Melbourne v The Queen - [1999] HCA 32

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

ROY BERNARD MELBOURNE APPELLANT

AND

THE QUEEN RESPONDENT

Melbourne v The Queen [1999] HCA 32
5 August 1999
D10/1998

ORDER

Appeal dismissed.

On appeal from the Supreme Court of the Northern Territory

Representation:

S J Odgers with S J Cox for the appellant (instructed by Northern Territory Legal Aid Commission)

D Grace QC with A M Fraser for the respondent (instructed by Director of Public Prosecutions (Northern Territory))

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Melbourne v The Queen

Criminal law – Evidence – Character evidence – Evidence of accused's good character adduced – Relevance of character evidence to propensity to commit offence charged – Relevance of character evidence to accused's credibility – Directions to jury – Whether directions about use of character evidence mandatory.

McHUGH J. The issue in this appeal is whether a trial judge who has directed the jury that evidence of the good character of the accused is to be taken into account on the issue of that person's guilt errs if he or she does not also direct the jury that that evidence can be taken into account when considering the accused's credibility.
At a more general level, the appeal raises the following matters:
(a)whether directions to the jury about the accused's good character should be mandatory or discretionary;
(b)the nature of any such direction;
(c)the nature and usefulness of good character evidence generally.
The factual background
Roy Bernard Melbourne (the accused) was convicted of murder in the Supreme Court of the Northern Territory on 13 June 1996 after a trial before a jury and Thomas J. The Court of Criminal Appeal of the Northern Territory (Martin CJ, Gallop and Angel JJ) dismissed his appeal against the conviction. Pursuant to a grant of special leave, he now appeals to this Court.
In July 1995, the accused, who had lived next door to the deceased, Mrs Irene Chambers, for about 10 months, killed her by stabbing her three times. At the scene, he told[1] one person, in a very flat tone of delivery, that he "did it because she just wouldn't stop". When police officers arrived at the scene, they observed that the accused was "vacant" and "dazed or intoxicated or both". He did not respond to their questions and was unsteady on his feet. The accused was breathalysed and found to have a blood alcohol content of 0.136 per cent. He was seen by a doctor some hours after being taken into custody and said that he did not know why he had been arrested. In an interview the next day, a police officer asked the accused whether he had any recollection of stabbing the deceased. The accused replied "None - none whatsoever".
[1]The jury were entitled to conclude from other evidence tendered at the trial that this was intended as a reference to Mrs Chambers banging on the wall of his unit at night time.
Noises heard by the accused
For some time before Mrs Chambers' stabbing, the accused had been hearing loud knocking or banging noises in his unit. The noises occurred at night. The accused believed that they were made by Mrs Chambers. He had spoken to several people about the noises and told those people that the noises had become so bad that he was planning to move to Mount Isa. Indeed, he had sold most of his furniture and bought a bus ticket before the stabbing took place.
A plumber testified that suddenly turning off a tap in the accused's unit caused a knocking noise which is known as "water hammer". The sudden turning off of the tap caused a wave to travel through the water in the pipe with the result that the washer in the tap reverberated noisily. The plumber gave evidence to the effect that it was possible that there was "water hammer" in the accused's unit which was caused by the sprinkler system installed in the grounds of the block of units where the accused lived. The sprinkler system had six sprinkler stations. It was programmed so that at 2:00am one sprinkler station would come on, remain on for 30 minutes, and then be shut off suddenly by an electrical solenoid at the same time as the next sprinkler station would come on. This cycle would be repeated for all six sprinkler stations. This meant that there was a station being suddenly shut off once every 30 minutes from 2:30am until 5:00am.
Defence of diminished responsibility
At his trial, the accused did not deny that he had stabbed the deceased. However, he sought a conviction for manslaughter on the ground of diminished responsibility. Section 37 of the Criminal Code (NT) provides to the effect that a person who suffers from diminished responsibility shall not be guilty of murder and is guilty of manslaughter only. In order for the accused to make out the defence of diminished responsibility, it was necessary for him to prove that at the time of the stabbing he was "in such a state of abnormality of mind as substantially to impair his capacity to understand what he was doing or his capacity to control his actions or his capacity to know that he ought not do the act"[2].
[2]Criminal Code, s 37.
Diagnoses of the accused's mental condition
In support of the accused's claim that he had diminished responsibility at the time of the stabbing, three experts (Dr Vine, Dr Walton and Mr Taylor) gave evidence that the accused suffered:
(a)cognitive defects arising from frontal lobe damage which was the result of alcohol and benzodiazepine abuse;
(b)clinical depression; and
(c)a delusional disorder that the deceased was persecuting him by deliberately banging on the walls of her unit at night.
Medical witnesses for the Crown were not given the opportunity to examine the accused before trial and were not provided with copies of the reports of the defence witnesses prior to the trial. The trial judge rejected an application by the Crown that it be permitted to adduce its medical evidence in reply to the medical evidence for the accused. As a result, the Crown was compelled to lead its medical evidence as part of its case in chief, even though the accused bore the onus of establishing diminished responsibility. The learned trial judge erred in refusing to permit the Crown to lead evidence in reply to the evidence of the defence experts. A plea of diminished responsibility, like a plea of insanity, is a plea of confession and avoidance. Any person, relying on the plea, must prove it. In this Court, the accused conceded that this was so. Until an accused person tenders evidence in support of the claim of diminished responsibility, the Crown has no issue to meet. It is not like the common law "defences" of provocation or "self-defence" which the Crown must negative once they are fairly raised on the evidence.
In substance, the Crown medical evidence denied that the accused had frontal lobe damage, denied that he had a delusional disorder, and denied that he suffered from depression to any relevant extent. The Crown witnesses considered that there were rational external explanations for the noises which the accused had said he had been hearing (such as the water hammer in the pipes). Accordingly, he was not delusional. While the accused may have been unhappy and angry at the time of the stabbing because of his general life situation and the fact that he mistakenly considered that the noises were being made by the deceased, he did not fall within s 37 of the Code. This was so even though the accused was intoxicated and perhaps under the influence of benzodiazepines at the time of the stabbing.
The Crown also relied on evidence that two "CT" scans carried out on the accused had not revealed any physical abnormality in his brain, in the frontal lobes or elsewhere.
Facts upon which diagnoses of defence witnesses were based
The diagnoses of the defence witnesses were substantially based upon outof-court statements made to them by the accused, who did not testify at the trial. In this Court, counsel for the accused pointed to six categories of outofcourt assertions and answers made by the accused which formed a substantial part of the factual basis for the opinions of the defence expert witnesses. Those categories were:
(a) assertions by the accused that he had no memory of the stabbing;
(b)assertions by the accused that he believed that the deceased was banging on the walls of her residence in order to upset him and make him leave his flat;
(c)assertions by the accused regarding his alcoholism;
(d)assertions by the accused that he had been using large quantities of benzodiazepines;
(e)assertions by the accused of a history of insomnia, poor appetite, social withdrawal and despondency;
(f)answers given to a "Lezak" test (which is a test designed to measure the genuineness of the accused's responses to other neuropsychological clinical tests).
Because the accused did not give evidence at trial, these assertions and answers were proved by the medical, police and other witnesses to whom they were made. Such evidence is hearsay. At common law, much of it would be inadmissible as self-serving out-of-court statements. However, the Crown did not object to the assertions and answers being proved by out-of-court statements although, of course, the truth or falsity of the assertions and some answers were in issue. If the jury were satisfied that a substantial part of this material was false, the factual basis for the diagnoses of the defence expert witnesses was significantly undermined. The accused bore the onus of proof on the issue of diminished responsibility. The jury could not rationally accept the opinions of his expert witnesses unless they first accepted the factual basis for the opinions of those witnesses. If the jury rejected the substance of his assertions and answers, there was nothing to support the diagnoses of the defence witnesses except those statements made by the accused immediately or shortly after the stabbing and his answers to the investigating police officers that were tendered as admissions against him.
Whether the jury accepted the truth of the answers and assertions relied on by the expert witnesses was largely, if not wholly, dependent on the view that they formed about the credibility of the accused. His credibility was therefore an issue of great importance at the trial. Because that is so, the accused contends that his trial miscarried when the learned trial judge failed to direct the jury that they could use evidence of his good character to conclude that his out-of-court assertions were credible.
Evidence of the accused's good character
In support of his claim that he was a person of good character, the accused adduced evidence that he had no previous convictions for a criminal offence other than a conviction for drink-driving in 1975, and evidence that he was not "adversely known to the police". He also adduced evidence of his character and personality from those who knew him. It will later be necessary to refer to this character evidence in more detail.
The trial judge's direction to the jury on good character
In this Court, the argument of counsel for the accused assumed that counsel at the trial had asked her Honour to direct the jury that the evidence of good character was relevant to both:
(a)the improbability of the accused having committed the instant offence, or, as counsel for the accused put it, the improbability that the accused is a person "who will make a deliberate choice to kill in a rational state";
(b)assessing the credibility of the accused in making the assertions and answers which were the basis of the opinions of his expert witnesses.
However, the remarks of counsel in seeking directions and in his closing address suggest that he placed little reliance on the character evidence to support the credibility of the answers and assertions that were the basis of the expert opinions. In the course of his submissions for re-directions, counsel said:
"[I]t would be my submission that the aspect of the improbability of committing the instant offence, having a history of good character for 60odd years, is of considerable significance.
The aspect of his credibility is probably of lesser significance, having regard to the nature of the interview itself that has been severely criticised by me as showing a lack of credibility, but, in any event, it is the primary aspect of the evidence ... that should be brought to the jury's attention and one which ... as a matter of law, he is entitled to.
I thought the most convenient repository of the law in relation to this is a decision of R v Murphy^[[3]] ...
The situation in Murphy's case, obviously, was that it's the aspect of credibility which was the most significant. In my submission, in this case it's the reverse; it's the aspect of probability or inherent probability of the commission of the offence." (emphasis added)
[3](1985) 4 NSWLR 42.

