Murdoch v Taylor
| Jurisdiction | England & Wales |
| Judge | Lord Evershed,Lord Reid,Lord Morris of Borth-y-Gest,Lord Pearce |
| Judgment Date | 01 February 1965 |
| Judgment citation (vLex) | [1965] UKHL J0201-1 |
| Date | 01 February 1965 |
| Court | House of Lords |
[1965] UKHL J0201-1
Lord Reid
Lord Evershed
Lord Morris of Borth-y-Gest
Lord Pearce
Lord Donovan
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Murdoch against Taylor (on Appeal from the Court of Criminal Appeal), that the Committee had heard Counsel, as well on Wednesday the 9th as on Thursday the 10th, days of December last, upon the Petition and Appeal of Adam Murdoch, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Criminal Appeal, of the 19th of October 1964, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of Donald Taylor, the Respondent in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Criminal Appeal, of the 19th day of October 1964, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
Two questions of law are before your Lordships in this case. On the question of the discretion of the Court I entirely agree with the view expressed by my noble and learned friend Lord Donovan. But on the other question I find great difficulty in agreeing with what I understand to be the unanimous view of your Lordships. The words which we have to construe are those of section 1 ( f) (iii) of the Criminal Evidence Act 1898—"he has given evidence against any other person charged with the same offence". In proviso ( e) of the same section there is reference to any question which "would tend to criminate", and I have difficulty in believing that the word "against" in proviso ( f) (iii) could have been used if the intention had been that this proviso should apply to all evidence which would tend to criminate the co-accused. If that had been the intention the obvious course would have been to say "tending to criminate" instead of "against". And there are other reasons which tend to strengthen my doubts. If this provision has this wide meaning an accused person with previous convictions, whose story contradicts in any material respect the story of a co-accused who has not yet been convicted, will find it almost impossible to defend himself, and if he elects not to give evidence his plight will be just as bad. But I have been unable to find any satisfactory solution for the problem set by this proviso and therefore I shall not dissent.
My Lords,
I have had the opportunity of reading the opinion of my noble and learned friend, Lord Donovan, with which I agree.
My Lords,
As a result of the provisions of the Criminal Evidence Act, 1898, the Appellant was a competent witness for the defence though he could not have been called as a witness except upon his own application. He chose to give evidence. He then qualified to enjoy the provisional immunity given by section 1 ( f) of the Act. The Appellant was charged jointly with Lynch. In Count 1 of the Indictment they were charged with receiving cameras knowing the same to have been stolen. The moment came when counsel for Lynch proposed to ask the Appellant certain questions "tending to show" that he had committed or been convicted of or been charged with an offence or offences other than that wherewith he was then charged or was of bad character. Section 1 ( f) of the Act expressly forbade any such questions unless at the time of putting them certain conditions were satisfied. In the circumstances of the present case the questions could not be put unless it could at that time fairly and properly have been said of the Appellant that he had given evidence against Lynch.
It is to be remembered that section 1 ( f) of the Act refers only to a person who is charged with an offence and who is called (upon his own application) as a witness for the defence. One situation in which such a person loses the protection given to him is where he has given evidence against any other person charged with the same offence.
If an accused person becomes a witness his sworn testimony, if admissible, becomes a part of the evidence in the case. What he says in cross-examination is just as much a part of that evidence as is what he says in examination in chief. The word "against" is one that is well understood. It is a clear and robust word. It has more decisiveness than is possessed by such phrases as "tending to show" or "such as to involve". It is a word that needs neither explanation nor translation. It calls for no synonym.
The Act does not call for any investigation as to the motives or wishes which may have prompted the giving of evidence against another person charged with the same offence. It is the nature of the evidence that must be considered. Its character does not change according as to whether it is the product of pained reluctance or of malevolent eagerness. If while ignoring anything trivial or casual the positive evidence given by the witness would rationally have to be included in any survey or summary of the evidence in the case which, if accepted, would warrant the conviction of the "other person charged with the same offence" then the witness would have given evidence against such other person. Such other person would then have that additional testimony against him. From his point of view that testimony would be just as damaging whether given with regret or whether given with relish. Such other person might then wish, in order to defend himself, to show that credence ought not to be attached to the evidence which had been given against him. In such circumstances the Act removes one barrier which would otherwise be in his way.
It may be noted that if A and B are jointly charged with the same offence and if A chooses to give evidence which is purely in defence of himself and is not evidence against B he may be asked questions in cross-examination by B notwithstanding that such questions would tend to criminate him (A) as to the offence charged. In similar circumstances B would be likewise placed. But questions of the kind denoted by section 1( f) could not be put. No doubt during any such cross-examination a judge would be alert to protect a witness from being cajoled into saying more than it was ever his plan or wish or intention to say.
If an accused person when giving evidence for the defence has given evidence against any other person charged with the same offence the question arises whether the latter needs the permission of the Court before putting to the witness any question of the kind denoted in section 1( f). In my judgment, he must have liberty to defend himself by such legitimate means as he thinks it wise to employ. This does not, however, mean that the judge has no function to discharge. In the first place it will be for him to rule as a matter of law whether a witness has or has not given evidence against any other person charged with the same offence. In the present case I consider that it could fairly and properly be said that the Appellant had given evidence against Lynch. In the second place, it is always for a judge to rule in regard to the relevance of any evidence and therefore in regard to the propriety of any question which it is desired to ask. Section 1( f) of the Act provides that except in particular circumstances certain questions may not be asked. The section does not state that in the particular circumstances certain questions may be asked. The test of relevance must always be satisfied. As was said by Viscount Sankey L.C. in his speech in Maxwell v The Director of Public Prosecutions [1935] A.C. 309, 319—"… it does not follow that when the absolute prohibition is superseded by a permission, that the permission is as absolute as the prohibition. When it is sought to justify a question it must not only be brought within the terms of the permission, but also must be capable of justification according to the general rules of evidence and in particular must satisfy the test of relevance." In some cases proof that a person has committed or been convicted of some other offence is admissible evidence to show that he is guilty of the offence of which he is then charged. In the circumstances now being considered the purpose of a co-accused person in putting any questions of the kind denoted in section 1( f) must be to discredit someone who has given evidence against him. It is therefore for a judge to rule as to the relevance of any proposed questions. In doing so he will have in mind the words of Lord Sankey in Maxwell's case (at page 321)—
"And in general no question whether a prisoner has been convicted or charged or acquitted should be asked or, if asked, allowed by the judge, who has a discretion under proviso ( f), unless it helps to elucidate the particular issue which the jury is investigating, or goes to credibility, that is, tends to show that he is not to be believed on his oath; indeed the question whether a man has been convicted, charged or acquitted ought not to be admitted, even if it goes to credibility, if there is any risk of the jury being misled into thinking that it goes not to credibility but to the probability of his having committed the offence of which he is charged."
The result, in my judgment, is that where it is claimed that an accused person has given evidence against another person charged with the same offence and it is desired to put questions of the kind...
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