DPP V Newman (a Pseudonym)
[2015] VSCA 25
•20 February 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0026
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| DAVID NEWMAN[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent
---
| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 February 2015 |
| DATE OF JUDGMENT: | 20 February 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 25 |
| RULING APPEALED FROM: | DPP v [Newman] (Ruling No 3, Unreported, County Court of Victoria, 9 February 2015) |
---
CRIMINAL LAW — Interlocutory Appeal — Evidence of accused’s good character to be adduced at trial — Good character direction sought by accused — Prosecution and defence good character direction should be given — Refusal of the trial judge to give direction — Prosecution seeks leave to appeal against refusal — Leave to appeal granted.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Gyorffy QC and Ms J Piggott | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr P Tehan QC and Mr C Farrington | Patrick Dwyer, Barrister and Solicitor |
THE COURT:
Introduction
In a trial of sexual offences which has commenced in the County Court, both the prosecution and defence agree that the accused should be entitled to lead evidence of good character, and, once having done so, should reap the benefit of a direction on good character.
Notwithstanding that joint position, the trial judge has — in circumstances that we will later discuss — ruled that she will not give a good character direction favourable to the accused (whom we shall refer to as ‘the respondent’[2]), in the event that he adduces evidence of his good character.
[2]It is convenient to refer to the accused as the respondent, despite there being no real contradictor in the present application.
Remarkably — and, dare we say, quite properly — the Director of Public Prosecutions has sought leave to appeal against the trial judge’s decision, so as to preserve the integrity of the trial; and so as to ensure, as best the prosecution is able to do so, that the trial does not miscarry as a result of the trial judge’s decision.
With great respect to the judge, the decision impugned in this application is wrong. It cannot be permitted to stand. Our reasons for those conclusions follow.
The nature of the application
Before turning to the circumstances of the case, we note that the Director’s application is brought pursuant to s 295 of the Criminal Procedure Act 2009 (‘CPA’), on the following ground:
1. The learned trial Judge erred in her advance ruling that her Honour will refuse to give the jury a good character direction (with respect to reputation and credibility) in circumstances where:
(a)The Accused has no relevant priors;
(b)General good character evidence is to be led by the Accused;
(c)No rebuttal bad character evidence [is] to be led by the prosecution; and
(d)There is a pending and unresolved trial of a like nature to the current trial before the County Court of Victoria at Melbourne.
Pursuant to s 295(3)(b) of the CPA, as to her ruling the judge has certified that ‘the interlocutory decision is … of sufficient importance to the trial to justify it being determined on an interlocutory appeal’. In light of that certification, by virtue of s 297 of the CPA this Court may grant leave to appeal if ‘satisfied that it is in the interests of justice to do so ‘; and, among other things, if the determination of the appeal against the interlocutory decision may ‘reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial’.[3] As our reasons will show, we are of the opinion that these conditions are satisfied. Further, we are also of the view that, although the trial has commenced, the reasons for granting leave to appeal ‘clearly outweigh any disruption of the trial’.[4]
[3]CPA, s 297(1)(b)(iv).
[4]CPA, s 297(2).
Background
The respondent is facing trial in the County Court on an indictment (the ‘first indictment’) containing 13 charges of indecent act with a child under 16,[5] embracing a period between 18 December 2010 and 9 October 2011. One charge relates to a nine year old boy; two charges relate to a four year old girl; and ten charges relate to a nine year old girl. There is also another indictment (the ‘second indictment’) containing four charges of indecent act with a child under 16, concerning a female child, who was aged between two and a half and five and a half years during the charged period, which is between 11 October 2008 and February 2011.
[5]Crimes Act 1958, s 47(1).
Previously, in April 2013, the respondent was tried on the first indictment, which then contained 16 charges. The jury acquitted him of one charge of attempting to commit an indecent act with a child under 16, but convicted him of 15 charges of the completed offence. Those convictions were quashed by this Court in June 2014. The Court entered verdicts of acquittal on two charges, and ordered that the respondent be retried on 13 charges. His retrial on those 13 charges has commenced. It is anticipated that the trial on the second indictment — to which the respondent has indicated pleas of not guilty — will commence following conclusion of the current trial.
Through his counsel, the respondent has indicated that he intends to put his character in issue in the current trial on the first indictment. In circumstances that we will return to, the judge has, however, refused to give directions to the jury concerning the respondent’s good character. It is that ruling which is challenged in this application.
