DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   The defendant is before the court charged with an offence of serious assault. That is particularised as an offence of spitting blood and saliva at and into the face of a police officer: Constable Pratt. The defendant applies pursuant to s 590AA of the Code for rulings as to:

1. Permission to cross-examine the main prosecution witnesses, the police officers Pratt and Fogg, as to their involvement in the arrest and charging of another person with a similar allegation, also arising out of their attendance at and near to a Noosa nightclub in the early hours of 13 March 2011; and
2. The admissibility of the fact that at the trial of the other defendant in respect of this allegation, he was acquitted by jury verdict.

2. [2]
   The defendant has previously stood trial for this alleged offence, with the jury being unable to agree upon a verdict and being discharged on 8 December 2011.

3. [3]
   This application focuses on the circumstances and outcome of a similar allegation made against one Ryan Cameron Cherry (“Cherry”), who was subsequently to the defendant, also tried in the District Court at Maroochydore and acquitted, by jury verdict on 12 January 2012.

4. [4]
   The defendant relies upon the circumstances that the arrest and charging of Cherry arose out of interactions with the same two police officers (working together) who were involved in his arrest and charging, those interactions occurring within about 15 minutes of those relating to the defendant’s arrest and in the vicinity of the same nightclub at Noosa.

5. [5]
   In the case of Cherry, the interactions of the police with him occurred in the course of his arrest for another offence, whereas the evidence relating to the defendant is that his alleged offence occurred when he was approached by the police officers, after having been ejected from the nightclub in a state where he had a facial injury which had caused bleeding around his mouth and when the police officers were seeking to obtain identification details from him and to enquire as to whether he needed assistance. However, both the defendant and Cherry were charged with offences of serious assault particularised as spitting blood and saliva at and into the face of a police officer. In the case of the defendant, it is Constable Pratt, and in the case of Cherry, it was Constable Fogg. But, as has been noted, it is common ground that these police officers were working together as a team on the night in question. It can also be noted that in the case of Cherry, he had also been injured such that he had blood around the area of his mouth prior to and at the time of his interactions with the police officers.

6. [6]
   Accordingly in each case, the prosecution case depended upon the evidence of the respective complainant police officer in observation of and then description of actions indicative of a deliberate spitting of blood and saliva at and into his face, by an, at the time, angry and agitated young man and the extent to which those observations and descriptions were supported by his work partner.

7. [7]
   In his written submissions, counsel for the applicant defendant extracted the following evidence from the transcript of the prior trial of his client, as to the alleged spit:

1. (a)
   From the evidence of Constable Pratt:

• ‘He paused for a split second looked me straight in the eye, and then spat into my face.‘
• ‘Can you see anything in those photographs relating to the spit that landed on your face?  - Some of those speckles may have been – as – as he spat into my face, that was – that was the spray. It wasn’t solid globule of spit.’
• ‘He may have been spitting on the ground as I was talking to him saying, “Mate, are you okay?” But after I’ve asked him to stop spitting, the next thing was he spat into my face.‘
• ‘It wasn’t a big blob? – No, it wasn’t. It was ...‘ ‘It was spray? – There was a difference between when I had that first interaction with him and he was talking and as he shouted at me that spray has landed on me. This was a deliberate - like that it came out as a spray.’
• ‘No, your client looked me straight in the eye, there was a – pause, and then he spat directly into my face.’
• ‘I couldn’t believe somebody had spat into my face like that.........No, No He looked at me directly in the face....................He spat. I saw him spit and then I felt the spray on my face...........He spat. I saw him spit and then I felt the spray on my face.............No, I saw the action of that action............as he jerked his head forward. And then the sprays hit me in the face, and that’s instantaneous.’; and

2. (b)
   From the evidence of Constable Fogg:

• ‘The accused was looking down and he began to spit, to spit the blood away....from him, and he spat probably two or three times before Senior Constable Pratt asked him to cease and said ”you’ve’, some had got onto the bottom of his uniform.......asked him to cease to the high – high.....”Hey mate, stop spitting, there’s – there’s blood going everywhere, words to the effect.--- At which point the male person lifted his head ---- there was a pause, they made eye contact and then that’s when he appeared to spit. ---- spat at Senior Constable Pratt in the face.-----I saw him spit, which – blood from his mouth-----into the face of Senior Constable Pratt’.
• It’s your evidence you saw him spit at him, are you saying? – Yes.‘

