R v Brownlow No. Sccrm-03-135

R v BROWNLOW
[2003] SASC 262
Court of Criminal Appeal: Debelle, Gray and Sulan JJ

DEBELLE J I agree with the substance of the reasons of Sulan J. I too would allow the appeal and remit the matter to the District Court for retrial.
GRAY J I agree with the reasons of Sulan J. The appeal should be allowed. I agree with the proposed orders.
SULAN J The appellant was charged on information with indecent assault and, in the alternative, with assault occasioning actual bodily harm. The particulars of each count allege that the offence took place on 20 June 2001. The victim was alleged to have been a baby boy (“K”) aged about five months at the time. On 10 June 2003, by a majority verdict, the appellant was convicted of indecent assault. He has appealed against his conviction.
The prosecution case
K is a child of Kathleen Anne McBride and her de facto partner, John Brame. K was born on 20 January 2001. In June 2001 Kathleen McBride, John Brame and their three children (including K), resided temporarily at the home of the appellant and Tania May Brame, the sister of John Brame and the appellant’s girlfriend.
The appellant and Tania Brame lived at Athol Park with their three children, aged 8, 4 and 3 years. Kathleen McBride and John Brame were looking for accommodation and had moved into the Athol Park home of Tania Brame and the appellant about three weeks before the incident on 20 June 2001. Kathleen McBride, John Brame and their three children slept in one bedroom. K slept in a pram, the two older children slept in a bed and Kathleen McBride and John Brame slept in another bed in that room.
During the day on 20 June 2001 Kathleen McBride and John Brame went out to the Housing Trust. The appellant had agreed to look after the children, including K. When Kathleen McBride returned that afternoon the appellant told her that K had urinated on him and that he had slapped K on the leg. She noticed a red mark on his leg.
At about 6.45 p.m. that evening Kathleen McBride, John Brame and their two older children left to go out to inspect a flat. The appellant agreed to look after K. His children were also at home at the time. Tania Brame was not at home. Kathleen McBride and John Brame returned approximately one hour later. They both noticed that K was unsettled. After they had put K to bed at about 11 p.m. they noticed that he was extremely unsettled. He woke regularly throughout the night screaming. He appeared to be in agony. During the night K was changed and no injuries were observed, however, the room was poorly lit.
At about 8 a.m. the following morning Kathleen McBride changed K and noticed that the baby’s penis was “red raw” and his testicles were black. The baby was examined by Dr Johns at the Hanson Road Medical Centre at about 9 a.m. that day. The doctor observed that the scrotum was bruised and swollen, particularly under the right testis. He also noticed what he described as an irritation or a scratch about the tip of the penis and a bruise on the right thigh.
At about 5.30 p.m. K was examined by Dr Donald, a specialist physician, who is the head of the Child Protection Service at the Women’s and Children’s Hospital. He is primarily a forensic paediatric physician. Dr Donald observed bruising to the inner part of both thighs, bruising to the penis, and bruising to the scrotum. He concluded that the injuries were consistent with the thighs being gripped and the thumbs being pressed into the groin. The injury to the penis was consistent with a person sucking it.
Evidence was given by Kathleen McBride that about three weeks prior to 20 June 2001 she had observed that K appeared distressed and would cry when the appellant held him. Kathleen McBride and John Brame gave evidence that on several occasions the appellant had made inappropriate comments of a sexual nature about K.
The defence case
The appellant gave evidence. He denied that he had admitted slapping the baby whilst changing him. He denied the allegations of abuse. The appellant suggested that Kathleen McBride was behaving erratically for some days prior to 20 June 2001 and that this was as a result of her taking amphetamines, in particular speed. During cross-examination, Kathleen McBride admitted hitting her oldest son on an earlier occasion causing his nose to bleed. Evidence was led by the defence that there were other examples of violence and inappropriate behaviour by Kathleen McBride towards her children. John Brame denied that Kathleen McBride had hit their son. Kathleen McBride and John Brame denied any amphetamine use. Evidence of a number of witnesses supported the allegations of amphetamine use by Kathleen McBride.
The defence called Dr McCleave who gave evidence that the injuries to K were possibly not caused at the same time. Dr McCleave had not examined K. His evidence was led to throw doubt on the prosecution case that the injuries were caused when the appellant indecently assaulted the victim. The defence also called Tania Brame, the twin sister of John Brame. She gave evidence that Kathleen McBride and John Brame were using speed during the time that they were staying with her and the appellant. She gave evidence that Kathleen McBride hit her eldest son, Shane, in the nose and caused his nose to bleed.
