R. v. YIU Ka-yin

IN THE COURT OF APPEAL

1993 No. 237
(Criminal)

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C O R R I G E N D U M

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Page 14, last 2nd paragraph, 5th line, delete the 6th word 'accord' and substitute for it 'record'.

Dated this the 12th day of January 1994.

1993, No.237

(Criminal)

IN THE COURT OF APPEAL

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Coram: Hon. Penlington, J.A., Bewley and Sears, J.J. in court

Date of hearing: 17 November 1993

Date of judgment: 17 November 1993

Date of handing down reasons for judgment: 23 December 1993

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REASONS FOR JUDGMENT

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Bewley, J.:

1. This is an application for leave to appeal against conviction.

2. The applicant was convicted on 27th April 1993, following trial before Duffy. J. and a jury, on two counts of possession of dangerous drugs for the purpose of unlawful trafficking. He was sentenced to five year's and eight years' imprisonment, concurrent. In the first count the quantity of the mixture was 28.71 grammes and the narcotic content was 12.75 grammes. The drugs were alleged to have been in a paper envelope found in the applicant's pocket after a search. He was intercepted at 2.15 a.m. on 2nd May 1992 on 6th floor of Block 17, Yau Tong Estate by PC1835, who had been keeping watch on 7th floor as a member of a team on a special operation. He had been alerted by PC48247 who was at street level. The applicant was arrested and cautioned and said: "Give me a chance, the white powder is mine". But when the police constable tried to handcuff him the applicant struggled. PC48247 ran up to give assistance and the applicant was subdued. His wife was arrested on the ground floor.

3. Together with the inspector in charge of the party, the police constables took the applicant to the latter's flat in Tsing Lung Tau, where the drugs in count 2 were found. They were contained in five plastic bags. The quantity of the mixture was 116.13 grammes with a narcotic content of 50.82 grammes.

4. According to the police evidence the applicant said he did not want his baby daughter to be disturbed; he would tell them the location of the drugs and he pointed at the dining room cabinet. Here the drugs were found and the applicant was cautioned. He said they were his and had nothing to do with his wife who was present.

5. The applicant was later interviewed at Kwun Tong police station and he wrote cautioned statements in respect of each count which read:-

Count 1 -

"The white powder is mine and doesn't concern my wife LEE Pui-ling. The white powder is for my own consumption. I deliver there and earn $500- this time."

Count 2 -

"Those five packets of white powder are mine. My wife is completely in the dark. Those five packets of white powder were put over there by Ah Lung. If somebody want it, I'll deliver it so I can get $500- as the reward."

6. The applicant alleged that he was made to copy these statements following assaults by the police and the inducement that his wife would be released when he had written the statements. The judge found that both statements were made voluntarily and admitted them in evidence.

7. The applicant gave evidence on the general issue and said he had gone to Yau Tong Estate to lend money to a man whom he was to meet on 7th floor. He was assaulted and arrested by the police constable. The inspector later arrived with the envelope containing the dangerous drugs and said he had been caught red-handed.

8. When they reached the flat his wife asked the police not to disturb the child and said the things were in the cabinet. The applicant claimed he did not know what was in the plastic bags but he was struck by the police constable. He said he was forced to write the statements in the police station. He gave no other explanation for the presence of the drugs in the flat.

9. The judge permitted cross-examination of the applicant about his previous convictions on the grounds that he had asserted that the police had fabricated their evidence that the drugs, the subject of the first count, were on his person. He indicated, when granting the application, that he would probably not have been moved to grant it had it been based solely on the allegations of brutality.

10. The applicant had three previous convictions, including one for possession of dangerous drugs for unlawful trafficking in the Juvenile Court in 1981, when he was not yet 16. He had two convictions in 1984 for possession of an offensive weapon and for robbery. There is only one ground of appeal :-

"The learned Judge erred in law or in the exercise of his discretion in permitting the Crown to adduce, pursuant to section 54(1)(f) Criminal Procedure Ord Cap 221, the previous convictions, of the Applicant by cross-examination.