8. [8]
   He also extracted the following from the evidence given in the Cherry trial, in respect of the allegation of spitting:

1. (a)
   From the evidence of Constable Fogg:

• ‘I’ve then grabbed hold of the male person, placed him on to the front of the police vehicle, at which point that’s infuriated the defendant and he’s lunged at me shouting, before he spat into my face..............and you say he spat? – Yes – What indicated that to you? – Because there was like a spray of liquid hit my face and he’d lunged at me.’
• ‘Now, we saw a movement from the accused, just then? -- Yes (exhibit 3 played, video from police vehicle) – What’s happened at that point in time? – That’s the point in time where he’s broken free from Senior Constable Pratt, and lunged at me, screaming, before spitting at me.’
• ‘Okay. Now, did anything hit you in the face? – Yes, there was like a spray of liquid.’
• ‘But I further suggest to you that he didn’t actually spit on your face or – blood or saliva? – You can suggest that, but it’s not true.’

2. (b)
   From the evidence of Constable Pratt:

• ‘Placed him across the bonnet of the police van which is normal procedure. Prior to placing anybody into a police vehicle, we conduct a quick search to make sure they’ve got no- no weapons on them. And that was when he’s then lunged forward and spat at Constable Fogg.’
• ’How do you know he spat in Mr Fogg’s face? – From Constable’s Fogg’s reaction. Straightaway, he’s kind of pulled back. I could see he had spit and blood on his face that hadn’t been there prior to that. And with the lunging forward motion, it – it’s blatantly obvious what happened; that he’d spat into his face.’
• ‘And that’s where he’s restrained the other person? – Yes, and that’s the spit’ (reference as to video from Police Car, at 1:29:19 to 20 seconds).
• ‘Yes, I was, because, as he’s lunged up, I – I was looking up, and as he’s lunged, he – he’s twisted a little bit and lunged his head forward, extended his neck. And as he spat into the face of Constable Fogg, that’s when I’ve – I’ve seen that..............But that’s as he’s lunged forward, and I’ve seen the spit. I’ve seen Constable Fogg kind of stop for a split second, and that’s when I’ve moved the defendant around so that he can’t spit again.’
• ‘He was stood up and he was walked through the back still struggling; placed against the car. That’s when he’s then spat at Constable Fogg and he was then spun around again and, in the act of spitting, we’ve both kind of stumbled to the ground.’
• ‘The original spit into Constable Fogg’s face, is at the side of the Police Vehicle? - Yes.’
• ‘No, he definitely spat into Constable’s Fogg’s face.’

3. (c)
   From the evidence of Cherry:

• ‘And in terms of the assertion that you spat at the officer, do you have any recollection in relation to that? – I no, no, I don’t, but I from – I – I knew within myself that I didn’t do it, from the very start. I – I never doubted myself that I spat on a Police Officer..............Yes? – But I do not recall doing it.’

The Application

9. [9]
   The defendant appropriately makes this application because he correctly understands that at his retrial, which is now listed for the week commencing 30 July 2012, the prosecution would object to his proposed course of action.

10. [10]
    In essence, the bases of the application (at its outset) may be summarised as follows:

1. By reference to the decision in Knight v Jones; ex parte Jones [1981] Qd R 98 the evidence relating to the interactions of the police officers with Cherry and their evidence relating to those interactions are relevant to showing a disposition or propensity (whether properly described as similar fact or not) of the prosecution witnesses to act in a certain way;
2. To the extent that such cross-examination (and/or adduction of evidence to support the contentions put to the Crown witnesses, if not agreed) is relevant to the credit of these prosecution witnesses, reference to the decisions in R v Lawrence [2002] 2 Qd R 400 and Nicholls and Coates v R (2005) 219 CLR 196 support the admissibility of the evidence sought to be adduced, having regard to the centrality of the evidence of these prosecution witnesses to the allegation of spitting by the defendant.
3. In order to provide the attenuation of the credit of these key Crown witnesses, reference to the acquittal of Cherry should be allowed, relying on the decision in R v Edwards [1991] 2 All ER 266 and the adoption of relevant statements of principle drawn from that case in Australian decisions such as R v Polley (1997) 68 SASR 227, R v Roberts; R v Urbanec (2004) 9 VR 295 and Roberts v The State of Western Australia (2005) 29 WAR 445.

