Gabriel, Derek v The Queen
[1997] FCA 561
•25 JUNE 1997
CATCHWORDS
CRIMINAL LAW - appeal against conviction and sentence of the Supreme Court - recklessly inflicting grievous bodily harm - grounds for appeal - error of law - statements from Crown witness unfairly prejudiced the accused - cross-examination of accused as to prior criminal history - miscarriage of justice - onus of proof.
EVIDENCE - admissibility of evidence as to the bad character and criminal propensity of the accused - whether the probative value of such evidence substantially outweighs the unfair or prejudicial effect to the accused - putting the character of the accused in issue - the Court’s discretion to grant leave to admit evidence of the prosecution to rebut evidence of the accused’s good character - admissibility of prior inconsistent statement - false denial of having been involved in the offence - consciousness of guilt - whether character evidence of the accused must be adduced by or on behalf of the accused rather than by the Crown in cross-examination - whether the Crown’s rebuttal of character evidence need be confined to those aspects of character raised by the accused.
WORDS & PHRASES - “adducing evidence”.
Crimes Act 1900 (ACT), ss47, 19, 20
Evidence Act 1995 (Cth), ss97, 101, 102, 103, 104, 108(3), 110, 112, 135, 137, 190(1), 235
Evidence Act 1971 (ACT), s70
Evidence Act 1958 (Vic), s399
Criminal Code (Tas), s371
Crimes Act 1900 (NSW), s413A and 413B
Evidence Act 1929 (SA)
Federal Court of Australia Act 1976 (Cth)
Criminal Appeal Act 1907 (UK), s4(1)
Harriman v R (1989) 167 CLR 590
Donnini v R (1972) 128 CLR 114
R v White [1969] VR 203
R v Gadbury (1838) 173 ER 669
R v Redd [1923] 1 KB 104
R v Everitt [1921] VLR 245
R v Jones (1909) 3 Cr App R 67
R v Morley and Percival (1977) Tas SR (Pt 1) 42
R v Stalder (1981) 2 NSWLR 9
P v R (1993) 61 SASR 75
R v Fuller (1994) 34 NSWLR 233
The Law Reform Commission - Evidence (Report No. 26), AGPS Canberra 1985, par 803
Duff v R (1979) 28 ALR 663
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
DEREK GABRIEL v THE QUEEN
No. ACT G68 of 1995
CORAM: Gallop, Higgins and Mathews JJ
DATE: 25 June 1997
CANBERRA
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) No. ACT G68 of 1995
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: DEREK GABRIEL
Appellant
AND: THE QUEEN
Respondent
CORAM: Gallop, Higgins and Mathews JJ
PLACE: Canberra
DATE: 25 June 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be allowed.
The conviction be set aside.
There be a new trial.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No ACT G68 of 1995
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: DEREK GABRIEL
Appellant
AND: THE QUEEN
Respondent
REASONS FOR JUDGMENT
CORAM: Gallop, Higgins and Mathews JJ
PLACE: Canberra
DATE: 25 June 1997
GALLOP J: I have read the judgement of Higgins J in draft form. I agree that the conviction should be set aside and a new trial ordered.
In particular, I agree that the Crown opening was unfairly prejudicial to the appellant in the reference to the statement allegedly made to a proposed witness, Linarejos, by the appellant prior to the alleged offences, but earlier the same day, namely, “I’m going to rob someone, I want some slow”. So much was recognised by the trial judge in ruling on the application to discharge the jury after the opening and before any evidence. However, his Honour considered any unfairness could be recovered by firm direction to the jury.
It was submitted on behalf of the Crown on the hearing of the appeal that the evidence of Linarejos was relevant to the appellant’s state of mind at the relevant time and his real motivation for attending the flats where the stabbing took place ie. the appellant was very anxious to obtain drugs and was sufficiently desperate to resort to aggressive behaviour to obtain them.
When the evidence was given, Linarejos in unresponsive answers in chief said the appellant had robbed “a few people ...... a couple of people”.
Hence there was evidence of the appellant’s bad character and criminal propensity before the jury at the very forefront of the Crown case. Yet in his direction to the jury his Honour did not refer to the evidence that the appellant had robbed persons after the conversation with Linarejos and before the stabbing. For the reasons given by Higgins J I agree that the reference both in opening and in the evidence adduced from Linarejos seriously and unfairly prejudiced the appellant and that unfairness was so serious as not to be capable of removal by direction to the jury. In my opinion the jury should have been discharged.
I also agree that leave to cross examine the appellant should have been refused. First, I am of the opinion that in his various protestations that he was not the sort of person who would go around stabbing people, the appellant was not raising his own good character. Rather, he was denying that he had done what was alleged, admittedly in an emphatic way. The thrust of his assertions was in reality that he would not do that sort of thing. Nor did he raise his own good character by his evidence that he was a plasterer by trade currently working as a dancing choreographer and that he was a rather helpful young man and that he helped his friends.
Secondly, the Crown should not have been permitted to ask in cross examination “Do you need a reason to attack people, do you?” It was a leading question because it contained an assumption, not accepted by the appellant, that he attacked people. His answer “I suggest that I don’t go around attacking people” was again an emphatic denial of any propensity to attack people. He was not thereby raising his own good character.
Thirdly, the appellant’s evidence in cross-examination explaining why he spoke to Karvellas to the effect that Karvellas, knowing the appellant’s character, knew that the appellant would not go around and stab anybody, was likewise an emphatic denial of the Crown allegation and an explanation of the circumstances of the conversation with Karvellas. It was not an assertion of good character.
That the evidence I have referred to did raise good character must have been fairly obscure because the Crown did not apply there and then for the necessary leave. The application was not made and granted until the next day.
Even if the appellant did raise his good character, contrary to my conclusions, leave to cross examine him should have been refused because of the gravely prejudicial effect of the previous convictions, none of which was for offences involving stabbing or the threatened use of a stabbing implement.
Lastly, I agree with Higgins J for the reasons he gives, that leave to cross-examine having been granted, the cross-examination should have been confined to acts of violence involving the use or threatened use of a stabbing implement.
The orders I propose are that the conviction be set aside and a new trial ordered.
I certify that this and the preceding three pages are a true copy of the Reasons for Judgment of the Honourable Justice Gallop
Associate:
Date: 25 June 1997
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) No. ACT G68 of 1995
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: DEREK GABRIEL
Appellant
AND: THE QUEEN
Respondent
CORAM: Gallop, Higgins and Mathews JJ
PLACE: Canberra
DATE: 25 June 1997
REASONS FOR JUDGMENT
HIGGINS J: On 14 August 1995, the appellant, whose correct name is Derek James Gabriel, was indicted before Miles CJ and a jury of 12 on two counts charging that he ... on 20 July 1994, at Canberra,
... did assault Peter Allan Bucknell and thereby occasion to Peter Allan Bucknell actual bodily harm.
And further... did intentionally inflict grievous bodily harm on Martin Paul Dyer.