Particulars

(a) The Applicant's evidence did not amount to a sufficient basis for his shield against cross-examination as to his previous convictions, to be lost.

(b) Alternatively the Applicant's allegations only applied to Count One of the Indictment. There was no allegation by the Applicant in respect of count Two of the Indictment which was a significantly more serious charge. Transcript: 99A, 99P. In the circumstances, the Judge erred in the exercise of a proper discretion, as any decision in respect of Count One would necessarily expose the Applicant to unnecessary prejudice and risk in respect of count Two.

(c) Further some of the previous convictions adduced in evidence were so stale or dissimilar that the learned Judge failed to properly rule that they were more prejudicial than probative, in any event.

(d) In all the circumstances, the reception of the evidence, in the light of the summing-up, rendered the verdict unsafe and unsatisfactory."

11. We invited Mr Cheng Huan to address us first on behalf of the applicant on Ground 1(c). Having heard Mr Cross, for the Crown, in reply, we granted the application, treated it as the hearing of the appeal, allowed the appeal and quashed the convictions. We ordered a retrial. We said we would give reasons in writing which we now do.

12. Counsel for the applicant had no quarrel with the judge's direction to the jury as to how they should approach the applicant's previous convictions. He submitted however that the prejudice created by the drug conviction must have been so great that it could not be cured by a direction. Its impact moreover would have been disproportionate to its effect on the applicant's credibility.

13. The leading case ofSelvey v. D.P.P. [1970] AC 304 stated the following principles:

(1) The words of the statute must be given their ordinary natural meaning.

(2) The section permits cross-examination of the accused as to character both when imputations on the character of the prosecutor and his witness are cast to show their unreliability as witnesses independently of the evidence given by them and also when the casting of such imputations is necessary to enable the accused to establish his defence.

(3) In rape cases the accused can allege consent without placing himself in peril of such cross-examination.

(4) If what is said amounts in reality to no more than a denial of the charge, expressed, it may be, in emphatic language, it should not be regarded as coming within the section.

14. Mr Cross took us through the authorities commencing with R. v. Mui Yuen [1979] HKLR 8, in which Addison J. said at p.14:

"... I think the time has come in Hong Kong when courts should again more readily consider letting in evidence as to a defendant's bad character where by the nature or conduct of his defence he has cast imputations on the character of the police ..."

15. In R. v. Britzman [1983] 1 WLR 350 Lawton L.J. said at p.353:

"A defence to a criminal charge which suggests that prosecution witnesses have deliberately made up false evidence in order to secure a conviction must involve imputations on the characters of those witnesses with the consequence that the trial judge may, in the exercise of his discretion, allow prosecuting counsel to cross-examine the defendant about offences of which he has been convicted. In our judgment this is what Parliament intended should happen in most cases. When allegations of the fabrication of evidence are made against prosecution witnesses, as they often are these days, juries are entitled to know about the characters of those making them."

16. In R. v. Powell [1986] 82 CAR 165 the Lord Chief Justice approved the analysis of Ackner L.J. In R. v. Burke at p.161 of the same report:

"1. The trial judge must weigh the prejudicial effect of the questions against the damage done by the attack on the prosecution's witnesses, and must generally exercise his discretion so as to secure a trial that is fair both to the prosecution and the defence (thus approving the observations of Devlin J., as he then was, when giving the judgment of the full Court (five judges) of the Court of Criminal Appeal in Cook (1959) 43 Cr.App.R. 138, 143; [1959] 2 Q.B. 340, 345.

2. Cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused, even though there may be some tenuous grounds for holding it technically admissible (thus approving the observation made by Lord du Parcq, giving the opinion of the Privy Council in Noor Mohamed v. R. [1949] A.C. 182, at 192). Thus, although the position is established in law, still the putting of the questions as to character of the accused person may be fraught with results which immeasurably outweigh the results of questions put by the defence and which make a fair trial of the accused almost impossible (thus approving the observations of Singleton J. in Jenkins (1945) 31 Cr.App.R. 1, 15).

