Matusevich v R [1977] HCA 30; (1977) 137 CLR 633 (22 June 1977)

HIGH COURT OF AUSTRALIA

MATUSEVICH v. THE QUEEN [1977] HCA 30; (1977) 137 CLR 633

Criminal Law (Vict.)

High Court of Australia

Gibbs(1), Stephen(2), Mason(3), Murphy(4) and Aickin(5) JJ.

CATCHWORDS

Criminal Law (Vict.) - Murder - Concert - Capacity to act in concert - Whether sane person can be guilty of acting in concert with insane person - Direction to jury - Evidence - Character and previous convictions of accused - Cross- examination - Accused establishing own good character - Permission of judge required for prosecutor to ask questions tending to show bad character or commission of previous offences - Evidence by one accused against another charged with same offence - Cross-examination by prosecutor - Permission not obtained - Whether Crown may cross-examine as to character or previous convictions where accused gives evidence against co-accused - Substantial miscarriage of justice - Crimes Act 1958 (Vict.), s. 399 proviso (e).

HEARING

Melbourne, 1976, October 4. 1977, June 22. 22:6:1977

APPLICATION for special leave to appeal from the Supreme Court of Victoria.

DECISION

1977, June 22.

The following written judgments were delivered:-

GIBBS J. The facts of this case are fully set out in the judgment of Aickin counsel for the Crown questions which tended to show that he had been convicted of offences other than those with which he was charged and that he was of bad character. The evidence thus elicited was not only inadmissible but was prejudicial to the applicant. It cannot rightly be said that no substantial miscarriage of justice occured, and the conviction should not be allowed to stand. On these matters I agree with the judgment of Aickin J. and cannot usefully add anything to what he has said. (at p636)

2. It is unnecessary to deal with the question whether the learned trial judge gave a proper warning as to the effect of the evidence so admitted. I would content myself by saying that I respectfully agree with the remarks made by Barwick C.J. in Donnini v. The Queen [1972] HCA 71; (1972) 128 CLR 114, at p 123 as to the duty of a trial judge when evidence of this kind is admitted. (at p636)

3. Since there may be a new trial I shall briefly express my views on certain other questions that have been raised. It was submitted on behalf of the applicant that the fact that the other accused man (Thompson) was insane meant that the jury could not properly find that the two accused acted in concert. The law as to the liability of persons who act in concert in committing a crime was stated by Smith J. in Reg. v. Lowery and King (No. 2) [1972] VicRp 63; (1972) VR 560, at p 560 as follows:

"The law says that if two or more persons reach an

understanding or arrangement that together they will

commit a crime and then, while that understanding or

arrangement is still on foot and has not been called off, they

are both present at the scene of the crime and one or other of

them does, or they do between them, in accordance with their

understanding or arrangement, all the things that are

necessary to constitute the crime, they are all equally guilty

of that crime regardless of what part each played in its

commission."

What is necessary, for this principle to apply, is that the two or more persons concerned had a common design, or in other words had formed a common intention and were acting together in a common enterprise to achieve an object which was in law criminal. The question whether two persons have entered into an agreement, or have made an arrangement, or formed an understanding, to pursue a particular object is simply one of fact. The circumstance that one of the persons concerned is insane is relevant to that issue, but insanity sufficient to amount to a defence to a criminal charge does not necessarily render the person whose mind is diseased incapable of making an agreement or arrangement or reaching an understanding with another. Whether insanity will have that effect will no doubt depend, amongst other things, on the form which the disease takes. For example, a man who suffers from such a defect of reason from disease of the mind as not to know that it is wrong to kill may nevertheless be quite capable of agreeing with another person to kill a third person. (at p637)

4. But if the insanity of Thompson was such that he was incapable of reaching any agreement, arrangement or understanding with the applicant, it does not follow that the latter must be acquitted if the death of Whateley was caused by the acts of Thompson. If the applicant incited Thompson to kill Whateley, the applicant would be guilty of murder, since Thompson, if insane, would then be treated as the applicant's innocent agent. If there was no preconcert between the two accused, and the applicant did not influence Thompson to act as he did, the applicant may nevertheless be convicted if he was present and assisted Thompson when the latter struck the fatal blows. The learned trial judge directed the jury that if they found Thompson not guilty on the ground of insanity they could not find the applicant guilty of aiding and abetting. The view that a person cannot be convicted on a charge of aiding and abetting another to commit a crime when the person who actually perpetrated the criminal act was of unsound mind, and was therefore himself not criminally responsible, is supported by Reg. v. Tyler and Price (1838) 8 C & P 616 (173 ER 643) where Lord Denman C.J. told the jury that in such a case "there will be no foundation on which the accessary crime can rest" (1838) 8 C & P, at p 618 (173 ER, at p 644) . However, the reasoning in Reg. v. Bourne (1952) 36 Cr Appr R 125 suggests that there are cases in which a person may be liable for aiding and abetting another to commit a crime, although the actual perpetrator is not criminally responsible. The law on this question remains unsettled (see Reg. v. Cogan (1976) 1 QB 217, at p 222 ) but it is unnecessary to pursue the matter. If the applicant knew that Thompson intended to strike Whateley blows of considerable severity with an axe, and, himself intending that Whateley should be killed or seriously injured, assisted Thompson, the applicant would be guilty of murder. It would be an affront to justice and to common sense that Thompson's insanity should exculpate the applicant in those circumstances. If authority is needed to show that the applicant would be guilty in such a case, Reg. v. Tyler and Price provides it. Opinions may differ as to the basis of that decision. It may be that the lunatic there was regarded as the innocent agent of the accused. Or it may be that the case establishes that an accused person may act in concert with a lunatic even if the latter is, for his part, not capable of making an agreement. (at p638)

5. The jury on a new trial need not be troubled by a charge which endeavours to explain these niceties. Nor should they be asked for special findings. What would be necessary would be to instruct them clearly as to the facts of whose existence they would have to be satisfied before they could convict. If upon a new trial the jury find that Thompson and not the applicant struck the blows that killed Whateley, they may convict the applicant of murder, notwithstanding that Thompson was insane, if they are satisfied either that the two men acted in concert or that, whether there was preconcert or not, the applicant, intending that Whateley should be killed or seriously injured, procured Thompson to strike him with an axe, or assisted him when he did so. (at p638)

6. The final question that arises is whether evidence was admissible that the murdered man (Whateley) had at an earlier time informed the authorities of the escape of some prisoners from a prison at Ararat. Such evidence was admissible as tending to assist the Crown case that the applicant's motive in participating in the murder of Whateley was to prevent him from giving an alarm when the applicant and Thompson attempted to escape, because there was other evidence which, if accepted, showed that the applicant was aware that Whateley had been an informer on the earlier occasion. Of course if the jury rejected the latter evidence they could attach no weight to the former. It was submitted that the evidence was also relevant to the issue whether the applicant had made a statement to the police in the course of which he was said to have mentioned that he had heard that Whateley had been an informer. The question whether the evidence could have been used to show that the statement was made depended on whether it was established that the fact that Whateley had been an informer was unknown to the police officers who gave evidence that the applicant had made the statement. The principles governing this matter are discussed in Burns v. The Queen [1975] HCA 21; (1975) 132 CLR 258, at pp 263-264 . (at p639)

7. I would grant special leave to appeal, allow the appeal and order a new trial. (at p639)

STEPHEN J. I would grant special leave to appeal and would allow this appeal. I do so for the reasons stated in full in the reasons for judgment of Aickin J. with which reasons I am in agreement, as I am with those of Gibbs J. (at p639)

2. There is one aspect of that ground of appeal concerned with the cross-examination of the appellant as to prior convictions about which I wish to add something to the views already expressed. (at p639)

3. For the Crown some reliance was placed upon s. 399 (e) (iii) of the Crimes Act 1958 (Vict.) as justifying the course followed in cross-examining the accused as to prior convictions. It was said that since he had given evidence against his co-accused the provisions of s. 399 (e) (iii) entitled the Crown to cross-examine as it did, the failure to seek the prior approval of the trial judge being no more than an irregularity which did not render the resultant evidence inadmissible. (at p639)

4. In my view s. 399 (e) (iii) provides no occasion for the Crown, as distinct from a co-accused, to cross-examine as to an accused's prior history. It only permits such cross-examination, in the circumstances it describes, on behalf of a co-accused against whom the accused who is sought to be cross-examined has given evidence. (at p639)

