Bishop v The Queen
[2013] VSCA 273
•27 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0148
| GEOFFREY MARK BISHOP | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH, PRIEST and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 June 2013 |
| DATE OF JUDGMENT | 27 September 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 273 |
| JUDGMENT APPEALED FROM | R v Bishop (Unreported, County Court of Victoria, Judge Howard, 20 April 2012) |
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CRIMINAL LAW – Conviction for sexual offences with child – Good character evidence – Section 110 of the Evidence Act 2008 – Opinion evidence as distinct from evidence of reputation admissible – Evidence of good character ‘in a particular respect’ – Directions to the jury that such offences committed in private undermined evidence of good character – Appeal allowed – Convictions quashed and retrial ordered.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | Malasecca Kelly & Zayler |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
On 18 June 2013 the Court quashed the appellant’s convictions concerning sexual offences committed against his stepdaughter and ordered a new trial. For the following reasons and those of Priest JA with which I agree, I joined in the making of those orders.
The appellant was convicted of various sexual offences involving his stepdaughter. His good character was advanced in the defence opening and closing addresses and prosecution and defence witnesses confirmed his favourable reputation, both generally and with children. It was also established that he had never been accused of similar offending before. This evidence and the submissions which rested upon it were matters bearing on the improbability of his guilt[1] and whether his version to investigating police was credible.
[1]Attwood v The Queen (1960) 102 CLR 353, 359. See also Melbourne v The Queen (1999) 198 CLR 1, 15.
Personal opinion as to accused’s good character admissible under s 110 of Evidence Act 2008
His Honour directed the jury that only the accused’s general reputation, and not the personal opinion of the witness could be given in evidence. It appears his Honour was applying the common law rule, established in R v Rowton,[2] that a witness called to give good character evidence can speak only of the accused’s general reputation. Stephen’s Digest of the Law of Evidence noted the rule’s inherent absurdity:
A witness may with perfect truth swear that a man who, to his knowledge, has been a receiver of stolen goods for years, has an excellent character for honesty if he has the good luck to conceal his crimes from his neighbours.[3]
[2]R v Rowton (1865) Le & Ca 520; 169 ER 1497.
[3](McMillan, 12th ed., 1936), 201.
The flaw in the common law rule is now well recognised.[4] The High Court (Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ) observed in Attwood v The Queen, that the common law rule in Rowton is not observed in practice.[5] In fact by 1900 New South Wales had reversed the common law rule. Section 413 of the Crimes Act 1900 (NSW) relevantly provided:
Every witness examined as to character … may give evidence not only as to the general repute of such person, but also as to the witness’s own knowledge of his habits, disposition, and conduct.
[4]See Donaldson v the State of Western Australia (2007) 176 A Crim R 488, 510 [65]; [2007] WASCA 216, [65], (Buss JA). See also Anthony Howard QC (now Judge Howard), ‘Evidence of Good Character and Bad Character in Criminal Cases’, (Leo Cussen Institute, October 1995) 4 [6].
[5]Attwood v The Queen (1960) 102 CLR 353, 359.
The scope of good character evidence is now dealt with in s 110 of the Evidence Act 2008. In Melbourne v The Queen, McHugh J observed by way of obiter dicta that s 110(1) ‘allows a witness to give evidence as to his or her own opinion of the accused’s character’.[6] The effect of s 110(1) is to abolish the rule in Rowton and permit lay opinion as to the accused’s good character. As explained by Harrison J in R v Ceniccola:
The fact that ‘the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply’ to evidence adduced to prove the defendant's good character means that such evidence may include hearsay evidence (generally excluded under s 59), including evidence of the reputation of the accused, opinion evidence (generally excluded under s 76), including ‘lay’ or ‘expert’ opinion evidence regarding the accused and evidence of past conduct of the accused adduced to prove that he has or had a tendency (whether because of his character or otherwise) to act in a particular way, or to have a particular state of mind (generally excluded under s 97).[7]
[6](1999) 198 CLR 1, 15 n 50.
[7][2010] NSWSC 1554, [7].
To date there has been very limited consideration given to s 110 in Victoria but it is clear that provided the evidence is otherwise admissible,[8] s 110(1) entitles a witness to give evidence of his or her own opinion of an accused’s character.[9] Although the direction to the jury was in error, the defence it appears laboured under the same misapprehension as the trial judge and sought only to adduce evidence of the appellant’s reputation. The error was thus of no consequence.