Each offence on the two indictments is alleged to have been committed when the complainants were in family day care in the respondent’s home, where his wife conducted a registered family day care centre. In essence, the prosecution case is that the respondent, who was often present in the home with the children, sexually interfered with the complainants entrusted to his wife’s care.
In the current trial, which, as we have said, relates to the first three complainants, there are no eye witnesses. In general, the evidence to support the charges comes from the three complainants, although, in the case of the second complainant, there is also evidence of complaint. The respondent denied the allegations to police in a record of interview.
With respect to the second indictment, relating to the fourth complainant, the evidence in support of the charges is that of the complainant, together with evidence of complaint to her mother. The respondent declined to be interviewed by police with respect to the allegations which are the subject of the second indictment.
Prior to empanelment in the current trial, counsel for the respondent told the judge that, relying on s 110 of the Evidence Act 2008, he intended to put his client’s character in issue. Counsel indicated that he would seek to lead evidence from the informant that the respondent has no relevant previous convictions. Moreover, counsel proposes to adduce evidence from two character witnesses of their opinion of the respondent’s general character, and as to his general character and reputation in the particular ethnic community in Melbourne of which he and the character witnesses are members. The trial judge heard the evidence of the two character witnesses on a voir dire.
We pause to observe that the respondent has one set of prior convictions which the judge correctly thought to be ‘clearly irrelevant previous convictions for the purposes of these charges’. Some 25 years ago, in 1990, the respondent was fined $500 by a magistrate for aggravated cruelty to an animal, and causing unnecessary pain to an animal when conveying it. Apparently, the convictions related to the purchase and slaughter of a lamb which was cooked as part of a feast in the tradition of his native country. We agree that these matters have no bearing on the issues in the current trial.
It seems that at a directions hearing conducted before the judge in December 2014, the judge of her own motion raised the issue of character evidence with the parties. She informed the parties that she was not convinced that it was appropriate to give a character direction where the accused was facing trial on charges of a particular type — that ‘type’ being child sex offences — when there were pending charges of a similar nature before the court. The judge asked both defence and prosecution to consider their respective positions, and to be prepared to make submissions on the issue in the event that the defence sought to put character in issue in the trial of the first indictment.
At the commencement of the current trial earlier this month, the judge was informed that the defence and prosecution had reached an agreement that the respondent would, without objection from the prosecution, adduce evidence he had no relevant prior convictions and adduce character evidence from a number of witnesses. Furthermore, the prosecution would not challenge the evidence sought to be adduced by the respondent as to his character, and, significantly, would not seek to lead rebuttal evidence relating to the respondent’s alleged offending against the fourth complainant (the subject of the second indictment).
Moreover, the judge was informed that the parties had also agreed that in the circumstances the respondent would be entitled to a ‘full character direction’ in the terms traditionally given in this State, relating both to the assessment of the respondent’s credibility and to the likelihood that he committed the offences charged.
Notwithstanding the apparently sensible and pragmatic position adopted by the Crown, the judge expressed her concern as to whether it was appropriate to give either a ‘limited’ or a ‘full’ character direction. She referred to, and placed a deal of reliance on, TKWJ.[6] The position of counsel was that the prosecution did not seek to lead evidence concerning the offending against the complainant on the second indictment as rebuttal evidence; and that in those circumstances, the judge should not do other than direct in accordance with the stance adopted by the parties. Senior counsel for the defence also submitted that, since the prosecution did not seek to lead evidence in rebuttal, there would be no evidence before the jury of the circumstances relevant to the charges pending on the second indictment; and the judge therefore could not rely on evidence relevant to those charges so as to decline to give a character direction in the terms sought.
[6]TKWJ v The Queen (2002) 212 CLR 124 (‘TKWJ’).
Submissions on the topic were made over a number of days. The judge expressed the view that the prosecution had taken inconsistent positions on the subject in similar cases in the County Court. The judge issued an invitation to the Director or Senior Crown Prosecutor to appear and ‘explain the position of the prosecution’.
Ultimately, a Crown Prosecutor, who is of senior counsel, appeared before her Honour in response to her invitation. Importantly, she told the judge that a decision had been made in this case — having regard to its history and the fact that it is a retrial — to ‘err on the side of caution’ in agreeing not to seek to lead evidence in rebuttal and to consent to the giving of a full character direction. When the judge specifically asked about defence counsel’s submission that the judge should not go behind the agreement between the parties in relation to character evidence, the Crown Prosecutor submitted that the judge was not bound by the agreement between the parties, and was bound to make her own decision as to the law and to direct in accordance with it. The Crown Prosecutor did, however, submit that the judge should not go behind the agreement between the parties.
