Director of Public Prosecutions and Omot (Ruling No. 4)
[2015] VCC 1282
•5 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-04205
| DPP |
| v |
| LUKA OMOT |
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JUDGE: | CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2015 | |
DATE OF RULING: | 5 March 2015 | |
CASE MAY BE CITED AS: | DPP and Omot (Ruling No. 4) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1282 | |
REASONS FOR RULING
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Subject: CRMINAL LAW
Catchwords: Ruling No. 4 – Defence application to adduce good character evidence on limited basis – No prior or subsequent charges for sexual offending
Legislation Cited: Evidence Act 2008, in particular ss.110 and 137 considered
Cases Cited: Bishop v R [2013] VSCA 273; R v. Worasta (1991) 54 A Crim R 351
Ruling: If defence seek to adduce evidence of good character, then Crown may seek to lead rebuttal evidence in the form of the accused's prior convictions for offences of violence admissible pursuant to s.110 Evidence Act 2008 - Evidence of prior violent offending not unfairly prejudicial to the accused - Such prejudice which attaches to this rebuttal evidence can be limited by jury direction
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Parkes | Solicitor for Public Prosecutions |
| For the Accused | Mr A. Bayles | Emma Turnbull Lawyers |
HER HONOUR:
1 This is a ruling given in advance as sought by defence in respect of the Crown's entitlement to lead rebuttal evidence of prior offences for violence in this case, in the event that defence were to adduce from the informant that the accused has no prior or subsequent charges for sexual offending.
2 Defence wish to adduce the specific good character evidence as to a lack of sexual charges in support of the contention that the accused is unlikely to have committed the offence of rape as alleged by the prosecution and perhaps as going to his credibility in respect of his denial of guilt of the offence.
3 Mr Bayles argues that the prior matters for violence are not of the character of the rape allegation, which is a sexual offence and therefore he ought be able to adduce the specific good character evidence without opening the accused's character to the rebuttal evidence.
4 In essence, he submitted that to allow the Crown to rebut such specific good character evidence would be to place prejudicial propensity evidence before the jury which had no bearing on the character evidence which he sought to adduce. The prosecution submitted that the adducing of such good character evidence by defence would entitle them to adduce evidence of bad character insofar as offences of violence are concerned in the context of this case, which involves an allegation of rape where the accused is alleged to have used violence or force over and above the alleged violence used in anally penetrating the complainant.
5 It is clear that an accused is entitled to lead evidence of good character in a particular respect and that the prosecution will then be confined to rebutting evidence in that particular respect.
6 Section 110 Evidence Act 2008 provides for this, effectively making a person's character divisible - see Bishop v R [2013] VSCA 273 at paragraph 8 per Redlich JA.
7 In Bishop v R, Redlich JA went on to say:
"The phrase ‘in a particular respect’ in s.110 is described by Ganz v Palmer as meaning ‘pertaining to a particular characteristic’ such as, for example, gentleness, generosity or good citizenship. But it may also relate to a particular context in which relevant conduct has taken place………. 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, a case involving sexual offences against a minor, evidence of good character in respect of young children was admitted. In R v Serita evidence of a lack of antecedent sexual offences was admitted" [8]
8 Priest JA in that same case, said that:
"Section 110 did not alter the common law position that 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"
9 His Honour then referred to the practice [sic] in Victoria described in R v. Worasta (1991) 54 A Crim R 351 concerning the giving of good character directions (see at paragraph 36). The evidence which the accused wishes to call in this case is evidence of an absence of bad character insofar as sexual offences are concerned, in a bid to argue that he is unlikely to be guilty of the charge of rape and, presumably, which also goes to credibility of his denial of committing the offence. It remains to be seen as to whether the accused will give evidence in this case, and, of course, he is not obliged to do so.
10 At present however, the position is that the accused has told the police in a record of interview, which will be played to the jury, that he did not have anal sex with the complainant but asserts, through his defence response in reply through his counsel in the trial, that he did have anal sex with the complainant but that it was consensual.
11 The Crown relies on the accused's denial of having anal sex with the complainant as an implied admission of guilt. Defence have, and will argue otherwise, before the jury; but at this stage it is unclear to me as to how the credibility aspect of any good character evidence direction might play out in the event that good character evidence were adduced in the particular respect agitated for.
12 I should however put that aspect to one side for present purposes. The question for me to resolve is whether evidence that the accused's good character, insofar as committing sexual offences is concerned, ought trigger an entitlement by the Crown to adduce evidence by way of rebuttal of prior violent offending. Does evidence of a particular aspect of the accused's character, namely, “a clean slate” when it comes to being charged with sexual offences, open up his character so as to enable the prosecution to adduce evidence of bad character concerning prior matters of violence?