The evidence at trial and the jury verdict
It was the Crown case that, on 20 July 1994, the accused went to the vicinity of the Allawah Flats at Braddon in the Australian Capital Territory. He there entered into a discussion with a person named Lesley Albert Hocking, allegedly with a view to obtaining heroin. Mr Hocking is said to have rejected the accused’s requests whereupon the latter became violent and abusive. Ms Pauline Simpson came to Mr Hocking’s aid, and was also turned upon by the accused. She fled and sought assistance for Mr Hocking. Four men and one woman, some at least of the men later being described, whether accurately or not, as “skinheads”, came to Mr Hocking’s aid.
Whilst that was happening, Mr Bucknell came upon the scene. He took a piece of wood from the back of his truck and approached the accused, who was then engaged in violent conduct, primarily towards Mr Hocking. He offered the length of wood to the accused in an apparently taunting manner. The accused struck him with the motor cycle helmet he was then swinging.
Whilst the accused was continuing to strike Mr Bucknell, Mr Martin Dyer came on the scene. He stepped between Mr Bucknell and the accused and took up what was described as a “karate stance”. It was later revealed that he had undergone martial arts training. The accused was observed then to strike Mr Dyer only once but in the area of the neck. Mr Dyer fell to the ground. It was later determined that he had suffered a stab wound to the neck, apparently from a screw driver. The consequences of that wound were extremely tragic. Mr Dyer’s spinal cord was severed. He is now quadriplegic.
After the incident with Mr Dyer, the accused fled the scene. He was later arrested, questioned and then charged. He made no relevant admissions.
It was the accused’s case that he had gone to the Allawah Flats, not to obtain drugs, but rather to assist a friend to move out of the Flats and into accommodation the accused was offering to him. The accused claimed that he was attacked by Mr Hocking who called on other persons to assist him in attacking the accused. The accused then defended himself.
In the course of that, he said, he became aware of Mr Bucknell approaching him with the piece of wood. Fearing an attack, he struck Mr Bucknell several times in self-defence. He then became aware of Mr Dyer and feared that he too was about to strike him. He knocked the elbow of Mr Dyer’s upraised hand, knocking that hand back against Mr Dyer’s neck after being struck with a hard object Mr Dyer was holding. He did not claim to observe that Mr Dyer was then holding a screwdriver, such as later was found to have penetrated Mr Dyer’s neck. However, his account supported the view that Mr Dyer had accidentally penetrated his own neck by attacking the accused when he himself was holding the screwdriver.
The accused’s version of events was supported not only by his own rather discursive and frequently non-responsive testimony, but also by a Ms Bretthauer. She said that she saw Mr Dyer strike the accused with an object that appeared to be a handle of a screwdriver. When his hand was struck by the accused, she said, the blade of the screwdriver seemed to strike Mr Dyer’s shoulder and then his neck.
The wounds suffered by Mr Dyer were not inconsistent with either version of events, although the version relied on by the Crown was no doubt the more probable.
The Crown case was strongly supported by a number of eye witnesses, though none of them apart from Mr Dyer could give direct evidence as to the screwdriver.
The issue, in essence, was whether, in light of all the evidence, the jury was satisfied beyond reasonable doubt, not only that the accused inflicted violence on Messrs Bucknell and Dyer, but also that he was not acting in reasonable self-defence when he did so. There was a further serious factual issue as to whether the accused even if acting in self-defence, went beyond what was reasonable if he had stabbed Mr Dyer in the neck.
After receiving a careful summing up fairly explaining those issues, the jury retired on 24 August 1995, later returning with a verdict of acquittal on each count charged in the indictment. However they returned a verdict of guilty on an alternative to the second count, being a verdict available pursuant to s47 Crimes Act 1900 (ACT).
That alternative finding was that the accused was guilty of, “recklessly” rather than “intentionally” inflicting grievous bodily harm on Mr Dyer. The former is an offence against s20 of the Crimes Act attracting a maximum penalty of 10 years imprisonment. The latter, an offence against s19, would have attracted a maximum penalty of 15 years imprisonment.
The Crown had sought an alternative verdict only in respect of the second count although other alternative verdicts were open on the evidence in relation to both counts.
On the case as presented, the jury verdict acquitting the accused on the first count could only have been consistent with a view that the Crown had not excluded the reasonable possibility that the accused may have been acting in reasonable self-defence when he struck Mr Bucknell. There was no serious dispute as to the injuries the latter had suffered or how they were occasioned.
In sentencing the accused on 20 October 1995, the Chief Justice accepted that the accused and not Mr Dyer, had been holding the screwdriver when the latter was struck with it. His Honour was, of course, obliged to accept that the accused had not intended to strike Mr Dyer with the blade of the screwdriver but had been reckless as to the risk of that occurring.
The accused was sentenced to five years imprisonment. Taking into account the existing sentence to which the accused was then subject, a non-parole period expiring 18 October 1999 was fixed.
The appeal by the accused
The appeal by the accused was initially based on three grounds. The first objected to counsel for the Crown opening and then eliciting evidence from a Mr Linarejos to the effect that, prior to the alleged offences but earlier the same day, the accused had said to him, “I’m going to rob someone, I want some slow”. The term “slow” was said to mean “heroin”. Counsel for the accused had objected that the reference to robbery, in particular, was unduly prejudicial.
The second ground of appeal was that the trial judge should not have permitted counsel for the Crown to cross-examine the accused upon his prior criminal history either at all or to the extent which was permitted.
The third ground asserted that the accused had been deprived of a reasonable chance of acquittal by reason of the failure of his counsel to call other witnesses who would also have supported his version of events. That ground was expressly abandoned.
The evidence of Mr Linarejos and the Crown opening
Immediately following the Crown opening, counsel for the accused objected to the statement referred to above being put to the jury. It was submitted that the jury should be discharged.
His Honour declined to discharge the jury but accepted that the statement was unfairly prejudicial to the accused. That unfairness, his Honour considered, could be removed by a firm direction to the jury. As his Honour expressed it,
... the appropriate thing is to allow the whole of the statement to go in, but, for the jury to be very firmly advised that the prosecution case has nothing to do with a robbery or an intention to commit robbery.
The evidence, when given, went somewhat beyond that foreshadowed in the opening. It was as follows,
What did you say to him if anything?---Well, I said, “Hello, what are you doing? Hi”.
Was anything else said?---Yes, well, Derek, at that stage, told me - he says, you know, like, “Who can I rob here? I want to rob someone so I can, you know - I’m hanging out and I want to rob someone.”.
And what did you say?---I told him, you know, I said, “Well, it’s my drinking hole. I’m a local here”. I said, “Don’t go robbing anybody here or, you know, upsetting anybody here, because it’s not the place to do it.”. Basically, that’s what I told him not to do it.
He used the words, “I’m hanging out”?---Yes.
What did you understand that to mean?---He was hanging out for heroin. He told me he wanted slow. He told me “I’m hanging out for slow” which is heroin in the street talk.
...