In reply to counsel for the Crown, counsel for the accused said:
"[T]he aspect of credibility, while I say it [is] not the primary consideration, nonetheless, is also significant, in terms of considering his explanation, not just to Mr Newman[4] but to the others."
[4]Mr Newman was the detective in charge of the investigation.
The learned trial judge adjourned for a short time after hearing those submissions. On her return to court, her Honour said that she would "give the direction as sought by the defence". However, her Honour failed to give a direction as to how the jury might use the character evidence in assessing the accused's credibility. Her Honour said:
"[W]hen you consider that evidence as to good character ... you are entitled to consider the improbability of Roy Melbourne committing the instant offence, having a history of good character of some 61 years, and that this is of considerable significance."
Counsel for the accused did not seek any further direction on credibility. For the purpose of the appeal to the Court of Criminal Appeal, junior and senior defence counsel swore affidavits in which they said that at the trial they overlooked the fact that the direction which her Honour gave differed from that which they had sought and which Thomas J had indicated that she would give. Rule 86.08 of the Supreme Court Rules of the Northern Territory provides that:
"No direction, omission to direct or decision in relation to the admission or rejection of evidence of the Judge of the court of trial shall, without the leave of the Court of Criminal Appeal, be allowed as a ground for appeal, or for an application for leave to appeal, unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal."
Pursuant to this rule, the Court of Criminal Appeal gave leave to the accused to object to her Honour's failure to direct the jury that the character evidence was relevant in assessing the accused's credibility.
There is no reason to doubt the sworn statements of counsel that they did not seek any tactical advantage in not pressing for a further direction on character and that they did not intend to abandon the credibility aspect of the character evidence. Moreover, while counsel conceded that the aspect of credibility was "probably of lesser significance", his request for a direction on character included a request that the judge direct the jury on the "credibility" as well as the "probability" significance of the character evidence. No doubt it seems likely that, in seeking a credibility direction, counsel did not have in mind the answers and assertions to the expert witnesses. His concern seems to have been directed to the accused's explanation for his conduct at or shortly after the killing rather than the histories given to the doctors or the accused's answers to the Lezak test. But the accused's explanations for his conduct were not without significance for the medical opinions. Moreover, if the jury thought that his explanations were credible, they may well have accepted the accused's assertions and answers given to the expert witnesses. That being so, the issue is whether the trial judge erred by failing to direct the jury that the accused's character was relevant in assessing his credibility and, if so, whether, in all the circumstances of the case, there has been a miscarriage of justice.
Directions on good character evidence in Australia
Hitherto, Australian trial judges have had a discretion as to the directions that they should give to the jury concerning the use to be made of good character evidence. In Simic v The Queen[5], this Court held that no miscarriage of justice had occurred when the trial judge had failed to direct the jury as to the manner in which they could use evidence that the accused was a person of good character. In a joint judgment, Gibbs, Stephen, Mason, Murphy and Wilson JJ said[6]:
"There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. ... No doubt, speaking generally, it is right to add ... that if such a direction is asked for it would be wise to give it.
In the present case no direction as to the evidence of the applicant's good character was asked for. There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved."
[5](1980) 144 CLR 319.
[6](1980) 144 CLR 319 at 333-334.
Counsel for the accused has submitted that this Court should no longer regard the giving of directions as to character as a matter for the discretionary judgment of the trial judge. Instead, counsel submitted that the Court should follow the appellate courts in England and New Zealand and hold that there is now a rule of practice that such a direction should be given.
Directions on good character evidence in the United Kingdom and New Zealand
The United Kingdom
In R v Berrada[7], the English Court of Appeal held that, in cases where the accused has adduced evidence of good character, the trial judge must direct the jury how to use that evidence. The Court held that, where the credibility of the accused was in issue, the jury must be given a direction about the relevance of the accused's previous good character to his or her credibility[8]. Furthermore, it was proper but not obligatory "for the judge to refer to the fact that the previous good character of the [accused] might be thought by them to be one relevant factor when they were considering whether he was the kind of man who was likely to have behaved in the way that the prosecution alleged."[9]
[7](1989) 91 Cr App R 131.
[8](1989) 91 Cr App R 131 at 134.
[9](1989) 91 Cr App R 131 at 134.
In R v Vye[10], the Court of Appeal expanded the rule in Berrada by holding that the credibility limb of the direction applied in assessing the reliability of exculpatory statements made to the police even if the defendant did not testify at his or her trial.
[10][1993] 1 WLR 471; [1993] 3 All ER 241.
But what constitutes "good character" for the purpose of these directions? In R v Aziz[11], Lord Steyn (with whom the other members of the House of Lords agreed) described[12] the equation of a lack of a criminal record with evidence of good character as the "usual case". In Aziz, three persons stood trial for fraudulently evading payment of VAT. None of them had prior convictions. But one of them admitted to having knowingly made a false mortgage application and to having lied to customs officers during an interview; another acknowledged that he had made false income tax returns and had submitted a false mortgage application form. The House of Lords held that, where the accused has no prior convictions, the trial judge is prima facie bound to direct the jury in respect of the accused's good character[13]. However, in order to avoid the absurdities that could arise from an absolute rule, their Lordships held[14] that the trial judge has:
"a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with Vye."
[11][1996] AC 41.
[12][1996] AC 41 at 51.
[13][1996] AC 41 at 53.
[14][1996] AC 41 at 53.