3. In the ordinary and normal case the trial judge may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked. It is obviously unfair that the jury should be left in the dark about an accused person's character if the conduct of his defence has attacked the character of the prosecutor or the witnesses for the prosecution within the meaning of the section (thus approving the observations of Singleton J. in Jenkins (supra) again at p.15).

4. In order to see if the conviction should be quashed, it is not enough that the Court thinks it would have exercised its discretion differently. The Court will not interfere with the exercise of a discretion by a judge below unless he has erred in principle, or there is no material on which he could properly have arrived at his decision (see Lord Dilhorne at page 469, quoting Pickford J. in Watson (1913) 8 Cr.App.R. 249, at p254 and Devlin J. in Cook (supra) at p.147)."

17. Mr Cross cited the dictum of Neill L.J. in R. v. Owen [1986] 83 CAR 100 at p.105:

"The fact that the accused's convictions are not for offences of dishonesty, but may be for offences bearing a close resemblance to the offences charged, are matters for the judge to take into consideration when exercising his discretion, but they certainly do not oblige the judge to disallow the proposed cross-examination: see Powell (supra)."

18. Finally the Crown relied on a passage in the judgment of Silke V.-P. in R. v. Tam Chung Shing [1991] 1 HKLR 458 at p.469:

"The question which a judge may well think it right to ask himself when such application is made is: Given the nature of the conviction will the putting of questions as to the character of an accused be fraught with results which immeasurably outweigh the result of questions put by the defence and which may make a fair trial of the accused almost impossible.

However, it is not for this Court to substitute its discretion for that of the trial judge unless his exercise of it has been shown to be wholly wrong."

19. Mr Cheng Huan accepted the principles in these authorities. He accepted that the judge had a discretion but he submitted that the discretion was wrongly exercised because the judge erred by not indicating that he bore in mind the importance of ensuring that the trial was fair and, in particular, the impact of an old drug conviction on the mind of a Hong Kong jury engaged in trying a similar charge. The critical nature of the exercise is described in a passage from the judgment of the majority of the High Court of Australia in Phillips v. R. [1962] ALR 479 at 488:

"In our opinion, the applicant has failed to show that the discretion was exercised wrongly. Whilst it is not for us to consider how we might have exercised the discretion we would observe that a critical consideration on the facts of the case was the weighing of the prejudicial effect on the defence of the admission of the evidence of prior convictions against the potential damage to the prosecution case of the imputations."

20. It was necessary therefore to look at how the judge approached the problem.

21. When counsel for the Crown had made his application to cross- examine the defendant on his record it was opposed by Mr Nguyen for the defence. The following exchange then took place:

"COURT: Mr Nguyen, the allegation quite clearly and unequivocally is that the police planted these drugs. That is a very serious allegation.

MR NGUYEN: In so far as the first packet is concerned, my Lord, yes. In so far as the five packets are concerned, it is not as clear as that.

COURT: Quite apart from the normal allegation of brutality.

MR NGUYEN: Yes.

COURT: The allegation in itself surely of the police planting the drugs is sufficient, is it not, to activate this sort of application?

MR NGUYEN: It may be sufficient, my Lord. I am saying in every criminal case, at least in Hong Kong, where there is a plea of not guilty, invariably the defence is: 'I didn't have possession of the drugs.' So it is implicit in that, that he must have said the police in some way fabricated .....

COURT: You make it sound as if that makes it normal. The fact that

....

MR NGUYEN: In a sense, yes, my Lord, because otherwise we will have every defendant in every criminal case being cross-examined on his previous convictions. the boundaries of running a defence as opposed to making an outright attack on the character of the police officers.

COURT: I can understand Mr Nguyen ....

MR NGUYEN: It is very....

COURT: This jury will be in no doubt whatsoever that you are saying that these policemen are fabricating the case against this man. They are deliberately fabricating ....