[8]See in particular ss 55 and 78 of the Evidence Act 2008.
[9]See R v Chapman [2002] NSWCCA 105, [13]-[14].
Evidence of good character in a particular respect
At common law, the character of the accused was indivisible so that an accused who asserted his good conduct in certain respects exposed himself to inquiry about the rest of his record so far as that tended to disprove a claim for good character.[10] Good character was thus only used in a general sense to rebut inferences of criminality.[11] Section 110 has also altered the common law position in this respect. It permits evidence to be adduced that the accused is, either generally or in a particular respect, a person of good character.[12] Where the accused elects to lead only evidence of good character in a particular respect, the prosecution will be confined to rebutting evidence in that particular respect.[13]
[10] Stirland v DPP [1944] AC 315, 327 (Viscount Simon LC).
[11]R v Winfield [1939] 4 All ER 164, 165.
[12]See, for example, Gabriel v The Queen (1997) 76 FCR 279.
[13]R v Zurita [2002] NSWCCA 22.
The phrase ‘in a particular respect’ in s 110 is described by Gans and Palmer as meaning ‘pertaining to a particular characteristic ‘ such as for example, gentleness, generosity or good citizenship.[14] But it may also relate to a particular context in which relevant conduct has taken place. Thus evidence may for example be adduced by work colleagues as to the defendant’s honesty in his employ or by his relatives as to his good parenting skills. The accused may call evidence which is specifically focussed upon good character relating to the charge or an absence of prior bad character with respect to the specific conduct the subject of the charge. Thus evidence of good character in a particular respect to counter allegations of sexual abuse has been admitted. In R v PKS,[15] a case involving sexual offences against a minor, evidence of good character in respect of young children was admitted. In R v Zurita[16] evidence of a lack of antecedent sexual offences was admitted.
[14]Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) 243.
[15]R v PKS (Unreported, NSWCCA, 1 October 1998, Wood CJ at CL, Sully and Ireland JJ), 9-10.
[16][2002] NSWCCA 22.
In the present case both general and particular good character evidence was adduced. Accordingly, the trial judge’s directions had to address both types of evidence.
The impugned direction
Priest JA in his reasons has set out the directions of the trial judge. They included conventional directions which conformed with the Victorian Charge Book. His Honour directed the jury to the effect that evidence of good character ‘cannot alter proven facts’ and that ‘a person who had previously been of good character can commit a crime for the first time’. These directions are generally regarded as sufficient to alert the jury to the extent to which evidence of good character can assist the offender. Unfortunately, his Honour did not regard these directions as sufficient to circumscribe the use of the good character evidence. In venturing beyond the conventional directions his Honour fell into error. He improperly confined the appellant’s reputation for dealing appropriately with children, to conduct ‘in the presence of others’ and ‘outside of the home.’ None of the witnesses had so limited their evidence or intended that it should be so understood. The evidence of the appellant’s good reputation with children meant also, that to the knowledge of the witnesses, there had been no prior allegations of improper conduct by the appellant, whether in private or public against his or any other children.
In the quite different setting of sentencing where the offence involving sexual abuse of children has been admitted or proved, it is common that a judge will draw attention to the aggravating feature that the offences were committed by a previously trustworthy person of integrity in private and away from the scrutiny of others.[17] But very recent decisions of this court make clear that the fact that such
offences are usually committed within the home and in private by a trusted family member or friend does not permit the sentencing judge to give less mitigatory weight to the previous good character of the offender than would otherwise be the case.[18] As Mc Hugh J observed in Ryan v The Queen[19] a sentencing judge is always bound to consider the ‘otherwise good character’ of the person to be sentenced. Likewise, in the setting of a trial, evidence of good character must not be diminished in value because the offences are of a type generally committed in circumstances of secrecy. The same could be said for most offences of dishonesty. No direction should invite the jury to doubt the worth of the offender’s previous good character in the absence of evidence that justifies such reasoning.
[17]See for example R v SLJ (No 2) [2010] VSCA 32, [4].
[18]SD v The Queen [2013] VSCA 133; CMG v The Queen [2013] VSCA 243, [141].
[19] (2001) 206 CLR 267, 275 [23]-[25], [36].