11. [11]
    However and as fairly and properly conceded by the defendant, as his argument developed, this application critically depends upon him being allowed to cross-examine the police officers and establish the fact of the acquittal of the defendant, Cherry. That is the way in which the defendant contends that the relevant attenuation of the credit of the police officers can be achieved, because of the contextual similarities in the circumstances in which each allegation arose and their temporal proximity.

Discussion

12. [12]
    Decisions such as Wakeley v R (1990) 64 ALJR 321 are demonstrative of the usual rule that a witness may be cross-examined about any relevant issue, including as to his or her credit. That rule is subject to the limitations recognised in s 20 and s 21 of the Evidence Act 1997 (Qld). Further and as the decision in Nicholls demonstrates there is a need for cross-examination to properly identify the basis upon which the evidence of a witness is challenged in order to enable evidence in rebuttal of denial of any propositions so put. This is particularly so in relation to the issue of proof of prior inconsistent statements, as regulated by s 18 of the Evidence Act and more generally in relation to other circumstances which are suggested as attenuating the credit of the witness.

13. [13]
    However, the overarching determinant of admissibility is the principle of relevance. That is a matter stressed by the respondent to this application and the essence of the submission of the respondent is that the proposed course of cross-examination of the police officers is neither relevant to any issue in the trial or fact relating to an issue in the trial and further not relevant to the credit of these police witnesses.

14. [14]
    As the application was further developed in the course of written and oral submissions, it became clear that the defendant did not persist in separately contending for admissibility on the basis discussed in Knight v Jones and R v Harmer (1985) 28 A Crim R 35, being the proof of some characteristic, disposition or propensity of the witnesses, as being relevant to any issue or fact in issue in the trial.

15. [15]
    In this regard the position stated by the defendant’s counsel was as to reliance upon the approach of the court in Lawrence in treating the result in Knight v Jones as being better explained by reference to the exceptions to the rule of finality in relation to collateral matters and the recognition of exception to that rule. In particular, reliance is placed on the following observations of Thomas JA:-

“… statements in appellate courts that ‘the credibility of the complainants’ account was the critical issue’ are now common place. It seems to me that when such a case comes down to the word of the complainant against the word of the accused, there are some circumstances in which collateral conduct of the complainant may properly be regarded as going to the central issue of guilt or innocence. The real difficulty is in drawing the line between matters that merely have a serious effect upon credit and those which should be identified as manifesting corruption, bias or some other recognised exception to the finality rule.

[32]In a criminal trial the defence may call evidence showing that a prosecuting policeman has been prepared to go to improper lengths to secure a conviction. Such evidence is not always limited to improper conduct in the course of the subject prosecution, at least if the improper conduct is indicative of a method or propensity. The Queensland decision of Knight v Jones, ex parte Jones is in my view supportable on this basis, although the stated basis of the decision is that evidence of the improper activity of the arresting policeman on other occasions should be received as ‘similar fact evidence’. The court, in reliance upon Lowery v The Queen, acknowledged that while the Crown would not have been permitted to call such habit or propensity evidence (because a jury might place too much weight on it), it was a different matter if the accused were to adduce such evidence because the policy behind the rule no longer applied. The decision has been criticised as ‘marginal’. Its result is in my view more readily justifiable on the footing that the evidence revealed a corrupt or tainted prosecution. The propriety of receiving evidence that can impugn the reliability of the investigation or ‘taint the investigation’ has been recognised in Wakeley v The Queen, even when the precise basis upon which it is said to be tainted may be difficult to define. Wakeley was concerned with the adduction of such evidence by cross-examination, but evidence of that kind was treated by the court as a legitimate issue in the trial going to matters over and above the credit of particular witnesses.”^[1]