The course of the evidence
At the commencement of the trial, counsel for the appellant objected to the prosecution leading evidence from Kathleen McBride that K would cry when left alone with the appellant. He also objected to evidence being led that the appellant made comments with sexual connotations about K. The trial judge determined that the evidence was admissible and permitted it to be led.
Counsel for the appellant at trial had sought from the Director of Public Prosecutions details of the appellant’s criminal history. In a facsimile message dated 16 April 2002 the appellant’s solicitor requested those details and requested that:
“If any other relevant material information comes into the prosecution’s possession subsequent to you receiving this correspondence, we hereby request that the copies of all such further material/information be provided to us”.
The criminal record of the appellant and Tania Brame were provided to counsel. The appellant’s record revealed traffic offences and three offences of false pretences in February 1999 for which he received a fine of $500. No other information was provided. In particular, it was not disclosed to the defence that: (1) there were charges pending against the appellant for assaulting Tania Brame; (2) that the appellant had been questioned by police in respect of another assault on Tania Brame; (3) that Tania Brame had made yet a further complaint of assault against the appellant which had not been further investigated by the police; and (4) that the appellant had been accused some six years before by a person named Donna Bennett of molesting Donna Bennett’s child. Tania Brame had convictions for offences of dishonesty, possession of heroin, breaking and entering and larceny, receiving, false pretences, soliciting for the purposes of prostitution, and providing false information. She had never been imprisoned, although she received a six months suspended sentence in March 2002.
The previous convictions of John Brame were provided. He had been convicted of some dishonesty offences, damaging property, common assault, resisting arrest and offensive behaviour. He had served a short prison sentence of three months for breaching a suspended sentence bond in the year 2000.
The evidence for the prosecution
The first witness for the prosecution was Kathleen McBride. A number of questions dealing with her drug abuse and her conduct towards her children were asked of her in cross-examination. At the conclusion of her evidence, the transcript of the trial reveals that the following exchange took place:
“MS DAVID (for the prosecution):                Can I raise one matter? Given the legal argument that occurred yesterday, I need to raise the matter of character, the accused’s character. It seems to me that through the cross-examination of Ms McBride, the accused has not yet put his character in issue, it’s those matters such as drug use –
HIS HONOUR:           I was paying some attention to that aspect.
MS DAVID:                I don’t say –
HIS HONOUR:           You don’t say the shield has quite been dropped yet.
MS DAVID:                Not yet. My friend did suggest in his legal argument that he proposed to call some witnesses to say that they had never heard any disgusting comments, or sexual comments uttered by the accused about any of the children. What I’m concerned about is whether I have effectively been put on notice that the accused’s character is in issue, because in my submission witnesses stating that they have never heard any such comments is not a matter going directly to the accused’s defence, as Kathleen McBride doesn’t say that any witnesses were present during those times.
So I’m just really asking whether I am on notice that the accused’s character is in issue. I don’t want it to be suggested that I’m going to split my case by subsequently asking to call rebuttal evidence.
HIS HONOUR:           I would have to wait and see, and Mr Richards is on notice, but I wouldn’t be holding back against you. We would have to see what drops; that right is always there. I better tell the jury about this, I suppose.
MS DAVID:                Yes.
HIS HONOUR:           Do you want a few minutes to have discussions?
MR RICHARDS (for the accused):      If I may, because I may be able to clarify that.
HIS HONOUR:           Yes. You’re on notice anyway.
There is a little technicality here that, Mr Brownlow, if you raise issue in effect about people’s character, when it comes your turn, they may well have the right to go into your background, so that’s what happens.
ADJOURNED 11.44 A.M.
RESUMING 11.53 A.M.
MR RICHARDS:        I note that I took instructions from my client and character is likely to be in issue, so I give notice of that at this stage.
HIS HONOUR:           You’re on notice.”
The next witness for the prosecution was John Brame. He was cross‑examined by defence counsel about his criminal record and his use of drugs. Mr Tilmouth QC, counsel for the appellant, rightly conceded that in the conduct of the appellant’s defence counsel for the appellant at trial had made imputations on the character of John Brame and that such imputations did not necessarily arise from the proper presentation of the defence case. He accepted that the cross-examination of John Brame had the effect of the appellant forfeiting the protection given to accused persons by s 18(1)VI of the Evidence Act 1929 (SA) (“the Act”).