For the reasons given by Priest JA with which I agree, this direction significantly detracted from the benefit to be afforded the appellant from a good character direction. As Buchanan JA (with the concurrence of the Chief Justice and Phillips JA) stated in R v MWL[20] of a very similar direction to that set out in the reasons of Priest JA, such a direction ‘undermined’ the defence of good character and did so in a manner which was calculated to cause a miscarriage of justice.
[20](2002) 137 A Crim R 282.
PRIEST JA:
Introduction
Following oral argument on 18 June 2013, the Court announced orders granting the appellant leave to appeal against conviction; treating the appeal as having been heard instanter and allowed; quashing the convictions; and ordering a new trial.
The Court indicated that it would provide reasons for those orders in due course. These are my reasons for joining in the orders.
Convictions and grounds of appeal
On 13 March 2012, in the County Court at Melbourne, the appellant was found guilty of four charges of incest (charges 7, 9, 10 and 11), six charges of committing an indecent act with a child under 16 (charges 1 to 6) and three charges of committing an indecent act with a child under 16 who was under his care, supervision and authority (charges 8, 12 and 13). The trial judge imposed a total effective sentence of nine years’ imprisonment, upon which he fixed a non-parole period of six and a half years.
By a Notice of Application for Leave to Appeal Against Conviction dated 5 July 2012, the appellant sought leave to appeal on a single ground, which claimed that the trial judge ‘erred in his directions to the jury as to the [appellant’s] good character’.
The offending
I need not set out the facts in any more detail than is necessary to understand the sole ground of appeal. In 1999 the appellant commenced a relationship with a woman whom he married in December 2003. His new wife had two daughters, the complainant JS, born 23 April 1992, and SS, born in 1997. The offences were alleged to have occurred between March 2007 and January 2009. They involved the appellant fondling JS’s breasts; licking her nipples; attempting to kiss her; and digital and lingual penetration of her vagina.
The course of the trial
Good character was put in issue from the beginning of the trial.
In his response to the prosecutor’s opening, among other things, defence counsel put to he jury that good character bore both on the unlikelihood of the commission of the offences and on the appellant’s credibility. He said:
What is in issue in this trial is the character of Geoff Bishop, whether or not he is a person who is unlikely to have committed this offence and whether or not the version that he gives to the police is, in fact, credible.
Various witnesses in the prosecution case were then cross-examined to demonstrate the appellant’s good character, his reputation for honesty and his reputation concerning his behaviour with children. The police informant gave evidence that the appellant had neither been convicted nor previously charged with a criminal offence.
Moreover, the appellant gave sworn evidence denying the charges, and he called three witnesses testifying as to his good character. They gave evidence as to his general reputation, his reputation for honesty and his reputation concerning his conduct with children.
In his final address defence counsel placed considerable reliance on the appellant’s good character. He highlighted it in various passages of his address, including:
Now, Geoff Bishop is a man with no prior criminal history and there’s nothing pending. He’s worked hard throughout his life and provided for his children. He’s given, of himself, to charity, (indistinct) and raised money. There’s never been any concern regarding his appropriateness around children. He has a reputation for being honest and old fashioned. He has a reputation for being age appropriate. He has a reputation for being a strict and loving father, who had his best interests of his family at heart.
He is, it’s submitted to you, trustworthy, and you should consider his evidence to be reliable and you should keep this in mind when considering whether or not the prosecution have proven their case, beyond a reasonable doubt, and you should have doubts about the prosecution case, given that Bishop has a reputation for honesty and has never been accused of any of these types of matters in the past.
Prior to final addresses there had been discussion between the trial judge and counsel as to the directions that should be included in the judge’s Charge to the jury. The prosecutor agreed that a direction as to good character should be given.
The directions on good character
For the most part the judge’s directions in his Charge to the jury on good character were conventional. Toward the end of his directions on this topic, however, his Honour made comments which have been the source of a substantial miscarriage of justice. So that the remarks might be seen in context, it is as well to set out the whole of the directions. For ease of reference I have numbered the paragraphs. The judge told the jury:[21]
[21]My emphasis.
[1]In this case also you have heard evidence that the accused is a person of good character, and I need to give you a direction about how you can use evidence of good character. That comes from different sources. The accused, you know, is 52 years old, he has had a work history as a driver, he is the father of three adult girls and he has never been in trouble before.
[2]The police informant said that he has got no convictions either before or since the making of the allegations. He has never been charged before, and as the policeman described, it is the first time he has ever been in an interview room being questioned by police.