16. [16]
    To that end, the defendant points to the observations of the majority judges in Nicholls as supportive of a more flexible rather than rigid approach to relaxation of the severity of the rule of finality in respect of collateral matters.^[2]  Although it should be noted that in Nicholls^[3] Gleeson CJ said:

“[2] As will appear from a reading of the reasons of the other members of the Court, the decision to dismiss the appeal in Nicholls v The Queen, which turns upon the matter of collateral evidence, is unanimous. In the course of argument, we were invited by counsel to re-define the collateral evidence rule, characterising it, not as a rule of law, but as a guide to discretionary case management. That invitation has been declined by six members of the Court. Alternatively, it was argued that the excluded evidence fell within one or more of the exceptions to the collateral evidence rule, specifically those relating to bias, interest or corruption. That submission took a number of forms, and has met with somewhat different responses, but, in the view of all members of the Court, it must fail in any event because, in the cross-examination of the critical witness, no proper foundation was laid for the tender of the evidence in question.”

17. [17]
    However, it is not necessary to dwell upon these considerations. It can be noted that the defendant seeks to identify the relevance of the proposed course of cross-examination and, if necessary adduction of evidence, as follows:-

“In the present matter the defence wish to show that although the officers in Fiumara and Cherry may have been struck by spittle and blood about their face; both incidents arose when the accused were speaking or shouting at police and as a result of injuries of the respective accused and blood about their mouths. There was no deliberate spitting. However the police involved have assumed and then adopted or manufactured a version of a deliberate spit on each occasion.”

18. [18]
    The reason why it is not necessary to dwell upon questions as to the exceptions to the rule against finality on collateral matters and/or the flexibility with which such a rule might be applied, is that it is not in contention on this application that, should the evidence which the defence seek to adduce (whether by cross-examination or otherwise) have capacity to prove that the police officers have assumed and then adopted or manufactured a false version of deliberate spitting, then it would be admissible.

19. [19]
    Rather the respondent contends that the proposed line of cross-examination and any evidence that might be sought to be adduced in support of it does not have that capacity or relevance.

20. [20]
    It is also necessary to understand that in the trial of Cherry and in addition to the evidence of the police officers there was evidence of some recorded images of the relevant events, which apparently portrayed more detail of those events than is available by way of security video footage in the present case. The defendant specifically does not seek any ruling that the police witnesses may be subjected to cross-examination upon the recorded imagery itself and any inconsistency or discrepancy that such imagery presents to their evidence as to what occurred in the interaction with Cherry, except perhaps to the extent that it was suggested that it may be necessary to deal with that evidence in fairness to any cross-examination of the police officers which is otherwise allowed. It was fairly and properly conceded by the defendant’s counsel that the recorded imagery is effectively, for his purposes, neutral as to what he seeks to achieve by making this application. For this reason, as I understood it, he declined an invitation to place a copy of that recording in evidence on this application and the respondent likewise saw no point in doing so.

Reliance on a jury verdict?

21. [21]
    Accordingly and as conceded by the applicant, this application depends upon the admissibility of the fact of the acquittal in Cherry’s trial, whether by way of cross-examination of the police witnesses or otherwise, if not proved by cross-examination.

22. [22]
    In support of the contention this should be permitted, the applicant relies upon R v Edwards [1991] 2 All ER 266 and particularly the following passage from the judgment of the Court of Appeal, delivered by Lord Lane CJ:

“Relevance, and therefore admissibility, is a matter of degree and has to be considered not by rule of thumb but against the background of each individual case. One of the considerations, we repeat, is the necessity of keeping the criminal process within proper bounds and avoiding the pursuit of side issues which are only of marginal relevance to the jury’s decision. It will accordingly, as the judgment in R v Thorne (1977) 66 Cr App Rep 6 made clear, be rare that the judge in his discretion will allow cross-examination about the activities of a witness in other cases and the outcome of those cases. The reason is that an acquittal, save in exceptional circumstances, by no means necessarily means that the jury has disbelieved the police officer who has given evidence of the defendant’s admissions.