5. A course apparently inconsistent with this view appears to have been adopted at the trial in Seigley v. The King (1911) 6 Cr App R 106 and was in no way remarked upon on appeal; moreover in the speeches of their Lordships in Murdoch v. Taylor (1965) AC 574 are to be found views to the contrary, expressed of course in relation to the Criminal Evidence Act 1898 (Eng.). Before examining further this aspect of that decision some examination of the Victorian Act is called for, in the course of which will occur other passing references to Murdoch v. Taylor. (at p640)

6. A striking feature of par. (e) of s. 399 is its failure in sub-par. (iii) to provide the same safeguard, the requirement of prior permission of the judge, which by sub-par. (ii) it affords in the circumstances there provided for. (at p640)

7. If reasons for this important difference be sought they do not lie in any distinction turning either upon the nature of the cross-examination which each sub-paragraph permits or upon the circumstances which brings each of the sub-paragraphs into operation. In each case it is the same class of evidence which the sub-paragraphs let in, evidence of a kind inherently likely to be prejudicial to the accused; a comparison of the respective circumstances which the two sub-paragraphs predicate as rendering admissible such evidence discloses no apparent reason for the omission from sub-par. (iii) of the safeguard of the judge's permission which sub-par. (ii) affords. It is quite otherwise in the case of sub-par. (i), where the omission of the safeguard is readily apparent, having regard to the circumstances which bring it into operation. (at p640)

8. It cannot be doubted that the requirements of justice and common fairness, which require that the Crown's right to cross-examine as to prior convictions and the like should be subject to discretionary control by the trial judge, as it is in sub-par. (ii), would apply equally to any Crown cross-examination sought to be availed of under sub-par. (iii). In Murdoch v. Taylor (1965) AC, at p 593 Lord Donovan, with whom Lord Reid and Lord Evershed agreed, observed that should the Crown seek to cross-examine as to prior convictions, in reliance upon sub-par. (iii), the Court must retain control of the matter by requiring that the Crown's right to do so be subject always to the discretionary power of the judge, and this because the Court's duty "is to secure a fair trial and the prejudicial value of evidence establishing the accused's bad character may at times wholly outweigh the value of such evidence as tending to show that he was guilty of the crime alleged". His Lordship considered that were such control not exercised the possible unfairness which might result was such as Parliament could never have intended. Lord Pearce said (1965) AC, at p 587 that he discerned "nothing in the words of the Act which justifies any discrimination between the two subsections" (the English equivalents of sub-pars (ii) and (iii)) "on the point in issue", that is, on the need to control such cross-examination by requiring prior approval of the judge. (at p641)

9. The use that I seek to make of these passages is that they make all the more remarkable the absence from s. 399 (e) (iii) of the safeguard which appears in the immediately preceding sub-paragraph. However it is only upon the hypothesis that sub-par. (iii) applies at all to Crown cross-examination that the omission of the safeguard is inexplicable. Once depart from this hypothesis and all else falls into place. If sub-par. (iii) only operates so as to permit a co-accused, and never the Crown, to cross-examine when the circumstances which it describes are satisfied, there will then be no occasion for the safeguard; indeed its presence might well lead to positive injustice to the co-accused, he has been attacked and may, by refusal of permission to cross-examine as to his attacker's bad character, be deprived of his only avenue of defence. (at p641)

10. It was their Lordships' unequivocal recognition of the absolute right of a co-accused to cross-examine as to such matters if his fellow accused had given evidence against him that led the majority to their conclusion in Murdoch v. Taylor (1965) AC 574 . As Lord Donovan said of the position of the co-accused in such a case (1965) AC, at p 593 :

"He seeks to defend himself; to say to the jury that the

man who is giving evidence against him is unworthy of

belief; and to support that assertion by proof of bad

character. The right to do this cannot, in my opinion, be

fettered in any way." (at p641)

11. To regard sub-par. (iii) as only capable of permitting cross-examination by a co-accused, and not by the Crown, is, I think, precisely what would be inferred were one to consider the apparent object of the sub-paragraph in the context of s. 399. That section takes as its model the English Criminal Evidence Act 1898, legislation which was the outcome of that compromise, to which Viscount Sankey L.C. referred to in Maxwell v. Director of Public Prosecutions (1935) AC 309, at p 317 , whereby the accused is made a competent witness and, while denied privilege against self incrimination (s. 399 (d)), is accorded protection from cross-examination as to bad character and past convictions, etc. (s. 399 (e)), subject only to the three exceptions to be found in its three sub-paragraphs. The reason for the exception is sub-par. (iii) is clear on its face: as Winn J. said when speaking for the Court of Criminal Appeal in Reg. v. Stannard (1965) 2 QB 1, at p 9 "the plain effect and object of subparagraph (iii)" was not merely to qualify the immunity afforded by the paragraph generally but "is also to protect any defendant against whom a co-defendant has given evidence to the extent of enabling him to undermine the credibility of such evidence". In Murdoch v. Taylor Lord Donovan was no less clear as to the object of the sub-paragraph. He said (1965) AC, at p 590 :

"The object of proviso (f) (iii) is clearly to confer a benefit

upon a co-accused. If evidence is given against him by

another accused he may show, if he can, by reference to the

latter's previous offences that his testimony is not worthy of

belief." (at p642)

12. If this be its object, apparent upon its face, should not its operation be confined to the effecting of that object, confined, that is, to affording to a co-accused who has been attacked by a fellow accused the opportunity of defending himself by cross-examination as to bad character and the like? Its operation seems inherently unlikely to be to give, quite fortuitously, to the Crown an opportunity to cross-examine as to matters not otherwise open to it. (at p642)

13. Such an interpretation does no violence to the words of the sub-paragraph. The whole of par. (e) of s. 399 is drafted in terms of that which may and may not be asked of an accused, rather than by express reference to and identification of the party who is permitted to so ask or prevented from so asking. It is from the subject matter of each sub-paragraph that is to be ascertained the party who is to have the benefit of the exemption from the general prohibition of par. (e) which each of its subparagraphs confers. Although I know of no authority to this effect, I would think that sub-pars (i) and (ii) are for the benefit only of the Crown and not of any co-accused. Equally I would conclude from its well recognized object that sub-par. (iii) is for the benefit only of a co-accused against whom evidence has been given. In passing I would add that I regard these last few words as of importance. I do not think that when a number of persons are charged with the same offence and one of them gives evidence against one only of his co-accused other co-accused can take advantage of sub-par. (iii). The sub-paragraph operates only for the benefit of the co-accused against whom evidence has been given. (at p642)

14. It is for these reasons that I have concluded that sub-par. (iii) of s. 399 (e) can never be taken advantage of by the Crown so as to entitle it to cross-examine an accused as to the matters with which s. 399 (e) is concerned. (at p643)

15. I have earlier said that the view I take was not that which appears to have governed the course of cross-examination in Seigley v. The King (1911) 6 Cr App R 106 and does not accord with certain observations of Lord Donovan in Murdoch v. Taylor (1965) AC 574 . So far as I am aware these are the only instances of judicial reference to the point and it is, in fact, stating the matter altogether too strongly to suggest that Seigley v. The King (1911) 6 Cr App R 106 involved any consideration of the question. All that occurred in that case was that at the trial in the police court the prosecution was permitted to cross-examine an accused as to prior convictions after he had given evidence against a co-accused. No objection was there taken that sub-par. (iii) did not authorize that course. The matter went on appeal to the Court of Criminal Appeal and again this point was not argued. The appeal was upon quite other grounds and the most that can be said of this case is that when Hamilton J., as he then was, spoke for the Court his Lordship's judgment certainly assumed that sub-par. (iii) authorized the cross-examination which had taken place. (at p643)

