ABSTRACT
Africa, was convicted at the County of London Sessions of entering a dwellinghouse by night with intent to steal, and he was sentenced to 18 months’ imprisonment. From that conviction he appeals to this court by leave of the court. [His Lordship stated the facts and continued:] The sole issue was: Had the appellant entered that night with intent to steal? The appellant was a man of poor intelligence. He was cross-examined, and the answers he gave were very unsatisfactory and not by any means always to the point. The suggestion which the prosecution sought to make was that he, the appellant, knew that it was no offence if he was just found sleeping on the premises. Again, the answers were: ‘I do not know’, and answers of that sort, and ultimately leave was sought to cross-examine the appellant as to a previous occasion on which he had been found on private premises and had been charged. In fact he had been acquitted, but it was sought to introduce this evidence to show that on the occasion of the previous charge he must have learned that to be on premises for an innocent purpose, such as sleeping, was in law no offence. The questions were allowed and the appellant was ultimately convicted. Whether or not those questions should have been allowed depends on the true interpretation of section 1 of the Criminal Evidence Act 1898 and, in particular, proviso (f) ... [T]he sole question is whether the questions became admissible by reason of the first exception, contained in paragraph (i) of proviso (f) ... That, as is well known, is directed to the common class of case where evidence of previous convictions is admissible to show system, and matters of that sort. It is to be observed that the exception deals only with the case where proof that the
accused has ‘committed or been convicted’ of another offence is admissible evidence. There is no reference in the exception to being ‘charged’ and, accordingly, it seems to this court that the prohibition against any of the matters in the first part of the proviso (f) is only lifted when it is sought to prove that the accused has committed or been convicted of the other offence. Provided that proof of that other offence is admissible evidence, it would be clearly proper as leading up to proof of conviction to say to the prisoner: ‘Were you charged?’ and, if the answer is, ‘Yes’, ‘Were you convicted?’; but it seems to this court quite impossible, under exception (i), to question a man in regard to a charge in respect of which he was acquitted. Reference has been made to Maxwell v Director of Public Prosecutions, and, in particular, to a passage in the speech of Viscount Sankey LC, where he said: ‘It does not result from this conclusion that the word “charged” in proviso (f) is otiose: it is clearly not so as regards the prohibition; and when the exceptions come into play, there may still be cases in which a prisoner may be asked about a charge as a step in cross-examination leading to a question whether he was convicted on the charge.’ Pausing there, if exception (i) came into play and it was sought to prove that the accused had been convicted of the previous offence, it would be perfectly possible leading up to that to ask him in the first place whether he had been charged. Viscount Sankey continued: ‘or in order to elicit some evidence as to statements made or evidence given by the prisoner in the course of the trial on a charge which failed, which tend to throw doubt on the evidence which he is actually giving, though cases of this last class must be rare and the cross-examination permissible only with great safeguards.’ The court has not found it altogether easy to understand what Viscount Sankey was referring to in that last passage, but it might well cover the case where the prohibition has been lifted by the prisoner putting his character in issue. True, he could not then be asked about the charge resulting in acquittal as negativing good character, because as has been said, such a charge or acquittal is merely a misfortune and does not tend to show bad character. But, the prohibition having been removed, it would be possible then to refer to a charge on which the prisoner had been acquitted in order to bring up evidence as to statements made at that trial which tended to conflict with the evidence which he was giving in the current trial. Read in that way, this court does not think that Maxwell’s case is in any way a proposition for the fact that questions may be put in regard to a charge resulting in an acquittal when the sole ground for removing the prohibition is exception (i), namely, proof that he has been charged and convicted of another offence. In these circumstances, the court feels that cross-examination in this case on the lines referred to was wrongly allowed ...9