He was agitated?---Yes.What was he doing which led you to that conclusion?---Well, just the body language and the way he was talking to others, and the way he was psyching and looking to see who he could rob.
His Honour commented to the jury that the latter remark “can be disregarded”.
The witness then observed that the accused had been limping when he saw him. He was asked in cross-examination whether he had told anybody else previously that the accused had been limping. That produced the following exchange,
Who did you tell?---Who did I tell?
Yes?---Well, after them - after that - he robbed a few people that - because he did go and rob a couple of people at ...
HIS HONOUR: Now, look, you were only asked about what you told people who - Which people you told ...?---Well, I told locals that are ...
Do not go into a rigmarole about what other things he may or may not have done. Yes?
---I told people that were at the pub.
Thus, not only did the witness give even greater emphasis to the alleged intention of the accused to rob someone than had been foreshadowed in the opening but also added the allegation that the accused had in fact committed robbery on that day. That answer was not responsive to the question counsel for the accused had asked.
The direction given by his Honour did not refer at all to the allegation that the accused had robbed a person or some persons following his conversation with Mr Linarejos. His Honour did, however, refer, as he had foreshadowed, to the evidence in the form in which the Crown had adduced it. That reference in the summing up was as follows,
He [Mr Linarejos] was the man you remember, ladies and gentlemen, who said he had seen the accused at about lunch time in the Civic area and then later over at the ANU Bar where he was having a drink and the accused came into the bar, he appeared to be excited and the accused said to him, “Do you know somebody I can rob - who can I rob?” Something to that effect.
Now, that simply sets the scene, ladies and gentlemen, for what happened later in the day and as I have already emphasised to you, you must not take that evidence into account as indicating any propensity on the part of the accused to rob people or indeed any intention to rob anybody on that day. Robbery is not charged against this accused in relation to what happened that day.
That direction needs to be read with the direction given in relation to the accused’s prior convictions. The purpose of that evidence, his Honour said, was,
... simply to rebut the assertion of the accused that he is a person of, if you like, certain good character. And do not use the evidence to indicate what lawyers call propensity. That is to say, likelihood on the part of the accused that he commit [sic] the sorts of crimes that are under consideration in this case.
Remember what is a basic principle in our system, that we try people for what they are proved to have done and not for the sort of people we think them to be.
Nevertheless, it is clear that evidence of the bad character and criminal propensity of the accused was placed before the jury. It was, as his Honour correctly observed, irrelevant as well as being prejudicial in so far as it referred to robbery. The truth of the assertion made as to the accused’s statements and actions in that respect was not capable of being explored. Indeed, as his Honour instructed the jury to disregard the allegations concerning robbery, it would not have been appropriate for the accused or his counsel to have endeavoured to address the issue.
It is a basic principle that evidence of bad character of the accused will normally be inadmissible, cf Harriman v R (1989)167 CLR 590.
Further, the evidence thus admitted by his Honour, being tendency evidence, was inadmissible by reason of ss97 and 101 Evidence Act 1995 (Cth) (“Evidence Act”). The evidence clearly could not have satisfied s101(2), that is,
Tendency evidence about a defendant ... that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
The fundamental reason for rejecting tendency evidence is well known. It was restated by Barwick CJ in Donnini v R (1972) 128 CLR 114, 123 in the context of evidence of prior conviction as follows,
It seems to me, however, that there is a high degree of possibility that a juryman will be prone to reason towards guilt by the use of the fact of prior conviction as indicative of a disposition to crime on the part of the accused.
Even where, by reason of relevance or for other reasons, tendency evidence is adduced, Harriman’s case (supra) makes it plain that, even at common law, if the inadmissible prejudicial effect is not substantially outweighed by the legitimate admissible purpose of the evidence, it should be rejected, not merely as a matter of discretion, but as inadmissible.
Dawson J, at 597, noted,
When a person is charged with a criminal offence, evidence is ordinarily inadmissible that he has on other occasions been guilty of behaviour indicating a criminal disposition. This is not because the evidence is irrelevant. On the contrary, it is excluded because a jury is likely to regard it as proving too much and is for that reason likely to proceed upon prejudice rather than proof.
It is for that reason, even where tendered for a legitimate collateral purpose, the Evidence Act s.137 provides that such evidence will be admitted in criminal proceedings only if the probative value “substantially outweighs” the unfairly or improperly prejudicial effect of such evidence.
The evidence as to robbery which the prosecution both opened and adduced had no legitimate probative purpose. It was opened without leave and indeed, without notice to the defence or the Court. The leading of the evidence was a clear breach of ss97 and 101 Evidence Act.
It is true that the evidence of the accused’s desire to obtain illicit drugs, even by itself, was evidence not only of his possible purpose in attending the Allawah Flats but also reflected adversely on his character.
However, the crimes alleged against the accused were crimes of violence, not merely illicit drug use. It was plainly more prejudicial to portray the accused as a person likely to use violence to achieve a dishonest purpose than to portray him as a drug addict.
There was a legitimate evidentiary purpose in seeking to prove, contrary to his assertion, that the accused did not go to Allawah Flats for a worthy purpose, but rather to obtain illicit drugs. It might also have indicated his state of mind. That part of Mr Linarejos’ evidence was, therefore, at least arguably admissible, see Harriman v R (1989) 167 CLR 590. No doubt, for that reason no objection was then or has since been taken to the admission of that evidence.
Nevertheless, it seems to me that the reference both in the opening and in the evidence adduced from Mr Linarejos by the Crown, as well as his gratuitous and unresponsive allegations in answer to questions in cross-examination, seriously and unfairly prejudiced the accused. That unfairness was not so peripheral that it could have been removed by a direction, however firm.
The respondent offers two answers to that proposition. The first, implicitly, was that the accused later put his character in issue, so that evidence of bad character and criminal tendency became admissible. Thus, it was contended, on the whole of the evidence as it stood at the end of the trial, the accused’s character had not been significantly further damaged by the evidence Mr Linarejos had given.
The second submission this time expressly put, was that in all the circumstances, the evidence against the accused was so overwhelming that there would be no miscarriage of justice if the appeal was dismissed notwithstanding the admission of the inadmissible and unfairly prejudicial evidence.
The first submission depends heavily on a finding that the accused had put his character in issue so as to justify the admission of adverse character and tendency evidence.
Did the accused “put his character in issue”?
Whilst being cross-examined by counsel for the Crown, the accused made certain statements which counsel contended justified cross-examination about his prior criminal history.
The previous legislation, Evidence Act 1971 (ACT) s70, permitted such cross-examination “with the permission of the court”, where, inter alia “the person charged has given or called evidence of his or her own good character”.
Part 3.8 - Character. Section 110 Evidence Act provides,
(2)If evidence adduced to prove (directly or by implication) that a defendant 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 defendant is not generally a person of good character.
(3)If evidence to prove (directly or by implication) that a defendant 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 defendant is not a person of good character in that respect.
Section 112 provides,
A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.
Section 110(1) makes it clear that s110(2) and (3) apply only to the case of, “evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character”.