MR NGUYEN: In so far as the first packet is concerned, my Lord, yes.

COURT: It seems to me that they are very serious imputations on the character of the police officers in this case. I regard them to be serious myself, Mr Nguyen.

MR NGUYEN: My Lord ....

COURT: If it were true that these police officers did that, then they could go to prison for a very long time.

MR NGUYEN: If it can be proved, yes.

COURT: I don't agree with you, Mr Nguyen, that that is not a serious imputation on the character of the police officers. Forget for the moment all the allegations of brutality. If it was just that, I think I would not be moved to view sympathetically such an application, but if this should go much further than that ....

MR NGUYEN: Yes. My Lord, as I said, in just every criminal case in Hong Kong where the charge is possession of dangerous drugs or possession of other things where the defence is a denial of the possession, invariably you would have the imputation that the police somehow or other trumped up the charge against the defendant.

There is the other matter, my Lord, because if your Lordship looks at his previous convictions, your Lordship would see that the last two convictions are dissimilar. It is only the first one which is similar and that is back in 1981 when he was aged 15 because, my Lord ....

COURT: This jury are entitled to know the character of the man who is making these serious allegations against the police. In my view ....

MR NGUYEN: If the charge involves an element of dishonesty and if the accused has been previously convicted of other offences involving dishonesty, I can perhaps see the relevance of cross-examining him on his previous convictions.

But where the charge is trafficking in dangerous drugs, which doesn't involve an element of dishonesty, for instance, then the fact that he was convicted in 1981, 12 years ago, when he was 15, doesn't make it or doesn't show a greater likelihood that he would have committed these offences in 1992. Because apart from showing his character, there is also the question of what relevance has his previous convictions got to the present charges in front of the jury.

COURT: The jury must not jump to the conclusion that because he was convicted before, he must be guilty on this occasion. They will be carefully directed about that. But are they not entitled to know what sort of man he is that is saying that the police are planting drugs upon him?

MR NGUYEN: he fact that he has got previous convictions, my Lord, doesn't make his defence less truthful. He hasn't put himself up as a man of previously good character, he hasn't said anything like that.

COURT: e could, could he?

MR NGUYEN: y Lord, I am concerned with not only whether he has shown a way to shield, as it were, but the relevance of my learned friend being allowed to cross-examine him on his previous convictions because apart from character, there is also the question of whether these previous convictions might have any relevance to the charges now before the jury. One then talks about propensity and likelihood of the accused committing these offences just because 12 years ago he was convicted of a similar charge when he was only aged 15.

COURT: That is not the purpose for which they are put before the jury. The purpose is, as you know, Mr Nguyen, to establish that that is the sort of man - I repeat myself, it doesn't improve by repetition - that is the sort of man who is making this allegation, and the jury are entitled to know it.

MR NGUYEN: Isn't there a great danger, my Lord, that just because he has been convicted 12 years ago of a similar charge that the jury would have jumped to the conclusion while his - there is no need to consider the evidence any further?

COURT: I will direct the jury that that is not the way to approach the case. He has, as you say, Mr Nguyen, by his own action risked the removal of the shield. There is no point of having a section like 54(1)(f) if it is not used in cases such as these.

MR NGUYEN: My understanding, my Lord, I hope it accords with your Lordship's understanding of the practice in Hong Kong, it is only very sparingly of permission - the court will only sparingly allow such ....

COURT: I am guilty of that sparing use of this section myself, Mr Nguyen. I have very rarely in the past ever allowed the Crown to use this section, but I am moved on this occasion to a sympathetic approach to the Crown's application because of this very serious allegation.

MR NGUYEN: My Lord, I don't think I can ....

COURT: I think you can't persuade me, Mr Nguyen. I am going to grant the application.

MR WYETH: As your Lordship pleases.

COURT: The Crown may raise the question of the defendant's character when cross-examining him."

