him an accessory, and he did not make the incriminating admissions attributed to him by the paper. He denied reading the paper at all, neither read it aloud nor saw it except as something which one of the detective constables had written upon. He in detail denied the material contained in the statement and he said that at the detectives� office one of the detectives obtained a piece of paper and wrote as he replied to some questions by the other. After giving his name and address and after a suggestion by the detective that he was going to sell the stuff, which he said he denied, he told them according to his evidence that he did not want to say anything more about it. He said that at no time did they show him a statement, and as to the question and answer sheet��According to them I read it aloud and then refused to sign it. No, I did not read it. There were only two questions and answers on it.� In the light of those facts Sir Owen Dixon said that in his opinion and I quote from his reasons for judgment:

�...all this falls far short of satisfying the condition that the nature or conduct of the defence of the person charged must be such as to involve imputations on the character of the witness for the prosecution. It has been said that the words of the condition are to receive their ordinary and natural interpretation and that it is not legitimate to qualify them by adding or inserting the words �unnecessarily� or �unjustifiably� or �for purposes other than that of developing the defence� . . . the view I take of the present case is not based upon any such qualification or upon any implication restraining the application of the expressions used, but upon what I think is naturally conveyed by the phrase in its context. When par. (e) (ii) speaks of the nature and conduct of the defence it is referring to the substance of the case put forward under the plea of not guilty in answer to the indictment and is calling for a consideration of its true or essential nature and an appreciation of the manner in which that defence is conducted or, as it may perhaps be said, how the defence is supported or made out forensically. The evidence of the prisoner himself may, and ordinarily will, form a source of information as to the nature of the defence, and the manner in which his counsel examines may form part of the conduct of his defence when he is defended by counsel. But it is wrong to confuse his defence with his evidence. Indeed it may be said that it is just because the accused plays the two roles of a party and of a witness that the legislature sought to resolve the dilemma between submitting his credit as a witness to full inquiry and protecting him as a defendant from prejudice, by adopting the familiar but singular compromise expressed in par. (e) (ii) of s. 399�[cdxcvii]⁹�(our section 58).

In the next place when you stop to consider the significance of the hypothesis demanded by the words �when the nature or conduct of the defence is such as to involve imputations on the character of the witnesses for the prosecution� it becomes plain at once that what is referred to is not a denial of the case for the Crown, not a denial of evidence by which it is supported, but the use of matter which will have a particular or specific tendency to destroy, impair or reflect upon the character of the prosecutor or witnesses called for the prosecution, quite independently of the possibility that such matter, were it true, would in itself provide a defence. The phrase assumes that a denial of the case for the prosecution, although the evidence for the prosecution is necessarily contradicted, does not carry with it an imputation of the kind to which the provision refers. Further the word �involves� refers to what is a part of the defence or, at all events, an element or ingredient in the defence or what arises from the manner in which the defence is conducted. It is not meant to cover inferences, logical implications or consequential deductions which may spell imputations against the character of witnesses. It appears to me that upon reading par. (e) (ii) it is clear enough that it is dealing with something outside the denial of the truth of the Crown case and of the evidence by which it is supported. And that I think is conceded by all the decisions in spite of the �profound obscurities� of the paragraph. And Dixon C.J. went on to say,

�The evidence of the accused was, of course, led by his counsel and consisted of question and answer, the answer doubtless sometimes being a response in the form of a statement.... Now it seems to me that it is impossible to regard his denials of the facts to which Side and McLennan [the two detectives] deposed as bringing the defence and the conduct of the defence within par. (e) (ii) of the proviso. By that I mean the denial that he was shown the paper called the question and answer sheet, that he read it or read it aloud, the denial of his having said that the two men asked him to get rid of some property they had in the car or that they told him they had �done a bust� and so on. And it is equally true, as I think, that the assertion of the accused as a witness even though in answer to a question by counsel conducting the defence, that there were only two questions and answers on the paper, could not bring the case within the paragraph�[cdxcviii]¹⁰.

�It may, however, be pointed out that it is not what he said and is nothing but an inference from what he said and for that matter not one supported by the strictest logic. I say that it does not matter because it is only an open statement by the witness of an inference implied in the circumstances arising from the comparison of his version with the version of the two witnesses and the exhibit put in evidence. It really forms nothing but an incidental part of a detailed traverse of the evidence that had been led in support of the charge against him. A detailed traverse or denial on oath by a witness of evidence which cannot readily be explained by mistake, means as a matter of accessory or natural deduction, a reflection on the witnesses contradicted, but that is not what is meant by the expression in the paragraph, �the nature or conduct of the defence is such as to involve imputations on the character of witnesses�, and it does not seem to me to make any difference if the implication is developed expressly by the witness who does the contradicting. In the first place it does not change the nature of the defence �. And I cannot see how because of it the �conduct of the defence� is affected so that it involves such an imputation. The words �nature or conduct of the defence involves an imputation on the character of the witnesses� appear to me to mean something quite different, namely a defence which either because of its very nature or the manner in which it is conducted rests, at least in part, upon an imputation against the character of the Crown witnesses or some of them�[cdxcix]¹¹.

As I have said at the outset of my reference to this particular case I respectfully adopt and apply what was said by His Honour the Chief Justice in that case and for the reasons which he has so well stated I would reject the application to cross-examine the witness as to his character or antecedents in the circumstances of this case.

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[cdxc][1961] Qd.R. 503.

[cdxci](1958) 75 W.N. (N.S.W.) 423.

[cdxcii][1956] Tas. S.R. 91.

[cdxciii][1944] A.C. 315; [1944] 2 All E.R. 13.

[cdxciv] 1948 S.C. (J.) 90, at p. 99.

[cdxcv](1961) 106 C.L.R. 1.

[cdxcvi][1961] V.R. 127.

[cdxcvii](1961) 106 C.L.R., at p. 8.

[cdxcviii](1961) 106 C.L.R., at p. 12.

[cdxcix](1961) 106 C.L.R., at p. 14.

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Supreme Court of Papua New Guinea

Pointon and Constable, Regina v [1967] PGSC 37; [1967-68] PNGLR 395 (8 August 1968)

Papua New Guinea Law Reports - 1967-68