Donnini v R [1972] HCA 71; (1972) 128 CLR 114 (22 December 1972)

HIGH COURT OF AUSTRALIA

DONNINI v. THE QUEEN [1972] HCA 71; (1972) 128 CLR 114

Criminal Law

High Court of Australia.

Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh(4) and Mason(5) JJ.

CATCHWORDS

Criminal Law - Evidence - Questions asked with a view to establishing good character of accused - Cross-examination of accused - Questions tending to show previous convictions - Discretion of judge - Crimes Act 1958 (Vict.), s. 399.*

* So far as is material, proviso (e) to s. 399 of the Crimes Act 1958 (Vict.) provides: "A person charged and called as a witness ... shall not be asked, and if asked 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, unless ... (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character ... Provided that the permission of the judge must first ... be obtained."

HEARING

Melbourne, 1972, October 6, 9;

Sydney, 1972, December 22. 22:12:1972

APPEAL from the Supreme Court of Victoria.

DECISION

December 22.

The following written judgments were delivered:-

BARWICK C.J. The applicant, Francis Alexander Donnini, was convicted on 6th arms and upon two charges of illegally using a motor vehicle. The applicant's appeal to the Victorian Court of Criminal Appeal was dismissed by majority and the present application is for special leave to appeal against that decision. (at p117)

2. At the trial the Crown alleged that the applicant was one of two armed and hooded men who, on 12th May 1971, robbed the Murrumbeena Branch of the A.N.Z. Banking Group Ltd. of a sum of $12,640. The Crown relied upon identification of the applicant as the smaller of the robbers by two female bank clerks; police evidence of an interview with the applicant at Long Bay Gaol in Sydney in which the applicant was said to have confessed his complicity in the robbery; the finding in the applicant's flat of a pair of shoes which, according to the evidence of a male bank clerk, were "very much like" the shoes worn by the smaller of the two robbers and which were in fact a reasonable fit for the applicant's feet, and of a newspaper account of the robbery separately placed in a drawer in the flat; and finally the fact that the applicant went to Sydney by air on the day after the robbery. (at p117)

3. The applicant in evidence at the trial denied that he had had any part in the robbery and denied the entire account of the interview with him given by the police officers. He accounted for his journey to Sydney as having been arranged some time before with a man called Sidler who provided the money for the air fare. The applicant said that Sidler had said that he had won at horse racing the money out of which the applicant's air fare was provided. It later appeared that Sidler had been involved in a bank robbery though the applicant was not shown, and must be taken not, to have been aware of that fact at any relevant time. (at p117)

4. The applicant, prior to the date of the robbery of the bank at Murrumbeena, had been living in a flat which he rented from a Mrs. Brading. He was known to her as Michael Thomas. She was called by the Crown in its case to prove the circumstances in which the applicant left that flat on the day following the robbery. She was asked by counsel for the applicant - "During the time the accused was staying at the flat had you formed any opinion as to his character?" She replied "I would have imagined that he was quite a shy young man. He was always very pleasant when we said good morning." (at p117)

5. When the applicant was giving evidence on his own behalf the Crown Prosecutor founded on this question an application for leave to cross-examine the applicant on his antecedents. The trial judge gave such leave pursuant to s. 399 (e) (ii) of the Crimes Act 1958 (Vict.). That provision is as follows:

"(e) a person charged and called as a witness in pursuance

of this section shall not be asked, and if asked 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, unless -

...

(ii) he has personally or by his advocate asked questions of

the witness for the prosecution with a view to establish

his own good character, or has given evidence of his good

character, or 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: Provided

that the permission of the judge... must be

obtained.

By the time leave was given, the applicant had denied the evidence of the police witnesses as to the interview said to have been had with him at the Long Bay Gaol in Sydney. An issue involving the applicant's credit had thus arisen. However, though he had obtained such leave, the prosecutor did not ask the applicant directly as to the prior convictions which he had in fact suffered. But he pressed the applicant for his reason for assuming the name of Michael Thomas in his dealings with Mrs. Brading. As a result of some degree of persistence in this line of questioning the applicant disclosed that he had been convicted on four prior occasions. (at p118)

6. The matter fell out in this fashion. The applicant, in answer to the question,

"Why didn't you tell Mrs. Brading your name was Donnini,

not Michael Thomas, if that" (the matter of income tax)

"didn't worry you?"

said:

"Well, there was - there is another matter besides this that

I would like to tell the jury, if I may be allowed."

The cross-examination continued:

"What would you like to tell the jury, Mr. Donnini? - Yes.

I have - I have got convictions with the police for shop-breaking

and other minor offences in the past, and these

convictions were - well, I started getting into trouble when

I was 17, or around about 17, and I had a problem with drugs,

and I was released from prison - oh, it would be about 14

months ago now - and I was to have psychiatric treatment

upon release - that was part of my parole - and I am now -

well, I don't need drugs or anything any more and I was

trying to make a go of things, that's all.

Well, if you had a condition that you would have psychiatric

treatment and you were trying to make a go of things - and

you have apparently overcome any problem you had, have

you? - (No answer)

You have overcome the problem that you mentioned you

had, have you - the drug problem? - Yes, yes.

Well, why use a false name? That is something for a man

to be a bit proud of, that he can hold his head up about, isn't

it, particularly after having had difficulties in the past? -

Well, after having dealings with the police, I am very familiar,

you know, with a lot - a lot of their ways and means, and I

didn't want any trouble or anything of that nature.

Well, I suppose the probation that you talk about was given

not by some policeman but by a Judge or a magistrate, was

it? - Yes.

And you were having the treatment that you were supposed

to have, were you? - Yes.

And it was doing you good? - Well, I had the treatment

on a number of occasions and I didn't bother any more, you

know, because I was all right.

Yes. You were all right? - That's right.

Well, why was that a reason to be using a false name? -

Oh well, I just told you. I am known to the police.

Yes? - And the taxation - or, to my knowledge - I don't -

I don't really know much about tax, but, to my knowledge

at the time, I thought they were on to me, you know. It is

just something that is built into you, you know.

I don't want to dwell on this, but, on what you have been

telling us, you had been out of circulation until pretty recently

before this offence occurred, had you? For how many

months had you been on parole and overcoming this problem?

- Um - 7 months.

Well, up to 7 months before this time, you hadn't been earning

for a while, had you? - No. No.

No? - Oh, we earn - I think it is 25 cents a day - in prison,

that's all.

Not very interesting to the Commissioner, as tax dodges

go, would you think? - Well, to my knowledge, I wasn't to

know what is interesting and what isn't. I don't know." (at p119)

7. No attempt was made by the Crown to prove the actual convictions, which were in fact more serious than the applicant's evidence made out. (at p119)

8. In his summing up, the learned trial judge said:

"Now during the course of the accused's cross-examination,

he volunteered some information to you. He was being cross-examined,

if you will remember, as to why he was renting the

premises under the assumed name of Michael Thomas and he

volunteered the information that he had been taking drugs

and he had been under psychiatric treatment, and that he had

had some convictions, I think, of a minor character and he told

you of all those things. Now you do not know, you have not

any information whatsoever, as to the type of matters with

which he was convicted. You would therefore not be entitled

to draw any adverse inference against him by reason of the

fact that he has volunteered this information that he has had

some convictions. It is simply a matter about which you

have no evidence other than what he has told you, and in

those circumstances you would not be justified in drawing any

adverse inference - any inference adverse to him - by reason

of that statement to you." (at p120)