Each of those provisions is subject to the overriding effect of s137,
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is out-weighed by the danger of unfair prejudice to the defendant.
That mandatory provision is additional to the discretionary power to reject or limit the use of otherwise admissible evidence conferred by ss135 and 136.
The evidence relied upon by the prosecutor to warrant a grant of leave would, therefore, have needed to satisfy s110(2) or (3) and s137. Even if it did so, it would not follow that the trial judge was bound to admit it. Section 135 would permit, though not require, refusal of leave if, the evidence might,
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
The evidence relied on by counsel for the Crown to support his application was referred to by the Chief Justice in the course of his reasons for granting leave generally to him to cross-examine the accused as to character.
His Honour said,
... Well, the question of the accused’s previous character was clearly raised by him, although as Mr O’Donnell correctly says, it was not in evidence-in-chief but in cross-examination. That is a factor to be taken into consideration but it is not as though it was raised by him only once, it was raised repeatedly. On one occasion he said, “I don’t go around attacking people”; on one occasion he sought to explain a statement that he was not at the scene of the alleged crime by saying he meant to indicate by the statement, “I wasn’t there” - or something to that effect - that the crime alleged was not the sort of thing he would commit.
And he said what he meant to say was, “That’s not me, I wouldn’t go around and stab anybody”. He repeated that on another occasion and on a further occasion he spoke about his childhood and so forth and relations with a neighbour and posed the question that the neighbour would be considering was it possible for him to carry out such an act. Mr O’Donnell has submitted that all this material should be seen in the context of the accused talking about the specific allegation against him of stabbing another person. And whilst there is certainly that context, I think that the statements by the accused do go beyond the context of stabbing.
There is a discretion to disallow evidence to rebut the raising of good character - that is conferred by s112 of the Evidence Act 1995 but s110 clearly makes admissible evidence to rebut the raising of good character. In fact, it seems to enlarge the area of admissible evidence from that which was previously admissible. That is to say before the Evidence Act. But be that as it may, the real question for me to decide is whether the discretion to give leave should be exercised. Section 112 is couched in terms which I think cast the onus on the prosecution and that, as I recall, does not change the previous law but I do consider that what the accused has said is such that it should not go to the jury as it stands.
It would be wrong for the jury to retire having heard, uncontradicted in any way and uncross-examined, the repeated allegations of the accused that he is not the sort of person who would stab anybody and, indeed, he is not the sort of person who goes around attacking people. There are two charges, only one of which relates to stabbing. The other one, of course, is striking Mr Bucknell with a helmet. The jury will have to be told that they have to differentiate clearly about both those offences and the evidence that goes to prove either one of them and, on balance, I think that the jury ought not be under the false impression that the accused is a person who has never attacked anybody and is not the sort of person who would commit such an act even if the act be restricted to an act of stabbing.
The jury will, of course, be given very firm warning about evidence rebutting his assertion of good character. They will be told that it is not to be taken as evidence, in effect, of bad character and they should not regard it as evidence of a propensity to commit either of the crimes alleged and that it simply goes to, as I say, rebut the suggestion by him that he is a person of the sort of good character he has alleged. So I would grant leave. ...
No evidence was led in chief from the accused as to his character. Nor had his counsel asked questions of any other witness as to his character. The issue arose only during cross-examination of the accused by counsel for the Crown. Nor was the accused warned that any statement made by him, if repeated, could open the issue of his character and expose him to cross-examination on his prior criminal history.
On the hearing of this appeal, counsel for the Crown, in argument, did suggest, albeit faintly, that the statement made by the accused when asked his occupation, had raised character. The accused had said,
I’m a plasterer by trade. I’m currently working as a dancing choreographer.
The accused had by then been in custody for some months. However, that statement was not explored further, even in cross-examination. Further, whether true or false, absent any evidence as to the propensity or not of dance choreographers to assault people or to be of good or bad character generally, it was manifestly irrelevant to the question of character. Nor does it appear that the prosecutor at trial raised or relied on it in his application for leave to explore character.
The first comment the prosecutor relied on followed questioning of the accused, in cross-examination, as to his reasons for going to Allawah Flats. The Crown contended that it was to obtain heroin. The accused had contended it was to assist a friend, Mr Errol Guest, to move into accommodation the accused had available for him. It was suggested,
You see, you were upset at - annoyed at Errol weren’t you?---No, I was offering him a place to stay and probably, you know, a place to board and eat. So, you know, I’m a rather helpful young man in that regard and I do help my friends in most respects ....
Again, though capable of being read as a general statement as to character, whether or not the accused was helpful towards his friends, of whom neither alleged victim was said to be one, would have little or no relevance. In any event, it does not seem that counsel for the Crown at trial raised or relied on this statement either as justifying his application.
It was about 35 minutes later in cross-examination that the issue of the accused’s propensity to stab or attack people was first raised.
It had been suggested to the accused that he had attacked Mr Hocking when the latter refused to supply him with drugs. That was, on the Crown case, the event precipitating the mêlée which followed and in which Messrs Bucknell and Dyer had thereafter become involved.
The accused rejected that suggestion referring to the evidence given about that allegation,
...You hear a few words from them and then they say, for some reason I suddenly attacked him [Hocking] - like just out of the blue like that, without there being any reason. He says he doesn’t have any drugs, so that’s a reason for me to - well, to attack him.
He was then asked,
Do you need a reason to attack people, do you?---I suggest that I don’t go round attacking people.
Counsel’s question invited the accused to affirm or deny that he was the sort of person who would need a reason to attack people. The accused, that question having been asked, had three basic choices of response,
to accept the implicit imputation, thereby admitting to bad character and a propensity to act as alleged by the Crown by denying he needed a reason to attack people;
to assert that he would attack people only if given good reason, thereby leaving it open to be inferred that he did have the propensity to “attack” people, albeit for what he took to be a reason justifying that conduct. He would then open up cross-examination as to the adequacy of his ‘reason’ or reasons;
to deny the underlying premise that he “attacked” people.
The accused chose the last of those three alternatives. The question asked by Counsel for the Crown was both inadmissible and unfair. It should not have been asked or answered.
Having been asked and answered in the terms it was, no harm would have ensued had the matter been left there.
However, the issue of the accused’s propensity for violence having been raised, it is hardly surprising that the accused would have considered it reasonable to endeavour to support his rebuttal of the suggestion which the Crown had put to him whenever the opportunity arose.
The Crown had called evidence from a Mr Con Karvellas, a long time neighbour of the accused. His evidence was that he had had a conversation with the accused after the incident at the Flats and before the accused was arrested. The first such conversation appeared to deny that the accused had been involved at all in the stabbing about which Mr Karvellas had been told by police. Thereafter the accused gave him an exculpatory account of the confrontation, apparently consistent with his later evidence at trial but arguably inconsistent with his initial denial of involvement in any wrong doing at the flats. The Crown proposed to lead evidence of that earlier conversation. That proposal was raised for the first time at the trial.