Despite the joint position taken by prosecution and defence, the judge ruled that she would not give a character direction. It is necessary to examine the judge’s reasons.
Discussion
In the course of the impugned ruling, the trial judge recognised that ‘good character evidence in a case of sexual offending against a child and in a word against word case can be powerful evidence and is a factor that might well swing the balance in favour of the accused’; and that, if an accused is entitled to a good character direction in such a case, ‘he should receive it and in its full force’. The judge then, however, referred to a passage from the judgment of McHugh J in TKWJ.[7] Purporting ‘to adopt the language of McHugh J in TKWJ’, her Honour quoted McHugh J as saying that ‘it is contrary to the public interest to let an accused go to the jury as a man of good character when there is evidence which, if accepted, would show he was not a person of good character’. It is thus necessary to examine the context in which McHugh J made the remarks adverted to.
[7]Ibid 153–4 [90].
TKWJ was a case where separate trials were to be conducted in relation to alleged sexual offending against two complainants, C and K, who were respectively the son and daughter of a woman with whom the accused lived at the time of the offences. In the trial relating to the allegations made by C, defence counsel informed the prosecution that he intended to adduce evidence of the accused’s good character. The prosecutor responded that, should defence counsel adopt that course, he would apply to call K to give evidence about the allegations relating to her. Such evidence would be led in rebuttal of good character. In the event, defence counsel did not adduce evidence that the accused was of good character. The High Court was called upon to consider defence counsel’s competence, and whether justice had miscarried as a result of his failure to call evidence of good character. It was in those circumstances that McHugh J said in the relevant passage of his judgment:[8]
Without seeing or hearing K give evidence and being cross-examined on a voir dire, it is impossible to determine whether the trial judge might have excluded her evidence as a matter of discretion. On what we know of K’s evidence, however, I would not have excluded her evidence, if I had been the trial judge, no matter how cogent the good character evidence appeared to be. In exercising the discretion the judge would not be required to weigh K’s evidence against the good character evidence but only against any prejudice that it might create. In a case that turned on the complainant’s word against the appellant’s, the good character of the appellant was a factor that might well swing the balance in his favour. To let the appellant go to the jury as a man of good character when K’s evidence, if believed, showed the opposite would be contrary to the public interest unless the judge was satisfied that it gave rise to prejudice that outweighed the probative value of the evidence. K’s evidence therefore went to a vital issue in the case and, if believed, was cogent evidence concerning that issue. Its probative value was very high. That her evidence damaged even seriously damaged the appellant’s case did not make it prejudicial. In this context, prejudice means diverting the jury's attention from the issues to be determined in the case to the detriment of the accused. The most likely risk of prejudice in this case was that the jury might think that, if the appellant had sexually assaulted K, he was the sort of person who was likely to assault the complainant. In my opinion, K’s evidence would give rise to this risk of prejudice, a risk that almost always arises when evidence is admitted to rebut evidence of good character. But if the evidence of bad character is cogent, it is a risk that must usually be taken unless the accused is to have an advantage that he or she is not entitled to have. In the vast majority of cases, the risk will be eliminated by a strong direction to the jury that the rebuttal evidence can only be used on the issue of good character. Even if the judge thinks that such a direction may not eliminate the risk of prejudice, the probative value of the evidence on the character issue may still require its admission. It will do so if its probative value outweighs any prejudice that it creates. In this case, the judge would have been bound to direct the jury that K’s evidence was relevant only in determining whether the appellant was a person of good character or not. Such a direction should have been sufficient to eliminate the risk.
[8]Ibid (emphasis added; footnote omitted).
In TKWJ, the prosecutor — contrary to the course proposed in the present case — proposed to call evidence of the second complainant, K, in rebuttal of good character. In this case, the prosecution has said repeatedly — and has made it abundantly clear — that it does not propose to call evidence from the complainant on the second indictment to rebut good character, in the event that evidence of the respondent’s good character is adduced. There will thus be no evidence before the jury from the fourth complainant which, if believed, might impinge on the respondent’s character. Further, as McHugh J made clear in the case before him, had the prosecution sought to lead evidence from K in rebuttal, it was not a foregone conclusion that the trial judge would have permitted its reception. The judge would still, as McHugh J observed, have had a discretion to refuse to admit the evidence. McHugh J went on to say:[9]
Nevertheless, if the trial judge had seen and heard K give evidence on the voir dire, it is conceivable that he might have excluded her evidence. There is the chance that something may have occurred that would induce the judge to exclude the evidence. However, the existence of this theoretical possibility does not assist the appellant. The onus is on the appellant to prove a material irregularity in the trial. The appellant does not discharge that onus by showing that there is a theoretical possibility that the judge might have excluded the evidence.