In his article, "What Constitutes a Good Character?", Mr Roderick Munday[15] points out some of the anomalies which have arisen from equating good character with an absence of convictions. For example, in R v Anderson[16], a policeman admitted picking up a woman in his police car while he was on duty and having intercourse with her in the car. He was charged with, but denied, raping her. He claimed that the intercourse was consensual. Because the policeman had no previous convictions, the Criminal Division of the Court of Appeal held that he was entitled to a direction that he was of good character. As Mr Munday points out, "a police officer who admitted to conduct unbecoming was none the less held in law to be entitled to be treated as someone of good character."[17]
[15][1997] Criminal Law Review 247.
[16][1990] Crim LR 862 (note).
[17]Munday, "What Constitutes a Good Character?", [1997] Criminal Law Review 247 at 250.
New Zealand
In R v Falealili[18], a majority of the New Zealand Court of Appeal held[19] that when evidence of good character was adduced:
"an appropriate direction should be given as to its use. Generally that will cover both limbs of credibility and propensity. No particular form of words is necessary, and because of the variety in the circumstances in which the need will arise, the direction will no doubt be tailored to meet those circumstances."
[18][1996] 3 NZLR 664.
[19][1996] 3 NZLR 664 at 667.
In Falealili, the Court of Appeal did not accept that an absence of criminal convictions was synonymous with "good character". The majority said[20]:
"We think there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person's good character. It may be a factor in assessing good character, but standing on its own it is generally neutral. A person of bad repute may well have no convictions. We do not think it necessary for directions to be given merely because absence of previous convictions has been elicited. The need will arise where evidence relating to character has been adduced which, if accepted by the jury, could properly be relevant or probative in determining whether guilt has been proved. That after all is the basis of its admissibility."
[20][1996] 3 NZLR 664 at 667.
The preferable position
In my opinion, notwithstanding the rules laid down in these English and New Zealand cases, this Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both:
(a)the accused's propensity to commit the crime charged; and
(b)the accused's credibility.
The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character.
Two considerations lead me to this conclusion. First, the difference between the use of good character evidence and the use of bad character evidence in a criminal trial is logically anomalous and, while that difference is too deeply rooted in the law to be removed by judicial decision, it should not be widened. Second, in cases where good character evidence has no logical connection with the elements of the offence, a mandatory direction is likely to divert the jury from properly evaluating evidence which more directly and logically bears upon the guilt of the accused and, in cases like R v Anderson[21] and R v Aziz[22], such a direction may even confuse the jury.
[21][1990] Crim LR 862 (note).
[22][1996] AC 41.
Character evidence in general
In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question."[23] It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person[24]. As the last of the above passages from R v Falealili[25] demonstrates, however, the common law courts have not always drawn a distinction between character and reputation in a criminal context[26]. The confusion can be traced to R v Rowton[27] where a majority of the Full Court of the Crown Cases Reserved held that in a criminal trial the evidence for or against a person's good character must be confined to his or her general reputation. This is the established rule although, as this Court pointed out in Attwood v The Queen[28], the limitations inherent in the rule are not observed in practice. In New South Wales, the legislature long ago reversed the common law rule[29].
[23]Preliminary Paper 27, Evidence Law: Character and Credibility (1997) at par 99 (emphasis in original).
[24]Plato Films Ltd v Speidel [1961] AC 1090 at 1138 per Lord Denning.
[25][1996] 3 NZLR 664.
[26]In the field of defamation, however, the distinction is well recognised (see, for example, Plato Films Ltd v Speidel [1961] AC 1090).
[27](1865) Le & Ca 520 [169 ER 1497].
[28](1960) 102 CLR 353 at 359.
[29]In 1900, s 413 of the Crimes Act 1900 (NSW) relevantly provided: "Every witness examined as to character ... may give evidence not only as to the general repute of such person, but also as to the witness's own knowledge of his habits, disposition, and conduct." The matter is now dealt with in s 110(1) of the Evidence Act 1995 (NSW) which allows a witness to give evidence as to his or her own opinion of the accused's character.
In the criminal field, the common law has also tended to treat people as onedimensional personalities who have either good or bad characters or dispositions. This tendency has been checked in the field of defamation, where the issue is reputation and not character and where the plaintiff obtains damages for the injury to reputation in the particular sector of the plaintiff's life to which the libel refers[30]. But the tendency continues to prevail in the criminal law, where a person is regarded as having either a good character or a bad character. In the absence of a statutory provision to the contrary[31], for example, a convicted sex-offender will be treated as a person of bad character in a trial for embezzlement although there is overwhelming evidence of that person's honesty. Conversely, in England a person without convictions may be entitled to a good character direction although his or her general conduct suggests the contrary.
[30]Plato Films Ltd v Speidel [1961] AC 1090.
[31]In trials where the Evidence Act 1995 (Cth) and (NSW) applies, s 110(3) enables the accused to adduce evidence that he or she "is a person of good character in a particular respect".
What Lord Radcliffe said in Plato Films Ltd v Speidel[32] concerning evidence of general reputation in defamation cases seems equally applicable to evidence of good and bad character in criminal cases. His Lordship said:
"The difficulty is that 'general evidence of reputation' does not convey an idea of any content. Life not being a morality play or a Victorian melodrama, men do not enjoy reputations for being bad or good simpliciter: nor if they did, would the proof of such generalities throw any light upon the loss of reputation suffered from a particular libel."
Similarly, in many criminal cases, evidence that a person is of good character in the general sense recognised by the common law throws little, if any, light upon the probability whether he or she committed the crime in question.
[32][1961] AC 1090 at 1130.
Treatment of evidence of bad character or criminal propensity
For more than a century, the common law has drawn a distinction between the admissibility of evidence of good character and the admissibility of evidence of bad character in a criminal trial. Evidence of good character is readily admitted because it is regarded as tending to prove that the accused is unlikely to have committed the crime in question. Evidence of bad character is admitted only in exceptional circumstances even where the courts regard it as tending to prove that the accused is likely to have committed the crime in question.
The common law has developed strict rules for the admissibility of evidence designed to prove that, by reason of his or her character or propensities, the accused is likely to have committed the crime with which he or she is charged. In Makin v Attorney-General for New South Wales, Lord Herschell said[33] that the prosecution cannot:
"adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."
[33][1894] AC 57 at 65.
In Maxwell v The Director of Public Prosecutions, this statement was said[34] to give effect to "one of the most deeply rooted and jealously guarded principles of our criminal law". In this Court, its status as a fundamental principle has been confirmed in numerous cases[35].
[34][1935] AC 309 at 317.
[35]See, for example, Burrows v The King (1937) 58 CLR 249 at 253; Perry v The Queen (1982) 150 CLR 580 at 585; Pfennig v The Queen (1995) 182 CLR 461 at 475.
As the passage from Makin v Attorney-General for New South Wales[36] demonstrates, evidence disclosing the bad character of the accused is sometimes admissible. However, courts, including this Court, have consistently held that evidence of the bad character of the accused or the propensity of the accused to commit criminal acts is only admissible if strict conditions are fulfilled. In Pfennig v The Queen[37], Mason CJ, Deane and Dawson JJ held that propensity evidence is admissible only if it possesses a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In Hoch v The Queen, the Court said[38] that the probative force of such evidence when admitted:
"lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution."
This statement was approved by the majority in Pfennig[39].
[36][1894] AC 57.
[37](1995) 182 CLR 461 at 475.
[38](1988) 165 CLR 292 at 294-295.
[39](1995) 182 CLR 461 at 482.
The "no other reasonable explanation" test requires the judge to come to a view as to the guilt of the accused before the evidence in question is admitted. If, at the stage of determining whether the evidence is admissible, the judge decides that there is no "reasonable explanation" for the evidence other than inculpation of the accused, the evidence will be admitted. The judge has then, in effect, determined that the accused is guilty of the charges although, of course, it is for the jury to determine the ultimate question of the guilt or innocence of the accused on the whole of the evidence. Where the trial is by a judge without a jury, he or she must also examine the whole of the evidence before finding the accused guilty, notwithstanding that he or she has already decided that there is no reasonable explanation for the disputed evidence other than the accused's guilt.
In Perry v The Queen, Gibbs CJ explained[40] the rationale for the rule excluding evidence of bad character or propensity as follows:
"Evidence that an accused person has a propensity to commit crimes of the sort with which he is charged, or is the sort of person who is likely to commit such crimes, would ordinarily be regarded as relevant to the question whether he did commit the offence in question. Such evidence is excluded, not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused."
[40](1980) 150 CLR 580 at 585.
The rationale of the common law rule has greatly influenced the approach of courts to statutory provisions that enable bad character evidence to be tendered in evidence. Dawson v The Queen[41], where this Court considered s 399(e) of the Crimes Act 1958 (Vic), is a good example. That sub-section relevantly stated that an accused person appearing as a witness:
"shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless -
...
(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution".
[41](1961) 106 CLR 1.
In Dawson, the prosecution relied on a verbal admission by the accused that a record of interview accurately recorded admissions that he was involved in a breaking and entering offence. One issue at the trial was whether, by denying making the admission, the accused had rendered himself liable to crossexamination on his past convictions and bad character under s 399. Dixon CJ concluded that the section did not cover "inferences, logical implications or consequential deductions which may spell imputations against the character of witnesses"[42], and that imputations on the prosecution witnesses must be "an element or ingredient in the defence or what arises from the manner in which the defence is conducted"[43] for the accused to be exposed to crossexamination on past convictions and character. In support of his conclusion, Dixon CJ said:
"It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused."[44]
[42](1961) 106 CLR 1 at 9-10.
[43](1961) 106 CLR 1 at 9.
[44](1961) 106 CLR 1 at 16.

Relevance to good character evidence

The explanation by Gibbs CJ of the rationale of the rule concerning bad character evidence demonstrates that, in determining the admissibility of such evidence, the courts have accepted, consciously or unconsciously, that character evidence is likely to divert the tribunal of fact from the true issues in the case. It is likely to divert the jury from properly evaluating the strength or weakness of evidence that more directly bears on whether or not the accused committed the crime in question.
In the field of similar fact evidence, Mr Rajiv Nair has drawn a distinction between the "moral" and "descriptive" elements of such evidence[45]. He contends that similar fact evidence contains a "descriptive" element in the sense that it describes a feature associated with an accused person or his circumstances which exists independently of the circumstances surrounding the commission of the alleged offence and which is relevant to the offence charged. It also contains a "moral" element in the sense that it carries connotations as to the moral desirability or otherwise of possessing certain qualities. In Mr Nair's view, the "prejudicial effect" of similar fact evidence arises primarily out of its moral quality while the probative force arises out of its descriptive quality.
[45]Nair, "Weighing Similar Fact and Avoiding Prejudice", (1996) 112 Law Quarterly Review 262 at 273.
The opportunity for prejudice arising out of this moral element of character evidence was reduced by the course taken in Pfennig to apply a restrictive test for the admissibility of similar fact evidence and the course taken in Dawson to read the statutory exception narrowly. In both cases, the Court was concerned to ensure that evidence upon which a moral judgment concerning the accused can be made is not admitted unless it is also rationally connected with "the parts and details of the transaction amounting to the crime"[46]. Unless such a connection exists, the moral element of the character evidence is likely to be used to make an irrational connection between the person's character and his or her guilt. If the descriptive element of the character evidence shows an irresistible rational connection with the "parts and details of the transaction amounting to the crime"[47], however, bad character or propensity evidence will be admitted. Its admissibility can be justified because, where the rational connection is sufficiently strong, the moral element of such evidence is unlikely to divert the jury or other tribunal of fact from its proper function.
[46]Dawson v The Queen (1961) 106 CLR 1 at 16.
[47]Dawson v The Queen (1961) 106 CLR 1 at 16.
Given the common law's acceptance of the diversionary effect of bad character evidence, the manner in which it allows good character evidence to be used in a criminal trial is anomalous. Good character evidence is not subject to the stringent evaluation of its probative force that is applied to evidence of bad character. It is admitted condition free. Yet there is no logical or legal reason for drawing a distinction between the conditions for admitting bad character evidence and the conditions for admitting good character evidence. Furthermore, as Kirby J points out in his judgment, empirical psychological studies now deny that character is as accurate a predictive tool as earlier generations so confidently believed[48]. The unconditional right of an accused person to tender good character evidence must be regarded as an indulgence granted to the accused which continues to be maintained for historical reasons. The basis of the rule for admitting evidence of good character is not logic but the "policy and humanity"[49] of the common law.
[48]Even as great an authority on the law of evidence as Professor Wigmore had no doubt that evidence of character or disposition pointed to the probability of the accused having committed the offence charged. (Evidence in Trials at Common Law, Tillers rev (1983), vol 1A, §55.)
[49]R v Rowton (1865) Le & Ca 520 at 541 [169 ER 1497 at 1506] per Willes J (dissenting) cited in Attwood v The Queen (1960) 102 CLR 353 at 359.
It would be anomalous if before evidence of bad character or criminal propensity is even admitted it is subject to a rigorous evaluation of its probative significance, and yet good character evidence of dubious probative value is not only admitted, but is required to be the subject of a mandatory direction favourable to the accused even if the trial judge considers that the direction is not warranted in the circumstances of the case.
In my opinion, the distinction between "moral" elements and "descriptive" elements formulated by Mr Nair can be generalised from similar fact evidence to character evidence in general. That being so, if the law of evidence was a logically coherent body of doctrine, good character evidence would not be admitted unless as a minimum it tended to negative some part or detail "of the transaction amounting to the crime"[50]. But it is too late in the day to hold that good character testimony must meet such conditions to be admissible. That does not mean, however, that in defiance of logic and modern psychological opinion it should automatically be treated as if it did negative the parts or details of the transaction.
[50]Dawson v The Queen (1961) 106 CLR 1 at 16.