Mr Karvellas, had he merely been called to repeat his evidence as given at committal could only have been regarded as supporting the defence case. That evidence would not have been admissible otherwise than by consent being merely a prior consistent statement. A prior denial of that prior consistent statement would have been relevant only to the credibility of that inadmissible evidence - see s102 Evidence Act. Thus evidence of the denial could have been lawfully adduced only if Mr Karvellas had been tendered by the Crown as a witness in order that the defence might cross-examine him. If the witness had, and it could only have been with the consent of the Crown, been permitted to give evidence of the accused’s prior consistent statement, the Crown, if it had given due warning of its intention to call it, might have been permitted to adduce evidence of the original apparent inconsistency. It is hardly likely that counsel for the accused would have agreed to Mr Karvellas giving evidence of the prior consistent statement if it had been apparent that the earlier inconsistent statement would be admitted.
The tender of the evidence of Mr Karvellas by the Crown was, in my view, totally misconceived and if in doing so, the Crown had intended, as a consequence, to adduce evidence of a statement inconsistent with it, it was unfairly prejudicial. The tender of Mr Karvellas’ evidence was in clear breach of s108(3) of the Evidence Act, but for the consent of the accused, see s190(1). However, it does not appear that the consequences of that consent were made apparent to the accused or his counsel. Indeed, it appears that the proposal to call the “prior inconsistent statement” evidence only arose after Mr Karvellas had been called by the Crown and had given evidence of the later exculpatory statement. In fairness to the Crown, it does appear that the accused’s counsel had been made aware of the Crown’s intention though the trial judge had not. The degree to which the accused had been able to give the requisite “informed consent” is necessarily doubtful.
To have been relevant in its own right, the alleged “false denial” would have needed to be probative of a “consciousness of guilt”. So counsel for the defence, in my view, correctly submitted. Counsel for the Crown did not advert to any other basis justifying admission of that evidence. It was not put as being a rebuttal of the prior consistent statement. In all the circumstances, the “false denial” could have gone no further in terms of proving guilt than did the accused’s later statements supporting his innocent or at least, excusable participation, in the events of 20 July 1994 to prove or support the contrary conclusion.
It could only have been relevant as a pre-emptive strike at the accused’s credibility. It should have been excluded, at least pursuant to s137.
It should be emphasised that the admission of that evidence is not complained of in this appeal. However, the admission of it does put in context the evidence elicited from the accused during the cross-examination of the accused by Counsel for the Crown concerning Mr Karvellas’ statement.
It was the prosecutor who raised the matter. Referring to the accused’s assertion that after going to Allawah Flats he had been unlawfully set upon, the prosecutor said,
Well, you see, that is not what Con Karvellas says, is it?
The accused gave a lengthy answer. It was to the effect that Mr Karvellas was honest but mistaken in giving the account of the “false denial”. It is not clear whether the terms of the conversation were denied or merely the interpretation placed on it by Mr Karvellas. In the course of his dissertation the accused, unresponsively, said,
... He [Karvellas] had a friend who was an orderly at the hospital [presumably where Mr Dyer was] and he was very concerned that, you know, he [Karvellas] wanted, to know, “Derek, that’s not like you. That’s just not like you. You know the police told me all these things on the night”...
When pressed further to concede the prior inconsistent statement, in the course of another lengthy answer, the accused said,
... I had to say to him [Karvellas], “Well that wasn’t me. If that’s the story you’ve been told then that was not me,” ...
The questioning continued. In the course of explaining why he spoke to Mr Karvellas about the events of 20 July 1994, the accused said,
... He thought, you know - and rightly so, he know [sic] me, he knows my character, he knows that’s not me ...
That what’s not you?---Well, he knows I wouldn’t go around and stab anybody, that’s for sure ...
The accused was then reminded of Mr Karvellas’ evidence that he was told by the accused of the latter’s involvement in the incident at Allawah Flats on 20 July 1994 only in February 1995. The accused said he did not recall that evidence,
... I wasn’t really paying that much attention to it....
Counsel for the Crown then asked,
Why, are you not interested in these proceedings? ...
The accused’s answer was not responsive. He gave a long dissertation as to how he had been endeavouring to re-assure Mr Karvellas that he had not stabbed Mr Dyer. In the course of it he said,
... My father has been stabbed in the neck himself whilst driving taxis in Sydney and I would not wish that [on] anybody. No-one deserves to be stabbed and I certainly would not go around and carry out such a purposeful, and heinous act on anybody. I just couldn’t imagine myself doing it ...
His Honour then warned the accused that it would be “better” if he confined himself to answering the questions, “from everybody’s point of view”.
It is not clear whether his Honour then had in mind the opening up of cross-examination as to tendency and character, but there is no reason to suppose that either the accused or his counsel would have assumed that to have been the position.
The issue of leave to cross-examine the accused as to his character was not raised with his Honour until the morning following the giving of the evidence referred to above.
Leave having been granted, the accused was, after about an hour of further cross-examination, reminded of the evidence he had given the previous day concerning his propensity to attack people,
Now, Mr Gabriel, you suggested in your evidence yesterday that you “are not the sort of person who goes around attacking people”, do you remember saying that?
Do you remember saying that?---With a knife, yes.
He was reminded of the statements referred to above, and then was asked,
You see, in saying those two things you are attempting to suggest to the jury that you are not the sort of person who carries out acts of this kind, aren’t (sic) you?---No, I was in no way suggesting that ...[then follows a complaint from the accused that, had it been known that these “gutter tactics” were going to be used then a different course might have been pursued]
Further statements were put to the accused. Then the prosecutor put to him,
And I say to you that in saying those words [ie as to the sort of person the accused had said that he was] you were attempting to leave the jury with the impression that you were not the sort of man who would carry out such an act as has been charged against you in these proceedings?---That is correct.
It is unnecessary to refer in detail to the criminal history put to the accused thereafter and his often lengthy self-justificatory responses. It suffices to note, in summary, his concessions that,
on 20 August 1992, he pleaded guilty to an act endangering life (taking a policeman’s pistol from him and pointing it at him in a threatening manner);
in January 1991, he pleaded guilty to a charge of assaulting a man named Pham by pointing a .22 rifle in his direction.
It was then suggested to him by counsel for the Crown that, as a result of those two matters, he had lied about his character. His Honour then intervened saying to the jury,
... I will just say something about this evidence about this witness, or the accused, pleading guilty to offences on other occasions. If that was so then it might go to contradict his statement yesterday that he is not the sort of person that would go around attacking people or stabbing people. It in no way provides direct proof that he assaulted anybody on 20 July 1994. And most importantly you must not take this evidence that is coming out now as providing any basis for coming to a conclusion that Mr Gabriel is the sort of person who would commit the sorts of crimes that are alleged against him in this case. It is purely to contradict his statement yesterday that he is the sort of person he claimed to be. ...
Counsel for the Crown then continued, obtaining further concessions that,
in November 1986 the accused had pleaded guilty to a charge of assault occasioning actual bodily harm (the victim was a police officer, one of two the accused claimed to have assaulted him first);
in November 1986, he pleaded guilty to larceny (theft of a wallet belonging to an off-duty police officer who was in some way involved in the fracas referred to above).