Sections 18(1)VI and 18(2) provide:
“18(1)VI A person charged and called as a witness in pursuance of this Act 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 –
(a)….
(b) 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; ….
18(2) A defendant forfeits the protection of paragraph VI of subsection (1) if –
(a) the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or a witness for the prosecution; and
(b) the imputations are not such as would necessarily arise from a proper presentation of the defence.”
Subsequently, when the appellant gave evidence he asserted that he was a good father, he did not make sexual jokes about children, he had limited antecedents, he had very little involvement with drugs and he was a person of generally good reputation. It was submitted by Mr Rofe QC, who appeared for the respondent, that in so doing the appellant had given evidence of his own good character thereby denying himself the protection afforded by s 18(1)VI. Whether that be the case or not, it is unnecessary for the purpose of the appeal to determine that question, because it has been correctly conceded by Mr Tilmouth QC that the cross-examination of John Brame was such as to cause the protection provided by s 18(1)VI to be no longer available to the appellant. It follows that by the time the appellant gave evidence the protection of s 18(1)VI had been lost. It may be that if the trial judge had been requested to exercise his discretion and had turned his mind to the question of how and when the appellant had put his character in issue, that may have been relevant to the extent to which cross-examination about his character would have been permitted. For reasons which I discuss later, it is not necessary to further consider that question.
The evidence for the defence
The appellant gave evidence. Counsel for the prosecution, without seeking leave of the trial judge, cross-examined the appellant on a number of topics relevant to his character.
It was suggested to the appellant that he had assaulted his partner, Tania Brame, and that she had applied for a domestic violence order against the appellant on 30 July 2001. The following questions were put to the appellant:
“Q.I’ll come to that in a moment. On your evidence, you’re not a violent man.
A.No.
Q.You wouldn’t hit a child.
A.What do you mean by ‘hit’?
Q.You wouldn’t cause any physical harm to a child.
A.No, that’s right.
Q.Wouldn’t hit a woman.
A.Not so to speak, no, not hit, no.
Q.Wouldn’t punch a woman.
A.No.
Q.Wouldn’t punch your de facto partner, Tanya.
A.No. I’ve pushed her, I’ve never punched her, no.
Q.You’ve never hurt her.
A.No. I said I’ve pushed her, I’ve never punched her.
Q.You would certainly never punch her in front of her children.
A.I know what incident you’re referring to. I pushed her but there was no-one else around, no.
Q.Because, on your evidence, you’re a man of good character who would never hurt a child, would never hurt a woman and would never do those things that are alleged of you in this trial.
A.Absolutely.
Q.Are you aware that on 30 July 2003, some six weeks after this alleged incident, Tanya Brame applied for a domestic violence order.
A.No.
Q.You’re not aware of that.
A.No.
Q.That she attended at the Port Adelaide Police Station and said that you had ongoing arguments over drug addictions and money.
A.Not that I’m aware, no; nothing was said to me.”
The cross-examination continued. It was suggested to the appellant that he had been charged with the offence of committing an assault on a member of his family on 10 September 2001. It was put to the appellant that he had been interviewed about these allegations at the Port Adelaide Police Station on 11 September 2001. It was suggested to the appellant that he had admitted that he had punched Tania Brame in the arm and that he had kicked her. It was also put to the appellant that he had previously been arrested for offences of false pretences and minor traffic offences. The appellant responded in many instances that he could not recall details of what he had told the police. The cross-examination then continued:
“Q.Let’s, perhaps, come to a more recent time that might trigger your memory. Do you recall an incident on 16 April of this year.
A.Yes.
Q.You do. You recall this one.
A.Yes, that’s only going back a couple of months.
Q.Was there an incident where the neighbours contacted the police and they attended at your premises.
A.Yes.
Q.Were you aware that your partner, Tanya Brame, accused you of assaulting her by punching her to the face.
A.No.
Q.Head and arms.
A.She never said anything. It was the neighbours that rang up and said that this happened. Tanya never ever accused me of anything.
Q.You say she never accused you of anything.
A.No, not from what the police told me, no.
Q.She told them that you’d chased her out of the house, pushed her over, then ran to the other side of the road where she fell on the ground, you then kicked her to the back and front of her torso, causing soreness to her kidney region.
A.No, that’s not true.
Q.You don’t recall that incident.
A.I know the incident you’re talking about, but that’s not what happened, no.
Q.But your children were present at the time.
