Judgments - Regina v. Randall (Respondent)(On Appeal from the Court of Appeal (Criminal Division))

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    32.  Neale can be contrasted with R v Murray [1995] RTR 239. The facts are conveniently summarised in the headnote as follows:

    "After an incident involving two motor cars the appellant, the driver of one of the cars, was charged with reckless driving and unlawful wounding. By his defence he alleged that the other driver's reckless driving and the frightening behaviour of that driver and his passenger caused him, the appellant, to drive recklessly out of fear; further, that when the vehicles came to a halt he was assaulted by the passenger; and that the injury to that passenger, which gave rise to the charge of unlawful wounding, was caused when he, the appellant, reversed his car in order to escape from that assault. At a trial of the appellant, which terminated when the jury had to be discharged, the other driver gave evidence and was cross-examined as to his credit by the introduction of his previous convictions. At the subsequent trial the other driver was absent but evidence for the prosecution was given by the passenger. An application by the defence for leave to cross-examine a police officer as to the previous convictions of the other driver was refused on the ground that the evidence was not relevant to the issue to be determined by the jury. The appellant was convicted on both counts."

The previous convictions of the other driver included burglary, theft of a shotgun and possession of a firearm within five years of release from Borstal. Counsel argued that this driver's bad record made it more likely that the accused's account was correct. The Court of Appeal allowed the appeal against conviction of reckless driving. Giving the judgment of the court Alliott J, who sat with Russell LJ and Mance J, observed that the evidence:

    "might have assisted the jury in the determination of the fundamental issue, namely, whether the pursuing driver did in fact create such a situation that the appellant did act under duress."

The contested material had in common sense a bearing on the issues in the case.

    33.  For these reasons I would hold that the Court of Appeal came to the right conclusion and that Kennedy LJ stated the law correctly.

    34.  I am reinforced in this conclusion by the fact that a broadly similar view has prevailed elsewhere in the Commonwealth: see R v Kendall and McKay (1987) 35 CCC (3d) 105; R v Crawford [1995] 1 SCR 858; R v Leon-Uzarraga and Lopez (1998) 104 BCCA 81; R v Suzack and Pennett (2000) 128 OAC 140; R v Darrington and McGauley [1980] VR 353; R v Gibb and McKenzie [1983] 2 VR 155; R v Bannon and Calder (unreported) 21 September 1993, Supreme Court of Victoria.

    35.  For the avoidance of doubt I would further add that in my view where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries.

    36.  In the Court of Appeal the Crown advanced an alternative argument which was summarised by Kennedy J as follows, at p 449, para 26:

    "…the dishonest and violent offending which under cross-examination Glean was constrained to admit was wholly different from the violence suffered by Barber. Glean was a violent burglar or robber, who operated as part of an armed team, and may have exhibited a propensity to violence in the course of theft, but he had no history of inflicting gratuitous violence in the street on his own, so the judge was right to direct the jury as he did."

The Crown did not pursue this argument before the House.

Disposal.

    37.  At the end of the oral hearing the Appellate Committee concluded that the appeal of the Crown should be dismissed for reasons to be given later. My reasons for assenting to that conclusion are set out in this opinion.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    38.  I agree with the reasons given by my noble and learned friend Lord Steyn for the announcement at the end of the oral hearing that this appeal would be dismissed.

LORD SCOTT OF FOSCOTE

My Lords,

    39.  I have had the advantage of reading in advance the opinion of my noble and learned friend, Lord Steyn. I am in full agreement with the reasons he has given for the dismissal of this appeal.

LORD RODGER OF EARLSFERRY

My Lords,

 
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