13 The accused is charged with rape, a sexual offence, of course, but it is also an offence involving an allegation violence. The specific conduct, which is the basis of the charge in this case is that after the accused and complainant and others had been drinking for some time the accused walked into the bathroom where the complainant was using the toilet and shut the door. He is alleged to have pushed her towards a wall and put his hand over her mouth. He is then alleged to have inserted his penis into her anus, thrusting his penis into the complainant's anus repeatedly, causing her pain. In her police statement, which is part of the evidence before the jury, the complainant said that she tried to push the accused away but he was too strong.
14 The accused has prior offences for violence which date back to the Children's Court in Tasmania, but these offences, that is the Children's Court offences, are rather remote in time to the alleged offence before this court.
15 He has, however, the following prior matters involving violence in more recent times. On 23 March 2006 in the Supreme Court at Hobart he was convicted of assaulting a police officer and sentenced to one month’s imprisonment, wholly suspended for two years, and on 18 July 2006 in Hobart at the Court of Petty Sessions, he was convicted of two charges of common assault and sentenced to four months' imprisonment suspended for two years, as well as a community service order.
16 I make mention of the penalties for the purposes of this ruling in a bid to try to gauge the seriousness of these matters.
17 The learned prosecutor handed me a number of police summaries in relation to offences committed by Mr Omot in Victoria. Mr Bayles did not object to me reading the police summaries for the purposes of my ruling but was unable to say whether these were admitted to by his client at the various Magistrates Court hearings. I was also handed a LEAP report which appears to relate to the offences indicating that on 30 May 2011 the accused was dealt with for attempting to commit an indictable offence and two charges of attempted robbery. He was sentenced to an aggregate term of four months' imprisonment.
18 The alleged circumstances of the offending in Victoria are as follows: on 31 July 2009 about 15 months before the alleged rape, Mr Omot and another male are said to have approached a male victim and Mr Omot is said to have physically assaulted the victim in an apparent bid to obtain money or property from him. On 24 August 2009, about 14 months before the alleged rape in this trial, the accused committed two attempted robberies.
19 Suffice, it to say on two separate occasions within about seven hours of each other the accused is alleged to have physically assaulted male victims in a bid to obtain money from them. The convictions in respect of the offences to which I have just referred, presumably in conjunction with the commission dates where these can be ascertained, is the evidence which would be sought to be adduced by the Crown by way of rebuttal. I will refer to the evidence as rebuttal evidence. Needless to say, none of these prior matters are sexual offences; nor are they offences of violence against women but they are all instances of violence upon other adults, some having occurred at a time fairly proximate to the alleged offending in this trial.
20 If the accused adduces evidence that he is of good character in that he has no prior or subsequent charges for sexual offences to his name in support of his credibility and in support of the unlikelihood that he raped the complainant in accompanying violent circumstances as alleged, in my view he opens up his character in that particular respect to a sufficient extent to warrant rebuttal evidence to be adduced by the Crown. Rape is a sexual offence but it is also an offence involving violence and in this case the allegation is that there was violence over and above the sexual penetration itself. The specific conduct, the subject of the charge in this case, is allegedly that the accused forcibly subdued the complainant and anally raped her.
21 The defence seek to adduce evidence of good character in a limited respect, that is, that the accused has no prior or subsequent charges for sexual offending. That is true but in the circumstances of this case if defence sought to adduce such evidence from the police informant then in my view evidence of the accused's prior convictions for offences of violence would be admissible by way of rebuttal pursuant to s.110 Evidence Act 2008. In my view the proposed adducing of such evidence by defence in the context of this case opens up the accused's character in respect of his past perpetrations of violence. The accused cannot divide his character in the way agitated for without the prosecution being permitted to adduce evidence of prior matters for violence.
22 Without the rebuttal evidence the jury would be deprived of an accurate picture of the accused's character insofar as offences of violence are concerned in circumstances where the sexual offending alleged against him in this case involves the alleged violence of the sexual offending itself, but also the accompanying circumstances of violence. Therefore, the rebuttal evidence is admissible pursuant to s.110 Evidence Act 2008. I am obliged however to then consider s.137 Evidence Act 2008.
23 Mr Bayles argues that the proposed rebuttal evidence, even if admissible, pursuant to s.110 Evidence Act 2008 will be excluded under s.137 Evidence Act 2008 as its probative value is outweighed by the danger of unfair prejudice. Obviously there is prejudice which attaches to the adducing of the proposed bad character evidence and it could not be led by the Crown to help prove their case. They do not seek to do so. The probative value of the evidence lies in its capacity to negate the particular and limited evidence of good character sought to be adduced by defence or at least complete the picture in relation to the particular aspect of the accused's character.
24 In the context of the far more serious allegation in this case, that being an allegation of rape, I do not regard the evidence of prior violent offending as being unfairly prejudicial to the accused. This is especially so in circumstances where it would only be adduced to counter specific good character evidence sought to be relied upon by defence. Such prejudice as there would be can be limited by appropriate directions which I would expect a jury to follow.
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