[9]Ibid 154 [91].
It is unthinkable that the trial judge could ever, in circumstances such as the present (or, indeed, any circumstances), of her own motion call a witness, or introduce evidence, in defiance of the adversaries’ positions, so as to rebut evidence of the accused’s good character.[10] Thus, as the position stands, there is no evidence before the court rebutting the respondent’s good character, and, given that the prosecution has said repeatedly that it is not intended to lead evidence in rebuttal, there will be none (unless, in unlikely and unforeseen circumstances, that position changes). It is trite that, the mere fact that a person has been charged with an offence cannot be evidence of bad character. The mere fact that a person has been charged is no evidence that he or she has committed the offence. It is thus irrelevant.[11] Moreover, the mere fact that a person has been charged with an offence cannot bear upon his or her credit.[12]
[10]Whitehorn v The Queen (1983) 152 CLR 657, 663 (Deane J), 675 (Dawson J); R v Apostilides (1984) 154 CLR 563, 575-8 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ); R v Jones (Unreported, 28 August 1989, Vic. CCA) (Murphy J, Marks and Gobbo JJ agreeing); R v Griffis (1996) 67 SASR 170.
[11]Stirland v Director of Public Prosecutions [1944] AC 315, 323 (Lord Simon LC).
[12]R v Roberts; R v Urbanec (2004) 9 VR 295, 326 [77] (Batt JA, Buchanan and Chernov JJA agreeing).
We are thus at a loss to see how it is that the trial judge thought that she was entitled to have regard to the unproven allegations relating to the second indictment to rule that the respondent should be shut out from a direction as to good character. Having again referred to the judgment of McHugh J in TKWJ, the judge went on to observe that, by reference to the written prosecution opening for the trial on the second indictment, ‘some similarities in the circumstances of the offences charged on both indictments’ are revealed. Her Honour then proceeded to discuss those perceived similarities, which she regarded as ‘significant’. The judge then, having cited from Saw Wah,[13] and having made a brief reference to Bishop,[14] returned to TKWJ. Her Honour set out passages from the judgment of McHugh J — including that to which we earlier made reference[15] — and she observed:[16]
[13]Saw Wah v The Queen [2014] VSCA 7, [42]–[57], [89]–[90] (Weinberg JA).
[14]Bishop v The Queen [2013] VSCA 273 (‘Bishop’) (Redlich, Priest and Coghlan JJA).
[15]Above [23].
[16]Emphasis added.
I accept that in this case I do not have to concern myself with a consideration of the admissibility of rebuttal evidence or whether such evidence, although admissible, ought to be excluded under s135 or 137 [of the Evidence Act 2008], or with a direction that the evidence is relevant only to the issue of character. The prosecution has made its position clear. It will not seek to lead evidence of the other charges on the second indictment. As I understood the position, that is in part due to the pragmatic decision [the Crown prosecutor] told me the Crown had taken in this case to err on the side of caution because it was a retrial, and in part because the Crown did not want to put the child, that is the fourth complainant, through the ordeal of giving evidence at the trial on the first indictment and again on the trial on the second indictment.
It should be noted that this child’s evidence-in-chief is proposed to be adduced by the playing of two VAREs[17] conducted shortly after her complaint but there has not yet been a special hearing,[18] that is, she has not been cross-examined for trial. My concern is about the misleading impression a jury would be left with, that the accused is a man of unblemished character and the giving of a direction that he is entitled to have that called in aid, when considering the likelihood that he committed the offences charged. Of course, as [defence counsel] said and correctly, the allegations on which the second indictment is based are just that, allegations. I am not presuming guilt, or denying the accused the benefit of the presumption of innocence. But it is not and never has been the law, that the only evidence able to be called in rebuttal of good character is evidence of previous convictions. Indeed, the very circumstances canvassed by the High Court in TKWJ demonstrate that pending charges can be properly the subject of rebuttal evidence if character is put in issue.