22. The judge does not appear to have distinguished the two counts. The applicant's record had no relevance to count 2, the more serious charge, in respect of which the applicant did not allege that the drugs had been planted yet the effect of the ruling was that his shield was taken away in respect of this count also. This was an important consideration in deciding whether to grant the application.

23. It was open to the judge to have limited cross-examination to the robbery convictions. That would have put the jury on notice that they were dealing with a man who had been guilty of dishonesty in the past and one whose word was not to be trusted. Mr Cross at one point in the argument appeared to be suggesting that such a course was not available to the judge and that it was all or nothing. He cited D.P.P. v. Stirland [1944] AC 315. That case however is authority for the proposition per Lord Simon at p.326-327:

"3. An accused who 'puts his character in issue' must be regarded as putting the whole of his past record in issue. He cannot assert his good conduct in certain respects without exposing himself to inquiry about the rest of his record so far as this tends to disprove a claim for good character."

24. Earlier at p.324 the Lord Chancellor said:

"It must not be forgotten that the judge presiding at a criminal trial has a discretion (as Lord Sankey said in Maxwell's case [1935] AC 321) to disallow questions addressed to the accused in cross-examination if he considers that such questions, having regard to the issues before the jury and to the risk of the jury being misled as to what those issues really are, would be unfair, and the judge's disallowance cannot be challenged on appeal."

25. Where a judge permits cross-examination as to character, following imputations on the character of the prosecution witnesses, he is not bound to permit the prosecutor to reveal all the defendant's previous convictions; it depends on the circumstances of the case. Here the judge does not seem to have considered allowing the Crown to cross-examine only about the robbery convictions.

26. The allegation of planting was part and parcel of the defence. If the drugs were not planted by the police, they must have been in the possession of the applicant. That is not to say that an allegation of attempting to pervert the course of justice may be made with impunity. Clearly, on the authority of Selvey that is not so, but it is something a judge should take into account when weighing the issues. It is not apparent that that was done in this case.

27. Mr Cross relies on a dictum of Pickford, J. in R. v. Watson [1913] 8 CAR 249 at p.254-255 cited by Viscount Dilhorne in Selvey:

"... in order to see if the conviction should be quashed it is not enough that the court should think it would have exercised its discretion differently. It is necessary to show that in law the cross-examination of the prisoner was inadmissible."

28. However Lord Dilhorne follows this and concludes his speech with a citation from the judgment of Devlin, J. in R. v. Cook [1959] 2 Q.B. 340 at p.348:

"It is well settled that this court will not interfere with the exercise of a discretion by the judge below unless he has erred in principle or there is no material on which he could properly have arrived at his decision."

29. It was the overriding duty of the judge to ensure a fair trial. The drug conviction, given the applicant's age at that time, would have had but slight effect on his credibility, whereas its prejudicial effect was enormous. Although Mr Nguyen raised most of these matters in opposing the application, I am unable to say, looking at the transcript, that the judge gave them proper consideration when making his ruling and I was therefore not satisfied that he exercised his discretion on a proper basis. The convictions were unsafe and unsatisfactory and for these reasons I was in favour of granting the application and allowing the appeal.

Sears J.

30. \ The principles on which this Court acts when reviewing a Judge's exercise of discretion are both well known and well established. This is not, however, a civil matter when the Court is only concerned with the outcome of a private 'lis' and will only interfere when it is clear that the Judge has failed to consider correct legal principles, or is plainly wrong. This Court in its criminal jurisdiction, should always have a more fundamental matter in mind, namely the right of any defendant to have, and be seen to have, a fair trial.

