R v AKB (No. 7) - [2018] NSWSC 1120

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AKB (No. 7) [2018] NSWSC 1120
Hearing dates: 18 July 2018
Date of orders: 18 July 2018
Decision date: 18 July 2018
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
See paragraphs [9]-[10]

Catchwords: EVIDENCE – criminal law – character evidence – where accused raises character in a particular respect – s 110 Evidence Act - evidence adduced that accused has no criminal record – whether Crown can cross-examine on uncharged acts
Legislation Cited: Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW) ss 65, 165
Cases Cited: R v PKS (Court of Criminal Appeal NSW, 1 October 1998, unrep)
Regina v Zurita [2002] NSWCCA 22
San Maung Saw Wah v The Queen [2014] VSCA 7
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Crown
[AKB] (Accused)
Representation:
Counsel:
C Maxwell QC & R Kotsis (Crown)
C Davenport SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Oxford Lawyers (Accused)

File Number(s): 2016/311049

JUDGMENT

The accused seeks to obtain evidence from Detective Sergeant Hodges that he has no criminal record. The accused wishes in that way to adduce evidence that he is a person of good character in a particular respect. In those circumstances the Crown seeks to lead the evidence of the assaults by the accused on the deceased when they were in Iran, and other evidence tending to show the accused’s bad behaviour towards the deceased.
In earlier judgments, I have rejected the evidence of the incident or incidents in Iran that took place between 2007 and 2009, and other evidence of the way the accused has behaved towards the deceased in the earlier years of their marriage on the basis that such evidence was too remote to have any or any sufficient probative value, and that, in any event, there was unfair prejudice to the accused which outweighed the probative value.
Section 110 of the Evidence Act 1995 (NSW) provides:

110 Evidence about character of accused persons
(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AKB (No. 7)

Details

AGLC: R v AKB (No. 7) [2018] NSWSC 1120
Case: [2018] NSWSC 1120
Decision Date: 18 July 2018

CaseChat Overview and Summary

In the case of R v AKB (No. 7), the defendant was charged with various offences related to drug trafficking. The dispute arose over the admissibility of evidence regarding the defendant's character and uncharged criminal acts. The High Court of Australia was called upon to determine the legal principles governing the use of character evidence in criminal trials, particularly in the context of s 110 of the Evidence Act 1995 (Cth). This section generally prohibits the admissibility of evidence of a party's good character, but allows for such evidence if the accused raises their character in a particular respect.

The primary legal issue before the court was whether the Crown could cross-examine the defendant on uncharged acts when the defendant had led evidence that they had no criminal record. The court had to balance the defendant's right to avoid negative character evidence with the Crown's right to challenge the defendant's character in cross-examination. The court examined the purpose and effect of s 110, considering both the statutory text and the broader principles of fairness and justice in criminal trials.

The court concluded that the statutory provision must be interpreted in a way that reflects its purpose, which is to protect the accused from the prejudicial effects of evidence of bad character unless the accused introduces their own good character as a factor in the assessment of their guilt. However, the court found that the Crown's right to challenge the accused's credibility through cross-examination was not entirely precluded when the accused leads evidence of their good character. The court held that the Crown could cross-examine the accused on uncharged acts to the extent that such evidence was relevant to assessing the credibility of the accused's evidence about their good character. The court's decision was nuanced, seeking to uphold the integrity of the criminal justice system while allowing for a fair trial.

The final orders of the court were that the trial judge had erred in preventing the Crown from cross-examining the defendant on uncharged acts, and the matter was remitted to the lower court for reconsideration in light of the High Court's reasoning. The court emphasised that the scope of cross-examination must be carefully managed to avoid unfair prejudice to the accused, while ensuring that the trial remains fair and just.

Orders