I do not consider that a good character direction should be given where an accused is facing like charges. I do not consider that the authorities to which I have referred, justify the giving of either part of the good character direction in those circumstances. This is a case that turns on the complainant’s [sic, complainants’]word against that of the appellant’s [sic]. It is clearly therefore a case where the good character of the appellant [sic] is a factor that might well swing the balance in his favour. In my view, it is a case where to let the appellant[sic] go to the jury as a man of good character when the fourth child’s evidence, if believed, shows the opposite, would be contrary to the public interest unless I were satisfied that it gave rise to a prejudice that outweighed the probative value of the evidence. The other child’s evidence goes to a vital issue in the case and if believed, is cogent evidence concerning that very issue; its probative value is or is potentially, very high. I acknowledge that her evidence if available could damage, even seriously damage, the appellant’s case but following the reasoning of McHugh J it is not that which makes it prejudicial. I accept that in this context, prejudice means diverting the jury’s attention from the issues to be determined in the case to the detriment of the accused.
In my view, to allow a direction for good character to be given in the circumstances where this other evidence exists, is to give the accused an advantage that he is not entitled to have.
…
In my view, it would seriously mislead the jury to assert that the accused is a man of unblemished character when on the materials before the court, other evidence exists – evidence sufficiently cogent for a decision to have been made to present the accused for trial. It is not to the point in my view that the Crown does not seek to call the evidence about the pending charges. There are often cases where relevant evidence is withheld from a jury’s consideration. Sometimes that is as a result of agreement between the parties, sometimes as a result of a ruling under s 137 or 135 or some other provision of the Evidence Act, which requires consideration of the weight of the evidence, its probative value and the risk of unfair prejudice to an accused.Often, the consequence of exclusion of otherwise relevant evidence from the jury’s consideration is simply that; it is removed from the jury’s consideration — but it does not follow that the decision not to put otherwise relevant evidence before the jury (and, as the court held in TKWJ, potentially highly probative evidence) requires a trial judge to pretend such evidence does not exist. A decision or agreement to exclude evidence is often conditional upon the accused not, by the conduct of the defence, opening up the issue and so justifying its admission in rebuttal or, by not seeking a direction premised on the assumption there is no such evidence.
The position is more starkly defined in this case as the accused does have some previous convictions. As I have said, they are irrelevant to the charges before me but the fact that he can, and is entitled, to treat character as divisible and separate out the cruelty to animal charges from his general character, leaves open the implication that his character in all other respect [sic] is unblemished. That in my view is frankly misleading. Even if the accused did not have any previous convictions, the clear implication from adducing evidence of good character generally is that the accused has a good reputation is [sic] in all respects and that is simply not so. That is abundantly clear, in my view, from the reasoning of all of the members of the court in TKWJ.
This reasoning bears directly on the reputational part of the character direction but it also, in my view, applies equally to the credibility part of the character direction.
For these reasons, I rule that I will not give the character direction sought.
[17]Video and Audio Recorded Evidence. See CPA, s 367.
[18]See CPA, s 370.
There are, with respect, multiple errors in her Honour’s reasons which vitiate her ruling.
First, notwithstanding that the prosecution had ‘made its position clear’, and ‘will not seek to lead evidence of the other charges on the second indictment’, and thus that the judge did ‘not have to concern [herself] with a consideration of the admissibility of rebuttal evidence’ or discretionary rejection, the judge has proceeded on the premise that there is ‘other evidence’ available in the current trial to cast doubt on his good character. The simple fact is, unless and until the prosecution sought to introduce the evidence of the fourth complainant in the current trial as rebuttal evidence, there is no ‘other evidence’ available.[19] (We are also left to wonder how — if the charges on the second indictment were tried with those on the first — the respondent could in those circumstances have been denied a direction on good character.)
[19]We assume, without deciding, that the evidence of the fourth complainant might — subject to discretionary exclusion — be admissible to rebut evidence of good character: see BRS v The Queen (1997) 191 CLR 275.
Secondly, and allied with the first matter, her Honour has equated unproven and untested allegations from the fourth complainant as evidence available in the current trial. With respect, while it might be correct to say that it is not only evidence of previous convictions that is ‘able to be called in rebuttal of good character’, it is not correct to say that ‘pending charges can properly be the subject of rebuttal evidence’. Evidence which may support other pending or possible charges might be available as rebuttal evidence, but only if the prosecution seeks to introduce such evidence in rebuttal.