[3]Mr Lackenby told you that he had a good reputation, so too did Tamara Atkinson, Lucinda Allman and Jessica Eagles, and each of them told you how they knew the accused and what capacity and that they knew other people who knew him.
[4]You may have gathered from what was said during the course of the evidence, or maybe not, but the defence is limited in what evidence you can call of good character. You can only give evidence, lead evidence of people’s general reputation amongst other people. The individuals are not allowed to get up and give their own personal opinion. It is a funny rule, it does not make much sense, you might think, but that is the rule and so that is why defence counsel confined himself in that way.
[5]Each of those witnesses said, in effect, that none of them had, amongst those other people they knew who knew the accused and who had spoken of his reputation, ever heard any suggestion of impropriety in acting with children and I think all of them said that he had a good reputation for honesty.
[6]There are two ways in which you can use this evidence in favour of the accused.
[7]The first is that you can assess, when assessing the credibility of the evidence he has given and his denials of the prosecution case, both in court and in the record of interview, as going favourably to his credit. A person who is of good character in that respect is generally thought to be more trustworthy than other people and therefore you may be less willing to accept the prosecution's evidence that if the accused was not a person of good character in that respect.
[8]Secondly, you can use it when determining the likelihood that the accused committed the offences. As it is generally believed that a person who is of good character is unlikely to commit a criminal offence, you may be less willing to accept the prosecution allegations in this case.
[9]Of course, this does not mean that you must find the accused not guilty if you accept that he is a person of good character. The mere fact that a person is of good character in that respect cannot alter proven facts, it can only help you to determine whether or not those facts have been proven. In addition, you should keep in mind that a person who has previously been of good character can commit a crime for the first time. That must follow.
[10]Remember, in assessing this evidence, that the essential allegation here is of sexual offending against a stepchild in the family home, something that happened in private. Such alleged offending does not usually take place in the presence of witnesses.
[11]The specific evidence as to the accused having a reputation for appropriate dealings with children obviously must relate to his conduct with children that he has been with or dealt with in the presence of others, otherwise people could not give that evidence about his reputation. There is no allegation that he has offended against children outside of the home, but rather that he has offended against his stepdaughter inside the home and in private. So, you bear that in mind as being the essential allegation against him in the context of the good character evidence that has been given in his favour.
Each of paragraphs [1], [2], [3], [4] and [5] are introductory, and contain a general summary of the evidence bearing on the appellant’s good character.
Further, paragraphs [6], [7], [8] and [9] contain the directions conventionally given with respect to good character, and, with some minor and unimportant variation, reflect the suggested directions found in the Victorian Criminal Charge Book (‘Charge Book’).[22]
[22]Victorian Criminal Charge Book, Judicial College of Victoria, [4.3.2].
The contents of paragraphs [10] and [11] are impugned by the appellant. They appear to be of the judge’s own devising. They do not appear in the Charge Book, and, so far as I can see, they do not reflect any direction which previously has attracted curial approval.
Counsel for the appellant submitted that the criticised passages are clothed as directions of law. They ‘inappropriately undermine the value and relevance of the evidence of good character’. In particular, the instructions wrongly suggest that the appellant’s ‘reputation for appropriate dealings with children must have related to his dealings with children in public’, and draw a contrast between the public context and the private context surrounding the allegations of sexual offending in this case.
In a submission which was perspicuously fair, counsel for the respondent accepted that the impugned passages would have been interpreted by the jury as directions of law – which the jury were bound to follow – rather than mere comments. Although the judge was entitled to give a ‘balancing direction’, counsel for the respondent conceded that the jury would have understood that the evidence of good character could only have borne on the way in which the appellant dealt with children in public. This was a ‘mischaracterisation’, and has led to a substantial miscarriage of justice, since it undermined the benefit of the directions as to god character. Counsel is to be commended for adopting this stance which, for reasons I will explain, was wholly appropriate.
Resolution of the appeal
The prevailing state of the law is that a judge is not required to direct the jury about the uses of good character evidence in all cases where that evidence is led,[23] but a direction must be given where the evidence has an immediate and obvious connection with an issue in the case.[24] (Nobody suggested that directions as to good character should not have been given in this case.)
[23]Melbourne v R (1999) 198 CLR 1; Benbrika v R (2010) 29 VR 593; R v DD (2007) 19 VR 143; R v Arundell [1999] 2 VR 228.