9. I mentioned earlier that the applicant had sought to explain his flight from Melbourne, on a day which happened to be the day after the robbery, by reference to arrangements he claimed to have earlier made with the man Sidler. No doubt the reason for his journey to Sydney on the day on which it occurred was a serious issue in the case. The prosecutor treated it, and in my opinion rightly, as a matter which bore on the applicant's guilt or innocence. The applicant offered an explanation of it which, if true, would deny it any significance. Whether he was truthful in his account of a pre-arrangement to go with Sidler, including his knowledge of the source of the money Sidler provided, was not a matter which merely went to his credit. As I have said, the applicant was not shown to have known that Sidler had been or was a bank robber, or of the circumstances in which Sidler had obtained the money used for the air tickets. Yet no doubt the fact of his association with Sidler, admittedly a robber of a bank, emphasized by the nature and extent of the cross-examination, had considerable risks for the applicant. But it must be remembered that it was the applicant who introduced Sidler and the source of the money for the air fare to the case as part of his explanation of the timing of the journey to Sydney. (at p120)

10. The applicant was identified in a line-up by a female officer of the bank. She founded her identification upon the colour of his eyes and his build. She was mistaken as to the colour of the eyes and as to her estimate of his height. But she affirmed her belief that he was the smaller of the two robbers. The other female bank officer did not actually identify the applicant in a line-up but both before and at the trial stated her belief that he was the smaller of the two robbers. (at p120)

11. The grounds on which special leave to appeal is sought are:

(1) that the trial judge erred in granting permission to cross-examine

the applicant as to character;

(2) that the trial judge erred in not instructing the jury as to

the use they could make of the applicant's admission of

prior convictions;

(3) that the trial judge erred in instructing the jury that they

could decide on the identification by the two female bank

clerks alone that the applicant was the smaller of the two

bank robbers;

(4) that the trial judge did not deal adequately in summing

up so as to protect the applicant against the prejudice

which might arise from the prosecutor's cross-examination

of him as to his association with Sidler;

(5) that the trial judge's comments concerning the evidence of

the police officers as to the interview with the applicant at

Long Bay Gaol were unwarranted and highly prejudicial to

the applicant.

(at p121)

12. I am unable to agree that the trial judge was in error in granting permission to the Crown Prosecutor to ask the applicant questions tending to show that he had committed, or had been convicted of, an offence other than that with which he was then charged. In my opinion the question asked of Mrs. Brading, though incautious, was deliberate. It was asked with a view to establishing the applicant's good character. The permission may be given, according to the statute, if the question is asked with that purpose, the authority to grant it depending on the nature of the question and not upon the nature of the answer which is given. But undoubtedly, in the exercise of the discretion to grant the permission, the nature of the answer as well as the relative claims on the one hand of the accused not to be submitted to disproportionate prejudice and on the part of the Crown not to be deprived of an opportunity to destroy the credit of an accused in conflict with witnesses for the Crown must be taken into consideration. In the present case, at the stage at which the permission to cross-examine the applicant was sought, he had placed himself in contest with the police witnesses on a most substantial matter. His credit, therefore, was a matter of concern. It may well be and, indeed, it is my opinion that the grant of the permission was in this case unwise, but I am unable to say that it was erroneous, either lacking in foundation to satisfy the terms of the statute or in point of discretion. In particular, I do not think that the lack of caution in counsel for the applicant ought to be accounted a reason for refusing the permission. In my opinion, an advantage for the applicant was sought by the interrogation. On the other hand, the advantage obtained by the answer was certainly small in the circumstances. But though the advantage small and the potential harm to the applicant great, in my opinion the exercise of discretion did not miscarry. Because of the view I have formed, and will immediately express, it is unnecessary for me to discuss whether, if it were erroneous, the mere grant of the permission to cross-examine, of which no advantage was taken, would call for the interference of a Court of Criminal Appeal. (at p122)

13. In my opinion, the Crown did not take advantage of the permission granted to it. The applicant was not asked any questions tending to show that he had committed or been convicted of any offence other than that wherewith he was then charged. It may possibly be that the prosecutor's purpose in asking the reason for the applicant's assumption of a false name was to drive him into unacceptable explanations or even to place him in a position where he might find it inevitable that he should himself disclose the convictions. But, in my opinion, none of the questions actually asked tended to show that the applicant had committed, or been convicted of, some other offence. It is protection from such interrogation that s. 399 (e) (ii) affords. (at p122)

14. It was pressed in argument that the knowledge of the applicant that permission had been granted to cross-examine him as to his antecedents operated to induce, if not indeed to compel, the applicant's disclosure of his prior convictions. I am unconvinced that this is a proper analysis of the effect of the leave to cross-examine or of the reasons which induced the applicant to make the disclosures which he did. If the knowledge of the leave to cross-examine had been present to his mind when he made the answers I have quoted as to his former convictions he was placing himself in an impossible position when he played down the significance of those convictions. Rather, it seems to me that the applicant thought that the disclosures which he was making would at the one time explain away his assumption of a false name and excite the sympathy of the jury for a man who was rehabilitating himself. The very notable circumstance is that the Crown Prosecutor did not challenge the applicant's statement as to the number and nature of his prior convictions, notwithstanding the impression as to them which the applicant sought to create. Further, in my opinion, the trial judge quite emphatically told the jury that they could draw no adverse inference against the applicant from the disclosures he had made as to former convictions. The fact that this direction was prompted by the absence of specific evidence as to the nature of the prior convictions does not detract from the sufficiency of the direction itself. (at p123)

15. However, the question of public importance which, in my opinion, is raised in this case is the existence and extent of the duty of a trial judge to assist a jury as to the use they may make of evidence of prior convictions having no other relevance in the case than the character and credibility of the accused. It is the settled policy of the law that, in general, evidence of a propensity to commit a crime or of a propensity to commit a particular type of crime is not admitted for the consideration of a jury. But evidence of bad character, particularly where it serves no other purpose in a case than the exposure of that character where the accused's credit is involved, is susceptible of use by a jury as indicating a propensity for criminal behaviour. Where the ground for granting the permission under s. 399 (e) (ii) is an attempt by the accused to establish his own good character as a matter to be considered on the question of his guilt or innocence, the purpose of the section is to deny the accused the benefit of a false claim to good character. It does not intend to place bad character before the jury as a fact upon which they may conclude the guilt or innocence of the accused. It seems to me, however, that there is a high degree of possibility that a juryman will be prone to reason towards guilt by the use of the fact of prior conviction as indicative of a disposition to crime on the part of the accused. To so use the fact of prior conviction is to cut across a deeply entrenched policy of the law. Therefore, the not unnatural tendency of the juryman and the importance of that policy seem to me to require that the trial judge, when evidence of prior conviction is properly before the jury for the sole purpose of combatting a suggestion of good character or to weaken or destroy an accused's credibility, must assist the jury by expressly and with emphasis telling them that they may not use the fact of prior conviction as tending to the guilt of the accused. In my opinion, in such a case, he should tell them quite clearly that the fact of prior conviction can only be used as a means of discrediting the accused in respect of any matter as to which he is in conflict in his evidence with witnesses for the Crown, or as to exculpatory facts or claims which he makes. Where the evidence of prior convictions or of bad character or tendencies is properly admitted for other purposes, it may be that a clear statement of the use to be made of the evidence for those purposes may suffice. (at p124)

16. We were referred by counsel for the Crown to decisions which it was claimed supported the proposition that the trial judge was under no obligation to assist the jury in the manner to which I have referred in a case where the evidence as to character has no other significance than lack of good character and of credibility to be inferred from an accused's prior convictions. (at p123)

17. The first case was R. v. Kennewell (1927) SASR 287 . The accused in that case was charged with indecent assault on a female under sixteen years of age. Evidence of similar acts with respect to the same female was admitted to establish that the accused had a sexual passion for the particular girl and, for that reason, was likely to have committed the crime with which he was charged. The directions by the trial judge as to the probative purpose and value of similar facts adduced in evidence were challenged as insufficient. In delivering the judgment of the Full Court of the Supreme Court of South Australia, Murray C.J. said (1927) SASR, at pp 302-303 :

"In every case where the evidence" (that is, of similar

acts) "is admitted there is a possibility that the jury may

draw the inference that the accused is guilty of the offence

charged because he has committed other like offences, but we

cannot find a trace of any rule or practice that it is the duty of

the judge to warn the jury against that inference. In many

cases, perhaps in most, he would do so, but it is a matter for

his discretion, and, if no miscarriage of justice has resulted,

this Court cannot interfere. A miscarriage of justice might

arise if the evidence were that the accused had committed other

similar offences on other girls, because that would show propensity

for the particular crime, as distinct from sexual

passion for the particular girl. The evidence was not of that

nature here, and, in our opinion, the jury could not have given

the wrong value to it, especially in view of the repeated

warnings of the learned Judge that the charge was of

indecent assault on or about..." a particular day.