16. In Murdoch v. Taylor (1965) AC 574 Lord Donovan considered quite specifically and in some detail the operation of the subparagraph in relation to cross-examination by the Crown. His Lordship undoubtedly assumed that the sub-paragraph was capable of application in such circumstances. However the point does not appear to have been the subject of any argument; nor would it have been likely to have been argued since the issue before their Lordships was confined to whether or not the discretion to exclude such cross-examination, clearly enough possessed by a trial judge when the Crown seeks to cross-examine under sub-par. (ii), existed when it was a co-accused who sought to do so under sub-par. (iii) as against a fellow accused who had given evidence against him. Lord Donovan concluded that in those circumstances no discretion existed. His Lordship then turned to the different case of Crown cross-examination under sub-par. (iii) and did so only, I think, for the purpose of contrasting the Crown's position with that of a co-accused. Not only were his Lordship's observations obiter but they assumed the applicability of sub-par. (iii) and reasoned from that assumption, no examination of the initial correctness of the assumption being called for in the circumstances of that appeal. Lord Evershed agreed generally with Lord Donovan's opinion and Lord Reid expressed himself as agreeing entirely with the view of Lord Donovan on "the question of the discretion of the court". Lord Morris, in a separate opinion, reached the same conclusion on the point in issue as had Lord Donovan. Lord Pearce dissented in part and, although unassociated, I think, with his reasons for dissenting, it would seem from passages in his speech (1965) AC, at p 587 , that he made the contrary assumption to that made by Lord Donovan and regarded sub-par. (iii) as applicable only to a co-accused. However again the matter proceeds upon assumption, no examination of the point is made nor was it called for. (at p644)

17. Whatever is to be made of Murdoch v. Taylor (1965) AC 574 in this respect, it is distinguishable in one important aspect. The legislation upon which it was decided, the English Act of 1898, although containing a provision in all other respects identical to par. (e) of s. 399, omits from the equivalent of sub-par. (ii) all reference to the need for prior permission of the judge, a provision to which I have attached considerable importance for the light it casts upon the meaning of s. 399 (e) (iii) of the Victorian Act. This is in itself sufficient to distinguish Murdoch v. Taylor as an authority in determining the meaning and effect of the Victorian legislation. (at p644)

18. In England it was by a series of judicial decisions that the courts, soon after the enactment of the Criminal Evidence Act, established that, despite the unqualified terms of that Act, trial judges retained a discretionary power to refuse to accord to the Crown that right to cross-examine which the English equivalent of par. (e) (iii) appeared to confer. Until 1958 (Reg. v. Rothery (1958) Crim L R 618 ) this discretionary power was applied also to the right of a coaccused under the equivalent of par. (e) (iii), but Murdoch v. Taylor now establishes the correctness of a number of recent decisions of the Court of Criminal Appeal to the effect that no discretion exists in such a case. (at p644)

19. In Victoria and in those other States having legislation in which express mention is made, in their equivalents of s. 399 (e) (iii), to permission of the trial judge, that permission is granted or withheld in the exercise of a discretion governing which well recognized principles have been evolved. If I am correct in the view which I have expressed concerning s. 399 (e) (iii) no question can arise of any exercise of discretion in relation to an application by the Crown to cross-examine, made under subpar. (iii). If, on the contrary, that subparagraph is capable of founding an application by the Crown then, consistently with Murdoch v. Taylor and despite the sub-paragraph's omission of all reference to permission of the trial judge, those same discretionary criteria will be applicable. Aickin J. has indicated in his reasons for judgment how they should, in such circumstances, be applied and with what he has said I have already expressed my agreement. (at p645)

MASON J. I would grant special leave to appeal and allow the appeal on the ground that the trial judge erred in permitting the Crown to cross-examine the accused as to his prior convictions without having previously granted leave to the Crown so to do. I do not agree with the Court of Criminal Appeal's view that if leave had been sought it probably would have been granted or that it would have been proper to grant it. The convictions were prejudical and yet it seems to me that they were not of such a kind as to seriously shake the statements made in cross-examination by the Crown witnesses that Matusevich had no prior convictions for crimes of violence. The prior convictions, though formidable, do not appear to have involved violence to the person. Accordingly, on a consideration of the prejudice to be sustained by the Crown if the statements by the Crown witnesses were left unqualified against the prejudice to be suffered by Matusevich if cross-examination on his prior convictions were permitted, the trial judge should have refused an application for leave to cross-examine had it been made. This view of the matter is borne out by the events. The cross-examination was highly prejudicial, suggesting, as it did, a propensity to commit the crime charged. For reasons which have been expressed more comprehensively by Aickin J., I agree that the cross-examination resulted in the wrongful introduction of evidence and that it cannot be said that there was no consequential miscarriage of justice. (at p645)

2. Although it is unnecessary to deal with other matters which were argued, as one question at least will certainly arise on a new trial, I wish also to express my agreement with Aickin J.'s observations respecting the directions which should have been given on the topic of Matusevich's acting in concert with an insane person in the commission of the crime charged. (at p645)

3. In the result I would grant special leave and allow the appeal. (at p645)

MURPHY J. Special leave to appeal should be granted, the appeal allowed and a new trial ordered. (at p645)

2. The applicant, Matusevich, a young man who described himself at the trial as a thief, was a prisoner at Pentridge who had applied for parole. He was placed in a cell in the prison's hospital wing with Thompson, a prisoner with a history of insanity, and Whateley, who had been moved from Ararat for his safety after he had informed the authorities there of an escape. On the night of 12th November 1974, Whateley was killed with an axe in the cell. Matusevich and Thompson were tried jointly and were both convicted of murder. (at p646)

3. At the trial, evidence prejudicial to Matusevich was admitted contrary to s. 399 (e) of the Crimes Act 1958 (Vict.), which states:

"(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 -

(i) the proof that he has committed or been convicted of

such other offence is admissible evidence to show that

he is guilty of the offence wherewith he is then

charged; or

(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, 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 (to be applied for in the

absence of the jury) must first be obtained; or

(iii) he has given evidence against any other person

charged with the same offence".

The requirement in par. (i) was not satisfied. The prosecution suggested that Matusevich and Thompson intended to escape and that the motive for the murder was to prevent Whateley from informing on them. It contended that evidence of the applicant's escaping from a boys' home showed a propensity to escape and a propensity for violence and that this was admissible to show that the applicant was guilty of the offence charged. The evidence of propensity was not admissible for this purpose (Stirland v. Director of Public Prosecutions (1944) AC 315, at p 326 ); even if it were, the propensity of a boy to escape does not show a propensity for violence. (at p646)

4. The requirement in par. (ii) was not satisfied as the judge's permission was not obtained. The requirement in par. (iii) was satisfied, but the prosecution was not entitled to ask the questions. Only a co-accused against whom an accused witness has given evidence is entitled to ask the questions. (at p646)

5. Section 399 (e) should not be construed literally. The requirement of judicial permission is expressed in the proviso to par. (ii) and this suggests it is not implied in pars (i) and (iii). Judicial decisions have added it to par. (i). It is obvious why it is absent from par. (iii) if only the co-accused is entitled to ask the questions: it would be unjust to impose this restriction on the coaccused's defence. There is no logical reason why the prosecution should be entitled to ask questions otherwise forbidden to it simply because an accused gives evidence against a co-accused; and to read par. (iii) as entitling it to do so without judicial permission would conflict with the policy reflected in the proviso to par. (ii). (at p647)

6. Section 399 (e) recognizes the prejudicial nature of the questions. Even if the prosecution had a right to ask the questions, proper practice would be to ask permission first to ensure a fair trial (Murdoch v. Taylor (1965) AC 574 ; Reg. v. Billings [1966] VicRp 56; (1966) VR 396, at p 398 ). Fullagar J. observed in Ziems v. Prothonotary of Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, at p 294 that "such tactics are permissible in civil cases, but in criminal cases in view of what is at stake they may sometimes accord ill with the traditional notion of the functions of a prosecutor for the Crown". The applicant's counsel applied for discharge of the jury because of the breach of s. 399 (e), but the judge refused. The asking of the questions caused a miscarriage of justice, which should result in the allowing of the appeal unless the court considers that no substantial miscarriage of justice has actually occurred (Crimes Act, s. 568). (at p647)

7. The prosecution contended that any miscarriage was not substantial because the judge, if asked, would have granted an application for permission for two reasons. The first was that the applicant's counsel had asked prosecution witnesses questions with a view to establish the applicant's good character or had given evidence of his good character, thereby enabling the judge to grant permission under par. (ii); the second was that the requirements in par. (iii) had been satisfied. The decision whether the issue of good character had been raised was borderline. Even if it were raised, the prejudicial tendency of the prosecutor's questions so outweighed any possible tendency of the evidence to mislead the jury on the applicant's character that the discretion should have been exercised against the prosecution. Therefore, the judge should not have granted permission under par. (ii) and had no power to grant it under par. (iii). The judge gave certain directions in an attempt to cure any prejudice. But judicial directions do not satisfy the legislative command that the questions should not be asked. The appeal should be upheld on the ground of miscarriage caused by the prosecution's unlawful questions. (at p648)