The dissent of Thomas J in R v Falealili recognises the necessity for good character evidence to have probative value before the judge should give the jury a direction as to the manner of using it. His Honour said[51]:
"Consequently, if the evidence of the accused's good character is both probative and relevant the Judge will, almost as a matter of course, direct the jury as to its significance in summing up the defence case. It would be unfair not to do so. If, on the other hand, the purported character evidence is lacking in probative force and of remote relevance to the charge in issue, the Judge may decide that a good character direction is not warranted. Or the Judge may consider that it would be prudent to proffer a good character direction, but then to qualify it in order to put it in perspective having regard to the circumstances of the case. To proscribe that, whenever character evidence is adduced or elicited, a good character direction should be given and that it must generally embrace both the credibility and propensity limbs of the direction is an unnecessary fetter on that discretion."
[51][1996] 3 NZLR 664 at 671-672.
The majority judges in Falealili also recognised the importance of the probative effect of good character evidence. Although in that case their Honours stated[52] that a character direction "should be given", they also said that the need for a direction "will arise where evidence relating to character has been adduced which, if accepted by the jury, could properly be relevant or probative in determining whether guilt has been proved." In doing so, the Court has recognised the importance of the probative value of the evidence. Consequently, although in form the New Zealand Court of Appeal appears to have adopted a mandatory rule, its formulation allows the trial judge to determine when the threshold of "good character" has been met, and thus when the mandatory direction is required, by reference to the probative value of the evidence.
[52]R v Falealili [1996] 3 NZLR 664 at 667.
There are other advantages in not having a mandatory direction. It avoids the need to attempt to define in advance what is "good character" and thus the circumstances in which the mandatory directions will be invoked. Defining the absence of a criminal record as equivalent to good character required the House of Lords in R v Aziz[53] to create a "residual discretion" to avoid the absurdities which resulted from such a definition.
[53][1996] AC 41 at 53.

Application of these principles to the accused's case

In my opinion, the character evidence relating to Mr Melbourne was not of such probative significance in relation to his credibility as to require the trial judge to give a direction that the evidence bore favourably upon Mr Melbourne's credibility. The evidence was that the accused had no previous convictions other than a conviction for drink-driving in 1975 and was not "adversely known to the police". Various descriptions of his character and personality were given by those who knew him, such as:
(a)evidence from Mr Gooch that the accused was a "quiet man", a man who was "always gentle", and who, apart from this occasion, had "never" been "aggressive";
(b)evidence from Mrs Barnes that the accused was "very quiet";
(c)evidence from Mr Daniels that the accused was "a very amiable sort of person";
(d)evidence from Mrs Hinde that the accused was "a very quiet, well-behaved gentleman".
None of this evidence had any direct probative bearing on the truthfulness or credibility of the accused. It was all directed to the unlikelihood that he would commit the offence charged. The trial judge gave an adequate direction in this regard. Whether or not the trial judge intended, but forgot, to give a credibility direction with respect to the character evidence, no miscarriage of justice has occurred. If her Honour had given such a direction, it would have given the accused an advantage to which in point of law he was not entitled. Not only was this not a case requiring a credibility direction, in my opinion it would have been a wrongful exercise of discretion to have given it.
In my opinion, the appeal should be dismissed.

GUMMOW J. On 13 June 1996, the appellant was convicted on a charge of murder, as provided by s 162 of the Criminal Code (NT) ("the Code") after a trial before a judge and jury in the Supreme Court of the Northern Territory. The provisions of the Evidence Act 1995 (Cth) did not apply at the trial[54].
[54]See s 5 of that statute.
Evidence was given which was treated as going to the good character of the appellant. In directing the jury with respect to that matter, the trial judge said:
"The first matter is a direction I propose to give you in respect of what use you make of the evidence you heard during the course of these proceedings, of the good character of the accused, Roy Melbourne.
I do not propose to go back and remind you again of that evidence, but there has been evidence of course from witnesses relating to his not being a violent or aggressive person, and references to the fact that he was a quiet and amiable man.
I will specifically remind you of the evidence that was given by Sergeant Newman. Sergeant Newman gave evidence to the effect that he had, after Mr Melbourne was arrested, done a check of his record, his criminal record, and that there were no matters on that record other than a conviction for an offence of exceed .08 with a reading of .23 in 1975. Sergeant Newman had gone on to say that from his investigations there were no other convictions for any other matters in the Northern Territory or anywhere, and that Mr Melbourne was not adversely known to police.
The direction I am giving you is this: that when you consider that evidence as to good character, that you are entitled to consider the improbability of Roy Melbourne committing the instant offence, having a history of good character of some 61 years, and that this is of considerable significance."
The appellant was born in 1934.
No fuller direction was sought at the trial. Nevertheless, in this Court, as in the Northern Territory Court of Criminal Appeal, the appellant submits that the trial judge erred in her direction with respect to his "good character".
The appeal should be dismissed. I agree with the reasons for judgment of Hayne J and would add only the following.
As Hayne J points out, the appellant did not deny that he inflicted the injuries causing the death of his neighbour. The "previous good character" of the appellant in this Court was said to go to the issue whether the jury should accept that he had sought to tell the truth when interviewed by police and later by experts subsequently called to give evidence of his mental condition. The appellant put forward a defence of diminished responsibility within the meaning of s 37 of the Code[55]. It may be accepted that if, in these conversations, the appellant had been trying to establish some false basis for a later plea of diminished responsibility, that circumstance may have had some significance, as a matter of inference, in deciding his mental condition at the time he slew the victim.
[55]This states:
"When a person who has unlawfully killed another under circumstances that, but for this section, would have constituted murder, was at the time of doing the act or making the omission that caused death, in such a state of abnormality of mind as substantially to impair his capacity to understand what he was doing or his capacity to control his actions or his capacity to know that he ought not do the act, make the omission or cause that event, he is excused from criminal responsibility for murder and is guilty of manslaughter only."
In such a context, what is meant by an assertion that the appellant is a person of "previous good character"?
It is said in Wigmore[56]:
"A defendant's character, then, as indicating the probability of his doing or not doing the act charged, is essentially relevant. In point of human nature in daily experience, this is not to be doubted. The character or disposition – ie, a fixed trait or the sum of traits – of the persons we deal with is in daily life always more or less considered by us in estimating the probability of their future conduct. In point of legal theory and practice, the case is no different."
[56]Evidence in Trials at Common Law, Tillers rev (1983), vol 1A, §55 (footnote omitted).
Nevertheless, to those not versed in the ways of the common law, it may appear curious that legal consequences follow from the attachment to a designated individual, and without further analysis, of the description "good character" or "bad character". First, this appears to assume polarities with no space for occupation by those whose frailties place them somewhere towards the centre of a continuum. Secondly, it allows too little scope for the infinite variety of mental processes which lead to action or inaction, and assumes that people act across a range of circumstances in conformity with a measurable trait which can be the subject of testimony. Thirdly, in the development of the English language, and thus of the common law, the term "character" has had various shades of meaning. The Oxford English Dictionary[57] gives 11 uses of the term in a figurative sense in addition to its primary and literal senses of a distinctive mark or symbol. In particular, in its figurative sense, "character" may identify (i) a trait which serves as an index to the essential or intrinsic nature of an individual, (ii) the sum of such traits, or (iii) the estimate put upon an individual as a matter of repute.
[57]2nd ed (1989), vol 3 at 31.
In the law, the notion of "character" takes varying significance and shades of meaning from particular fields of discourse and the particular fact in issue. It may be said that "character", that which marks out an individual, may not correspond with the reputation attributed to that person. However, as will appear, the law does not always clearly distinguish between the two, nor indicate the probative force to be attributed to whichever of them is to be established as a fact in issue, nor specify the evidentiary means, including permissible inference, by which that fact in issue may be proved.
The matter is well put by the New Zealand Law Commission in its Preliminary Paper, Evidence Law: Character and Credibility[58]. Paragraphs 99 and 100 include the following:
"On the one hand, the law distinguishes between evidence of general reputation and evidence of individual opinion and, in the case of the defendant in criminal proceedings, has historically recognised only the former.[59] On the other hand, it is not always clear what is meant by reputation. On occasion, it appears to be used interchangeably with character. It may be important therefore to distinguish between character as public estimation – which is perhaps more correctly referred to as reputation – and character as disposition – which is something more intrinsic to the individual in question.[60]
In actions for defamation the first meaning is paramount, since it is the public perception of an individual which the law of defamation protects. The second meaning is of primary significance when a party seeks to offer similar fact evidence to show an individual's propensity to commit certain offences … In both cases, the evidence of reputation goes to the issue. But reputation has also traditionally been a factor indicative of a person's truthfulness. Its meaning in this context seems to be an amalgam of public estimation and individual disposition." (emphasis in original)
[58]Preliminary Paper 27, (1997).
[59]R v Rowton (1865) Le & Ca 520 [169 ER 1497].
[60]See Plato Films Ltd v Speidel [1961] AC 1090 at 1128, 1138.
The issue in a proceeding may be whether an individual has the good character required for admission to pursue a particular profession or calling. Here the concern is not with disposition to perform particular acts with a requisite intention. Nor is the question simply one of the opinion others may have of the individual in question. In Ex parte Tziniolis; Re The Medical Practitioners Act, Holmes JA said[61]:
"The Act provides for the circumstances in which the name of a registered medical practitioner may be removed from the register and the expression 'infamous conduct in a professional respect' has been used to define such conduct. 'Good character' is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn."
His Honour emphasised that the court was not there dealing with "good character" in some particular sense developed by the criminal law or by the law of defamation[62].
[61](1966) 84 WN (Pt 2) (NSW) 275 at 301.
[62](1966) 84 WN (Pt 2) (NSW) 275 at 300.
With respect to the latter, in Plato Films Ltd v Speidel[63], Lord Radcliffe perceived the issue as being whether a defendant may offer in mitigation of damages evidence which bears upon the disposition of the plaintiff, as distinct from his reputation, or only such evidence as bears upon his reputation[64]. His Lordship concluded that the defendant is confined to the latter species of evidence. However, in the course of his speech, Lord Radcliffe observed[65]:
"The difficulty is that 'general evidence of reputation' does not convey an idea of any content. Life not being a morality play or a Victorian melodrama, men do not enjoy reputations for being bad or good simpliciter: nor if they did, would the proof of such generalities throw any light upon the loss of reputation suffered from a particular libel."
Lord Denning referred to the distinction in meaning between "character" and "reputation", saying[66]:
"A man's 'character', it is sometimes said, is what he in fact is, whereas his 'reputation' is what other people think he is. If this be the sense in which you are using the words, then a libel action is concerned only with a man's reputation, that is, with what people think of him: and it is for damage to his reputation, that is, to his esteem in the eyes of others, that he can sue, and not for damage to his own personality or disposition." (emphasis in original)
[63][1961] AC 1090.
[64][1961] AC 1090 at 1127.
[65][1961] AC 1090 at 1130.
[66][1961] AC 1090 at 1138.
What then of the criminal law? Statute apart, the tender of evidence as to the good reputation of the accused was permitted at a time before the accused became a competent witness[67]. In that era there could have been, in general, no question of the use by a jury of such reputation evidence in an assessment of the accused's testimonial credit[68]. Writing in this period, Starkie said[69]:
"[J]uries are called upon to raise an inference in favour of a defendant in a criminal case from the goodness of his character in society; a presumption too remote to weigh against evidence which is in itself satisfactory, and which ought never to have any weight except in a doubtful case."
Starkie went on to observe that the reception of such character evidence "seems to be the last remnant of compurgation"[70], a method of trial not by jury but by wager of law whereby a sufficient number of "oath helpers" swore in favour of the character of the accused when the latter swore an oath declaring his or her innocence[71].
[67]Stirland v Director of Public Prosecutions [1944] AC 315 at 322; as to competency of parties to civil actions, see Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 137‑139.
[68]However, for example, if the prosecution tendered a confessional statement by the prisoner, it could not exclude from the tender self-serving portions; the whole became evidence for and against the prisoner: R v Higgins (1829) 3 Car & P 603 [172 ER 565]; R v Williamson [1972] 2 NSWLR 281 at 295-296.
[69]Starkie, Practical Treatise of the Law of Evidence, 4th ed (1853) at 75.
[70]Starkie, Practical Treatise of the Law of Evidence, 4th ed (1853) at 75.
[71]Wager of law was abandoned at an early stage as a method of criminal trial in the King's courts (Thayer, A Preliminary Treatise on Evidence at the Common Law, (1898) at 26) but lingered in the civil courts (as is shown by King v Williams (1824) 2 B & C 538 [107 ER 483]) until its abolition by s 13 of the Civil Procedure Act 1833 (UK) (3 & 4 Will 4, c 42).
This conceptual obscurity and clouded historical origin gives force to observations by Viscount Simon LC in Stirland v Director of Public Prosecutions[72]. His Lordship said[73]:
"There is perhaps some vagueness in the use of the term 'good character' in this connexion. Does it refer to the good reputation which a man may bear in his own circle, or does it refer to the man's real disposition as distinct from what his friends and neighbours may think of him? In R v Rowton[74], on a re-hearing before the full court [of Crown Cases Reserved], it was held by the majority that evidence for or against a prisoner's good character must be confined to the prisoner's general reputation, but Erle CJ and Willes J thought that the meaning of the phrase extended to include actual moral disposition as known to an individual witness, though no evidence could be given of concrete examples of conduct."
[72][1944] AC 315.
[73][1944] AC 315 at 324-325.
[74](1865) Le & Ca 520 [169 ER 1497].
In Attwood v The Queen[75], this Court referred to Rowton and remarked that the limitations imposed by that case were probably not observed in practice. The nature of the evidence received in the present case appears to illustrate the point. No criticism is made on that count.
[75](1960) 102 CLR 353 at 359.
Indeed, in R v Ravindra[76], the issue stemming from Rowton was faced and Gendall J held that, in addition to evidence of general reputation known to them, witnesses might give evidence as to good character based upon their personal experiences in professional, private and other dealings with the accused. His Honour observed[77]:
"How is it possible for witnesses to speak of the general good reputation of an accused without simply repeating that which others say but none of whom are allowed to refer to the particular facts upon which the reputation is formed[?] The danger is that the reputation, in modern terms, is created through the repetition of myths which may have no foundation or basis upon particular facts. Without the witness being able to refer to his or her own experience so as to be able to judge the good character of an accused, the exercise becomes, with respect, illogical."
[76][1997] 3 NZLR 242.
[77][1997] 3 NZLR 242 at 247-248.
In Attwood, this Court stated, with reference to the judgment of Cockburn CJ in Rowton, that evidence of good character is regarded as really bearing on the probability or improbability of guilt. Their Honours said[78]:
"The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged."
The issues in the particular case and the nature of the evidence of "good character" which is proffered will guide the process of reasoning of the tribunal of fact on the path to providing an answer to the ultimate question of whether the accused is guilty beyond reasonable doubt[79].
[78](1960) 102 CLR 353 at 359.
[79]Cross on Evidence, 5th Aust ed (1996), par 19130.

