Neeraj WAHI v The Queen
[2015] VSCA 132
•2 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0122
| NEERAJ WAHI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, WEINBERG & OSBORN JJA |
| WHERE HELD: | GEELONG |
| DATE OF HEARING: | 1 June 2015 |
| DATE OF JUDGMENT: | 2 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 132 |
| JUDGMENT APPEALED FROM: | DPP v Wahi (Unreported, County Court of Victoria, Judge Chettle, 31 March 2014 (date of conviction), 10 June 2014 (date of sentence)) |
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CRIMINAL LAW – Conviction – Appeal – Adequacy of Charge – Good character direction – Where conventional ‘balancing direction’ that persons of good character can commit crimes given – Where judge then made comment that ‘even Jack the Ripper had no prior convictions at some stage’ – Where application made that the jury be discharged or alternatively that they be redirected – Where the judge refused applications – No real risk that jury would undervalue good character direction – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R Edney | Doogue O’Brien George |
| For the Respondent | Ms D Piekusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA:
For the reasons given by Osborn JA I agree that the appeal should be dismissed.
WEINBERG JA:
I agree, for the reasons given by Osborn JA, that this appeal should be dismissed.
OSBORN JA:
On 31 March 2014, following a five day trial by jury in the County Court, the appellant was convicted of two charges of rape, one charge of attempted rape and one charge of indecent assault.
The offending arose out of a sequential series of assaults which were alleged to have occurred on the night of 9 December 2012, when the complainant JN was sleeping at the home of a friend.
On 10 November 2014, Priest JA granted leave to appeal against conviction on two grounds. The first relates to the terms in which the trial judge gave a good character direction. The second alleges that a miscarriage of justice occurred as a result of evidence left to the jury relevant to consciousness of guilt.
The second ground was abandoned on the hearing of the appeal. Before turning to the remaining ground of appeal, it is necessary to outline the evidence as to the offending conduct and say something about the way in which the matter now agitated arose and was dealt with at trial.
The offending conduct
The Crown case was that on 9 December 2012, the complainant, JN, was house-sitting for her sister and brother-in-law in a house in Leopold when the conduct alleged occurred. The appellant had met JN briefly on one prior occasion through their mutual friend, AB. On the night of the incident AB was visiting the Leopold house with JN when the appellant telephoned AB and arrangements were made for him to visit the Leopold house.
Once the appellant arrived, the three went to buy drinks and food. They then went back to the house and began drinking and dancing. Both JN and AB gave evidence that the appellant tried to kiss each of them while they danced. AB pushed the appellant away and gave him a ‘dirty look’, and JN indicated to the appellant she was not interested. The appellant tried and managed to kiss JN on a second occasion and JN explained she was not interested and that she had a boyfriend.
Shortly after midnight, JN went to bed and told the appellant and AB that there was a spare bedroom and a couch and that they could make their own sleeping arrangements.
Sometime later, when JN was in bed, the appellant entered JN’s bedroom. He was wearing a t-shirt but was otherwise naked. He shut the door behind him and proceeded to get onto the bed and pull the doona back. He kissed JN on the neck and put his hand under her shirt and grabbed her left breast (charge 1, indecent assault). The appellant then moved his hand down to JN’s crotch and forcefully inserted his fingers into her vagina causing her pain (charge 2, rape). He continued to try to kiss JN and attempted to insert his penis into her vagina, but she managed to push it aside so he could not insert it (charge 3, attempted rape). JN told the appellant that he needed to stop and that she had a boyfriend. The appellant said that nobody needed to find out, and he inserted his fingers into her vagina two more times (charge 4, rape).
The complainant got the appellant to go into the spare bedroom where AB was by allowing him to believe that she wanted a ‘threesome’. When AB became aware of what had happened she told the appellant to ‘fuck off’ and eventually pushed him out of the house.
The appellant did not give evidence at trial and had given a ‘no comment’ record of interview. The substantive defence put in cross-examination of JN was that nothing occurred between the appellant and JN beyond consensual kissing.
The charge to the jury
On 28 March 2014, as part of his charge to the jury, the trial judge gave a direction on good character in the following terms:
In this case you have heard evidence from the police officer that the accused man has no prior convictions. You heard that evidence given by the police officer and that he is therefore a man of good character. You are allowed to use that when determining the likelihood that he would commit the offences for which he is charged.
It is generally believed that a person of good character is less likely, or is unlikely to commit a criminal offence, and you would be, may be, less willing to accept the prosecution’s allegation that he committed these offences, than you would be if he was a man of bad character. Of course, this does not mean that you should find the accused man not guilty if you accept that he is a man of good character. The mere fact that a person is of good character cannot alter proven facts. It can only help you to determine whether or not those facts have been proven.
In addition, you should keep in mind that a fact that a person who has previously been of good character can, of course, commit a crime for the first time. It is often said by prosecutors, even Jack the Ripper had no prior convictions at some stage. But it is a factor you take into account in favour of the accused man in assessing whether or not the crime has been committed.