8. Thompson was found guilty of murder although he contended he was not guilty on the ground of insanity and after a successful appeal, at a new trial was found not guilty on this ground. Rather than treating the issue as strictly between the Crown and Thompson, it should be assumed in the applicant's favour that the jury had a wrong view of Thompson's sanity which must have affected their finding that Matusevich had acted in concert with Thompson. The view that Thompson was not insane must have affected not only their finding that the two accused acted in concert, but also crucial factual aspects of the case, for example, the circumstances in which the notes were written in the cell. The applicant's evidence that these were written at Thompson's dictation after the killing becomes more credible if it is accepted that Thompson was insane. It is not necessary to consider the complications caused by adherence to the M'Naghten Rules. The determination of the applicant's guilt on the basis that Thompson was not insane has resulted in substantial miscarriage of justice. There should be a new trial on that ground. On a retrial, the prosecution will no doubt concede Thompson's insanity although its nature may still be debated. If the prosecution relies on acting in concert, this will raise mixed questions of law and fact. I agree with Aickin J.'s observation that careful direction will be required on whether the nature of the insanity precluded the insane man from being capable of the necessary assent. Proof of acting in concert with an insane person raises problems of philosophical and psychological subtlety which a jury should not have to deal with, if the prosecution case can be fairly presented without it. The prosecution is not obliged to rely on every conceivable basis for conviction. A complicated theory is best avoided if its substance can be presented more simply. (at p648)

9. The applicant also contended that the admission that the deceased was an informer had been wrongly used to prove that the applicant had made the statements attributed to him in the unsigned record of interview. A similar point arose in Burns v. The Queen [1975] HCA 21; (1975) 132 CLR 258 and I adhere to the views I stated there (1975) 132 CLR, at p 267 . (at p648)

10. There were other disturbing features of this case concerning the voluntariness and reliability of a confession and interview (the record of which was unsigned) admitted in evidence against the applicant, particularly as he was a prisoner and had applied for parole. On the day after the killing, the applicant was questioned from 12.30 p.m. onwards by police in the presence of the acting Governor of the gaol, with no legal adviser present and no access to legal advice. An interviewing police officer testified that he was astonished by the unexpected confession which the applicant made at the commencement of the questioning. Earlier the same day (about 4 a.m.), the applicant had been given a drug which, on the prison doctor's evidence, may have left him incapable of making any reliable statement up to an hour or so before the questioning. The applicant claimed that he had taken other drugs which would affect his capacity. There was no medical examination at the time of the interview and the applicant had no medical advice. (at p649)

AICKIN J. This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of Victoria which dismissed the applicant's application for leave to appeal from a conviction on a charge of murder (1976) VR 470 . The applicant and one Thompson were jointly charged with the murder of one Whateley. All three were prisoners in the same ward in D Division of Pentridge gaol. They were the only prisoners in that ward. Both Thompson and Matusevich were working in the hospital section of the gaol as writers, i.e. in effect as clerks, which was a position of some trust and which carried certain privileges. About a week before his death the prisoner Whateley had been transferred to Pentridge from a prison at Ararat. He was put into the same ward as Thompson and Matusevich. Early in the morning of 13th November 1974 Whateley was found dead in the ward. He was lying on a bed having suffered severe head injuries which were said to have been inflicted by the use of an axe. There was no evidence as to how the axe, which was found in the ward, had been placed there. The facts in question were in dispute only with respect to who it was who struck the blows which killed Whateley, and whether there was concert between the two accused. (at p649)

2. Thompson was the first of the two accused to be interviewed by the police. The interview was recorded and signed by him. In it he said that his memory was vague but that he remembered losing his head and hitting Whateley on the head with the axe. When Matusevich was interviewed he is alleged to have said that both he and Thompson killed Whateley. In his evidence he denied the truth of the statements contained in the record of the interview but said in effect that he had no recollection of what he had said at the interview. He gave evidence, the general effect of which may be said to be that he was locked up with a madman who not only killed Whateley but threatened to kill him if he gave the alarm and that it was only some time after the killing that he thought it safe to press the alarm button in the ward. He said that he was unable to remember much of the details of what took place but that he had been so frightened that he did whatever Thompson told him. Thompson did not give evidence at the trial and made no statement from the dock. His counsel cross-examined Matusevich with a view to suggesting that he was the sole killer but in effect he made no significant concessions in the course of that cross-examination. (at p650)

3. Evidence was called on behalf of Thompson to show that he was legally insane at the time of the killing and substantial evidence was given as to his early life and history of mental illness. Two psychiatrists and a psychologist gave evidence to the effect that in their opinion Thompson was suffering from such a defect of reason due to disease, disorder or disturbance of the mind, that he did not know at the time of the killing that what he was doing was wrong. No evidence was called on behalf of the Crown to rebut this evidence of insanity. (at p650)

4. In the result, the jury convicted both Thompson and Matusevich of murder and although they were asked certain specific questions by the trial judge they did not answer them in a manner which indicated their view as to which of the two accused struck the blows which killed Whateley. (at p650)

5. Each of the accused appealed to the Court of Criminal Appeal against the conviction. That Court took the view that the jury had not been properly instructed on the question of insanity and that the verdict against Thompson should be set aside and a new trial ordered. We were informed that that new trial had since taken place and that a properly instructed jury had in fact found Thompson not guilty on the ground of insanity. (at p650)

6. The Court of Criminal Appeal dealt in the same judgment with the position of Matusevich and dismissed his application. A number of grounds of appeal were relied upon in the Court of Criminal Appeal not all of which were pursued in this Court. Three points were argued, viz., (1) whether it was possible to act in concert with an insane person in the commission of a crime; (2) cross-examination of the accused as to prior convictions suggesting propensity to violence and escape; and (3) admission of evidence that the deceased had in fact informed against persons escaping from the Ararat gaol. (at p651)

7. It will be convenient to deal first with the second ground, i.e., the complaint that the trial judge erred in permitting the Crown to cross-examine the accused as to his prior convictions and had erred in failing to discharge the jury following such cross-examination. Counsel who appeared for Matusevich at the trial obtained from Crown witnesses in cross-examination evidence that Matusevich had no prior convictions for crimes of violence. The situation was of course one in which it was obvious from the circumstances that each of the three men had been guilty of some offence since each of them was a prisoner in Pentridge gaol. Matusevich himself gave evidence on oath and the Crown Prosecutor, without seeking any permission from the trial judge, cross-examined with a view to showing that he had previously escaped from custody and that he had committed such crimes as house-breaking and stealing which were offences of a violent nature. No immediate objection to this line of cross-examination was taken by counsel or by the trial judge, and indeed there was little opportunity to do so. Immediately thereafter counsel for Matusevich sought the discharge of the jury but the trial judge rejected that application. (at p651)

8. The position with respect to cross-examination of accused persons as to their bad character or previous convictions is governed by s. 399 (e) of the Crimes Act 1958 which 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 -

(i) the proof that he has committed or been convicted of

such other offence is admissible evidence to show that

he is guilty of the offence wherewith he is then

charged; or

(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, 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 (to be applied for in the

absence of the jury) must first be obtained; or

(iii) he has given evidence against any other person

charged with the same offence".

It will be observed that in Victoria the requirement that the prosecutor must apply to the judge for permission to cross-examine as to character or prior convictions is part of the statute itself and is not dependent upon the rule of practice which has developed elsewhere with respect to otherwise similar legislation. The position thus is that without an application having been made by the prosecutor, evidence obtained by cross-examination of the accused as to his prior record is inadmissible. The evidence was nonetheless admitted. It must be seldom that one can properly describe the admission of inadmissible evidence as to prior convictions in a criminal trial as merely an "irregularity". In the present case it was particularly prejudicial to the prisoner and its probative value as to his reliability as a witness was far outweighed by its prejudicial effect. (at p652)

9. The motive for the murder was suggested as being that Whateley was known to be a man who had informed against prisoners who had or were attempting to escape from the Ararat gaol and that Matusevich and Thompson were planning an escape and killed Whateley lest he should betray their plans. (at p652)

10. Evidence of previous escapes and of convictions for crimes of violence would have been likely to have been regarded by the jury as indicating a disposition or propensity to escape and towards crimes of violence in the context of this particular trial. It would not ordinarily be permissible to prove either of those things. (at p652)