In the summing up, his Honour referred to these matters. He said,
...it was also put to him that he had a prior conviction for larceny. And I think he agreed with that and he said something about “why I took the wallet from the policeman”, I think it was. And he did not seem to dispute that there was a prior conviction, of larceny or stealing. Now, the prosecution is not entitled to rely upon that as positively assisting the prosecution case in proving what happened on 20 July last year. Because it does not relate to a fact in issue in this case. Whether he is convicted of larceny, he stole from people then or any other time, has got nothing to do with this case except that it does reflect on his credit.
If he was a person with a previous conviction for larceny it might reflect on his credit as a witness. He might be less likely to be a person who tells the truth, who knows. People who do get convicted of larceny are capable of telling the truth I would expect. And not everything a persons says, who is a confessed liar, amounts to a lie. Obviously, some things of which Mr Gabriel has spoken are true. He admits he was at the scene, that is true, although he might have given a false denial about it earlier. So I suggest, ladies and gentlemen, you do not place much weight on the fact that he was previously convicted, been convicted for stealing, but that is a matter for you.
If you think it has got some significance in testing the credibility of the accused but it has got nothing to do with positively assisting the prosecution case as to what actually happened on the night in question. And that leads me to the other matter. I did speak about it to you earlier during the course of the case but I must put it again because it is very important. When the accused was cross-examined and it emerged that he does have previous - that he did plead guilty to prior acts of assault or if he did not plead guilty, at least, he admitted them to you and sought to explain them. You must be very careful how you take that into account.
As I said, the prosecution was entitled to bring that up in order to rebut the positive assertions by the accused that he was not the sort of person who went round assaulting people or stabbing people. But the prosecution is not entitled to rely upon it to assert that he is a person of general bad character or that he is a person who does, in fact, go round stabbing people or assaulting people. It is simply to rebut the assertion of the accused that he is a person of, if you like, certain good character. And do not use the evidence to indicate what the lawyers call propensity. That is to say, likelihood on the part of the accused that he commit the sorts of crimes that are under consideration in this case.
Remember what is a basic principle in our system, that we try people for what they are proved to have done and not for the sort of people we think them to be. Well, that is all I want to say on the law, ladies and gentlemen. I am going to now just sum up to you the prosecution case and the defence case, dealing with the prosecution case first. Now, when I do this, obviously I am not acting as an advocate for the prosecution; I am not acting as an advocate for the defence, but it is part of my duty to do this in order to help you - if I do help you - in understanding the case and making your deliberations a little easier.
Although his Honour did not expressly advert to it, none of the prior convictions had been conceded by the accused, or proved by the Crown, to have involved a physical “attack” on another person. None involved stabbing or the use of a stabbing instrument. It is, nevertheless, clear that the direction given by his Honour would, to some extent, have placed that evidence in a proper context and explained the proper use for which it was to be made.
Nevertheless, the appellant contends that his Honour erred, in permitting such cross-examination at all and, in any event, not limiting it to instances of alleged “attacks” on other persons by stabbing or attempting to stab them. Of course, if the evidence had been so limited none of it could have been given.
Was the grant of leave to cross-examine the accused on his prior criminal history lawfully open and, even if so, properly granted?
As already noted, the evidence adduced by the prosecution in cross-examination of the accused, prima facie, was in breach of the tendency rule, s97, unless permitted by s97(2) and by s101(3) (... to explain or contradict tendency evidence adduced by another party). It also breached the credibility rule, s102, unless it had been permitted pursuant to s103(1) (evidence may be adduced in breach of the credibility rule in cross-examination only if the evidence has “substantial probative value”) or s104 (prohibition generally of cross-examination as to credibility of an accused). For the purposes of s104 leave would have been required by s104(2) unless s104(3)(c) (prior inconsistent statement) applied and/or s104(4)(a) (evidence already adduced tending to prove good character “either generally or in a particular respect”).
The exclusionary rules would, of course, have been rendered inapplicable by s110 if s110(2) or (3) applied. Those sub-sections are intended to permit rebuttal evidence where a defendant has adduced evidence of good character. However, the exclusion of the tendency and credibility rules (and the hearsay rule if relevant) only applies to those aspects of good character raised by the defendant in adducing such evidence. Otherwise, the prohibition on such cross-examination remains. Therefore, the cross-examination undertaken of the accused by the prosecutor would not have been permitted unless the accused had, in fact, adduced evidence of his good character.
Did the accused “adduce” evidence of good character?
For the accused it was submitted that, to be “adduced”, the evidence as to his character must have been led by or on behalf of the accused rather than being elicited in cross-examination by the Crown.
In R v White [1969] VR 203, 205, the Full Court (Winnecke CJ, Gillard and Newton JJ) commented,
It is to be remembered that evidence elicited by the Crown in the course of cross-examination is not evidence led by the defence but is evidence adduced against him in the case for the prosecution.
The legislative provision applicable in R v White (supra) allowed the Crown to cross-examine the accused as to bad character if, inter alia, he or she had “given evidence of his [or her] good character”. The evidence which was relied on by the Crown as enabling such cross-examination was the mention by the accused that the reason he had told lies was that he was on a bond, a condition of which was that he not associate with a co-accused. He said he did not wish to admit that breach. Counsel for the Crown was then permitted to cross-examine him as to the terms of that bond and to reveal the offences of which it was the subject. Those offences were serious thus supporting the accused’s stated reason for telling lies. Thus whilst “consciousness of guilt” as a motive for the lies was thus excluded, that evidence exposed the accused to seriously adverse inferences as to his criminal tendency and character. The offences in question were similar to those then in issue. Such evidence should, according to their Honours, have been (205) “rigidly excluded unless plain grounds of admissibility are otherwise disclosed”. Their Honours also expressed the view that, even if technically admissible, the probative value of the impugned evidence must be weighed against its prejudicial effect. If that had been done in this case the proper decision would have been to reject the evidence.
The Victorian provision, s399 Evidence Act 1958 (Vic), referred to the “giving” of evidence. In R v Gadbury (1838) 173 ER 669, Baron Parke held that to “give evidence” included eliciting evidence from the opposing party’s witnesses.
In R v Redd [1923] 1 KB 104, Avory J (reading a joint judgment with Lord Hewart CJ and Sankey J) agreed that the fact that a witness for a prisoner had volunteered evidence of the prisoner’s good character when called for another purpose did not amount to the prisoner “giving” evidence of good character.
In R v Everitt [1921] VLR 245, 249, Cussen J had to consider a response by an accused in cross-examination about a prosecution witness. He said of the witness, “He is a liar, of course - absolutely”. The gateway for the Crown to call adverse character evidence required that “the nature or conduct of the defence” had been such “as to involve imputations on the character of ... witnesses for the prosecution”.