So far as the R v Parchment and R v Khan are concerned, these two cases, in our judgment, falls fairly and squarely within the decision in R v Thorne. The fact that the Court of Appeal was not satisfied about aspects of the police evidence provides no proper foundation for the cross-examination of individual officers as to their veracity in general or the truthfulness of their evidence in the instant case. Such cross-examination would not properly have been permitted.

Different considerations however apply to the other two cases, R v Dandy and R v Jones. In our judgment, if the circumstances surrounding those two cases which we have described had been known to the defence, it would have been relevant and admissible to put them to the officers in question that they had given evidence in the trials, that in each of the trials there was an issue as to whether alleged confessions had been fabricated and that the trials had ended in the way described. There was in each case a sufficient connection between the evidence given by the police officers and the eventual outcome of the trial to entitle the defence to cross-examine the officers concerned about these matters upon the question of their credibility in the instant case.^[4]”

23. [23]
    That case concerned a conviction based on disputed confessional material which was only recorded by way of police notes, which the appellant was alleged to have refused to adopt by signing. On the appeal, the appellant was concerned to traverse what he had subsequently learned of the outcome of other cases in which a similar issue had arisen and in respect of other investigations of a disciplinary kind relating to the conduct of the police officers involved in giving evidence at his trial and other members of the squad of which those officers were members.

24. [24]
    As explained in the judgment, each of the Dandy and Jones matters involved acquittals or discontinued prosecutions in circumstances where some of the same police witnesses were involved and where there was scientific evidence demonstrating the inaccuracy or fabrication of interview notes of disputed admissions. On the other hand and whilst the Parchment and Carne matters also involved similar witnesses, each was an instance of an appeal allowed on the basis of a conclusion of an unsafe or unsatisfactory conviction, because of concerns held as to the circumstances of and irregularities attending, obtaining and recording of alleged admissions. In the Parchment matter there was some scientific evidence obtained, after conviction, which alluded to some unresolved indicia of unreliability of the notes of interview.

25. [25]
    The obvious problem with attempting to place reliance on a jury verdict, is that there is nothing to indicate what conclusion formed the basis of it. To attempt to draw any conclusion from the bare fact of the jury verdict, some considerable reference has to be made to the circumstances of the Cherry matter and to do that, is to effectively invite a rehearing of that matter. Whilst in the submissions made for the appellant, it was recognised that it was not permissible to allow a re-litigation of the Cherry trial, it was also contended that it would be necessary to establish the similarity of circumstances relating to the allegation made against Cherry, in order to draw the necessary connotation from the jury verdict.

26. [26]
    In Edwards, the Court of Appeal recognised the difficulty:

“The test is primarily one of relevance, and this is so whether one is considering evidence in chief or questions in cross-examination. To be admissible questions must be relevant to the issue before the court.

Issues are of varying degrees of relevance or importance. A distinction has to be drawn between, on the one hand, the issue in the case upon which the jury will be pronouncing their verdict and, on the other hand, collateral issues of which the credibility of the witnesses may be one. Generally speaking, questions may be put to a witness as to any improper conduct of which he may have been guilty, for the purpose of testing his credit.

The limits to such questioning were defined by Sankey LJ in Hobbs v C T Tinling & Co Ltd, Hobbs v Nottingham Journal Ltd [1929] 2 KB 1 at 50–51, [1929] All ER Rep 33 at 56, as follows:

'The Court can always exercise its discretion to decide whether a question as to credit is one which the witness should be compelled to answer … in the exercise of its discretion the Court should have regard to the following considerations: “(1.) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies. (2.) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies. (3.) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence.'”

The distinction between the issue in the case and matters collateral to the issue is often difficult to draw, but it is of considerable importance. Where cross-examination is directed at collateral issues such as the credibility of the witness, as a rule the answers of the witness are final and evidence to contradict them will not be permitted (see Lawrence J in Harris v Tippett (1811) 2 Camp 637 at 638, 170 ER 1277 at 1278). The rule is necessary to confine the ambit of a trial within proper limits and to prevent the true issue from becoming submerged in a welter of detail.”^[5]

27. [27]
    Then and after concluding that in order to allow as far as possible, a fair and balanced picture of the reliability of witnesses, there was a discretion to allow cross-examination as to “discreditable conduct”, such as might be established by positive adverse findings made in disciplinary processes, but not on the basis of undetermined disciplinary or criminal charges or complaints or by reference to the discreditable conduct of other members of the same squad, the judgment in Edwards proceeds:

“There remains the problem of other cases in which the witness has, so to speak, unsuccessfully given evidence. We have the advantage in this respect of earlier decisions of this Court.