11. The Court of Criminal Appeal took the view that "in all probability if permission had been sought the learned trial judge would have granted it" (1976) VR, at p 481 . It does not appear, however, that in the circumstances as they then stood he would have been right to do so and it appears wrong to have assumed that he would have done so. The fact that he subsequently refused to discharge the jury is not a proper basis for concluding that he would have given permission to conduct a cross-examination of so highly prejudicial a character. It is not necessary for this Court to decide whether the trial judge should have discharged the jury when the application was made if, as I think, the wrongful admission of this evidence cannot be regarded as a mere "irregularity" not involving any "miscarriage of justice". The view taken by the Court of Criminal Appeal (1976) VR, at p 482 that the "irregularity" cannot have caused Matusevich to lose a chance which was fairly open to him of being acquitted is one which I do not think was properly open. The evidence of these prior convictions appears to be just the kind of prejudicial material that might in this very unusual case have tipped the balance against him. (at p653)

12. In argument it was suggested that the cross-examination could also be supported under sub-par. (iii) of s. 399 (e). No doubt it was correct to say that Matusevich had given evidence "against" Thompson as that expression has been construed by the House of Lords in Murdoch v. Taylor (1965) AC 574 . In that case their Lordships took the view that if one accused gave evidence against another there was no discretion to refuse to allow counsel for the other accused to cross-examine as to prior convictions if such convictions were material, e.g. as to credibility. However, Lord Donovan (with whom Lord Reid, Lord Evershed and Lord Pearce agreed) said (1965) AC, at p 593 :

"But in these cases it will normally, if not invariably, be

the prosecution which will want to bring out the accused's

bad character - not some co-accused; and in such cases it

seems to me quite proper that the court should retain some

control of the matter. For its duty is to secure a fair trial and

the prejudicial value of evidence establishing the accused's

bad character may at times wholly outweigh the value of

such evidence as tending to show that he was guilty of the

crime alleged.

These considerations lead me to the view that if, in any

given case (which I think would be rare), the prosecution

sought to avail itself of the provisions of proviso (f) (iii) then

here, again, the court should keep control of the matter in the

like way. Otherwise, if two accused gave evidence one

against the other, but neither wished to cross-examine as to

character, the prosecution could step in as of right and reveal

the criminal records of both, if both possessed them. I

cannot think that Parliament in the Act of 1898 ever intended

such an unfair procedure. So far as concerns the

prosecution, therefore, the matter should be one for the exercise of the

judge's discretion, as it is in the case of proviso (f) (ii). But

when it is the co-accused who seeks to exercise the right

conferred by proviso (f) (iii) different considerations come

into play. He seeks to defend himself; to say to the jury

that the man who is giving evidence against him is unworthy

of belief; and to support that assertion by proof of bad

character. The right to do this cannot, in my opinion, be

fettered in any way."

It is true that the observations as to the position of the prosecutor were obiter. However for present purposes they provide a sufficient guide. The Court of Criminal Appeal took the view that the law in Victoria was the same and that the express requirement for prior permission under sub-par. (ii) did not produce the result that no discretion existed in respect of sub-par. (iii). With this view I respectfully agree. That Court however, said (1976) VR, at p 481 :

"...counsel for Thompson would have been entitled to

cross-examine Matusevich as to his character, but it is a

question whether the Crown was entitled to do so. We can

see no reason why it should not. The language of the

paragraph is quite clear. But we do not think that the

Crown should ordinarily do so without first raising the

matter in the absence of the jury and when the question is so

raised we think that a trial judge should be wary of allowing

the Crown to exercise the right. The reason for caution is

simply the interests of fairness. The trial judge is bound to

ensure a fair trial, fair to all concerned, and to allow the

Crown unrestricted right to cross-examine as to character

whenever one accused gives evidence against another might

make it almost impossible for an accused person with

previous convictions to defend himself." (at p654)

13. The Court also said: "The exercise of the right by the Crown is therefore not to be encouraged: see Murdoch v. Taylor per Lord Donovan (1965) AC, at pp 592-593 , Reg. v. List (1966) 1 WLR 9; (1965) 3 All ER 710 where Lord Donovan's observations were applied and Reg. v. Brown [1960] VicRp 62; (1960) VR 382, at p 398 ." It is in my opinion clear that the Crown should never do so without first seeking the permission of the trial judge for that is to deprive the judge of a proper opportunity for the exercise of his discretion. There is much to be said for the view that the purpose of this paragraph is not to allow the Crown the right, unrestricted or otherwise, to cross-examine one accused where in a joint trial one accused gives evidence against another. The insertion of this provision in the Criminal Evidence Act 1898 (Eng.) no doubt arose from the need to give one accused the same right to test the evidence of a co-accused who gave evidence against him, as he has to test the evidence of other witnesses who did so. Otherwise he would have no means of defending himself against such accusations. No similar basis for allowing the Crown to cross-examine as to prior convictions or bad character appears. It may be that when one accused cross-examines his co-accused the Crown's case against each may be improved. The fact that one accused gives evidence against another does not in principle appear to provide any basis for introduction of what has always been treated as highly prejudicial material against the former. This may suggest that the section was not intended to give such a right to the Crown at all notwithstanding the absence of any express limitation. (at p654)

14. None of the cases appears to deal directly with this matter but the observations in Murdoch v. Taylor (1965) AC 574 plainly recognize this right. In the circumstances of this case it is not necessary for us to examine the question de novo. It is sufficient to say that if such cross-examination is permissible at all, it should not be allowed in the absence of prior permission from the trial judge and that cases where it may prove to be proper to grant such permission are likely to be extremely rare. (at p655)

15. In order to consider the question of whether it can be said that the wrongful introduction of this evidence did not involve any miscarriage of justice it is necessary to examine the details. (at p655)

16. At the hearing, the prosecutor in his cross-examination of Matusevich reached a point where he was asking the accused about his statement that he expected to be released from gaol on parole some time in the following year. The accused said that he realized that this would depend upon a parole board but that he had been told it would be about July. He was then asked as follows:

"And I suppose it follows from that that you maintain, why should

you try to escape if you are expecting to be released?

- Exactly. Why? Well, because you had just assisted to

murder a man? - I didn't. I have told you what happened

Because you have escaped before, havent't you, from legal

custody? - Not from gaol.

That is not what I said, Mr Matusevich? - What is

escaping from legal custody?

From legal custody. You have escaped, haven't you

before when you have been held for some offence? - In boys'

homes, yes.

Back in 1970 you were convicted of escaping from custody,

weren't you? - Was I?

In Adelaide, South Australia, juvenile court, four or five

years ago? - I don't remember being so.

But of course, you heard your counsel putting to witnesses

that you had never been convicted of any violent offence? -

I never have. I'm not a violent boy.

Not a violent person? - of course not.

In November, 1972 you were convicted of, I put to you, 11

counts relating to offences of breaking and stealing, larceny

of a motor car, housebreaking and stealing, housebreaking

with intent to commit a felony, housebreaking and stealing,

factory breaking and stealing. Is that right? - Yes.

Nothing violent about those crimes? - I am just not a

violent person.

H'mm? - I am just not a violent person.

Do you remember what those offences were in relation to?

- Stealing, because that is what I was, a thief.

But these premises that you broke into, they were wrecked

by you, weren't they? - What do you mean, wrecked?

Well, you tried to set fire to them, for a start? - Yes. I

was drunk.

Can you remember what you did on those occasions? -

No. How can I? I was drunk." (at p656)

17. Immediately thereafter counsel for Matusevich asked the judge if he could mention a matter in the absence of the jury. He then made a submission to the trial judge that the prosecutor should have first sought directions from the judge with respect to cross-examining Matusevich about his prior convictions and that the series of questions was such that the trial would miscarry. He asked for the discharge of the jury. The prosecutor replied that the question about his prior convictions not being in respect of offences of violence had been raised and the cross-examination was "simply to show that there was an element of violence in this that you can look at". This itself is enough to indicate that the cross-examination was calculated to suggest propensity, not merely lack of credibility. He also submitted in addition that the situation came within sub-par. (iii). It was submitted that that paragraph was quite general in its operation. The learned judge said "...what we have to consider is what the section actually says. This man has undoubtedly given evidence against Thompson, has he not, and just on an ordinary reading of the section, it comes fairly within the proviso". He did not advert to the need for an application for permission to cross-examine on that basis, and dismissed the application to discharge the jury. He subsequently said:

"Although I have not studied the matter, I cannot see any

good reason for reading (e) (iii) as only applying to counsel

for the co-accused, but one never knows whether there may be

some authority to that effect. In any event it will be

necessary for me to give the jury very explicit directions as to

the fact that they should not take the previous convictions of

either accused into account to assist them to reach any

conclusion upon the basis of propensity or disposition. With

the background of this trial and the evidence that is

necessarily before the jury, I do not feel that any possible

prejudice which might have flowed to the accused by the

asking of the questions by Mr. Martin, would, in any event,

lead me to discharge the jury. I propose to cure it - if there is

any defect in Mr. Martin's cross-examination - as well as I

can. In the circumstances of the case I think it is a very

different situation from the case of a man who is on trial and

the jury has absolutely no knowledge whether he has got any

previous convictions or not. If evidence of previous convictions

gets in under those circumstances, of course, it may be

very, very damaging indeed, but in the present case I do not

feel that damage is sufficient to warrant me, on the sixth day

of this trial and at the close of all the evidence, to discharge

the jury, so I refuse the application."