The adoption of the rules I have described in New Zealand and in England and Wales seems to have been influenced more by the desire for establishing a certain rule that is easy to apply than by considering what is the place of such directions in a trial. Certainty and ease of application are powerful arguments. If the rule is that a judge must (or nearly always must) give these directions the trial judge need make no greater decision than a decision about where, in the charge, the direction should fit. Adopting a general and all embracing rule of the kind spoken of in Falealili and Aziz will make it easy to see whether a trial has miscarried on this account. But certainty and ease of application must be considered against what it is that the direction achieves. There is no point in insisting that a trial judge must give such a direction in every case (or nearly every case) in which good character is established unless to do so assists in achieving a fair trial. And that directs attention to what is in issue at trial.
When is there an issue about the use of character evidence that will call for judicial direction of the jury? The simplest example is, of course, if prosecution and accused make contrary submissions to the jury about whether evidence of prior good character can be used by the jury in assessing the probability of the accused committing the offence charged or in assessing whether the accused should be accepted as having sought to tell the truth in statements he or she has made in or out of court. Clearly, in such a case the judge must tell the jury what is the true position in law: that the previous good character may be used in either or both of these ways. And even if there is no conflict between the parties in their submissions to the jury about how the evidence may be used, there may be occasions where it may be wise for the trial judge to draw the matter to the attention of the jury. So, to take a common example, if an accused of previously undoubted honesty in money matters is tried for an offence of fraudulently obtaining financial advantage, the judge may think it appropriate to draw the attention of the jury to the fact that prior good character may be thought, by them, to make it less likely that the accused acted with dishonest intent. But even in such a case, if no more is known than the bare facts of the case as I have described them, there is no requirement for the judge to give such a direction. Or, to put the matter another way, the absence of such a direction does not lead to the conclusion that the trial miscarried.
There is no reason to depart from the conclusion stated in Simic, namely, that there is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. Of course, if a direction is given, it must be accurate. Ordinarily, however, unless the evidence that is led about the character of the accused has an immediate and obvious connection with an issue in the case, it is better that the judge say nothing of how the jury may use such evidence in reasoning to its conclusions beyond any restatement of counsel's arguments that may be thought necessary or desirable.
The evidence of the appellant's character did not, in this case, require the trial judge to give a further direction than she did. The appeal should be dismissed.