Cussen J noted with approval a statement in R v Jones (1909) 3 Cr App R 67, 69, that,
If an attack on the character of witnesses for the prosecution results merely from questions put to him in cross-examination and not raised in any way as part of the defence, such attack would not justify the admission of evidence as to the prisoner’s character. Prima facie, answers in cross-examination are part of the case for the prosecution, and do not show the nature and conduct of the defence, but it cannot be laid down as an absolute rule that no answer in cross-examination can let in such evidence.
Then, at 249, his Honour commented as to the particular responses the accused, Everitt, had made. His Honour said,
I do not think that the nature or conduct of the defence did involve imputations on the character of the witness ...
Whilst not directly relevant, those observations and those in R v Jones (supra) do tend to support the view that the conduct of the accused’s case must involve a deliberate decision to give the “gateway” evidence (whatever it be) as part of his or her case.
Reference was made to R v Morley and Percival (1977) Tas SR (Pt 1) 42. Green CJ found that s371 of the Criminal Code (Tas), referring to “adducing” of evidence other than one’s own testimony, did not include cross-examination of a co-accused.
However, it seems to me that provision is not sufficiently analogous to s112 Evidence Act to be of much assistance in the present case.
In R v Stalder (1981) 2 NSWLR 9, the Court of Criminal Appeal considered the Crimes Act 1900 (NSW), ss413A and 413B which in respect of accused persons permitted evidence of bad character when evidence of good character had been given. The accused, in an unsworn statement, had portrayed himself as a person of good character. It was held that the trial judge had correctly applied the common law rule, not excluded by ss413A and 413B Crimes Act 1900 which were not directly applicable, in allowing the Crown to adduce evidence of bad character in rebuttal. That decision is consistent with the terms of s110(4) Evidence Act.
At common law there was no mandatory restriction on the range of matters relevant to character the Crown might be permitted to address once the accused had adduced evidence of any aspect of his or her good character. However, as Street CJ noted in Stalder’s case (supra) at 19, notwithstanding that “technical admissibility”,
It still leaves open to the trial judge, however, the very real duty of determining, where objection is taken, whether as a matter of discretion any particular matter should be disallowed or excluded if in the circumstances the judge thinks it unfair.
In P v R (1993) 61 SASR 75 reference was made to similar, though not identical provisions under the Evidence Act 1929 (SA). Those provisions removed the right of an accused not to be cross-examined as to bad character if the accused had asserted his own good character or unnecessarily attacked the character of a Crown witness. In one respect, he was found to have done the latter. Thus the exclusion was no longer mandatory. Nevertheless, King CJ noted, 79-80,
The learned judge was required, in exercising the discretion which vested in him, to balance the gravely prejudicial effect of the disclosure of this prior conviction against any legitimate bearing which the disclosure might be thought to have upon the credibility of the appellant as a witness. I think that exercise could have only one result. It would be obvious that the disclosure would be so prejudicial to the fair trial of the action that any marginal bearing that it might have upon the credibility of the appellant would fade into insignificance.
Those observations have clear relevance to the circumstances of the present case.
More recently, in R v Fuller (1994) 34 NSWLR 233, the Court of Criminal Appeal (Hunt CJ at CL, Bruce and Dowd JJ) considered the terms of s413B Crimes Act 1900. Their Honours held that the right to adduce evidence of bad character in rebuttal of “good character” evidence was confined to situations where evidence was given with the intention of establishing good character. Evidence given merely having the tendency to establish good character should not be regarded as putting the character of the accused in issue.
It remains to note the report of the Law Reform Commission on Evidence (Report No 26). It refers to research strongly emphasising the prejudicial effect of adverse character evidence. It was found (par 799) that there was a grave risk that jurors would punish an accused by an adverse finding based on satisfaction that the accused was guilty of other misconduct justifying punishment. Further if a juror was satisfied that the accused is a criminal, he or she would tend to regard his or her mistaken conviction as of less consequence than otherwise. Those findings support strongly the position previously taken by the courts.
Evidence of good character was found also to have a similar, though, of course, favourable, disproportionate impact. It was, nevertheless, proposed that the accused should be permitted to “adduce evidence” of character and repute. It was not thought appropriate to deprive an accused of that traditional advantage. However, it was subject to the proviso, also traditional, that if he or she did so, then the Crown should be permitted an appropriate rebuttal but making mandatory the previous judicial discretion to limit the scope of that rebuttal by reference to the aspects of character put in issue. The report stated, at par 803,
If the accused has led evidence tending to prove that he is not the kind of person who could commit the crime he is charged with, the prosecution must be permitted to rebut this evidence or the tribunal of fact might be left with a totally misleading impression of the accused. In fairness, the prosecution should be permitted to adduce the same type of evidence as was the accused. But the rule, under existing law, that the rebuttal evidence only negates good character without pointing to the likelihood of guilt seems incapable of enforcement. Further, the law’s assumption of indivisibility of character which permits the prosecution to adduce rebuttal evidence relating to a “character trait” other than that raised by the accused seems incorrect. Where the evidence of the accused’s good character has been confined to his character in a particular respect, the evidence of bad character or prior conviction in rebuttal should be confined to such evidence as tends to disprove his good character in that respect. The evidence may be relevant to credibility, but if the accused does not take the witness stand his credibility is not in issue. The evidence is immaterial and therefore irrelevant. Of course, if the evidence tendered by the accused crosses the spectrum of character, the prosecution should be able to rebut both in terms of issue and credibility.
It seems to me that the expression “adducing evidence”, in s110, Evidence Act refers to leading evidence whether in chief or by means of cross-examination. Prima facie, therefore, it was the Crown which first adduced evidence as to the accused’s character by asking him,
Do you need a reason to attack people, do you?
The answer then given was responsive. The answer favoured the accused but the Crown did not thereby become entitled to seek to adduce evidence of bad character.
Some of the subsequent answers whereby the accused denied a tendency to stab people were unresponsive to the questions asked, in that sense the accused could be regarded as raising character if it was concluded that it was being done deliberately for that purpose and not inadvertently or incidentally.
That accords with the view expressed by Lord Alverstone in R v Jones, that an accused might, by giving unresponsive answers in cross-examination, be thereby “adducing evidence”.
There is an important difference between the New South Wales Evidence Act and that of the Commonwealth. The latter waives the protection to an accused person only as to those aspects of character raised by the accused. It does not permit evidence as to the character of the accused in any other respect. The New South Wales Act does not make that qualification. Though, no doubt, ss135 and 137 would preserve the power of a trial judge to achieve a similar result.
In this case, the accused agreed that he was endeavouring to deny that he was the kind of person who had a tendency to stab people. It was, therefore, arguable that he had thereby enlivened a discretion to allow rebuttal evidence to be adduced. There is also much to be said for the view endorsed by Gallop J that, in the circumstances, the accused’s statements, albeit unresponsive, were merely “emphatic denials” of the allegations already inadmissibly put to him by the prosecutor. Given the lack of any warning and the context of the denials of criminal tendency, I would agree that is the preferable construction of those statements. However, even if the opposite conclusion is adopted, rebuttal evidence had to be confined to the accused’s tendency or otherwise to “stab” people.