In R v Thorne (1977) 66 Cr App R 6 the judge at trial had refused an application by the defence to have a police officer recalled for further cross-examination about verdicts of acquittal which had been returned by other juries in other cases in which he had been involved. Lawton LJ in the course of giving judgments said [15]:

‘The fact that [the police officer] may have given evidence against other accused in other cases which did not lead to convictions, did not begin to prove that he was biased against any of the appellants in this case in any sense known to the law of evidence. The fact that a jury returns a verdict of not guilty does not go to prove that an important witness for the prosecution, albeit the sole witness, is a liar.’

The matter was further considered in R v Cooke (1986) 84 Cr App R 286, in which the earlier authorities, including R v Thorne, were considered. The facts in the case were these. A police officer had allegedly obtained admissions in interviews with a number of different accused persons about the same group of offences. The interviews were part of a connected series which took place over a short period of time. The various accused persons were not all tried together. Two of the other defendants were acquitted. The evidence against them had consisted almost entirely of admissions said to have been made by them to a police officer as to whose evidence the jury must plainly have had doubt. At the trial evidence was given by the same police officer of admissions allegedly made by Cooke. The trial judge refused leave to cross-examine the police officer about the circumstances of the acquittal of the other accused persons.

Upon appeal Parker LJ, giving the judgment of the court, said (at 291-292):

‘… It seems to us that where a police officer has allegedly obtained admissions on interviews about the same group of offences from different accused as part of a connected series of interviews over a short period, where those interviews are alleged to have been fabricated, and where the alleged admissions were the essential evidence against one or more of the accused who were nevertheless acquitted, justice demands that the jury should know this when they are considering a challenge by another accused to the truth of evidence of admissions said to have been made by him to the same officer at about the same time and about the same series of events.’

There it was the behaviour of the officer in what was to all intents and purposes the same case as that being tried which was the subject of the proposed cross-examination. That was therefore a limited extension of the principle expressed in R v Thorne.

The result of those two decisions seem to be this. The acquittal of a defendant in case A, where the prosecution case depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross-examination as to credit in case B. But where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact. However where the acquittal in the case A does not necessarily indicate that the jury disbelieved the officer, such cross-examination should not be allowed. In such a case the verdict of not guilty may mean no more than that the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying.”^[6]

28. [28]
    There has not been any further development of the issue of reliance on jury verdicts, in the Australian authorities. For example, the cases of R v Polley^[7] and R v Roberts; R v Urbanec^[8] were concerned with issues of admissibility of what was referred to in R v Edwards, as evidence of prior discreditable acts, whether established by prior findings in disciplinary process or by evidence admitted pursuant to the principles drawn from cases such as Knight v Jones; ex parte Jones^[9] and R v Harmer^[10] or by evidence of prior criminal convictions.

29. [29]
    In Roberts v The State of Western Australia^[11] a question arose as to the admissibility of earlier findings made in the Family Court which were said to be contradictory of the evidence relied upon in a criminal prosecution of the wife and particularly the evidence given by the complainant husband. Although the appeal was allowed on other grounds, the majority view^[12] was limited in support of the admissibility of prior findings in civil proceedings, as a general rule and in the particular circumstances of that case. After examining “the rule in Hollington v F Hewthorn and Co Ltd”,^[13] the extent to which that case had been followed in Western Australia and the relevant statutory provisions dealing with the admissibility of evidence of criminal convictions, McLure J observed:^[14]

“149The Evidence Act 1906 (WA) is silent on the subject and, as far as I am aware, the issue has not previously been considered by this Court. The rationale for the admissibility of a conviction does not apply where a finding against a person in civil proceedings is sought to be tendered as evidence of its truth in subsequent criminal proceedings against that person. However, in this case the trial Judge in the Family Court proceedings made findings in favour of the appellant and against the primary witness for the prosecution. That is, the jury was being asked to find against the appellant beyond reasonable doubt on some matters on which a Judge had found in her favour on the balance of probabilities.