CALLINAN J. This is an appeal from the Court of Criminal Appeal of the Northern Territory. The appellant was convicted of murder by the Supreme Court of the Northern Territory at Darwin on 13 June 1996. The mandatory sentence of life imprisonment was imposed. The appeal raises a question whether, in what circumstances, and in what terms a character direction must be given in a criminal trial.
Prior proceedings
The appellant, who was 61 years old at the time of trial, had lived next door to the deceased for a number of years. There was little contact between them. Evidence was given by the deceased's grand-daughter that, on 27 July 1995, the appellant came on to the deceased's verandah, swore at her and said "You were banging on the walls". The deceased was heard to scream. She was stabbed three times. Subsequently, a neighbour (Jack Gooch) came to the victim's residence, saw the appellant kneeling over the deceased and told him to leave her alone. The appellant said "Yeah, Jacko, all right". He was "very quiet" and walked away. He lay down on the grass and said "Call the police, Jacko". Subsequently he told Nancy Barnes, in a flat tone of delivery, "I did it because she just wouldn't stop". Dorothy Hinde heard him say in "sort of a mumble, a monotone" that "it serves her right". He lay on the grass "languidly" waving his arms in the air. He lay there until the police arrived and arrested him.
The police testified that when they saw him the appellant appeared to have been drinking and had a very glazed and distant expression, a "blank expression". He did not respond to questions and was unsteady on his feet. Detective Sergeant Rowbottam formed the impression that there was "something wrong" with him. Subsequently he was breathalysed (with a blood alcohol content of 0.136 per cent). He was spoken to by Dr Nitschke a few hours later and stated that he did not know why he had been arrested. He was questioned by police in a recorded interview the following day and repeated a claim of what was, in substance, amnesia.
There was evidence that for a considerable period before the killing, the appellant had been hearing loud banging noises in his unit. He stated to several people that he believed the noises were coming from the deceased's unit next door and believed that she was making the noises deliberately. There was evidence that, in fact, the noises were real noises caused by plumbing problems although for a period the doctors called for the defence had proceeded upon the basis that the appellant's complaints about the noises were entirely delusionary. The appellant was "despondent" and found the noises so unsettling that he had decided to move to Queensland. On the day before the assault he bought a bus ticket to Mt Isa for the next day and removed almost all of his furniture. The Crown did not contend that these arrangements were evidence of premeditation.
There was also evidence that the appellant had a history of depression, alcoholism and "binge" drinking, benzodiazepine abuse and poor health.
The defence case was that the appellant was at the relevant time acting in a state of diminished responsibility. Under s 37 of the Criminal Code (NT), a person who has unlawfully killed another in circumstances which would have constituted murder but was
"… in such a state of abnormality of mind as substantially to impair his capacity to understand what he was doing or his capacity to control his actions or his capacity to know that he ought not do the act …"
is guilty of manslaughter only.
The appellant bore the burden of proof in respect of the defence of diminished responsibility. He called three expert witnesses (Mr Taylor, Dr Vine and Dr Walton) who gave evidence that in their opinion the appellant was in a state of diminished responsibility at the time of the killing of the deceased. The Crown called two expert witnesses (Professor Tiller and Dr Milton) who were of a contrary opinion.
In summary, the defence expert witnesses gave evidence that the appellant suffered:
(a) frontal lobe damage (caused by alcohol and benzodiazepine abuse and causing cognitive deficits);
(b) clinical depression; and
(c) a delusional disorder (that he was being persecuted by the deceased).
The expert witnesses for the defence gave evidence that they substantially based their opinions on a number of out-of-court assertions made by the appellant, including:
(a) assertions by the appellant that he had no memory of the stabbing (there was some support for this from memory tests conducted by Mr Taylor);
(b) assertions by the appellant that he believed that the deceased was banging on the walls of her residence in order to upset him and make him leave his flat: these were relied on by Dr Vine to support an opinion of delusional disorder and also by Dr Walton;
(c) assertions by the appellant regarding his alcoholism: relied on by Mr Taylor and given considerable importance by him; relied on also by Dr Vine and Dr Walton;
(d) assertions by the appellant that he had been using large quantities of benzodiazepines: relied on by Mr Taylor and Dr Vine;
(e) assertions by the appellant of a history of insomnia, poor appetite, social withdrawal and despondency: relied on by Dr Walton to support a diagnosis of depression;
(f) answers given to a "Lezak" test (designed to support the genuineness of the appellant's responses to other neuropsychological clinical tests conducted on him by Mr Taylor): based on these tests Mr Taylor expressed the opinion that the appellant suffered from a degree of organic brain damage affecting the frontal lobes of the brain; Dr Vine relied on Mr Taylor's tests as did Dr Walton.
The Crown medical witnesses were not able to examine the appellant before trial, and they were not provided with copies of any written opinions by the experts called for the defence. As a result of a ruling by the trial judge the Crown called the experts for the prosecution as part of the Crown case. This ruling was made in rejection of an application to the trial judge that, in the circumstances, the Crown should be permitted to call its evidence in reply.
There was no objective physical evidence to support a finding of frontal lobe damage. Two "CT" brain scans, which were regarded by the Crown witnesses as potentially significant supporting procedures had been carried out with negative results. The second of the scan results was obtained by one of the defence psychiatrists but it only came to the notice of the Crown during cross-examination late in the trial. The finding of frontal lobe damage depended entirely therefore upon the appellant's history as recounted by him to the experts, inferences to be drawn from his conduct at the relevant time as described by other witnesses, and testing carried out by the psychologist Mr Taylor.
Issue was taken with respect to the existence of the two major findings of frontal lobe damage and delusional disorder. As to the other disease or illness which was canvassed, clinical depression, there was a division of opinion whether it was present, and if it was, as to its severity.
The Crown case was that the accused had been harbouring a pent-up anger for some time about the victim's supposed noisy habits and persecution of him.
Her Honour the trial judge in the absence of the jury and before she had finished her summing up asked counsel whether they wished to raise any matters. This exchange then occurred:
"MR VAN DE WIEL: I do, your Honour, and that is this. The direction in terms of character evidence. It's my submission that in the course of this trial the issue of Mr Melbourne's character was canvassed … throughout the trial with just about every witness we had presented, who was a lay witness, if I can use that term, and also with Mr Newman. On that basis it would be my submission that the aspect of the improbability of committing the instant offence, having a history of good character for 60-odd years, is of considerable significance.
The aspect of his credibility is probably of lesser significance, having regard to the nature of the interview itself that has been severely criticised by me as showing a lack of credibility, but, in any event, it is the primary aspect of the evidence, in my submission, that should be brought to the jury's attention and one which, in our submission, as a matter of law, he is entitled to.
I thought the most convenient repository of the law in relation to this is a decision of R v Murphy[219] …
The situation in Murphy's case, obviously, was that it's the aspect of credibility which was the most significant. In my submission, in this case it's the reverse; it's the aspect of probability or inherent probability of the commission of the offence.
I say that despite the fact that while I have submitted to the jury that it's quite appropriate for them to convict him of murder because, in my submission, what the jury are involved in trying here is culpability for murder and that that, as a matter of law, Mr Melbourne can rely on his character as showing that it is less probable that he would have committed that crime.
The aspect of the conviction of 1975 of exceeding .08, in my submission, does not really affect the issue of character because it was a statutory offence, it's character neutral in that sense and particularly in the history of Mr Melbourne.
HER HONOUR: Yes, thank you, Mr Van de Wiel.
Yes, do you want to say anything on that, Mr Wild?
MR WILD: Yes, I do, your Honour.
My submission is that character is not an issue in the way that my learned [friend] suggested … in this case. Control is the issue in this case. My learned friend ran the case on this basis, that Mr Melbourne did behave himself in the past, he was then controlled – and this is the medical evidence he relies upon – and he's not – and was not then diminished. He now is diminished and that's the issue the jury's to be concerned with, not whether or not he was of good character at other times, because the point is that, as my learned [friend] has just said himself, it's admitted that he did it; the only issue is what his state of mind was when he did do it. If he's out of control it doesn't matter what his character was 10 years ago or 20 years ago or 30 years ago. So, to the primary basis on which the issue goes, as my learned friend would argue it, it's not applicable.
If it's said to be applicable to credibility, that will only be of relevance, your Honour, if he gave evidence. If my learned friend wants to have credibility an issue in what he says in his record of interview, in my submission, it's not relevant to credibility unless there is evidence given. I hear my learned friend murmuring about that, but that's as I understand it.
HER HONOUR: Yes, all right. Thank you."
[219](1985) 4 NSWLR 42.
When it came to the point her Honour gave a direction in these terms:
"The first matter is a direction I propose to give you in respect of what use you make of the evidence you heard during the course of these proceedings, of the good character of the accused, Roy Melbourne.
I do not propose to go back and remind you again of that evidence, but there has been evidence of course from witnesses relating to his not being a violent or aggressive person, and references to the fact that he was a quiet and amiable man.
I will specifically remind you of the evidence that was given by Sergeant Newman. Sergeant Newman gave evidence to the effect that he had, after Mr Melbourne was arrested, done a check of his record, his criminal record, and that there were no matters on that record other than a conviction for an offence of exceed[ing] .08 with a reading of .23 in 1975. Sergeant Newman had gone on to say that from his investigations there were no other convictions for any other matters in the Northern Territory or anywhere, and that Mr Melbourne was not adversely known to police.
The direction I am giving you is this: that when you consider that evidence as to good character, that you are entitled to consider the improbability of Roy Melbourne committing the instant offence, having a history of good character of some 61 years, and that this is of considerable significance."
No complaint was made by defence counsel at the trial with respect to this direction. Defence counsel say that they did not deliberately abstain from seeking a further redirection for tactical or other reasons: they simply overlooked that a different direction from the one they had sought had been given.
There is no doubt that a failure to seek a redirection is relevant in two respects[220]: as bearing upon whether on appeal the point should be allowed to be taken for the first time, and the light that the absence of an application for a redirection tends to shed on the atmosphere, and the forensic conduct of an accused's counsel, at the trial. Further, r 86.08 of the Supreme Court Rules of the Northern Territory[221] requires that an appellant obtain the leave of the Court of Criminal Appeal before taking a point there that was not taken at the trial.
[220]See Gipp v The Queen (1998) 194 CLR 106.
[221]Rule 86.08 provides as follows:
"No direction, omission to direct or decision in relation to the admission or rejection of evidence of the Judge of the court of trial shall, without the leave of the Court of Criminal Appeal, be allowed as a ground for appeal, or for an application for leave to appeal, unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal."
I am prepared to proceed upon the basis that in this case there was no deliberate abstention from seeking a further redirection, and that the appellant should be permitted to argue that a further redirection, if sought, should and would have been given[222]: in short, that this is a case in which leave should be given if it is necessary that it be sought. Indeed it might even be arguable that the point was properly taken in any event when the application for the direction was made in the first instance.
[222]See Gipp v The Queen (1998) 194 CLR 106.
The appeal to this Court
Counsel for the appellant referred to some passages in the evidence and in the respondent's final address to the jury as demonstrating, it was submitted, that the prosecution was contending that the jury should not accept the evidence of the appellant's experts, because what the appellant had told both the police and the experts was deliberately designed to assist his defence and was untrue or otherwise unreliable.
These were the passages in the final address to which reference was made:
"It's the [Lezak] test which he applies to the 15 numbers or the 15 letters test which he applies to ensure that the person is doing his best during the testing, and you might remember that was the only test missing from all his test results, the results that he takes meticulously, and my learned friend suggested keeps meticulously, this is one that he throws out and you might think that is a little bit strange, this being the one which really makes all the others genuine – and, of course, I'll come back to this later – but these tests are ones which are relied upon by Doctor Walton and Doctor Vine very much to form their own views of the brain damage, etcetera."
As to the appellant's absence of memory of the stabbing the Prosecutor said:
"You might remember there is something in what Mr Melbourne says the next morning indicating there are still areas that – poor memory and what might be masking or might be genuine failure to remember."
"The memory impairment that we've heard described shows up on tests, not too bad when you listen to the man, see him answer questions."
"You might note that it's suggested that Mr Melbourne remembers – that's how it's put as I understand it – that Mrs Chambers didn't attack him. He was asked whether she attacked him and he said 'Oh no, she didn't attack me'. Now, how does he know she didn't attack him if he forgets those events. That's an interesting question, isn't it. How does he know? Why doesn't he say; 'I don't know'? He says 'No, she didn't attack me.' There's a missing link there somewhere. My learned friend might say; 'Oh, he's being chivalrous again.' On the other hand you might think there is some little chink there, something in his memory that indicates that to him. It's suggested that he's trying to fill in gaps. [W]ell, the gaps he fills in are pretty good, aren't they?
You might remember that Doctor Vine said, that one of the things she noticed about his memory as being a bit funny was that he hadn't remembered coming home during the day, he'd gone into town and come home. But, of course, that was in response to particular questions and when you look at the video, if you do, and you can do this more easily by going to the transcript …
I'll just read this to you … Mr Melbourne says; 'That's why I took it home' – and he's talking about the chicken – 'for us to eat, you know. I had no fridge left in the place. I said, "I may as well eat what I can of it and then chuck it away because it'll be no good in the morning." … I sold my fridge in the morning. A fellow came and took my fridge away in the morning, see.' Now he remembers that he's at home, he remembers the man coming for the fridge. So to that extent – that's a small point you might think – to that extent Doctor Vine, in relying upon that as an error of memory, is herself incorrect. Now, what I've suggested to you, and you'll follow this through yourself, is that his memory is pretty good for a bloke who is – who seemed to be in the problem that he was."