[24]Melbourne v R (1999) 198 CLR 1.
It is axiomatic, however, that when a judge embarks upon the task of giving a direction of law, the direction must be proper. The directions impugned in this appeal were not.
Section 110 of the Evidence Act 2008 (’the Act’) deals with evidence of good character. It provides:[25]
110 Evidence about character of an accused
(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (directly or by implication) that an accused is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that an accused is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not a person of good character in that respect.
[25]My emphasis.
It may immediately be appreciated that, by virtue of s 110, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove good character. Thus hearsay evidence concerning a person’s reputation, which would otherwise fall to be excluded under s 59 of the Act, is admissible. Further, opinion evidence about a person, which would generally be excluded by virtue of s 76, is also admissible. So, too, is tendency evidence – evidence of ‘the character, reputation or conduct of a person, or a tendency that a person has or had’ – which would be proscribed by virtue of s 97, admissible. Finally, evidence about a person’s credibility – which generally is inadmissible because of s 102 of the Act – is admissible.
In Eastman,[26] the Court (von Doussa, O’Loughlin and Cooper JJ) made plain that the ‘good character’ of which s 110 speaks is good character as understood at common law, and that it may be adduced for the same purposes:
It was assumed at trial and in argument before this Court that the expression ‘good character’ in Pt 3.8 of the Evidence Act has the meaning accorded to the expression in Attwood, and in cases decided under the legislative provisions which have their geneses in s I of the Criminal Evidence Act 1898 (Imp). We consider that assumption is correct. The Evidence Act does not seek otherwise to define the expression. The notion of ‘good character’ includes disposition in addition to general good reputation: Stirland v Director of Public Prosecutions [1944] AC 315 at 324. When the accused gives evidence, as he did in this case, evidence of good character is also to be taken into account on question of the credibility of his denial that he committed the crime charged: R v Hamilton (1993) 68 A Crim R 298 at 299.
[26]Eastman v R (1997) 76 FCR 9, 53.
Attwood,[27] referred to by the Full Court of the Federal Court in Eastman, is one of the seminal cases on the use of good character. The High Court said:[28]
The expression ‘good character’ has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg v Rowton.[29] Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn CJ said: ‘The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried’.[30]
[27]Attwood v The Queen (1960) 102 CLR 353.
[28]Ibid 359 (Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ).
[29] (1865) Le & Ca 520[169 ER 1497].
[30](1865) Le & Ca, 541 [169 ER, 1506].
Evidence of good character is admissible touching not only on the unlikelihood of guilt, but it may also be used as to the credibility of an accused who denies his guilt.[31] Section 110 of the Act does not alter this position. Prior to Melbourne[32] – and, indeed, the introduction of the Act – the practise in Victoria was as described in Warasta:[33]
In this State, for many years, good character evidence has almost without exception been followed by an appropriate direction as to the use which the jury might properly make of that evidence. … In our opinion, generally speaking, such a direction should be given. It would be only in a rare case, where the accused gives evidence on oath, and his credibility is of crucial importance, that an omission to give such a direction could be justified.
The practise acknowledged in Warasta should, in my view, continue to provide guidance to trial judges.
[31]R v Warasta (1991) 54 A Crim R 351, 354 (Young CJ, Crockett and Southwell JJ).
[32]Melbourne v R (1999) 198 CLR 1.
[33]R v Warasta (1991) 54 A Crim R 351, 356 (Young CJ, Crockett and Southwell JJ) (emphasis added).
A question that arose on the hearing of the appeal was whether – in circumstances where the defence led evidence which went beyond the appellant’s general reputation for honesty, and went specifically to his reputation for not being involved in sexual impropriety vis-à-vis children – the evidence of good character relating to the absence of any reputed sexual misbehaviour with children was admissible. In my opinion it was.
In Zurita,[34] the appellant had been charged with (and was convicted by a jury of) aggravated sexual assault. The complainant was his stepdaughter, who was 12 years old at the time of the alleged assault in 1999. His criminal record included a conviction for larceny in 1995 for which he was fined; a conviction for an alcohol related driving offence and unlicensed driving, also in that year; and an assault in 1999 (committed against the complainant’s mother and shortly after their divorce) which was found proved but dismissed. Counsel wished to raise character in a particular respect, that being that the appellant had not been dealt with by police for offences of child sexual assault. Effectively he was prevented from doing so by the trial judge. The Court of Criminal Appeal (NSW) held that there had been a miscarriage of justice, and set the conviction aside. Howie J (with whom Hodgson JA and Levine J agreed) made the following observations pertinent to the present appeal:[35]
[34]R v Zurita [2002] NSWCCA 22. See also R v Makisi (2004) 151 A Crim R 245, 253–4 [26]–[28]; ES v R (No 2) [2010] NSWCCA 198, [81]–[86].