This direction was given after 2:00 pm on a Friday afternoon. The jury retired to consider its verdict at 2:51 pm. His Honour then sought exceptions to his charge and defence counsel responded in part as follows:
When Your Honour gave them the good character direction, it wasn’t entirely in the way that I had expected. The last bit of it, Your Honour, of course, which is the - Your Honour made the comment that it's been said that Jack the Ripper doesn’t have prior convictions - Your Honour, in my submission, that was not appropriate and I say that with the greatest of respect.
HIS HONOUR: Why?
MS RANDAZZO: Because it is inflammatory, Your Honour, it’s clearly inflammatory, it negates any benefit that the good direction - the good character direction is designed to address. It wasn’t what Your Honour told me Your Honour would say to them beforehand; had I known that - - -
HIS HONOUR: I read out the standard direction to you.
MS RANDAZZO: I’m sorry, Your Honour, I didn’t mean to cut across you.
HIS HONOUR: I read out the standard direction to you and - - -
MS RANDAZZO: The standard direction, that’s right.
HIS HONOUR: - - - and I adlibbed when I came to, ‘Everyone who commits an offence - for the first time.’
MS RANDAZZO: Your Honour, didn’t say that though, Your Honour just went straight - - -
HIS HONOUR: I did, and then I said, ‘It's often been said, Jack the Ripper, even Jack the Ripper had no priors.’
MS RANDAZZO: Well, in my submission, Your Honour, that was unnecessary and inflammatory and should, in my submission, not have been said.
HIS HONOUR: So what do you want me to do, come back and tell them to ignore that I said Jack the Ripper had no priors? What do you want me to do, Ms Randazzo, or are you just having a whinge?
MS RANDAZZO: I’m having a whinge, Your Honour.
The matter was left on this basis and later that afternoon the trial was adjourned over to Monday 31 March 2013. On Monday morning defence counsel made application for discharge of the jury on the basis of the Jack the Ripper comment.
In so doing, counsel conceded that she probably should have sought a redirection on Friday. She submitted that the importance of evidence of good character should not be underrated and that the direction given had undermined the advantage of the good character direction which would otherwise flow to the accused. She further submitted that the judge had effectively compared the accused to the most evil and violent serial killer known to mankind.
In the alternative, it was submitted that the jury should be redirected and the comment withdrawn.
The trial judge rejected the application in the following terms:
In giving the direction in relation to good character, I read from the charge book in accordance with, as modified to take out the credibility portion because your client had nothing to have his credibility adhered to.
I read concluding the direction, ‘In addition you should keep in mind the fact that a person who has previously been of good character can commit a crime for the first time and even Jack the Ripper had no prior convictions,’ or something to that effect, at some stage.
I do not propose to re-direct the jury. I do not propose to discharge the jury. Ms Randazzo has her points on transcript, and that’s where they can stay.
Ground 1 — The trial judge erred by comparing the appellant to Jack the Ripper in the course of giving a good character direction, and by refusing to discharge or redirect the jury.
The development of the law governing good character evidence is elucidated by Weinberg JA in San Maung Saw Wah v The Queen.[1]
[1][2014] VSCA 7 [42] following (‘Saw Wah’).
The giving of a good character direction is discretionary and may not be required in every case in which character evidence is led.[2] Nor is it constrained by a particular form of words.[3]
[2]Melbourne v R (1999) 198 CLR 1, 14 [30] (McHugh J), 29 [79] (Gummow J), 57 [157] (Hayne J).
[3]R v Trimboli (1979) 21 SASR 577, 578; R v Arundell (1999) 2 VR 228, 250 [58].
It is well recognised that in giving a good character direction a judge is at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt, which the jury finds to be convincing, notwithstanding the accused’s previous character. Such directions are sometimes called ‘balancing directions’. In Saw Wah Weinberg JA observed:
Those balancing comments are usually innocuous. They merely remind the jury of what is, in any event, perfectly obvious. They do not, in any way, prejudice the accused. Nor do they detract significantly from the very real benefit that can accrue from the giving of a good character direction.[4]
[4][2014] VSCA 7 [72].
In the present case, there is no dispute that it was appropriate to give a good character direction generally in the form which his Honour adopted. The fundamental question is whether his Honour’s statement with respect to Jack the Ripper effectively subverted that direction. The appellant submits that the statement went too far and had the effect of:
(a)inviting the jury to doubt the worth of the appellant’s previous good character;
(b)comparing the appellant to a notorious criminal who typically targeted helpless and impoverished women;
(c)comparing the appellant to a criminal who, although he had no prior convictions, had committed several crimes — giving the impression that the appellant’s lack of prior convictions did not exclude the possibility that he had previously committed crimes that had gone undetected;
(d)warning the jury not to allow the appellant to go unpunished, as Jack the Ripper did, on the basis that he had no previous convictions.