It will at once be seen that upon its facts this case has no bearing on the present case though the views of the court were expressed with some generality. The Court does suggest, however, that the trial judge ought to give special directions where similar acts other than acts in respect of the person against whom the accused was charged with having done the particular act is admitted in evidence to prove design, system, criminal intent or guilty knowledge. The evidence was not admitted in that case to combat a claim of good character. It was directed to a substantial matter bearing on the offence charged. (at p124)

18. The second case was R. v. O'Meally (No. 2) [1953] VicLawRp 7; (1953) VLR 30 . There, in a trial of an accused for murder, evidence of articles found near the scene of the crime and of other articles found in the accused's home was admitted for the purpose of identifying the accused as the person who had committed the murder. In fact, all these articles were the proceeds of previous robberies which the Crown alleged that the accused had committed. It was objected that the trial judge had not warned the jury that the evidence that the articles were the proceeds of previous robberies should not be used by them to show that the accused was likely to have committed the murder with which he was charged. Herring C.J., in delivering the judgment of the Full Court of the Supreme Court of Victoria, pointed out that the evidence as to the articles found near the scene of the crime and at the home of the accused was direct evidence to prove the accused was the man who committed the crime with which he was charged and that the judge in his summing up had clearly indicated to the jury the purpose for which the evidence had been adduced by the Crown. His Honour said (1953) VLR, at p 32 :

"It was submitted that it is a rule of law or at least of

practice that such a warning, both in its positive and its negative

form, should always be given in a case such as the present.

In our opinion there is no such rule of law or practice (cf.

Kenny's Outlines of Criminal Law, (Turner's Edition), pp. 392,

552). The matter is governed, so far as we are concerned, by

the decision of the Full Court in Shaw's Case (unreported)

where a similar point was taken and overruled. We were

also referred to O'Leary v. The King [1946] HCA 44; (1946) 73 CLR 566 , and find it

impossible

to reconcile the existence of any such rule with the decision of

the Court and indeed with the observations of the learned

Judges in that case. The Full Court of South Australia in

R. v. Kennewell (1927) SASR 287 took the same view." (at p125)

19. The significant point of that case in relation to the proposition put forward in this case is that the evidence submitted as to the articles had a purpose other than a purpose of discrediting an accused in conflict with Crown witnesses. That purpose was clearly put before the jury in the summing up and seems to have been taken by the Supreme Court in a manner which indicated that that purpose was the sole purpose for which the evidence could be used. I would observe that the reliance in that case on R. V. Kennewell (1927) SASR 287 emphasizes that the evidence in each case was admitted for a purpose other than the purpose of impugning indirectly the credit of the accused by denying his claim to good character. (at p125)

20. In O'Leary v. The King [1946] HCA 44; (1946) 73 CLR 566 the employees of a timber camp took part in a drunken orgy which ran throughout Saturday until late at night. At about midnight one of those employees retired to his cubicle which was proximate to the cubicle occupied by the accused. Early on Sunday morning this employee was found in his cubicle in a dying condition. He had been struck on the head eight or nine times with a bottle after which kerosene had been poured over him and his clothes had been set on fire. At the trial, evidence was submitted that the accused at various times during the orgy violently assaulted other employees; that some of these assaults were unprovoked; that all consisted of brutal blows on the head, and that during the afternoon the accused had aimed a blow at the deceased. The majority of the Court was of opinion that the evidence was admissible, some of the majority on the ground that it disclosed a connected series of events which should be considered as one transaction, another justice of the majority on the ground that the evidence consisted of specific features which connected the applicant with the crime charged. The trial judge's direction that the jury could consider this evidence as evidence of the disposition of the accused "as a man who had no care for the ordinary feelings of pity or humanity which restrain ordinary people" was held by a majority to be a misdirection which did not warrant the grant of special leave, although Latham C.J. thought that it was inconsistent with the well established rule that evidence of bad character was not admissible against the accused person. (at p126)

21. It seems to me that the special features of O'Leary v. The King [1946] HCA 44; (1946) 73 CLR 566 makes it, and the remarks of the justices who participated in its decision, of no assistance in resolving the question whether in a case such as the present a trial judge should give specific directions as to the use to be made of the fact of prior convictions. For my own part, whilst I can accept the view that in each of the first two cases cited, a direction as to the specific purpose of the tender of the evidence being clearly given to the jury, might be regarded as sufficient to preclude them resorting to the evidence as mere evidence of propensity, it would, in my opinion, however, be a more satisfactory course even in cases of that kind for the trial judge to take some care to ensure by his directions that the evidence tendered for a specific purpose, but capable of being used or rather misused by a jury as evidence of propensity towards the crime with which the accused is charged, is only used by the jury for the purpose for which it was admitted. However, in my opinion, where the sole purpose of the admission of prior conviction is to deny a suggestion of good character and to inpugn the credit of the accused, the jury should be specifically instructed that they may only use the evidence for those purposes. If the cases cited are inconsistent with this conclusion I am unable to accept them. (at p127)

22. In the instant case there was evidence of the accused's prior convictions given by his own admission. The question is whether the trial judge did give a sufficient direction to preclude the jury using that evidence as evidence of propensity to commit the crime with which the accused was charged. I have quoted the relevant passage from the charge of the learned trial judge. In my opinion, in telling the jury that they could draw no inference against the accused from the evidence as to his prior convictions the trial judge, in the circumstances of this case, gave a direction which was sufficient in the sense that, the jury being obedient to it, were unlikely to use the fact of prior convictions as evidence of propensity. (at p127)

23. The remaining matters raised in the application are not such as in my opinion to warrant the grant of special leave. I agree with the majority of the Court of Criminal Appeal the jury would have been entitled to accept the evidence of the two female bank clerks as establishing the identity of the applicant as one of the bank robbers. I agree with the reasons given by their Honours for that view. I also agree that the warning given by the trial judge was adequate. I would merely add that whilst it may be that upon reading the summing up in print the inference may be drawn that the trial judge was telling the jury that they were entitled to act upon the identification of the two female bank clerks alone, I doubt very much whether the jury listening to the summing up would have drawn such an inference. Their dominant impression would have been of the judge's warning not to act on the evidence of the female bank clerks alone. In any case, bearing in mind the other evidence in the case, it would seem to me highly improbable that, having rejected the police evidence and the evidence as to the shoes, they would rest their verdict solely on the identification by the female clerks. (at p127)

24. I have already indicated that the reason for the applicant's journey to Sydney on the day after the robbery was a matter of substance and whilst the extent of the cross-examination of his association with Sidler was no doubt prejudicial to him the cross-examination, in my opinion, was quite legitimate as not merely going to the credit of the applicant but also to the question of his guilt or innocence. I think that the interrogation as to the source of the money for the air fare was perhaps allowed to bulk too largely in the case. But that circumstance, in my opinion, would not warrant the grant of special leave. I doubt if the trial judge could properly have done more in his summing up than inform the jury, as he did, that the applicant was not shown to have knowledge of Sidler's nefarious operations at the time he went to Sydney with him. (at p128)

