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Bishop v The Queen

Bishop v The Queen

Case [2013] VSCA 273 27 September 2013

Criminal Liability

Appeal

Admissibility of Evidence

Criminal Law

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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, 12^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bishop v The Queen

Details

AGLC: Bishop v The Queen [2013] VSCA 273
Case: [2013] VSCA 273
Decision Date: 27 September 2013

CaseChat Overview and Summary

The appeal in Bishop v The Queen involved the appellant, who had been convicted of multiple sexual offences against a child. The case was heard in the High Court of Australia, which was required to consider the admissibility of evidence regarding the appellant’s good character and the jury's directions concerning such evidence. The central issue was whether the lower court appropriately assessed and directed the jury regarding the admissibility and weight of evidence pertaining to the appellant's good character, particularly in light of the nature of the offences committed.

The court examined whether the evidence of the appellant’s good character, specifically in relation to his conduct in private, was admissible and whether it should be considered by the jury. The High Court found that the trial judge had erred in their directions to the jury, particularly in suggesting that the offences committed in private undermined the evidence of good character. The court held that section 110 of the Evidence Act 2008 allows for evidence of good character in a particular respect to be considered, and that the nature of the offences did not automatically disqualify such evidence. The High Court ruled that the trial judge's directions were misleading and prejudicial, affecting the fairness of the trial.

Given the errors in the trial judge’s directions to the jury, the High Court allowed the appeal, quashed the convictions, and ordered a retrial. The court emphasised the importance of proper jury directions concerning good character evidence to ensure the fairness of criminal trials. The decision highlights the need for careful consideration of evidence rules and jury instructions to prevent miscarriages of justice.

Orders