None of the prior criminal history put to the accused involved the use or threatened use of a stabbing instrument. The larceny conviction had no relevance at all even if the general question of the accused’s disposition towards unlawful violence was thereby raised.
In my view, therefore, the learned trial judge erred in not confining the leave granted to acts of violence involving use or threat of use of a stabbing instrument. Given that there were no such incidents, it was an error to permit such cross-examination at all. The more general aspect as to “attacking” people did not give rise to any right in the Crown to seek to call rebuttal evidence. It was not available as a ground to support such an application.
Even if I am wrong in regarding the aspect of character raised as being so narrow, and it is viewed more generally relating to any tendency to physical violence, it was, in my view, an error, in any event, to allow general cross-examination which included reference to a crime of dishonesty.
There is, however, more. The raising of good character by an accused, whether generally or in a particular respect, does not, per se, entitle the Crown to adduce evidence of bad character. At common law, leave to adduce such evidence might, in any event, be refused on the ground of undue prejudice.
In this case, it does not appear that the Crown revealed the nature and extent of the evidence it proposed to adduce in the course of requesting leave. That rendered it impossible for the question of leave to be properly considered. It seems to have been assumed that, if the accused raised good character whether by responding to a question in cross-examination or by unresponsive answers referring to his good character leave would automatically be granted so as to enable cross-examination generally as to character. Neither counsel seems to have expressly referred his Honour to the restrictive provisions of the Evidence Act, though counsel for the accused did refer to the restricted nature of the references by the accused to his character. Probably as a result of that, it does not appear that his Honour gave consideration to matters such as,
the relevance of the proposed evidence to the character claimed by the accused;
the role of the Crown in opening up the question of character;
the stage of the trial at which the question of character was raised;
the fact that counsel for the accused had determined, for obvious tactical reasons, not to raise character;
the lack of any warning by the Crown or the trial judge that unresponsive answers raising character might, if repeated, entitle the Crown to adduce rebuttal evidence.
His Honour, no doubt, did consider the probative value of evidence as to character compared with its unfairly prejudicial tendency. That led to a direction as to the use the jury could make of such evidence. That direction is not open to criticism. However, it seems to me impossible to believe that the jurors could have been expected to put all the impermissible inferences arising from the evidence elicited by the Crown out of their minds so as to fairly try the accused.
In my view, leave to cross-examine the accused as to his character should have been refused. There was therefore an appealable error.
It remains to consider the so-called “proviso”.
Was there a substantial miscarriage of justice?
Section 24 of the Federal Court of Australia Act 1976 (Cth) aided by ss27, 28 and 30, does not, in express terms, permit an appeal court, though satisfied of error, to dismiss an appeal because no substantial miscarriage of justice had occurred.
The usual conferral of jurisdiction in criminal appeals, based on s4(1) of the Criminal Appeal Act 1907 (UK) is expressed to be subject to the proviso that the Court,
... notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.
In Duff v R (1979) 28 ALR 663, a Full Court of this Court accepted that proviso was imported into the powers of the Court in criminal appeals.
However, it is trite law that the proviso does not cast upon the accused the onus of showing that a miscarriage of justice has occurred. The Full Court in Duff (supra) expressed the correct view, at 674, as being that,
... the loss of a fair chance of acquittal as the result of an appealable error requires that the conviction be set aside, and the ultimate onus of showing that the error could not reasonably be supposed to have had that consequence is on the Crown.
In the present case, assuming self-defence to have been found, generally, in favour of the accused, his conviction on the alternative to the second count can be explained only on the basis that, although not intending to grievously injure Mr Dyer, the accused recklessly struck at him with a screwdriver, blade first. That could well have been perceived by the jury as going beyond reasonable self-defence. Indeed, that was the factual basis upon which his Honour sentenced the accused.
That issue could only have been decided unfavorably to the accused by rejecting his evidence that he did not have possession of the screwdriver and so Mr Dyer must have had it. It could not be said that the jury was not influenced in rejecting his evidence by the combination of the accused’s alleged intention to commit robbery to obtain heroin and his past criminal history. His protests in response to questions concerning his past criminal history that his convictions were undeserved despite his pleas of guilty might well have seemed to the jury to indicate a lack of credibility as well as a tendency towards violence and criminal conduct generally. That evidence would not have been before the jury but for the wrongful admission of character evidence. It follows that the proviso cannot be satisfied. The conviction and sentence must be set aside.
Nevertheless, the Crown case was not so lacking in credibility that a verdict of acquittal should be entered. A new trial should, therefore, be ordered.
I would order that,
the appeal be upheld;
the conviction and sentence be set aside;
there be a new trial.
I certify that this and the thirty-one (31) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.
Associate:
Date: 25 June 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY ) No ACT G68 of 1995
)
DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: DEREK GABRIEL
Appellant
AND: THE QUEEN
Respondent
REASONS FOR JUDGMENT
CORAM: Gallop, Higgins and Mathews JJ
PLACE: Canberra
DATE:
MATHEWS J: I have had the advantage of reading the judgments of Gallop and Higgins JJ in draft form. I agree that the conviction should be set aside and a new trial ordered.
In particular, I agree with Gallop J that the jury should have been discharged after the Crown witness, Linarejos, volunteered that the appellant had “robbed a few people” on the afternoon of the alleged offences. There was no basis for the admission of this evidence. Indeed his Honour immediately admonished the witness and requested that he restrict his answers to the matters raised in the Crown Prosecutor’s questions. Thereafter there was no further mention of this aspect of Mr Linarejos’ evidence. Indeed the impression one gains from the transcript is that this issue was deliberately avoided, possibly in the hope that the jury might put this evidence out of its mind or fail to appreciate its prejudicial import. The result is that the jury was never given a direction as to how to treat this evidence. In any event the prejudicial nature of the evidence was such that in my opinion there was no direction which could have neutralised its potential impact. It is for this reason that, in my view, his Honour should at that stage have discharged the jury.
I also agree with Gallop J that the appellant’s responses in cross-examination did not in the circumstances amount to the raising of good character. The first response relied upon by the Crown as having this effect was elicited by a totally unfair question which had as its premiss that the appellant had a propensity to attack people. It goes without saying that the appellant was justified in rebutting this proposition, and in these circumstances the continuation of his denials, vehement and unresponsive as they often were, could not be categorised as raising his good character. It follows that there was no basis for allowing cross-examination of the appellant upon his prior criminal history.
I certify that this and the preceding page is a true copy of the Reasons for Judgment of
Justice Mathews.
Associate:
Date:
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
DEREK GABRIEL v THE QUEEN
No. ACT G68 of 1995
Counsel for the Appellant: Mr G Corr
Instructing solicitors: Bernard D Brassil & Co
Counsel for the Respondent: Mr T Buddin
Instructing solicitors: Director of Public Prosecutions
Dates of hearing: 8 April 1997
Date of judgment: 25 June 1997
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