31. The allegation by this applicant was that he had been severely beaten by the police and his cautioned statement had been fabricated. However, in answer to his counsel he was asked -

Q. "Did they find that (P3 - the envelope containing heroin) on your person?

A. No."

and later

A. ...."the third witness then came up".

Q. Who do you mean by the third witness?

A. I mean the Inspector.

Q. Yes, what happened?

A. He was holding the envelope and said to me, "you are caught red-handed."

32. The Judge when an application to cross-examine was made said "Mr. Nguyen, the allegation quite clearly and unequivocally is that the police planted these drugs ....". I do not share the Judge's initial reaction that this was a clear allegation of planting - it was as consistent with the applicant stating that the Inspector was holding the envelope as evidence that the drugs were in his possession. I note that Counsel when pressed by the Judge accepted that the Defendant was alleging the planting of the envelope. I have read and re-read the evidence of the applicant and I, with respect, disagree with the Judge's strong view that this evidence unequivocally triggered an application under S.54(1)(f).

33. There were serious and continuous allegations of police brutality which would have justified such an application. The Judge, however, did not consider that such allegations would have influenced his discretion to permit cross-examination. As these did not, I fail to understand how the equivocal evidence of the applicant caused the Judge to take such a firm view of the applicant's conduct. Comments such as "If it were true that these police officers did that, then they would go to prison for a long time", demonstrate, in my judgment, that the Judge had made up his mind from an early moment that this applicant would be cross-examined.

34. I agree with Penlington J.A. that the two counts were linked but in law they still had to be separately considered. The Judge paid no regard to this; nor did he consider, or show that he had considered, the dramatic effect of letting in a drug conviction in a drugs trial. Hong Kong is different from England and Hong Kong juries are sophisticated and knowledgeable about drug matters. This applicant was not yet 15 at the time of his conviction and I fail to understand how such a conviction could in the Judge's own words allow the jury "to know what sort of man he is that is saying that the police are planting drugs upon him". What the disclosure of such a conviction does is to permit the jury to know not that he is a man of bad character, but that he is involved with drugs. This situation is a complete negation of the right to a fair trial.

35. I have considered all the authorities, fully set out in Bewley J.'s judgment, but at the end of the day the overriding duty of a judge exercising a criminal discretion is to balance the effect of permitting cross-examination on previous convictions with the right to a fair trial.

36. I differ from Penlington J.A., with respect, that the evidence of the applicant as to planting automatically removed his protection. In my judgment, the Judge erred in principle in permitting cross-examination, and his discretion was seriously flawed in that -

(a) he failed to distinguish between the two counts;

(b) he failed to appreciate the effect of a drug conviction, when the applicant was a juvenile, on this jury;

(c) he failed to recognise his power to permit cross-examination on only the latter convictions.

37. I have come to a clear conclusion, on the facts of this case, that this applicant was prevented from having a fair trial. The evidence against him was strong and a Hong Kong jury was well able to judge the credibility of the witnesses. The cross-examination was wholly unnecessary and vitiated what was a simple trial with simple issues. However, the principle of a fair trial is far more important than the particular case.

38. I agree with Bewley J. that this application should be granted and the appeal allowed.

Penlington J.A.

39. I am indebted to Bewley J. for setting out the relevant evidence in this matter and the authorities to which we have been referred by counsel in their able arguments.

40. We are asked here to interfere with a decision in which a trial judge has exercised his discretion and that can only be done if the judge did not apply the right principles or was plainly wrong. It is suggested that he did not consider the possibility of allowing only part of the applicant's accord being put to him and the allegation of planting was in respect of only one charge, the less serious one.

41. The evidence here was an attack on the character of the police officers concerned, both as to the allegations of assault and as to planting heroin on the applicant and the decision of the judge to allow cross-examination of the applicant as to his previous convictions was within his discretion. I have no doubt that the allegations went well beyond an "emphatic denial" of the offences.

42. It is argued that the allegation of planting the drugs was only in relation to the first count involving only a small quantity 12.75 grammes of narcotic, but in my opinion the two counts were inextricably linked. If the jury convicted the applicant on the first count and was thereby satisfied that he was carrying heroin on his person for trafficking, a conviction in respect of the much larger quantity found in his flat was inevitable. His defence to the second count was simply that he had no knowledge of the much larger quantity of drugs found in a flat shared by his wife and himself. No jury could possibly have accepted that if satisfied that shortly before the flat was searched the applicant was found carrying heroin in the street.