25. Lastly, I agree with the views expressed in the Court of Criminal Appeal that there was unnecessary rhetoric in the presentation by the trial judge to the jury of the evidence of the police officers of the interview with the applicant at Long Bay Gaol but the summing up nonetheless was not, in this respect, such as to call for the intervention of the Court of Criminal Appeal. (at p128)

26. In the result, therefore, I am of opinion that special leave to appeal should be granted because of the public importance of the question whether a trial judge is under an obligation to direct a jury specifically as to the use they can properly make of evidence of bad character, particularly the evidence of prior convictions, where the only purpose of the admission of that evidence is to deny evidence of good character led for the accused or to impugn the credit of an accused who has placed himself in conflict on matters of fact with evidence given by witnesses for the Crown. (at p128)

27. However, leave having been given, in my opinion the appeal should be dismissed because in the circumstances of the case, the language used by the trial judge in his charge to the jury was sufficient to preclude their use of the evidence of the prior convictions as evidence of propensity on the part of the applicant to commit the crime with which he was charged. (at p128)

McTIERNAN J. Upon my best consideration of the whole of the circumstances of the trial, I have come to the conclusion that special leave to appeal is not warranted. It may well be that if the question under s. 399 (e) (ii) of the Crimes Act 1958 (Vict.) was of real practical importance my view would be otherwise. But I do not think that the learned trial judge was in error in granting leave under the section to the prosecution. The transcript shows that circumstances within the section arose which justified the application to the judge and that he granted the leave sought after much consideration. The circumstances are set out in the judgment of the Chief Justice. In my judgment the trial judge did not make a bad exercise of his discretion. (at p128)

2. Having regard to the evidence of the commission of the crime and the part that the "smaller man" played in it, the prosecution, being aware of the criminal record of the accused, might consider that the evidence of the witness as to his character could weigh heavily against the Crown if accepted by the jury. (at p129)

3. It appears clearly from the transcript that the questions asked in cross-examination of the accused were properly limited to the issue whether or not the accused was that man, he having set up as a defence that he was not present in the bank at the time. (at p129)

4. No special leave point arises out of the evidence on identification. The weight of the evidence of the two bank clerks was a matter within the province of the jury. It was proved by evidence that there had been fair and proper identification parades prior to these witnesses giving their evidence at the trial. It would not have been correct for the learned judge to take such evidence away from the jury and it is important to bear in mind that he gave a satisfactory warning to the jury in view of the nature of the evidence and the criticism made of it on behalf of the accused. (at p129)

5. The proof at the trial of points of resemblance between the shoes found by the police in the accused's lodgings and the shoes as described by witnesses of the crime as those which were worn by the smaller of the two men was circumstantial evidence against the accused. Further circumstantial evidence of the guilt of the accused was his sudden departure from his lodgings on the day after the commission of the crime. In addition to all this, there was evidence of admissions made by the accused to police that he was in fact one of the men who committed the offences charged. The accused denied having made such admissions. The question whether or not he did make them was clearly a matter for the jury to decide. I agree with the Chief Justice that the cross-examination of the accused with regard to the circumstances of his departure did not violate any rule of the criminal law safe-guarding an accused person from prejudice in the eyes of the jury. (at p129)

6. In my judgment the conviction of the accused of the offences charged against him by the indictment should not be disturbed. (at p129)

MENZIES J. This is an application for special leave to appeal from a judgment of the Full Court of the Supreme Court of Victoria, sitting as a court of criminal appeal, which dismissed the applicant's appeals against convictions for bank robbery and the illegal use of a motor car. The facts are set out in the judgment of Mason J. and I do not repeat them. There was, I think, sufficient evidence of identity to warrant a conviction. (at p129)

2. The first question of law is concerned with the application of s. 399 (e) (ii) of the Crimes Act (Vict.). At the trial the learned trial judge, upon the application of the crown prosecutor, ruled that because counsel for the defence had asked a question of a witness for the prosecution - a Mrs. Brading - with a view to establishing the good character of the accused, Donnini could be cross-examined as to certain previous convictions set out in the presentment. All the judges of the Full Court were inclined to regard that ruling as a mistaken exercise of discretion, but the majority - Gowans and Nelson JJ. with Smith J. dissenting - decided that the permission so given had not been used and there had been no departure from s. 399. (at p130)

3. I do not regard the question asked of Mrs. Brading as warranting the granting of permission to cross-examine the accused. I doubt whether the question was asked with a view to establishing the good character of the accused and I am satisfied that, if it were a question of that kind, the permission sought should have been refused - see Reg. v. Crawford [1965] VicRp 75; (1965) VR 586 . (at p130)

4. However, it is my opinion that although s. 399 (e) (ii) does require the permission of the judge as a condition of asking the accused about convictions, etc. the mistaken grant of permission would not, ordinarily, of itself, cause a trial to miscarry. It is the asking of questions of the sort described in the section that is forbidden. Accordingly, I share the view of the Full Court that the critical question here is not whether, in granting permission to cross-examine, the learned trial judge was in error, but whether or not questions were asked contrary to the terms of s. 399. What happened is set out in the judgment of Mason J. No doubt, the object of the cross-examination was to elicit that the accused had reason for using a false name that had nothing to do with his professed reason, i.e. taxation liability. That other reason was not necessarily concerned with past offences or bad character. A person about to commit a crime might wish to keep his identity secret and cross-examination to establish that a person accused of a crime had cloaked his identity would not be forbidden by s. 399. Moreover, the questioning might simply have been directed to the very important matter of whether the accused should be disbelieved on vital issues, i.e. that the questioning went merely to credit. In short, the questions were not of a kind which showed that they were referable either to bad character or to past offences. (at p130)

5. Upon the whole, I agree with the judgments of the majority of the Full Court that the questions asked in the cross-examination were not of the prohibited kind. The evidence of previous convictions was clearly enough volunteered by the accused and was not in response to any question asked in contravention of the section. This voluntary disclosure made it unnecessary for the crown prosecutor to exercise the leave granted to him to cross-examine to establish the convictions set out in the presentment. I am less sure, however, that the crown prosecutor's persistent questioning about the use of a false name did not amount to questioning to show that the accused was a bad character, i.e. that he was a man with a discreditable past. However, once the accused volunteered, as he did, evidence of his previous convictions, I think that the further questioning should be regarded as going to his credit rather than to his character. Accordingly, I do not consider that the questioning contravened s. 399. (at p131)

6. The second matter is, in reality, a submission that the jury were not properly directed. To understand it some reference to what happened at the trial is necessary. The accused was charged with bank robbery on 12th May 1971. He gave evidence that on the night of 13th May 1971, he went to Sydney with one Sidler and he did so in accordance with arrangements made with Sidler at the Dennis Hotel, Cheltenham, on a Saturday a couple of weeks previously. The accused, in examination-in-chief, said:

"The arrangement was on the Saturday after I was at the

Southside Hotel in Moorabbin - he said he had won some

money, I think it was $600, or something, on the horses, or

racing. He said to me would I like to go to Sydney in the

next couple of weeks. Sidler bought the tickets and he

accompanied me on the plane. It was an evening flight on

the Thursday. In Sydney we made arrangements for accommodation

at a motel. I do not know where the motel is now

but it was in a suburb of Sydney and on the Friday we went

to the South Sydney Club. Nothing out of the ordinary

happened on that day. On the Saturday we went to a place

called the Bronte Hotel. On the Saturday night we were in

the hotel and then we walked up towards the main road and

at the top of the street there were police everywhere.