150 Even so, I am satisfied there are compelling reasons for concluding that the authority findings made by Barlow J are inadmissible as evidence of their truth. Firstly, the strong policy and commonsense considerations that justify the admission of a conviction in subsequent civil proceedings do not apply for the reasons given by the ALRC. Secondly, it is difficult to see the grounds on which the jury could properly give the evidence any weight, it being an opinion of a (albeit expert) fact-finder on evidence that is not before the jury. Its admission cannot be reconciled with the standard directions to the jury to confine their consideration to the evidence given at trial and not to speculate on matters outside that evidence. Further, there would be significant practical difficulties in this case because the precise extent of the common factual overlap is unclear. According to the appellant, she had signed her husband's name on a large number of cheques for which she was not charged. Barlow J’s findings relate to unspecified occasions on which she had her husband's authority and others when she did not. It is impossible to relate the findings to the particular charges. I am satisfied the trial Judge did not err in refusing to admit the authority findings as evidence of truth.

151 However, where there is a positive adverse finding of discreditable conduct of a witness that is sufficiently connected with the matter in issue to be relevant to his credit, the Court may in the exercise of its discretion permit cross-examination: R v Ferri [2002] SASC 217; R v Edwards [1991] 1WLR 207. Whether or not rebuttal evidence can be tendered depends on whether the exceptions apply.

152 On the other hand, difficulties arise where the subject matter of the adverse finding directly overlaps with the facts in issue in the subsequent proceedings. That is so notwithstanding the only inference that can be drawn from cross-examination as to credit is whether the witness can be believed on his oath and no inference can be drawn in relation to the facts in issue. That is, disbelief does not amount to positive evidence of what is disbelieved: Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 at 87. However, there is an air of unreality about this distinction when the subject matter of the finding relates to the central fact in issue in the criminal proceedings on which there is a conflict of evidence between the main prosecution witness and the defendant. Even if evidence of adverse findings made in civil proceedings may be admissible as to credit, there are, in my opinion, strong discretionary grounds for excluding cross-examination about, or evidence of, the authority findings and any associated or interconnected findings made by Barlow J. That would not exclude all the findings. However, in the circumstances it is unnecessary to make a ruling on each relevant finding.”

30. [30]
    Those observations are not supportive of the general admissibility of evidence of jury verdicts, all the more so because of the absence of any expressed factual findings. Whilst the possibility was recognised in R v Edwards, it was also recognised that the occasions when such cross-examination would be permissible would be rare and the discussion of the circumstances arising in that case indicate that something more than a bare verdict of acquittal is required, such as some separately established fact which both reflects on the credit of the witness and provided the basis for the acquittal. In the English cases, that was particularly recognised when the sensitive subject of suggested falsification of confessional material was in issue and a basis was established for a conclusion that such conduct had been demonstrated, or effectively demonstrated, in other cases.

31. [31]
    Just as was the case in the earlier trial of this defendant, the issue for the jury in the trial of the defendant Cherry was as to whether they should, in all of the circumstances, be satisfied beyond reasonable doubt that the evidence of the police officers as to the acts of that defendant was, in the heat of the moment, correctly discerned and then later reliably described in evidence. In other words, the jury, in both cases, is necessarily concerned with the possibility of mistake. Such a possibility depends upon the particular circumstances relating to a particular allegation and is not logically influenced by regard to the separate circumstances of other similar allegations.

Conclusion

32. [32]
    In the circumstances relied upon here, it cannot be concluded that the jury verdict in Cherry’s trial necessarily carried any implication that the police officers were disbelieved, as opposed to the jury having a reasonable doubt about their evidence. Therefore it does not have capacity to prove that the police officers had adopted or manufactured a false version of deliberate spitting by either defendant.

33. [33]
    Accordingly, the application is dismissed. The proposed course of cross-examination is not relevant to any issue, including credit, and therefore not admissible.