43. A decision to have allowed cross-examination of the applicant as to his convictions for possession of an offensive weapon and for robbery on the basis of either the allegations of brutality or of planting the heroin could not have been challenged. The sole issue here is whether the judge was plainly wrong in exercising his discretion to allow the previous conviction for drug trafficking to also be put. If the jury were aware that the applicant was a man convicted of robbery and illegal possession of arms, was the probative value as to his credibility of allowing the jury to know of the previous drug conviction so small that it must have far outweighed by its undoubtedly prejudicial effect, even with the very clear and correct warning that was given, to the extent that the exercise of the judge's discretion was so unsound we should interfere. That only part of the applicant's record could be put to him was not suggested to the judge. If it had been it may have found favour with him but I do not consider that his failure to consider that option makes his decision wrong in principle. I have no doubt that a judge can allow part only of a criminal record to be put to an accused person who attacks the character of prosecution witnesses, though there is no clear authority for that and I have never heard of it being done in Hong Kong.

44. There is ample authority that a record for a conviction for a similar offence to the one for which an accused is being tried can be put to him, even though this must have a prejudicial effect, provided of course that a proper direction is given. Burke and Selvey make that clear, and are also in my view strong authority that the allegations of planting made here were not simply part of a defence which was being put forward vigorously and so did not put the applicant at risk as to his record being put to him. In Selvey Viscount Dilhorne exhaustively reviewed the early authorities such as R v Wright (1910) 5 Cr. App. R. 131 and R v Westfall (1912) 7 Cr. App. R. 176 which he found to be irreconcilable. He refers then to subsequent decisions such as R v Hudson (1912) 2 K.B. 464 which held that an imputation on the character of prosecution witnesses did put character in issue, even if necessary for developing a defence. Viscount Dilbourne held, at 339, that on the authorities, particularly of Hudson, cross-examination of an accused as to character was permissible even "when the casting of such imputations was necessary to enable the accused to establish his defence".

45. I have no doubt that, despite references in leading authorities to a jury being "entitled" to know the character of a person attacking the character of prosecution witnesses such æ Britzman and Powell, there is a discretion in the trial judge to not allow cross-examination as to character if he considers it would be unfair and so prejudicial that no direction could overcome that prejudice. As Viscount Dilhorne said in Selvey at 341-342, apart from the rule in rape cases that an allegation of consent does not allow cross-examination as to character, the discretion "depends on the circumstances of each case and the overriding duty of the judge to ensure that a trial is fair". He went on however to say that, while a warning is desirable, it is not essential and to cite with approval dicta of Pickford J in Watson 8 Cr. App. R. 249 and Devlin J. in Cook (1959) 2 Q.B. 340 that to upset the exercise of the judge's discretion it is necessary to show that the cross-examination of the accused was inadmissible; that he has erred in principle or had no material on which he could properly have reached his decision. In Selvey Lord Pearce at 355 referred to a passage from Hudson at 254-255. "But in order to see if the conviction should be quashed it is not enough that the court to think it would have exercised its discretion differently. It is necessary to show that in law the cross-examination of the prisoner was inadmissible. The judge at the trial is in a better position to judge whether the cross-examination should be allowed". Lord Pearce went on said "that case has never been criticised or disapproved. With one exception that is the pattern of present practice." (The exception is in cases of rape.)

46. Here if it had been suggested to the judge that he should restrict cross-examination of the applicant to the convictions for robbery and possession of an offensive weapon but exclude that for drug trafficking which occurred 12 years previously when he was only 15, he may have agreed to do so. We do not know. I am however satisfied that on the authorities, particularly of Selvey, the evidence was admissible and the judge did have a discretion to allow the cross-examination. I do not consider he can be said to have erred in principle or to have been seen not to have considered those principles in reaching his decision so as to deprive the applicant of a fair trial.

47. I would have granted the application for leave to appeal but dismissed the appeal.