Thirdly, and again allied to the above, insofar as the judge thought that ‘the fourth child’s evidence, if believed, shows the opposite’ of good character, and it ‘would be contrary to the public interest’ for the respondent to ‘go to the jury as a man of good character’ (unless she were satisfied that the evidence ‘gave rise to a prejudice that outweighed the probative value of the evidence’)’ and that the ‘other child’s evidence goes to a vital issue in the case and if believed, is cogent evidence concerning that very issue’, its probative value being potentially ‘very high’, that evidence simply is not evidence in the current trial. We note in this regard that if — contrary to its entrenched and oft repeated attitude — the prosecution had sought to introduce the evidence of the fourth complainant in the trial of the first indictment, the judge would have been required properly to assess its admissibility, and, consonantly with the observations of McHugh J in TKWJ, to make the kind of evaluation required by s 135 and s 137 of the Evidence Act 2008.[20] Adequate evaluation of the evidence may have required the putative evidence being received and tested on a voir dire. That, of course, has not happened. There have been two VAREs, but no special hearing. Thus the evidence has not been tested by the defence.
[20]We need not decide whether ss 97, 98, 101 or 110 of the Evidence Act 2008 might be engaged.
Fourthly, the judge did ‘not consider that a good character direction should be given where an accused is facing like charges’. Her Honour cited no authority for that proposition. We know of no authority which establishes any such proposition or principle. With respect, the judge misdirected herself.
Fifthly — and this theme permeates her ruling — the judge thought it would mislead the jury to assert that the respondent is of good character ‘where, on the materials before the court, other evidence exists’, such evidence being ‘sufficiently cogent’ to have resulted in the respondent’s committal for trial. At the risk of repetition, the evidence does not ‘exist’ unless led by a party. Her Honour’s observation that it is ‘not to the point’ that ‘the Crown does not seek to call evidence about the pending charges’ cannot be sustained. For reasons that we have been at some pains to illustrate, it is very much to the point.
Sixthly, the judge is not being asked ‘to pretend the evidence does not exist’. The evidence simply does not exist until it is led in the trial. As Barwick CJ observed of the nature of a criminal trial in Ratten:[21]
It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law.
[21]Ratten v The Queen (1974) 131 CLR 510, 517. See also Jones v National Coal Board [1957] 2 QB 55, 63–4.
Seventhly, having initially understood that the old animal cruelty conviction was irrelevant to any issue in the trial, late in her ruling the judge seems to have adopted a wholly inconsistent position, and, to that extent, misdirected herself. Having repeated that the earlier convictions ‘are irrelevant to the charges before me’, the judge said that the fact that the respondent ‘can, and is entitled, to treat character as divisible and separate out the cruelty to animal charges from his general character, leaves open the implication that his character in all other respect (sic) is unblemished’, which is a view that the judge regarded as ‘frankly misleading’, since ‘the clear implication from adducing evidence of good character generally is that the accused has a good reputation … in all respects and that is simply not so’. What her Honour was endeavouring to convey by these remarks is far from perspicuous. But insofar as the judge seemed to think that the prior convictions for irrelevant and unrelated matters justified the refusal refusing a good character direction, she erred.
As was made clear in Bishop, s 110 of the Evidence Act 2008 permits evidence to be adduced that the accused is, either generally or in a particular respect, a person of good character;[22] and that, 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.[23] Moreover, as was said in that case:[24]
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.[25] Section 110 of the Act does not alter this position. Prior to Melbourne[26] — and, indeed, the introduction of the Act — the practise in Victoria was as described in Warasta:[27]
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.
[22]Bishop, [7] (Redlich JA); [39] (Priest JA).
[23]Bishop, [7] (Redlich JA).
[24]Bishop, [36] (Priest JA).
[25] R v Warasta(1991) 54 A Crim R 351, 354 (Young CJ, Crockett and Southwell JJ).
[26] Melbourne v The Queen(1999) 198 CLR 1.
[27]R v Warasta(1991) 54 A Crim R 351, 356 (Young CJ, Crockett and Southwell JJ) (emphasis added).
For these reasons the trial judge was wrong to refuse to give a direction concerning the respondent’s good character,[28] that went both to the credibility of his explanation and the unlikelihood of guilt. Her decision cannot stand. The application for leave to appeal the judge’s interlocutory ruling must accordingly be granted and the appeal allowed.
[28]See Jury Directions Act 2013, s 14.
---
8
10
0