On the issue of the appellant's abuse of benzodiazepine the Prosecutor said:
"You might also think to yourself the quantity of drugs that we have proof that was taken during the relevant period is not a very high number. There were 75 Benzodiazepam – I think's the name – prescribed in the period of months prior to the offence – 75 in total. If he was taking 8 or 10 at a time he wouldn't have been able to do it for many days.
There's some suggestion of him buying them around the streets and getting them from friends or trying – or something like that, you haven't got much evidence about that have you to act on, bearing in mind these issues are issues which the defence raises and the defence needs to satisfy you. So remember that onus of proof again when you get to that stage."
With respect to the appellant's level of alcoholism this was submitted by the Crown to the jury:
"The other thing that you might think is significant in assessing whether Mr Melbourne is affected by alcohol to the extent that's been suggested is the way he has presented, his presentation both to his friends, his neighbours, to doctors, when he's interviewed the next day after the events of the night before, you might take those into account. You come here with knowledge of people in the world and you've seen people who drink too much and drink too much to excess and you're entitled to take into account those matters of your knowledge of the world affairs.
One of the matters that was dealt with was [the] question of peripheral neuropathy, the problem with his toes, and it is suggested by Doctor Barclay that that might have indicated an alcoholic problem of some kind and he looked at that. Doctor Welch, on the other hand, thought it was probably a problem with his feet and his treatment or suggestion was a change of shoes. We don't know which of the two solved the problem because shortly after that Mr Melbourne took himself off to Mount Isa. Nevertheless, one is as likely as the other you might think in the circumstances, and there is no continued problem, as far as we know it, and no other suggestion of this being a problem after that time when he'd got back on the drink again. So, if you look for a profile of an alcoholic person, this man doesn't fit it, I suggest to you. This is a man who had too much to drink on 27 July and on other occasions, but otherwise should not be regarded by you as an alcoholic."
Under cross-examination, Mr Taylor conceded that, when he was interviewing and testing the appellant, the appellant knew that he was "a psychologist assessing him" "for the purposes of providing evidence in court". He was cross-examined regarding his failure to keep the written Lezak test done by the appellant. He was then cross-examined about the appellant's score on the Lezak test. Mr Taylor's evidence was that the appellant scored nine out of 15. The Crown Prosecutor then put:
"I'd suggest [to] you that twelve would be the minimum you'd expect on someone giving it a fair go?"
Two questions later he put this:
"But I'm suggesting to you Mr Taylor, nine from what you say seems to be the bare minimum, almost everybody got nine?"
Later, the following is recorded:
"Q. Would it not be appropriate sir – and this is the point I make, to keep the results of that test so that they can thereafter be used and shown, demonstrated? A. Do you know I've never been asked for them before.
Q. See I suggest to you without a Lezak test and the results of it, creates some doubt in respect of the other tests as far as the patient's concerned? A. Creates doubt for whom?
Q. Creates doubts for you and for us?"
Other examples in the cross-examination of Mr Taylor may be noted. Mr Taylor was asked if he had turned his mind to the question whether the appellant gave Mr Taylor "a true history". He was cross-examined as to the possibility that the appellant had "heard from someone" the word "paranoid" and that his use of the word involved the appellant's "justifying what he's done".
The appellant in his record of interview had repeatedly disclaimed any recollection of the stabbing. One particular example was as follows:
"NEWMAN: Mm-hm. I've explained to you what happened to Rene, right, and you're accused of doing that, you can't remember anything about it, can you give me any explanation as to what – what may have made you do this?
MELBOURNE: Well if I did it, I went insane."
To support the defence case, evidence of the appellant's good character was adduced in cross-examination of prosecution witnesses. This evidence included:
(a) evidence that he had no criminal record (other than a drink driving offence in 1975) and was not "adversely known to the police"; and
(b) evidence that he was "amiable", "quiet", "gentle", "well behaved" and never "aggressive".
It may be easy to disparage evidence of this kind. Every person has a good character until he or she offends against the law. Character evidence came to be regarded as relevant following the introduction of more formal curial proceedings when local knowledge became less important and the independent role of the jury more prominent[223]. Plucknett refers to early uncertainties surrounding the admissibility of character evidence[224]:
"Evidence given by witnesses to a jury … was for a long time an informal adjunct to legal proceedings rather than part of their essence. It is not surprising, therefore, that there was hardly any law governing its admissibility – evidence of previous convictions, for example, was admitted without comment."
[223]"An independent, original knowledge of the facts was attributed to the jury, and not a merely inferential and reasoned knowledge": Thayer, A Preliminary Treatise on Evidence at the Common Law (1898) at 137. See also Holdsworth, A History of English Law, 3rd ed (1922), vol 1 at 317:
"The jury was a body of neighbours called in, either by express law, or by the consent of the parties, to decide disputed questions of fact. The decision upon questions of fact was left to them because they were already acquainted with them, or if not already so acquainted with them, because they might easily acquire the necessary knowledge. For this reason it has been said that the primitive jury were witnesses to rather than judges of the facts. … [T]hey represented the sense of the community – hundred or shire – from which they were drawn; and in the days when such communities had each its court, when individuals lived more simple and more similar lives, the sense of the community was a thing more distinctively realized."
In Bushell's Case (1670) Vaugh 135 at 147 [124 ER 1006 at 1012], Vaughan CJ said:
"[The jury] may have evidence from their own personal knowledge, by which they may be assured, and sometimes are, that what is deposed in Court, is absolutely false … The jury may know the witnesses to be stigmatized and infamous, which may be unknown to the parties, and consequently to the Court."
[224]Plucknett, A Concise History of the Common Law, 5th ed (1956) at 436-437.