In the learned trial judge's charge to the jury he said:

"The third thing I want to mention to you is that - by the

very nature of this trial we know that both the accused men

are convicted criminals. Now ordinarily if you came to sit as

members of the jury or if you come and sit in this court and

hear criminal trials, you may hear a man charged with some

terrible offence, and the trial will go from the beginning to

the end, and you will never know, nor will anyone, no

member of the jury will know or be allowed to know whether

that man has a long history of criminal offences behind him

or whether he is a man who is charged with a criminal

offence for the first time. It is only in particular

circumstances when a man's background, his criminal history,

can be brought into a trial. I will not worry you about what

those circumstances are, but you can see for yourself if you

have got a man charged with a crime and there is conflicting

evidence, if a jury were to know that that man had previously

been convicted of the same sort of crime, particularly over a

number of years, it would be dreadfully difficult for the jury

to forget that and to concentrate its attention on the evidence

before it. Ordinarily speaking the problem is not whether

the accused person committed some other crimes; your

problem is not that, your problem is whether these men or

either of them committed this crime. Now, in this case,

because they are both convicts in Pentridge, of course, it

would be quite impossible to conduct the trial without your

knowing that they were convicted men. Therefore what I

want to say to you is it would be very wrong of you to hold

that against them in the sense when you are debating a point

amongst yourselves to say this man has a record of X and Y,

and therefore he has a propensity to do this sort of thing or a

disposition to do it simply by reason of his previous

convictions. You are here to judge what he did on the 12th

of November; so, do the best you can not to allow the fact

that both of these people are convicted criminals, both

serving sentences at Pentridge, to intrude in any way into

your logical analysis of the evidence in relation to what

happened on this particular night."

The passage which I have quoted above was in the early stages of the charge and no further reference was made to prior convictions or the manner in which evidence with respect to them should be treated by the jury. (at p657)

18. In dealing with s. 399 (e) (ii) the Court of Criminal Appeal said that there was "no doubt that counsel for Matusevich had put 'his character in issue'". They went on to say (1976) VR, at p 481 :

"Thus a right arose in the Crown to cross-examine him as

to his character, provided that permission had first been

obtained from the trial judge. In all probability if permission

had been sought the learned trial judge would have granted

it, but be that as it may the failure to obtain permission is an

irregularity. But the question is did the irregularity involve

a miscarriage of justice?" (at p658)

19. With due respect I do not consider that this adequately states the position. It overstates the matter to say that a "right arose in the Crown to cross-examine him as to his character". Under the Victorian section, what arose was a right in the prosecutor to apply to the Court to cross-examine Matusevich as to his character and prior convictions, and it was then the function of the trial judge to decide whether or not in the circumstances such cross-examination could be embarked upon. The failure to apply and obtain such permission is more than a mere irregularity. It is to embark upon the asking of inadmissible questions and the introduction of inadmissible evidence, without affording the trial judge an opportunity to exercise his discretion. (at p658)

20. The proper approach to this problem is I think conveniently stated in the judgment of Smith J. in Reg. v. Brown where he said [1960] VicRp 62; (1960) VR 382, esp at p 394 :

"But I can see no justification for departing from the

ordinary and natural meaning in order to widen the

jurisdiction to grant leave. As was pointed out in Reg. v. Cook...

(1959) 2 QB 340 the provision was intended to be a protection to

an accused person, and its terms show that the introduction

of his previous convictions was not meant to be other than

exceptional..."

and (1960) VR,at p 398 he enumerated the matters which in that case the learned trial judge should have taken into account in considering the exercise of the statutory discretion. Two of those considerations are material to the present situation, i.e. "(b) That the prejudicial effect on the defence of questions relating to the accused's long criminal record needed to be weighed against such damage as his Honour might think had been done to the Crown case by the imputations" - (in this case by the evidence of relative good character), and "(d) That the actual prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit". (at p658)

21. I am of the view therefore, that if the trial judge had been asked for his permission it would have been an incorrect exercise of his discretion to permit such cross-examination in the present instance. The question with which the trial judge would have been faced if asked for permission would have been quite different from that with which he was actually faced when he was asked to discharge the jury. It would not be right to say that, even if he was justified in refusing to discharge the jury in the circumstances, it must follow that he was or would have been right to grant permission to the prosecutor to embark on this cross-examination, if he had been asked in advance for such permission. (at p659)

22. The wrongful admission of the evidence relating to the nature of Matusevich's prior convictions is in the circumstances of this case a proper ground for special leave. The proper application of s. 399 is a matter of general importance as is the use of sub-par. (iii). In the circumstances of this case the risk of prejudice to the accused was substantial. I am therefore of opinion that special leave should be granted and the appeal allowed. (at p659)

23. In these circumstances it is not strictly necessary to consider whether the warning given by the trial judge, the terms of which I have quoted above, was adequate in the circumstances. It appears now to be settled that the only purpose for which evidence of bad character may be admitted under sub-pars (ii) and (iii) is that it goes to the credit of the accused as a witness or to negative evidence of good character in so far as that may extend beyond an attack on credit. Accordingly, such evidence cannot be used for the purpose of proving guilt, whether by suggesting propensity or otherwise. This appears from the decision of the House of Lords in Murdoch v. Taylor (1965) AC 574 , if not from earlier authorities. The views expounded by Professor Stone in his two interesting articles on the Criminal Evidence Act 1898 in Law Quarterly Review, vol. 51 (1935), p. 443 and vol. 58 (1942), p. 369 must be taken not to have obtained acceptance. See also Maxwell v. Director of Public Prosecutions (1935) AC 309, at pp 318-321 where Viscount Sankey discusses the matter. (at p659)

24. It is because of the purpose for which such evidence is admissible that it is necessary in cases where it is admitted that the jury should be instructed upon the only manner in which it can be used. It is necessary to mention in this context the decision in the Victorian Supreme Court in Reg. v. May [1959] VicRp 88; (1959) VR 683 where the Court said that there was no duty on the trial judge to warn the jury that they should not use evidence of prior convictions to show that the accused was a person with a propensity to commit crimes and said that the matter was in the discretion of the trial judge. The authority quoted for this proposition was Reg. v. O'Meally [1953] VicLawRp 7; (1953) VLR 30, at p 32 but that was a different kind of case which was treated as arising under sub-par. (i) where of necessity the evidence must be directed to showing that the relevant offence was committed. At the trial in May's Case [1959] VicRp 88; (1959) VR 683 the evidence was evidently admitted upon the basis that the accused had put his character in issue. Its admission was upheld in the Full Court of the Supreme Court upon the basis that it fell within sub-par. (i) rather than sub-par. (ii). It appears that the applicant had admitted his guilt to the police and in evidence admitted having done so. The Court went on to say (1959) VR, at p 684 :

"This affords strong evidence of his guilt. But in his

evidence he said the admissions made to the police were

untrue. He naturally felt called upon to offer an explanation

as to why he untruly admitted his guilt. He gives reasons

why he did so."

They then referred to those reasons and said that (1959) VR, at pp 684-685 :

"The jury had the task of deciding whether applicant's

admissions to the police were truthful. The correctness of

the facts offered in explanation was very important in

deciding on the truth of the admission. If it turned out, for

example, that Kent was not married, or that Kent had no

prior convictions, or that applicant had a bad criminal

record, that would be of great materiality. The truth or

falsity of all these matters was put in issue by the applicant

and it was therefore admissible in evidence to ask questions

directed to such truth or falsity. Applicant's record was one

of such matters and was therefore admissible evidence with

sub-par. (i)."