HIS HONOUR: There was what? - Police and guns - There

were police everywhere? - There were a number of police.

MR. MILTE: And what happened when they intercepted

you? - We were just taken to a car and put in the car."

In cross-examination after some preliminary skirmishing, this was put to the accused:

"...what I suggest, Mr.Sidler (sic), is this trip to Sydney

was arranged not by the $600 win on the races, but with a

very much larger sum of money which Mr. Sidler had come

into just before you went to Sydney. What do you say to

that suggestion? - If it was, I have no knowledge; I do

not know.

Had Sidler told you anything about what he had been doing

over the last few days before you went to Sydney? - No.

You know now what he had been doing, don't you? - Yes.

You see, I suggest to you that that trip to Sydney was not

financed with $600 from the races but that Sidler was flush

at that time because the day before you went to Sydney he

had taken more than $50,000 from the C.B.C. Bank near the

Transport Regulation Board, isn't that right? - Yes.

And you knew all about that at the time that you went to

Sydney with him, didn't you? - No.

Are you telling me that this man that you were drinking

with who knew you so well, that he was taking you to Sydney,

hadn't told you that he had obtained that money in that way

the day before? - No.

M'mmm? - No.

He had not drawn it out of his account at the C.B.C. Bank,

he had stolen it from the bank, hadn't he? - Not to my knowledge.

You know, don't you, that he has since in this City pleaded

guilty to stealing that money from the C.B.C. Bank the day

before you went to Sydney, don't you? - But I do not know, I

do not know. To my knowledge it was won at the races.

HIS HONOUR: And it was $600.

MR. WRIGHT: And it was $600? - Yes."

It could not be suggested that this cross-examination was objectionable. It was contended, however, that the learned judge failed to instruct the jury that the evidence of the accused's arrangements with Sidler was not evidence tending to show the guilt of the accused, but tended only to discredit his account of how he came to be going to Sydney with Sidler a couple of days after the robbery occurred. In the course of his excellent argument, Mr. Sher submitted:

"It is not submitted that that cross-examination was improper

in the sense that it was a legitimate issue which the

Crown was entitled to explore. But in fact he did not concede

that he had known that this associate was a bank robber at

the time that he had gone to Sydney with him, although he

did concede that he had since learned of that fact.

So that the material that was left was, in my submission,

material which was solely material as to credit, it only affected

his character, it had no probative value in showing that his

explanation was a false one, so that coupled with his prior

convictions there was before the jury the fact that he was a

known criminal and an associate of a man who had committed

a like offence with which the applicant was charged.

In that situation, it is submitted that the learned trial judge

was obliged as a matter of law to explain to the jury the use

to which they could put that evidence. In fact he told them

in terms which in my submission were inaccurate that they

could not draw an adverse inference against the accused by

reason of those matters, but in my submission he should have

gone further. He should have told them the use to which

they could put the evidence of this man's prior convictions and

association with another bank robber." (at p133)

7. It seems to me, however, that the cross-examination in relation to arrangements with Sidler went not only to the accused's credit but was relevant to the guilt or innocence of the accused. In this it was like R. v. O'Meally (No. 2) [1953] VicLawRp 7; (1953) VLR 30 ; there the issue was identity and the evidence of previous crimes was relevant to this issue. The accused had offered an explanation of how he came to leave Melbourne for Sydney on a date shortly after the robbery. This explanation would answer any suggestion that, in leaving Melbourne, he had been fleeing from justice. The cross-examination tested his explanation, and it seems to me that if the jury disbelieved the explanation which was given, they were left with the fact that the accused had disappeared a day after the date of the robbery and had done so without telling his landlady that he was leaving, and for this conduct he had given no acceptable explanation. The absence of an explanation for disappearing would bear upon the guilt of the accused. In my opinion, if the learned trial judge had told the jury that the cross-examination merely went to the accused's credit, he would have under-stated its significance. The direction actually given, although general and, to me, a little confusing, was not, I think, really adverse to the accused. Furthermore, the accused having volunteered evidence of previous unidentified convictions, the direction that no inference adverse to the accused could be drawn from this was, if anything, too favourable to the accused. (at p133)

8. Here, as the cross-examination with reference to arrangements to go to Sydney related to matters relevant to guilt, and the direction as to previous convictions was favourable to the accused, it is not necessary to consider one matter debated in argument before us, i.e. whether, when evidence of previous convictions or bad character which is not relevant to guilt has been properly admitted, it is the duty of the trial judge to warn the jury against using it as evidence of guilt. It seems to me that the course to be followed in a particular case may depend very much upon the circumstances. For instance, if evidence of good character were to have been given by witnesses, thus exposing the accused to cross-examination to show him to be of bad character, it would be a misdirection for the judge to instruct the jury that the answers of the accused merely went to his credit. Again the admission of a conviction for perjury would hardly warrant a direction that, from it, the jury should not infer the guilt of the accused upon a charge of wounding. However, until the problem arises for decision in ascertained circumstances, I would not go beyond the generalization that, in a case, where evidence has been admitted which does not tend to prove the guilt of the accused, but the jury might, without some explanation, regard it as doing so, the direction should explain the significance of the evidence, and warn against its misuse. For the reasons which I have given, I would either refuse special leave or grant such leave and dismiss the appeal. (at p134)

WALSH J. In his submissions in support of this application for special leave to appeal, counsel for the applicant referred to several errors which were said to have been made in the course of the trial at which the applicant was convicted on a charge of robbery and two charges of illegal use of a motor vehicle. It was not claimed by counsel that all of these grounds of objection were matters which would be regarded by this Court as warranting the grant of special leave, but it was said that the Court might take all of them into account in considering whether it would be proper to allow the verdicts to stand, and that the Court would regard two of the objections as being of a character that would warrant the intervention of this Court. (at p134)

2. The first matter to be considered concerns the granting by the learned trial judge to the Crown prosecutor of leave, pursuant to s. 399 of the Crimes Act 1958 (Vict.), to cross-examine the applicant by questions tending to show that he had prior convictions. The circumstances in which leave was sought and granted and the course which the cross-examination of the applicant took, are set out in the reasons for judgment of Mason J. and I need not repeat them. In the Supreme Court of Victoria, Gowans J., who considered that the appeal to that Court should be dismissed and Smith J., who thought that it should be upheld, both expressed the opinion that the learned trial judge had exercised wrongly the discretion given to him by s. 399. Their Honours did not discuss the principle that an appellate court will not ordinarily interfere with a decision of a trial judge on a matter within his discretion, merely because the appellate court would itself have exercised that discretion differently. But it is clear from the dissenting judgment of Smith J. that he considered that the Court was justified in giving effect to its own view as to how the discretion should have been exercised and it appears, also, that Gowans J. would have given effect to his opinion that leave was wrongly granted, but for the fact that he thought that no use had been made by the Crown of the grant of leave and that therefore the error of the trial judge in granting it was of no importance. I have considered the discussion that took place at the trial when leave was sought. It appears to me that in deciding that leave should be granted, the learned trial judge gave undue weight to the adverse effects which the evidence which had been given as to the applicant's good character might have upon the Crown case and insufficient weight to the prejudice to the applicant that might result from cross-examination as to his prior convictions. His Honour appears to me to have adopted the approach that if an accused person has placed himself by his own act or by the act of his counsel in a position where he runs the risk of such cross-examination, then prima facie leave to conduct such cross-examination ought to be granted. In the circumstances I am of opinion that it was open to the Supreme Court and it is now open to this Court to act upon its own view as to the way in which the discretion should have been exercised. (at p135)