In R v Stannard[225] Patteson J said:
"I cannot in principle make any distinction between evidence of facts, and evidence of character: the latter is equally laid before the jury as the former, as being relevant to the question of guilty or not guilty: the object of laying it before the jury is to induce them to believe, from the improbability that a person of good character should have conducted himself as alleged, that there is some mistake or misrepresentation in the evidence on the part of the prosecution, and it is strictly evidence in the case."
[225](1837) 7 Car & P 673 at 674-675 [173 ER 295 at 296].
The prosecution here did not adduce any evidence of bad character in rebuttal, as it might have done if it were available and the Crown wished to lead it[226].
[226]R v Waldman (1934) 24 Cr App R 204; R v Winfield (1939) 27 Cr App R 139 at 141; Stirland v Director of Public Prosecutions [1944] AC 315 at 326-327; Selvey v Director of Public Prosecutions [1970] AC 304; R v Bracewell (1978) 68 Cr App R 44; R v Hamilton (1993) 68 A Crim R 298 at 299; R v Durbin [1995] 2 Cr App R 84.
The appellant relies on all that I have quoted to found a submission that the credibility of the appellant's out-of-court assertions to the investigating police and to the expert witnesses was a matter of considerable significance and in issue at the trial: and that the absence of any issue regarding the objective facts of the killing did not mean, as the Crown claimed in a submission which Gallop J regarded as having "much force", that (in effect) questions of the appellant's credibility did not arise.
It was accordingly contended by the appellant that the Court of Criminal Appeal erred in holding that because it was the appellant's state of mind which was being examined by the experts and thus by the jury, whether the accused should be believed in terms of factual dissertations (made to the experts) was an "extraneous question", which was the language used by Gallop J.
The appellant submits that the evidence of the appellant's character was relevant in two respects: as to a normal state of non-violence making it unlikely that if his state of mind had been normal, he would have committed the crime; and as to credibility generally, even in a case in which, as here, the appellant did not give evidence.
A related submission was that the Court of Criminal Appeal erred in holding that:
"evidence of good character [may not] be used to support the credibility of the accused in interrogation by police or the truthfulness of the history given to experts as a foundation of their respective opinions."
The relevance and admissibility of character evidence in cases in which an accused has not given evidence has recently been discussed in the United Kingdom.
In R v Vye[227] Lord Taylor of Gosforth CJ (with whom Judge and Hidden JJ agreed) said:
"[I]f a defendant of good character does not give evidence and has given no pre-trial answers or statements, no issue as to his credibility arises and a first limb direction is not required."
[227][1993] 1 WLR 471 at 476; [1993] 3 All ER 241 at 245.
Vye was discussed at some length in R v Aziz[228] by Lord Steyn (with whom Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Mustill agreed). His Lordship said[229]:
[228][1996] AC 41 at 50-51.
[229][1996] AC 41 at 52-53.
"What is good character?
The certified question, although phrased in very general terms, was intended to raise the problem whether a defendant without any previous convictions may 'lose' his good character by reason of other criminal behaviour. It is a question which was not directly before the Court of Appeal in Vye[230]. It is a complex problem. It is also an area in which generalisations are hazardous. Acknowledging that a wide spectrum of cases must be kept in mind, the problem can be illustrated with a commonplace example. A middle-aged man is charged with theft from his employers. He has no previous convictions. But during the trial it emerges, through cross-examination on behalf of a co-defendant, that the defendant has made dishonest claims on insurance companies over a number of years. What directions about good character, if any, must the judge give?
Counsel for the Crown and the respondents made contradictory submissions as to the correct approach. Counsel for the Crown submitted that a trial judge has a general discretion to decide whether a defendant without previous convictions has lost the right to directions in accordance with Vye by reason of other criminal behaviour. Counsel for the respondents argued that a defendant without previous convictions is always entitled to directions in accordance with Vye but that the judge is entitled to ensure that a balanced picture is placed before the jury by adding such qualifications as seems to him appropriate.
A good starting point is that a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with Vye in a case where the defendant's claim to good character is spurious. I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with Vye. I am reinforced in thinking that this is the right conclusion by the fact that after Vye the Court of Appeal in two separate cases ruled that such a residual discretion exists[231].
That brings me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie the directions must be given. And the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye[232] and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye, the judge may in his discretion dispense with them.
Subject to these views, I do not believe that it is desirable to generalise about this essentially practical subject which must be left to the good sense of trial judges. It is worth adding, however, that whenever a trial judge proposes to give a direction, which is not likely to be anticipated by counsel, the judge should follow the commendable practice of inviting submissions on his proposed directions."
[230][1993] 1 WLR 471; [1993] 3 All ER 241.
[231]R v H [1994] Crim LR 205; R v Zoppola-Barraza [1994] Crim LR 833.
[232][1993] 1 WLR 471; [1993] 3 All ER 241.
I would respectfully agree generally with these observations. Prima facie the direction should be given. Ordinarily strong contra-indicative factors would have to be present before a trial judge should conclude that such a direction is not to be given. The fact that an accused has not given evidence is not of itself a conclusive reason for declining to give the direction.
That evidence of good character may be used to support the credibility of statements made out of court by accused persons has been accepted in New Zealand[233]. The appropriateness of its use was also endorsed in New South Wales in R v Gillard[234] and in South Australia in R v Trimboli[235]. In the former case[236] Gleeson CJ said:
"It is well established that character evidence may be used on the issue of the appellant's credibility[237]. As was pointed out in Trimboli[238], character evidence supports the credibility of the appellant's account 'as to the objective facts and leav[es] more room for acceptance of his evidence of his own subjective state of mind'[239]. Here the information given by the appellant to medical practitioners was said to be false or exaggerated, and in that respect his credibility was at stake."
[233]R v Falealili [1996] 3 NZLR 664 at 666-667.
[234]Unreported, Court of Criminal Appeal, 15 July 1991.
[235](1979) 21 SASR 577.
[236]Unreported, Court of Criminal Appeal, 15 July 1991 at 10.
[237]Attwood v The Queen (1960) 102 CLR 353; R v Murphy (1985) 4 NSWLR 42 at 54.
[238](1979) 21 SASR 577 at 586-588.
[239](1979) 21 SASR 577 at 588.
In both the Commonwealth and New South Wales, the Evidence Act 1995 contemplates the possibility of the use of a good character direction to support the credibility of an accused's statements out of court. Speaking of the New South Wales Crimes Act 1900, s 412, a Court of Appeal of five judges (Street CJ, Hope, Glass, Samuels and Priestley JJA) said this[240]:
"[W]hilst the primary significance of evidence of good character is upon the unlikelihood of guilt, there is a corollary to the effect that evidence of good character can be used with reference to credibility of the accused in his denial of the charge, and hence the unlikelihood of his guilt. The omission to give a specific direction on the credibility aspect may or may not be regarded as resulting in a miscarriage, according to the particular circumstances of the case in hand."
[240]R v Murphy (1985) 4 NSWLR 42 at 54.
I have formed the view that the appellant has made out a case that his reliability and credibility were issues at the trial notwithstanding that he did not give evidence and that the substantial issue at the trial was whether the appellant was in a state of diminished responsibility at the time of the stabbing. It seems to me that his credibility was at stake in the sense suggested by Gleeson CJ in Gillard in the passage that I have set out. It does appear to me that the Crown Prosecutor, guardedly but nonetheless plainly, and in no way improperly, in his cross-examination of the experts, did seek to put in issue not just the reliability of the appellant but also his credibility.
A question was raised about the relevance of the appellant's out-of-court assertions and the use to which they could be put. The statements by the experts which I have quoted, repeating out-of-court assertions by the appellant and statements by him recorded in the record of interview, were received as original evidence. No objection was taken, or any qualification sought to be made to them at the trial. The record of interview was tendered and relied on by the Crown. The jury were entitled to believe or not believe the statements that were made out of court in that record. That they might do so meant that they necessarily had to give consideration to the appellant's honesty. That in turn meant inevitably that his character for this purpose was a relevant factor in determining his guilt.
There is a distinction that may on occasions be made in relation to psychiatric evidence from other medical evidence. Sometimes in the case of the former, what the patient has said, and is saying may be a manifestation of the illness if it exists, or an indication that it does not exist, in the same way as, for example, the presence or absence of a discolouration of the skin may be a manifestation of a physical illness such as jaundice. In each case what can be heard or seen is a symptom upon which reliance will and may properly be placed for the diagnosis. Bizarre assertions may be a form of bizarre conduct: the assertions are the conduct. Once it has been proved that the assertions have been made, the fact of the making of those assertions and their content are matters that a psychiatrist may take into account in forming his or her opinion. Evidence of statements of this kind may therefore be received as original evidence. It is true that a jury will not have the same opportunity of assessing such evidence as in the case of other original evidence consisting of statements made in court but a jury is in this respect in no different a position from what its members would be in when a doctor describes in evidence symptoms of a patient after the illness is cured or those symptoms have disappeared. It will also probably be the position that if the accused in such a case does not give evidence to enable the jury to form their own opinion of him or her, the "statements", being conduct as recounted by others will be less persuasive than they might otherwise be, but that does not mean that in an appropriate case involving mental infirmity the evidence of the statements to the extent that they have been relied on by the experts should not be admitted.

In R v Perry[241] Gleeson CJ said:
"Since opinion evidence involves the drawing of inferences and conclusions from facts, the admissibility of such evidence depends upon proof or admission of the facts upon which the opinion is based[242]."
[241](1990) 49 A Crim R 243 at 249.
[242]Murphy v The Queen (1989) 167 CLR 94 at 120; Ramsay v Watson (1961) 108 CLR 642; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846; 62 ALR 85 at 87-88; R v Turner [1975] QB 834 at 840; Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380; [1979] 3 All ER 177.
The facts upon which psychiatric or psychological opinions are based may include the fact that a person has made statements in the form, to the persons and on the occasions upon which they were made. If they were not made genuinely, in the sense of, not honestly made, then the opinions of the doctors based on them would be shaken or indeed perhaps even demolished. The genuineness, that is, the absence of simulation in the making of the statement may therefore be a matter of relevance at a trial, and an issue upon which an accused person's good character could have a bearing.
In this case however very little of what the appellant told the doctors and the psychologist falls into the category of evidence which I have been describing. Most of it consisted of assertions by him to them out of court of the existence of various addictions, absence of memory, beliefs held by him, and claims of certain personality traits, and could not therefore be regarded as manifestations of abnormality by conduct. Ordinarily evidence of assertions of that kind could and should only be received if the maker of the assertions also gives them in evidence at the trial, and should only be referred to in advance by other witnesses if the accused is to give evidence of them at the trial. It is only because of the absence of objection to them in this case and the way in which the trial was conducted generally that regard may be had here to the assertions and the experts' reliance on them.
The evidence however of what the appellant said to other witnesses shortly after the event is capable of falling into the category of evidence of conduct and was admissible as original evidence going to the appellant's state of mind at the time. The experts were, therefore, entitled to rely on it as evidence of the appellant's state of mind, and a jury could give both it and the experts' opinion on it such weight as they saw fit.
Ramsay v Watson[243] and R v Schafferius[244] were relied on by the respondent. What was said in the former is not, with respect, to be doubted:
"This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts."
[243](1961) 108 CLR 642 at 649.
[244][1977] Qd R 213.
The Court was not there however considering a case of mental disability or as here a case in which the evidence was received without objection and discussed at length at the trial by both parties.
In R v Schafferius[245], although the issue was one of diminished responsibility, the evidence that the psychiatrist gave of the statements made to him by the accused was not evidence which could in any way be regarded as "conduct" in the sense that I have discussed it, or as a foundation for any retrial on it for that purpose. The evidence in question there was that the accused "had a deep love" for the young woman he had killed.
[245][1977] Qd R 213.
In my opinion the credibility of the appellant was in issue in this case although he did not give evidence. That issue arose in respect of some evidence which was admissible and other evidence which although inadmissible if objected to, was not the subject of any objection. A credibility direction should therefore have been given. This is not an appropriate case for the application of the proviso as I cannot say that the appellant has not lost a real chance of a verdict of diminished responsibility[246]. I would allow the appeal and order a retrial.
[246]See Mraz v The Queen (1955) 93 CLR 493; M v The Queen (1994) 181 CLR 487; BRS v The Queen (1997) 191 CLR 275.

"I knew a man who used to say,
Not once but twenty times a day,
That in the turmoil and the strife
(His very words) of Public Life
The thing of ultimate effect
Was Character - not Intellect."