[35]Ibid [14]-[15].
14It is clear that the effect of s 110(1) was to vary the common law attitude to character, which was, as the trial judge expressed it, ‘all or nothing’. The section permits an accused person to put forward that he or she is ‘either generally or in a particular respect’ a person of good character. Defence counsel was seeking a ruling as to the consequence of the appellant raising his character either generally or in a particular respect, that being that he was not known to the police in respect of child sexual assault offences.
15The course adopted by defence counsel finds support in the judgment of this Court in R v PKS (CCANSW, 1 October 1998). In that case, unlike the present, the issue of the accused’s character was raised at the conclusion of the Crown case. In the context of the circumstances in that case, this Court indicated what is needed to be done in connection with the issue of good character in the following series of propositions (pg 8-10):
‘1.The first thing that had to be decided by the accused and his legal representatives was whether, his good character not having been put in issue in the Crown case, it should be raised as an issue in his own case.
2.That decision needed to be taken in the light of the provisions of Part 3.8 of the Evidence Act 1995 (NSW), and in particular the provisions of sections 110 and 112 of that Act.
3.Section 110(1) gave the accused a clear choice. He could put in issue the proposition that he was “generally a person of good character”. Alternatively, he could put in issue the proposition that he was “in a particular respect a person of good character”.
4.In the event that he decided to put in issue that he was “generally a person of good character”, the accused was vulnerable to an application by the Crown, and made pursuant to section 112 of the Evidence Act, to cross-examine him so as to elicit that he had, in fact, prior convictions, albeit old ones, for offences of dishonesty.
5. If he decided to put in issue that he was “in a particular respect a person of good character”, namely in respect of sexual misconduct with young children, whether his own children or the children of others, then the accused was not so vulnerable to crossexamination upon his old convictions for dishonesty. That was so because of the terms of section 110(3) of the Evidence Act. Such a construction of section 110(3) was adopted by Higgins J, of the Federal Court of Australia, in Gabriel v The Queen (unreported: Federal Court of Australia: Full Court, 25 June 1997).
The Court then went on:
In the light of what is stated in the foregoing propositions, counsel for the accused was entitled, in our opinion, to apply to the trial Judge for rulings on the questions:
(a)whether, if the accused gave evidence that he was “generally a person of good character”, his Honour would refuse to permit cross-examination upon the previous offences of dishonesty, so refusing either by the method of refusing leave pursuant to section 112 of the Evidence Act; or by the method of excluding such cross-examination in the exercise of the discretion conferred in that behalf by section 137 of the Evidence Act; and
(b)whether, if the accused gave evidence that he was “in a particular respect a person of good character”, namely in respect of sexual misconduct with young children, his Honour would uphold a submission that section 110(3) of the Evidence Act did not permit crossexamination upon the previous offences of dishonesty.’
In the present case the appellant adduced evidence, both in cross-examination of prosecution witnesses and in the defence case, of his general good character and reputation for honesty. He also – as he was entitled to do – led evidence that he was ‘in a particular respect a person of good character’, namely in respect of sexual misconduct with young children. That was done without any distinct objection by the prosecution, and without any limitations being put on the evidence pursuant to s 192 of the Act. Thus, although the trial judge interrupted defence counsel’s cross-examination of a prosecution witness, Arthur Lackenby, because his Honour thought that it had strayed beyond ‘general reputation’, after that intervention he did not prevent counsel from asking the witness about the appellant’s reputation ‘regarding his propriety around children and his appropriateness in dealing with children’ (no objection from the prosecutor having been forthcoming). And later, when defence counsel sought to lead from a defence witness, Tamara Atkinson, that she had not heard it suggested that the appellant had ever been ‘sexually inappropriate around children’, although the prosecutor objected because defence counsel ‘doesn’t have a licence to go into this amount of detail’, following discussion the trial judge permitted counsel to elicit from the witness the appellant’s reputation with respect to his sexual propriety with children. Similar evidence from witnesses Lucinda Allman and Jessica Eagles provoked neither interruption by the judge nor objection from the prosecutor.