3. In my opinion the Crown should not have been granted leave to cross-examine the applicant as to his earlier convictions or as to his character. The application to the trial judge was made in terms which referred only to questions as to the prior convictions and not to questions as to bad character generally. But I am disposed to think that it was understood by the Crown prosecutor that he was at liberty to ask questions to show that the applicant was of bad character, and that the scope of permissible cross-examination suggesting bad character was not limited to the asking of questions referring directly to the prior convictions and of questions relevant to the proof of the applicant's guilt in respect of the offences with which he was then charged, for which leave would not be necessary. I think that the questions which he proceeded to ask concerning the use by the applicant of false names and concerning his statement that he had not had a steady job for quite some time indicate that that was his understanding of what he was entitled to do. There is no way of knowing with certainty whether the prosecutor, when asking these questions, was intending to follow them up by direct questioning as to the prior convictions. But I find it very difficult to suppose that he did not intend to ask any questions about the prior convictions. A good deal of time had been spent in argument directed to obtaining leave to ask questions about those convictions and nothing occurred to indicate that the Crown prosecutor suddenly changed his mind and decided not to make any use of the leave which had been granted to him. It is true, however, that the applicant volunteered evidence about his earlier convictions before he had been asked about them. Although the full details of those convictions were not stated, the jury were informed that they included convictions for shop-breaking, that they started when the applicant was about seventeen years of age, and that he had been imprisoned. They were informed also that he had had a problem with drugs. (at p136)

4. It may be that the applicant thought that he could gain some advantage by volunteering the information in this form. But it cannot be concluded with any degree of satisfaction that the application for leave, upon which he had heard an extended debate, and the grant of such leave, played no part in bringing about the disclosure of the convictions. In his reasons for judgment Gowans J. expressed the opinion that any suggestion that the disclosure was made in consequence of the grant of leave could not go beyond mere surmise. But if that observation indicates a view that the Court need not regard the erroneous grant of leave as material unless the Court is satisfied that it caused the convictions to be disclosed, I am of opinion with respect that this does not state correctly the question which the Court is required to consider. Once it is established that an error occurred at the trial in relation to the important matter of the granting of leave to elicit evidence of prior convictions, then although I agree that the mere grant of leave did not of itself produce a miscarriage of justice, I am of opinion that the Court ought not to hold that no miscarriage occurred unless it appears clearly that the error did not affect the course of the trial and could not have had any effect on its result. I am of opinion that in the present case this does not appear. I am not satisfied that the erroneous grant of leave had no relevant effect either upon the course taken by the Crown prosecutor in questioning the applicant or upon the course adopted by the applicant himself in referring to his convictions. (at p136)

5. In my opinion the erroneous granting of the leave sought by the Crown prosecutor was an error upon a matter of such importance in relation to the proper conduct of a criminal trial according to law that the grant of special leave by this Court is warranted and in the circumstances I am unable to conclude that the appeal ought to be dismissed upon the ground that notwithstanding that error no miscarriage of justice occurred. I should add here that certain directions given to the jury by the learned trial judge, to which I shall refer again later, could not suffice, in my opinion, to remove any prejudicial effect that the hearing of that evidence may have had upon the jury. (at p136)

6. I shall proceed to state briefly my conclusions upon other objections to the conduct of the trial that were raised by counsel for the applicant. The first of these is a complaint that the trial judge failed to give to the jury directions which he should have given concerning evidence given by the applicant about his association with a man named Sidler and concerning the evidence of his prior convictions. It was not argued that the cross-examination relating to the association with Sidler was itself objectionable. It was conceded that the Crown was entitled to pursue this line of questioning, in order to test the applicant's story as to the circumstances in which he had gone to Sydney on the day after the happening of the robbery in which he was alleged to have taken part. It was suggested, however, that it would have been better if the Crown had informed the Court of its intention to ask questions about the applicant's knowledge of Sidler's criminal activities, in order that the Court might be in a position to decide whether as a matter of discretion the evidence should be excluded on the ground that its prejudicial effect would outweigh any probative value that it could have. But the principal complaint was that in the result the line of questioning which was followed did not establish any facts which were relevant to the issues concerning the applicant's guilt or innocence and that in the circumstances it was necessary for the trial judge to give to the jury a special direction about this evidence, as well as about the evidence relating to his prior convictions. The special direction should have been to the effect that the evidence must not be treated as indicating a propensity in the applicant to commit crime or, in particular, to commit the type of crime that is to say bank robbery, with which he was charged. But, in my opinion, the circumstances did not make it obligatory on the learned trial judge to give additional directions concerning the evidence of the applicant's association with Sidler or the evidence of his prior convictions. As to the latter evidence, the jury were told that they were not entitled to draw any adverse inference against the applicant by reason of the fact that he had volunteered the information that he had had some prior convictions. If the evidence of the prior convictions had become part of the material before the jury in a manner to which no legal objection could be taken, the applicant could have had no cause for complaint concerning this direction, which seems quite favourable to him. But as I have indicated earlier it is not possible, in my opinion, to be satisfied that this direction was effective to remove any danger of prejudice to the applicant resulting from the jury having become aware of his previous convictions and to be satisfied, therefore, that the erroneous reception of the evidence was of no consequence. As to the evidence concerning Sidler, the jury were told that they were not entitled to find as a fact that the applicant knew at the time of his journey to Sydney that Sidler had engaged in a bank robbery which was the source of the funds for that journey. If the jury paid attention to that direction, they could not have treated the evidence of the applicant's association with Sidler as showing that the applicant was knowingly associated with a man who had recently committed a bank robbery and was knowingly joining with such a man in making a hasty departure from the State. In my opinion, these submissions on behalf of the applicant should not be accepted. (at p138)

7. Next it was submitted that an error occurred at the trial with respect to the evidence of identification of the applicant by two women employees of the bank who were present when two men entered the bank and committed the robbery with which the applicant was charged. It was said that the opportunities that these witnesses had of observing the intruders were so limited and the reasons for which they claimed to have been able to identify the applicant as one of the intruders were so unconvincing that this evidence should not have been left to the jury's consideration. But in my opinion, the learned trial judge would not have been justified in telling the jury that they must disregard entirely this evidence of identification. Whatever were its weaknesses the jury were entitled, in my opinion, to form their own view about it and to give it such weight as they considered it should have as part of the totality of the material placed before them. I cannot accept the argument put to this Court that his Honour should have "withdrawn this issue" from the jury. The question whether the jury would accept as truthful and reliable the evidence of the two witnesses was not a separate "issue" in the case. The evidence of those witnesses was part of the material upon which in the end the jury had to decide whether they were satisfied beyond reasonable doubt that the applicant was guilty of the robbery. It could not be excluded, as a matter of law, from the material which the jury were entitled to consider. But, in my opinion, it is quite a different matter to assert that it would have been open to the jury, on the evidence alone and leaving out of account the other evidence upon which the Crown relied, to be satisfied that the applicant was guilty of the robbery. A verdict of guilt based upon that evidence alone would have been, in my opinion, a verdict that could not have been allowed to stand. Although in a technical sense it would not be possible to say there was no evidence at all to support that verdict it would, nevertheless, have been so unsatisfactory as to require that it be set aside. In such circumstances, I do not think that a statement to the jury that it was open to them to be satisfied of guilt on that evidence alone was a correct statement. I agree with the opinion of Smith J. that what the learned trial judge told the jury did amount to such a statement, although it is true that his Honour told the jury that in his view it would be very dangerous to come to a conclusion on that evidence alone that the applicant was in fact beyond reasonable doubt one of the robbers in the bank. I am of opinion, therefore, that the learned judge did make an erroneous statement to the jury upon this matter. It was a statement which left open, in theory, the possibility that the applicant was convicted on the identification evidence of those two witnesses alone. But, in my opinion, it is so extremely unlikely that this occurred that the setting aside of the convictions would not be warranted if no other ground for doing so could be made out. The police gave detailed evidence of confessional statements made by the applicant. There was evidence, also, relating to a pair of shoes found in the applicant's place of residence and of the resemblance of those shoes to shoes worn by one of the robbers. The applicant denied the making of the statements to the police and he denied that the shoes were his, although there was evidence that they fitted his feet. I do not think that it is really a reasonable hypothesis that the jury rejected all that other evidence tending towards the applicant's guilt and yet were satisfied beyond reasonable doubt by the evidence of the two women employees that he was guilty. (at p139)