It is necessary to refer to this passage as well as the other passage already dealt with lest it be thought that the case should otherwise be approved. It is enough for present purposes to say that I do not regard the cross-examination referred to as necessarily falling within sub-par. (i). (at p660)

25. As to the earlier aspect, it appears to me to be clear that where cross-examination as to prior convictions is permitted by the trial judge, he should make it clear to the jury that such evidence is material only to the credibility of the accused as a witness. The manner in which he does that will of course depend upon the individual circumstances in each case, but it is not a matter which he can omit. In this respect the charge in the present case was inadequate. (at p660)

26. Although the point already dealt with is sufficient to dispose of this case, the other two points are likely to arise in a further trial of the applicant and should therefore be dealt with. The first of the three points argued before us was whether it was possible to act in concert with a lunatic and involves inquiring as to what is meant by "consensus" or "concert" and the significance of mens rea in a "consensus". It was argued that concert in this sense exists only when two or more persons agree to carry out some crime. If they have not in fact so agreed then, in such a case as this, one may be a principal and the other merely an aider or abettor. The question is what is the scope of the agreement required to make the act done something which is done in concert. It was argued that where intention is a necessary element in the crime there must be sharing of that intention, and that it was not enough to show agreement to do the physical act only without the agreement extending to a common criminal intention. It was then said that insanity affects the capacity to have the necessary intention and that if you cannot find the sharing of that intention you cannot find that the acts are done in concert. As an alternative it was put that the jury should be told to consider the nature of the insanity in question in order that they should consider whether that insanity was such as to make it impossible for the formation of a common criminal intent. The trial judge directed the jury that insanity was not relevant to the intention with which an act was done and was not relevant to whether or not there was a concert. (at p661)

27. The Court of Criminal Appeal said that the necessary concert is (1976) VR, at p 478 :

"...constituted by the assent together of the participants

to do the act (i.e. the actus reus alone) and it may be

evidenced by their conduct. The fact that a man is insane

for the purposes of the criminal law does not necessarily mean

that he is incapable of assenting together with another man

to an act. He may not know that the act is wrong but he

may still assent to do it."

The Court referred to the distinction between the actus reus and the mens rea which together constitute the crime of murder and said (1976) VR, at p 478 :

"In this case the actus reus was made up of the unlawful

striking of the blow or blows which caused the death of the

deceased, and the resultant death itself. Leaving aside for

the moment the effect of the insanity of one man, if the two

men assented together to the striking of the blow or blows,

then once it was established that the striking was unlawful

and that death resulted from it, the two men were acting in

concert in the actus reus of the crime. Any questions as to

their knowledge that the striking was unlawful or that death

would or might result or as to their respective intentions

would arise only in determining whether either had a mens

rea."

And they therefore held that the assent of a sane man and an insane man to do the physical acts which constitute the actus reus makes the sane man guilty if he has the necessary mens rea, although the insane man is not guilty. The Court then referred to Reg. v. Tyler and Price [1839] EngR 270; (1838) 8 C & P 616 (173 ER 643) as supporting that conclusion and noted that Professor Glanville Williams in Criminal Law - The General Part, 2nd ed. (1961), p. 352, par. 120 analyses that case as being an instance of "innocent agency", but without making any suggestion that a sane person may not agree on an actus reus with an insane person. Reg. v. Tyler and Price was recently examined in some detail in the House of Lords in Director of Public Prosecutions for Northern Ireland v. Lynch [1975] UKHL 5; (1975) AC 653 , a case which was primarily concerned with the defence of duress. It was there held that duress was a defence open to a person accused as a principal in the second degree i.e. as an aider and abettor, on a charge of murder. Some of their Lordships expressed the view that duress would not be an available defence in respect of a charge of murder as a principal in the first degree, while others left that point open, but see now Abbott v. The Queen (1977) AC 755 where a majority of the Privy Council held that duress was not a defence against a charge of murder available to a principal in the first degree who did the actual killing. Lord Morris dealt with Tyler's Case [1839] EngR 270; (1838) 8 C & P 616 (173 ER 643) in Lynch's Case and said (1975) AC, at p 673 :

"...there are many indications which suggest that in

company with very many others they had joined Thom's

assemblage because they were attracted by the claims and

promises that he made. It would seemingly have been easy

for them to detach themselves. It was against such a

background that Lord Denman C.J. in summing up is

reported to have said that the law was 'that no man, from a

fear of consequences to himself, has a right to make himself a

party to committing mischief on mankind'. Without

analysing the expressions used it would not be appropriate to treat

what was said as being a comprehensive statement of

principle."

Lord Edmund-Davies (1975) AC, at pp 713-714 treated the case as not establishing that duress was not an available defence in such circumstances. The question of duress, however, does not arise in the present case since, although Matusevich claimed that what he did after the killing he did under the duress of Thompson, the crime with which he was accused was completed before that stage was reached. In these circumstances, however, Reg. v. Tyler and Price [1839] EngR 270; (1838) 8 C & P 616 (173 ER 643) cannot be regarded as an authority directly bearing on the question of whether there can be a common intent as between a sane man and a lunatic, there being no other parties involved. The judgment does not advert to the point and it cannot be treated as determining it. (at p663)

28. The question whether there can be a common intent with respect to the commission of a crime between a sane man and a lunatic is almost devoid of direct authority and no material discussion is to be found in the textbooks. I do not think however that the problem of whether there can be the requisite concert can always be solved by reference to the so-called doctrine of the "innocent agent". (at p663)

29. I am in agreement with the views of the Court of Criminal Appeal when they said that (1976) VR, at p 480 :

"...the question whether in a particular case the sane and

the insane man were acting in concert requires of course an

examination of the evidence. The nature of the insanity

may preclude the insane man from being capable of the

assent which is necessary for the two men to be acting in

concert."

They went on to say (1976) VR, at p 480 :

"That would not mean that the sane man would not be

guilty in respect of his own participation in the events which

caused the death and the concept of innocent agency might

well apply to make him liable for the acts of the insane

man. But in such a case, the matter could not be put on the

basis of acting in concert."

The evidence given at the trial, however, would not have justified the view that there was anything in the nature of innocent agency in the present case. The difficulty is that all that the trial judge said in the course of his charge was that, although if the jury found Thompson not guilty on the ground of insanity they could not find Matusevich guilty of aiding and abetting (whether that is right or wrong is not material), "that does not apply in relation to concert". This appears to me to be inadequate, although in the event the jury did not act on that, or rather had no occasion to act upon it, because they did not find Thompson to be insane. A proper direction however would have to advert to the question whether the nature of the insanity may preclude the insane man from being capable of the necessary assent to produce action in concert. It would not be enough to say that all the jury had to consider was whether the condition of the insane man was such that his mind went with the doing of the actus reus. The jury should also be told that they must consider whether the nature of the insanity, if they find insanity, is such as to make it impossible for there to be any concert between the two accused. They should be told that if they find that one accused did not understand the nature or quality of the act which he in fact did, then there could be no concert between the two accused. They should also be told that, if the basis for their finding of insanity was that the accused did not know that what he did was wrong, they may find that the two accused acted in concert, if they are satisfied that there was an actual agreement or common understanding. The way in which such a matter should be expressed in a charge cannot usefully be considered further in the abstract, as it must depend upon the particular evidence in the particular case. (at p664)

30. The remaining ground relied upon was that the trial judge should not have admitted the evidence as to the conduct of the deceased in informing against other prisoners who were planning to or were escaping from the Ararat gaol. This argument was that it was irrelevant to any issue. Its admissibility was supported by the Crown upon the basis that it tended to prove a motive and also to make it more probable that Matusevich made the statement to the police. The Court said with respect to this (1976) VR, at p 482 :

"It was relevant to establish a possible motive for the

murder of Whateley. If Whateley had given the alarm when

three prisoners escaped it was likely that the applicant would

have heard about it and if he were intending to attempt to

escape it might have been thought by the jury that he had a

motive for wanting Whateley out of the way."

If this were all, it would not in my opinion provide a sufficient basis for the admissibility of this evidence because there was no foundation for the statement that "it was likely that the applicant would have heard about it" apart from the statement which he was alleged to have made to the police in which he did refer to having heard about it. It was also sought to rely, as an alternative basis upon which this evidence might be admitted, on the fact that it tended to make it more likely that Matusevich did make the statement to the police as there was some evidence that the police did not already know of the event. The Court said (1976) VR, at p 483 :

"Once the evidence was received as relevant to the

question of motive, it could properly be used by the jury as

tending to prove the truth of the record of the applicant's

interview with the police and it remains only to consider whether

a proper direction was given."