There can be no dispute that the reference to Jack the Ripper was both inappropriate and unfortunate:
(a) It was not in terms correct. It is not, so far as the members of this Court are aware, the practice of prosecutors in this State to make the comparison which his Honour suggested they often do make. Counsel for the respondent accepted on appeal that this was so.
(b) The reference to Jack the Ripper was not an accurate historical parallel. Jack the Ripper was never brought before the courts as a first offender. In this sense, the example was picturesque but confused.
(c) The statement departed materially from the terms of the good character direction which had been discussed with counsel by the judge before the charge. It thus failed to comply with the purpose of the process contemplated by the Jury Directions Act 2013.
(d) The reference to Jack the Ripper was expressed with a colour which contrasted with, and potentially overwhelmed, the primary good character direction.
(e) The reference to the Jack the Ripper emphasised to the jury that a violent sex offender of the worst sort might still be the subject of a good character direction when brought before the courts on a first occasion.
(f) The example of Jack the Ripper carried with it the connotation that the benefit of the good character direction could be claimed by a person who was guilty of crimes but who was yet to be convicted of them.
This said, I do not accept that his Honour’s comment would convey the imputation to any sensible jury that the accused was to be directly compared to Jack the Ripper. It bore all the hallmarks of attempted judicial levity and such a direct comparison was self-evidently ridiculous.
Further, I accept that, as the Crown submits, the comment did not have the full weight of judicial authority behind it because it was introduced with the words ‘it is often said by prosecutors’.
I also accept that, as Weinberg JA put it in Saw Wah,[5] the purpose of the balancing comment was to remind the jury of what is, in any event, perfectly obvious.
[5][2014] VSCA 7.
It was presumably for these, or similar, reasons that when the jury retired at 2:51 pm on Friday, senior counsel for the appellant raised with the judge objection to the terms in which he had expressed himself but when pressed as to whether she sought a redirection did not do so.
In my view the only inference reasonably open is that the direction to the jury was not perceived as having the devastating effect for which the appellant now contends. Rather it seems to me that it must have been understood as an attempt at judicial humour or obvious exaggeration and in effect a comment which did not detract from the fundamental thrust of the direction, however unfortunate it was.
Senior counsel could not sensibly have taken the course she did if the impression created by his Honour’s direction was so prejudicial as to give rise to a substantial miscarriage of justice. She neither took effective exception to the direction nor sought the opportunity to obtain instructions from her client at that point in time relating to the direction.
It is true that early on Monday morning exception was taken to the direction and application was made for a discharge of the jury or alternatively for a redirection.
It would have been an easy thing to bring the jury back into court and directly address the issue at this point in time. The jury could have been directed to disregard the Jack the Ripper comment as reflecting an attempt at judicial levity and redirected in strong terms as to the way in which they could use the evidence of the appellant’s good character.
This was the course followed in Mathis v R.[6] In that case the balancing comment included the statement ‘you should keep in mind that a person who has previously been of good character can commit a crime for the first time. We have an assortment of scout masters, priests and others who can attest to the good sense of that particular direction’.
[6][2014] VSCA 118.
Defence counsel took exception to this statement and submitted that the standard traditional good character evidence warning should be re-given to the jury absent any reference to any scout masters and priests. The judge agreed and the full good character direction was repeated to the jury without any such reference.
On appeal, it was argued that this course did not adequately remove the sting from the initial direction, but this submission was not accepted. When the directions to the jury were read as a whole, it was concluded that there was no real risk of the jury undervaluing the character evidence which had been led on the appellant’s behalf and, if there was such a risk, it was removed entirely by the redirection.
Once again, it is unfortunate that this course was not followed in the present case particularly when, in effect, the trial judge gave no reason whatsoever for not doing so.
Nevertheless, the possibility of a redirection means that there was no high degree of necessity to discharge the jury and leaves exposed the ultimate question whether, in the absence of such a redirection, the initial direction resulted in a substantial miscarriage of justice.
Inappropriate as it was, I am ultimately not persuaded that the reference to Jack the Ripper resulted in the loss of a real chance of acquittal of the appellant.
In my view, the good character direction still conveyed the fundamental sense in which the appellant’s prior lack of convictions could be used by the jury in assessing the case against him. The reference to Jack the Ripper should not be regarded as subverting or substantially detracting from the good character direction for the following reasons:
(g) such reference was embedded in a direction which was otherwise full and entirely appropriate;
(h) I do not accept that the jury would have regarded it as conveying an imputation that the appellant was to be directly compared to Jack the Ripper; and
(i) the reaction of senior counsel shortly after the direction was given confirms that it was not perceived as devastating. Much may depend upon the way in which such statements are made and it may be inferred that the statement was received as a passing moment of inappropriate judicial levity or self-evident exaggeration.
Accordingly, the appeal should be dismissed.
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