8. A complaint was made that in dealing with a conflict of evidence between police witnesses and the applicant the learned trial judge used language which, it was submitted, amounted to a mandatory instruction as to the manner in which they should approach the question whether or not the interview of which the police gave evidence took place. His Honour used such expressions as "you will look at the motives of the police officers", "you will look to the motives of the accused man" and "you will ask yourselves what conceivable motives could the police officers have" for concocting the evidence which they gave. It was submitted that those directions restricted the jury in an improper way as to the considerations upon which they could resolve the conflict of evidence relating to the alleged interview. In my opinion, there is no substance in this complaint. The learned judge's observations to the jury on this matter were not, and would not be understood to be, instructions on a question of law and it had been made clear that it was the function of the jury to decide the facts and to determine what evidence they would accept. (at p140)

9. For the reasons stated above, concerning the granting of leave to cross-examine the applicant as to his prior convictions and the effect that this may have had upon the trial, I am of opinion that special leave to appeal should be given and that the appeal should be allowed. (at p140)

MASON J. This is an application for extended time and for special leave to appeal against a majority judgment of the Full Court of the Supreme Court of Victoria dismissing the applicant's application for leave to appeal from three convictions. He was convicted after a trial by jury on a charge of robbery under arms and two charges of illegal use of a motor vehicle. He was sentenced to twelve years' imprisonment and a minimum term of nine years was specified before he became eligible for parole. (at p140)

2. At the trial the Crown case was that the applicant was one of two armed and hooded men who, on 12th May 1971, robbed the Murrumbeena Branch of the A.N.Z. Banking Group Ltd. of a sum of $12,640. The other charges related to the use of vehicles in connexion with the robbery. (at p140)

3. As a preliminary to a consideration of the grounds argued in support of the application, it is necessary to say something of the evidence and the course of the trial. (at p140)

4. The evidence for the Crown designed to show that the applicant was one of the two robbers consisted of identification evidence by two bank clerks, Miss Ohlmus and Mrs. Riseley, who were present at the time of the robbery, police evidence of an interview with the applicant at Long Bay Prison in Sydney, the applicant's departure for Sydney on the day after the robbery, the finding in his flat of a newspaper containing an account of the robbery and a pair of shoes said by a witness to closely resemble the shoes worn by the shorter of the two robbers. (at p140)

5. According to the evidence the two robbers wore dustcoats and gloves. Hoods, consisting of a thick heavy material, covered the whole of their faces and heads, except the eyes which could be seen through holes cut in the hoods. The opportunity for observation was limited and it occurred under unfavourable conditions as the bank clerks were forced to lie or sit on the floor during the short time in which the robbery took place. (at p140)

6. Miss Ohlmus observed the shorter of the two robbers when he was about five feet away from her, coming towards her. She noticed that his eyes were light coloured, apparently blue. She identified the applicant at a line-up on 10th June by the colour of his eyes and his build. (at p141)

7. Mrs. Riseley had observed the same robber at a similar distance when she was sitting or kneeling. She looked at his eyes several times, although she did not obtain a good view of them. Although not positively certain, she was fairly sure at the line-up that the applicant was one of the two robbers. She identified him by his eyes and build. (at p141)

8. The applicant went to Sydney on the day following the robbery. After his departure police officers visited his flat where he had lived under the name of Michael Thomas and searched his room, finding the pair of shoes and the newspaper. Two police officers then proceeded to Sydney. There in the company of a New South Wales police officer they interviewed the applicant at Long Bay Gaol for a period which was estimated at two hours. During the interview the shoes were produced, tried on the applicant and found to fit him. According to the police witnesses the applicant then remarked, "Someone has put me in". He was then told that the shoes had been identified by a witness as shoes worn by one of the two bank robbers. He asked, "Who put me in?" and "How did you know I lived there?" The police officers went on to say that the applicant admitted having participated in the robbery, that he indicated what he had done in the robbery and thereafter and the cars which had been used in connexion with the robbery. The applicant in his evidence denied the police version of the interview and said that he told them that they must have the wrong man. (at p141)

9. The police officers gave evidence that in the interview at Long Bay Gaol the applicant had said that he travelled to Sydney by air on 13th June and that he had saved the money for the trip. The applicant in his evidence said that he had gone to Sydney in the company of a man named Sidler and that the trip had come about because he had met Sidler at the Dennis Hotel at Cheltenham where a fortnight before 13th June on a Saturday Sidler, who was then employed as foreman at Harvest Food Company, invited him to go to Sydney. Sidler said that he had won $600 on horses. They went to Sydney. Sidler bought the tickets and they stayed at a motel in Sydney. They were arrested two days after their arrival in Sydney. (at p141)

10. In cross-examination the applicant admitted that a third person, Jim Payne, had travelled to Sydney with them and that he knew Jim Payne as a fellow inmate when he had previously been in prison. He also admitted that Sidler had on the day before they went to Sydney robbed a branch of the C.B.C. Bank in Melbourne of $50,000, but he denied that he knew this at the time of the trip to Sydney or that the proceeds of the robbery were the source of Sidler's funds for that journey. (at p142)

11. The Crown called as a witness in its case Mrs. Brading, the applicant's landlady, who said that the flat had been let to the applicant under the name of Michael Thomas, that being the only name by which she knew him. She said that he had occupied the flat from 19th April to 13th May, the day after the robbery. In cross-examination she was asked by the applicant's counsel: "During the time the accused was staying at the flat had you formed any opinion as to his character?" She replied: "I would have imagined he was quite a shy young man. He was always very pleasant when we said good morning." (at p142)

12. In the course of the applicant's evidence-in-chief his counsel asked him why he had used the name "Michael Thomas". The applicant answered: "Well, being a musician and composer it is very hard at times to find work. I had a number of jobs that I hadn't paid tax for." This evidence was led almost at the conclusion of the examination-in-chief of the applicant. The Crown prosecutor sought leave to cross-examine on character on the ground that the question asked of the applicant by his counsel tendered to establish his good character. The learned judge exercised his discretion under s. 399 of the Crimes Act by granting leave despite opposition by the applicant's counsel. (at p142)

13. The Crown prosecutor commenced his cross-examination with the following questions:

"Well, Michael Thomas was the name that you used, was

it, Mr. Donnini, all the time that you were staying in Mrs.

Brading's flat? - That's correct.

Why did you use that name? - Well, I - in my trade - or

you could call it a trade, if you like - I hadn't had a steady

job for quite some time.

There followed a number of questions relating to the applicant's jobs, designed as I read them to demonstrate the unlikelihood of the applicant having had trouble with the Taxation Department if, as he claimed, he did not have a steady job. The Crown prosecutor then returned to the matter of the false name. The transcript records the following questions and answers:

"Well then, you wouldn't be in much danger of being taxed

under your own name if you were appearing under all those

names, would you? - It didn't - you know - it didn't worry

me to that extent.

No? - It was just a precaution.

Well, why didn't you tell Mrs. Brading your name was

Donnini, not Michael Thomas, if that didn't worry you? -

Well, there was - there is another matter besides this that I

would like to tell the jury, if I may be allowed.