It is of course trite law that evidence properly admitted may be used to assist in arriving at conclusions other than those which formed the basis of its admission. However, that assumes initial admissibility. I have said above that I do not think that the original basis for admissibility was sustainable and the question must be whether the evidence was admissible solely upon the basis that it tended to prove that Matusevich had in fact given that alleged answer to the question asked by the police. (at p665)

31. The problem raised by the admission of this evidence upon the basis that it tended to prove the truth, not "of the record of the applicant's interview with the police", but of one part of that interview was considered by this Court in Burns v. The Queen [1975] HCA 21; (1975) 132 CLR 258 . It is sufficient to refer to the passage in the joint judgment of Barwick C.J. and Gibbs and Mason JJ. where they said (1975) 132 CLR, at pp 263-264 :

"In the present case the evidence, apart from the

confession fell far short of establishing guilt, and in some

cases it might be thought unsafe to allow a jury to consider

evidence of that kind (although logically relevant) in deciding

whether a confession was made. Where it is the case for the

accused that the circumstances which pointed inconclusively

to the guilt of the accused suggested to the police that he was

guilty, and led the police to fabricate a confession, the jury

may not be assisted in deciding whether the confession was

made, but rather distracted from the real question which is

essentially one of credibility, by considering the fact that

those suspicious circumstances did exist. However, it is not

possible to lay down any general rule as to whether the jury

may consider other evidence, pointing to the guilt of the

accused, in deciding whether an alleged confession was

made; that must depend on all the facts of the particular

case. In the present case the fact that after the crime the

applicant to the knowledge of the police officers was in

possession of newly acquired wealth made it probable that

the police officers, who had formed suspicions as to his guilt,

would have questioned him as to the source of his

comparative affluence; it was therefore relevant to the issue

whether the applicant was truthful when he said that he was

not questioned at all. In the particular circumstances of this

case, therefore, it would not have been correct to direct the

jury that, in deciding whether the applicant was questioned

by the police officers and made admissions in response to

their questions, they could not give any consideration to the

evidence as to the change in his financial position.

On the other hand, if the jury had been told that they

might consider that evidence on this issue the trial judge

should have warned them of the danger of giving it undue

weight. Where an accused by his confession admits facts

not then known to his interrogators which are subsequently

found to be true, this circumstance affords strong evidence

that the confession was in fact made. Where, however, the

accused by his confession admits only facts already known to

his interrogators the probative value of the truth of what is

admitted on the issue whether the confession was in fact

made is less cogent and it should, in general, be excluded

from the jury's consideration of that issue in fairness to the

accused because its prejudicial effect in the minds of the jury

may well outweigh any probative value it has." (at p666)

32. The problem in the present case is that there was a contest on the question of whether the fact (i.e. that Whateley had informed against the escaping prisoners at Ararat) was not then known to Matusevich's interrogators. The preliminary fact therefore remained undetermined at the time of the charge to the jury. It could not be said that the lack of knowledge by the interrogators had been established; that was a matter which the jury would have had to determine independently as a separate question of fact. There could not be said to have been "any independent proof" (to use the expression contained in the judgment of the Court of Criminal Appeal in R. v. Kerr (No. 2) [1951] VicLawRp 31; (1951) VLR 239, at p 246 ) that the statement as to Whateley having informed against prisoners escaping at Ararat "was more likely to have come from him than to have been mentioned or suggested by the police". (at p666)

33. The situation thus falls somewhere between the two illustrations given in the joint judgment in Burns v. The Queen (1975) 132 CLR, at pp 263-264 and must therefore present a situation in which consideration should have been given by the trial judge to the exclusion of the evidence upon the ground referred to in the final sentence in the quotation which I have set out above. The transcript of the proceedings at the trial does not make it altogether clear on what basis the trial judge admitted this evidence. The discussion on this matter took place at the opening of the proceedings and in the absence of the jury. However, it was suggested to the trial judge at that stage that the Crown would also lead evidence to supply a "connecting link between Ararat and Pentridge" and in particular that there had been another prisoner in the hospital in D Division who had been transferred from Ararat to Pentridge so as to enable an inference to be drawn that he had or may have conveyed the information to Thompson and/or Matusevich as to the deceased's activities at Ararat. No such evidence was in the end led. On the basis of that discussion an admission was made by counsel for both defendants. His Honour said:

"But, in view of the possibility of linking the facts through

Robinson to the accused Matusevich, it appears to me that

this evidence has got some relevance in the sense that

without it you have evidence of Matusevich giving an answer

as to his motive, and that answer is left completely by itself

without any shadow or substance to indicate whether the

motive was such as to be an operating factor or likely to be

an operating factor."

It was subsequently pointed out to the trial judge that the supposed witness would be unlikely to say that he knew that Whateley had been an informer but notwithstanding that the trial judge said that he regarded the fact of the escape and of Whateley's informing about it as a relevant matter for the Crown to prove though he said, "There may be a missing link". At the end of that discussion counsel for both defendants indicated that they were prepared to make an admission that "three prisoners escaped from Ararat and that Whateley was a prisoner at that time in Ararat". In his charge to the jury the trial judge said that it had been admitted by both the accused:

"...that he (i.e. Whateley) had on 31st October been a

prisoner at Ararat gaol, and that on that date three prisoners

escaped and that he had raised the alarm in relation to the

said escape. Now, because counsel for the two accused

admit those admissions, it does not mean that any inference

should be drawn against either of the accused in relation to

them."

The transcript of the hearing however does not reveal that an admission in that form was in fact made but no objection was taken to this part of the charge to the jury. After the opening address by the prosecutor he mentioned to the jury with the consent of the trial judge that there had been certain admissions with respect to "four matters" and he gave particulars, which were that Whateley in fact died on 12th November 1974 as a result of injuries received by him on that day, that the deceased was in fact Whateley who was a prisoner in D Division Hospital on 12th November and that a test of the deceased's blood had shown no alcohol present, and that the deceased was a prisoner at Ararat prison on the night three prisoners escaped from Ararat prison. No further admission is contained in the transcript of evidence placed before us but, notwithstanding that, the trial judge in his charge to the jury said:

"Now it might be convenient to start off with the

admissions, and you will remember that it is admitted by

both accused that the deceased died on 12th November as a

result of injuries received while he was a prisoner in Ward 1

of 'D' Division at Pentridge; that he is the person named in

the presentment filed in this Court; that when his blood

was analysed there was no trace of alcohol, and finally that

he had on 31st October been a prisoner at Ararat gaol, and

that on that date three prisoners escaped and that he had

raised the alarm in relation to the said escape. Now,

because counsel for the two accused admit those admissions,

it does not mean that any inference should be drawn against

either of the accused in relation to them." (at p668)

34. The case was argued so far as one can tell before the Court of Criminal Appeal upon the footing that the admission actually made was in the form contained in the trial judge's direction and for this Court the matter was argued upon that basis. The references which I have made are to the transcript of the proceedings as furnished to this Court. Just prior to the accused, Matusevich, giving evidence, the prosecutor said to the trial judge that he had arranged for the admissions to be typed but whether that was done and what became of the typed admissions does not appear. It is said at that same point that the prosecutor had referred to these admissions in his opening but that opening has not been recorded. In these unsatisfactory circumstances it does not appear desirable that this Court should proceed upon the basis that the admissions referred to in the charge were actually made, notwithstanding the failure to object to that form of charge. (at p668)

35. If there were no other grounds which constituted a basis for granting special leave to appeal I would regard it as necessary to consider more fully how this particular aspect of the matter should be dealt with. In view of the fact that I regard the other matters to which I have referred above as themselves a sufficient basis for granting special leave it is not necessary or desirable to pursue this particular matter further in view of the uncertainty as to the nature of the admission which was actually made or to consider whether the admission of this particular evidence was unduly prejudicial to the accused. It is enough for present purposes to say that, assuming the admission to have been made in the form in which it is set out in the charge to the jury, the direction was inadequate as to the manner in which it might be used in view of the fact that the preliminary question upon which its admissibility depended could not be regarded as having been determined and no direction was given to the jury as to how in the circumstances they could properly use the material. (at p669)

36. For the reasons set out above I am of opinion that special leave should be granted and that the appeal should be allowed. (at p669)

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Order that verdict of guilty of and conviction for murder and sentence thereon by the Supreme Court of Victoria be quashed and in lieu thereof order that the matter be remitted to that Court for retrial.