The trial judge gave no indication prior to delivery of the challenged directions that he might give instructions of that type – whether as part of a ‘balancing exercise’ or otherwise – when it was first sought to adduce the evidence. Despite his own intervention in the course of the evidence of Mr Lackenby, the trial judge did not indicate in any fashion prior to the Charge that he considered drawing a distinction between ‘his conduct with children that he has been with or dealt with in the presence of others’ – that is, in public – and those ‘inside the home and in private’. Had he done so, it would have been open to defence counsel to make submissions to the trial judge as to the appropriate course to adopt. And had defence counsel failed to persuade the trial judge that his client ought not be met with the kind of direction that was actually given, he would have had the opportunity of differently presenting the appellant’s case (for example, by limiting the evidence of good character as to the appellant’s reputation for honesty).
I do not ignore that defence counsel did not take an exception to the impugned directions. But in the circumstances of this case I do not regard that as determinative. Indeed, this case bears a degree of similarity to the decision of this Court in MWL.[36] In that case the applicant had been convicted of sexual offences against a niece and two nephews of his wife. He gave evidence denying the complainants’ allegations and called a number of witnesses who attested to his good character. The trial judge gave directions which included:
[I]t comes as no surprise to you to learn, of course, that generally speaking crimes of a sexual nature as are alleged in this trial are by and large secret crimes by their very nature. In other words you seldom would expect to hear from an eyewitness to crimes involving sexual abuse of children, and we know from our experience that in this day and age or even over the decades that so-called pillars of society have been involved with sexual crimes involving children …
[36]R v MWL (2002) 137 A Crim R 282 (Phillips CJ, Phillips JA and Buchanan JA).
Notwithstanding that defence counsel took no exception to this part of the Charge, the Court found that the convictions could not stand. Buchanan JA (with whom Phillips CJ and Phillips JA agreed) said:[37]
[37]Ibid 285 [9]–[11].
9 … Although elsewhere in his charge the trial judge told the jury that they could disregard his comments as to the facts as distinct from directions as to the law, his Honour did not tell the jury that the impugned statements fell into the first category. In the context in which the statements were made, I consider it is likely that the jury treated them as directions by which they were bound.
10An important part of the applicant’s case was that because he was a man of good character he was unlikely to have committed the offences with which he was charged. The trial judge undermined that defence and did so in a manner which was likely to cause a miscarriage of
justice. The trial judge invited the jury to view persons of apparently good character with suspicion. Apart from the fact that, in my view, there was a palpable danger of the jury treating the comments as directions as to the law, the trial judge’s references to what was known from experience over the decades may have caused the jury to think that the judge’s views represented the distilled knowledge of the courts gained from their experience of conducting criminal trials.
11 Counsel for the applicant at trial took no exception to this part of the charge. In R v Clarke,[38] where the Full Court followed the general rule that an applicant for leave to appeal against conviction is not allowed to rely on appeal on a criticism of the charge, which had not been taken by way of exception at the trial, the court spoke of the duty of counsel ‘to ensure that any errors are drawn to the attention of the trial judge so that he may correct them’.[39] In the present case, I doubt that anything the trial judge could have said would have undone the effect of his statements rather than emphasise their damaging effect. I regard the statements as so clearly damaging to the applicant’s case that the failure to take exception does not lead me to conclude that there was no injustice because counsel steeped in the atmosphere of the trial saw no error. In my view, the statements did lead to a miscarriage of justice.
[38]R v Clarke [1986] VR 643; 21 A Crim R 135.
[39]R v Clarke [1986] VR 643, 661, 21 A Crim R 135, 154. See also General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234, 242 (Barwick CJ).
In my opinion, the directions challenged in the present case would have been regarded as directions of law. Indeed, so much is conceded by the respondent. They would have had the effect of illegitimately undermining the otherwise impeccable directions on good character that should have redounded unsullied for the benefit of the appellant. I very much doubt that a redirection could have remedied the situation.
It cannot realistically be contended, in my view, that there has been other than a substantial miscarriage of justice. The respondent does not contend otherwise.
Conclusion
For these reasons I joined in the orders resulting in the quashing of the convictions and the order for a new trial.
COGHLAN JA:
I would agree that the appeal should be allowed for the reasons advanced by both Redlich and Priest JJA.
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