What would you like to tell the jury, Mr. Donnini? - Yes.

I have - I have got convictions with the police for shopbreaking

and other minor offences in the past, and these convictions

were - well, I started getting into trouble when I was 17, or

around about 17, and I had a problem with drugs, and I was

released from prison - oh, it would be about 14 months ago

now - and I was to have psychiatric treatment upon release -

that was part of my parole - and I am now - well, I don't need

drugs or anything any more and I was trying to make a go of

things, that's all."

(at p143)

14. In support of the application for special leave to appeal it was submitted by Mr. Sher that leave to cross-examine the applicant on his previous convictions was wrongly granted under s. 399 and that it had led to the disclosure by the applicant of his previous convictions. In my opinion counsel's submission is well founded. (at p143)

15. Section 399 of the Crimes Act 1958 (Vict.) (as amended), which is in terms similar to s. 1 of the Criminal Evidence Act 1958 (U.K.), by its proviso provides:

"(e) a person charged and called as a witness in pursuance

of this section shall not be asked, and if asked 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, unless -

...

(ii) he has personally or by his advocate asked questions of

the witness for the prosecution with a view to establish

his own good character, or has given evidence of his good

character, or 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: Provided

that the permission of the judge...must first be

obtained. (at p143)

16. The question asked of Mrs. Brading by the applicant's counsel was unquestionably asked with a view to establish the applicant's good character within the meaning of s. 399 (e) (ii). Although it might be said that the question did not significantly achieve its purpose as the answer had little to say of the applicant's reputation or disposition, it is enough if the question itself answers the description contained in the provision. Counsel for the applicant conceded that in the circumstances the Crown Prosecutor was entitled to ask for leave to cross-examine on prior convictions, but submitted that leave should not have been granted. (at p143)

17. I am in agreement with this submission, as were Smith and Gowans JJ. in the Supreme Court. The discretion reposed in the judge by s. 399 (e) (ii) should be exercised so as to ensure that there is a fair trial (see Dawson v. The Queen [1961] HCA 74; (1961) 106 CLR 1 ; Reg. v. Selvey per Lord Pearce (1970) AC 304, at p 358 ). In my opinion, once this is recognized it follows that the discretion should have been exercised against the Crown. (at p144)

18. It has always been accepted that the introduction of evidence of bad character is exceptional. The long-standing policy of the law is against the reception of such evidence on the question of guilt. The section in making provision for cross-examination on prior convictions and bad character is making provision for the reception of that evidence in exceptional conditions. In exercising the discretion it was for the learned judge to consider the prejudice which would be done to the applicant by the reception of evidence of his prior convictions and his experience with drugs and the risk that they would excite the suspicion that the applicant was of restless and irresponsible character and to evaluate the advantage which the applicant might gain from the question put to Mrs. Brading and the answer which she gave. To my mind, the risk of unfair prejudice to the applicant was far greater than the prospect that he would derive advantage from Mrs. Brading's evidence, for that evidence was of little value. (at p144)

19. I conclude, therefore, that the discretion was wrongly exercised. In coming to that conclusion I am assisted by the similar conclusion reached by Smith and Gowans JJ. and by the view which I have formed that the learned judge at the trial failed to give sufficient weight to the circumstance that the reception of the evidence of prior convictions would work a considerable prejudice to the applicant or, more probably, gave overmuch weight to the prejudice of the Crown which might result from Mrs. Brading's evidence (see Dawson v. The Queen [1961] HCA 74; (1961) 106 CLR 1 ). As I have said, that was a negligible consideration. (at p144)

20. Once that conclusion is reached I find it impossible to avoid the conclusion that evidence of the applicant's prior convictions was obtained by cross-examination of the applicant in the exercise of the leave which was erroneously granted. The passages which I have recited from the transcript make it clear that the Crown Prosecutor's immediate purpose on obtaining leave was to question the applicant on the reason which he had given for adopting a false name, to show that it was false and in doing so to bring out the applicant's criminal record. This indeed is what he did. He did not achieve it by means of asking a leading question, but by suggesting that the reason earlier advanced was wrong and that there must be another and real reason for adopting the false name. It was in answer to the question "Why didn't you tell Mrs. Brading your name was Donnini, not Michael Thomas...?" that the applicant revealed his earlier convictions. The issue is whether in the context in which it was asked that question was an exercise of the leave granted by the learned judge and tended to show that the applicant had been convicted of offences other than those with which he was charged. (at p145)

21. In Jones v. Director of Public Prosecutions (1962) AC 635 , it was held by majority that the expression "tending to show" in s. 1 (f) of the Criminal Evidence Act 1898 means "tending to reveal". It was considered that the questions should be examined in their context, not in isolation, and that the effect of the questions, rather than the purpose with which they were asked, was important in determining whether they answered the statutory description. (at p145)

22. Although here the question asked by the Crown Prosecutor did not contain any express or implied reference to prior convictions, it was a question which, if answered directly and truthfully, would yield an answer disclosing past convictions and a criminal record. In my opinion, that was enough to bring it within the statutory prohibition in the absence of leave. In argument it was said that the applicant's answer was volunteered. The statement is confusing, because the expression is sometimes employed to describe evidence of prior convictions voluntarily given by an accused person in his examination-in-chief, evidence which does not fall within the sub-paragraph. Here, despite the request for permission by the applicant, the answer was made to a question in cross-examination. It does not cease to have that character because it was given by way of addition to the answer to the previous question. (at p145)

23. In Attwood v. The Queen [1960] HCA 15; (1960) 102 CLR 353 , this Court decided that the prohibition in s. 399 (e) does not exclude questions on matters relevant to the proof of the charge although the questions incidentally have a tendency to show that the accused person is of bad character. The questions asked in this case of the applicant cannot be justified on this ground. It was certainly relevant to the Crown case to prove that the applicant occupied Mrs. Brading's flat and left after the robbery. That proof involved evidence that he occupied his flat under the assumed name "Michael Thomas". The applicant did not deny that evidence but he did give an explanation of why he assumed a false name, an explanation which was not a denial of, or an answer to, the Crown case. Cross-examination on that explanation was therefore cross-examination on credit and did not relate to the issues arising on the charge. (at p146)

24. Accordingly, leave was erroneously granted under s. 399 and it had the effect of permitting the introduction in cross-examination of matters which fell within the prohibition contained in s. 399 (1). There were, I think, inherent in the erroneous grant of leave and the consequence which it produced the necessary elements which may be called "special features", "exceptional and special circumstances" or elements which make the case "special in character" to warrant the grant of special leave (Craig v. The King [1933] HCA 41; (1933) 49 CLR 429 ). (at p146)

25. Counsel put other submissions of importance in support of the application for special leave and the appeal. One submission related to the sufficiency of evidence of identification; others went to deficiencies in the charge to the jury, in particular, observations made with respect to the applicant's prior convictions and his association with Sidler. Yet another submission went to a passage in the directions which related to the manner in which the evidence of police officers concerning the alleged confession should be evaluated. With the exception of the submission relating to the evidence of identification, I do not find it necessary to consider these submissions as I have independently arrived at the conclusion that the application for special leave should be granted. (at p146)

26. As to the argument that the evidence of Miss Ohlmus and Mrs. Riseley was of insufficient weight to justify its being taken into account by the jury I am of opinion that the evidence was admissible and that it was material to which the jury could properly have regard, together with the other evidence which was tendered. In this respect I agree with the view of the majority in the Full Court of the Supreme Court. (at p146)

27. As we have had the benefit of full argument on that application I am also of the opinion that the appeal should be upheld, the conviction set aside and a new trial ordered. (at p146)

ORDER

Special leave to appeal granted.

Appeal dismissed.