A.They were across the road.
Q.Tell the court what did happen.
A.It was simple. She was - she woke up in the morning, she said that she had $10 missing out of her purse and she’d try to say that I took it, and we had a bit of a disagreement about it, telling her why I’d never take money from her, why would I need to and she got upset, said something to me. I told her to leave because I was getting angry and she ran out of the house. At first I stayed inside, I just locked the screen door. She tried to come back in and I said ‘Just leave me alone for a while’, so she’s running down the street saying ‘You’re a paedophile’. I lost the plot. I went outside. I chased her and stepped on the back of her pants and she fell forward. There was no kicking. She had baggy pants on and she fell after I trod on the back of her pants.
Q.What part of her tracksuit pants did you step on.
A.The bottom of her pants where her legs come out were ripped and it had frayed bits on it. I stood on the back of them and as she went to run forward she fell.
Q.In the heat of this angry exchange, you’ve accidentally stood on the back of her tracksuit pants.
A.Yes, I was chasing her, yes.
Q.There was no pushing, there was no shoving.
A.I haven’t pushed her, no, I didn’t.
Q.You accidentally stood on the back of her tracksuit pants.
A.Yes
Q.Isn’t that a load of rubbish.
A.Why would it be? No, it isn’t a lot of rubbish.
Q.The fact of the matter is over a long period of time you’ve been violent to your partner.
A.No, there’s been one occasion where we had a heated exchange.”
A number of questions were put to the appellant that he was aware that Tania Brame was a drug addict and that he had a heroin habit. He denied that he had a heroin problem.
John Brame, during his cross-examination, had claimed that the appellant made comments of a sexual nature when the appellant was bathing his children. John Brame also claimed that the appellant had made comments of a sexual nature on other occasions. In the course of giving evidence on that topic, John Brame said that about six years ago the appellant had been accused by a woman named Donna Bennett of molesting her children. The appellant’s counsel asked a number of questions about the Donna Bennett accusations and John Brame repeated that Donna Bennett had accused the appellant of molesting her children. He went on to suggest that the appellant was known as a child molester. When the accused was cross-examined he was asked about Donna Bennett. He denied making any comments of a sexual nature about her children.
As a result of the cross-examination of the appellant, the prosecution sought to lead evidence in rebuttal about the conversation between the police and the appellant on 11 September 2001 concerning the allegation of an assault made by Tania Brame. Rather than reading the police interview to the jury, the following agreed facts were put to the jury. Those facts were that the appellant was interviewed at Port Adelaide Police Station on 11 September 2001 and, during the course of the interview, the appellant stated that the victim, Ms Brame, attended at their home after not being there for a few days and woke him by punching him to the face. The appellant told the police that because Ms Brame had punched him, he punched her in the arm and kicked her but denied hitting her in the face. He admitted to the police that he may have over-reacted. The appellant told the police that he did not want to be in a relationship any longer as Ms Brame was a heroin addict, a prostitute and did not leave him enough money for their children. That evidence contradicted evidence which had been given by the appellant at the trial.

When Tania Brame gave evidence it was put to her in cross-examination that she had told the police in July 2001 that the appellant had argued with her over drug addiction and money. She was asked if she was addicted to heroin at the time. She said that she was not an everyday user. It was put to her that the appellant was addicted to heroin at that time and she agreed that he was using heroin in July 2001. The incident on 10 September 2001 was put to her and, in particular, statements that she made to the police at that time about the assault upon her by the appellant. When she was asked about whether the appellant had punched and kicked her at that time, she said that if it appears in the police statement then she accepts that it had occurred. She also agreed that she had told the police that the appellant had a very bad temper. She accepted that not everything that she had told the police was true. It was put to Tania Brame that the appellant had tried to strangle her and had pushed her really hard into a wardrobe, that he had threatened to take her children from her, and that the children were frightened of her. It was suggested to Tania Brame that on 16 April 2001 during an argument she called him a paedophile and that he punched her to the face, head and arms and kicked her. It was also alleged that he hit her with a baseball bat. She agreed that those events had taken place. She accepted that on at least three occasions the appellant had hurt her.
The matters which were put to the appellant and to Tania Brame about the appellant’s character were put without notice having been given to the defence by the prosecution and without obtaining leave of the trial judge.
After the appellant had given evidence and before Tania Brame was called, counsel for the appellant applied for a mistrial. He complained that matters upon which the prosecutor had cross-examined, other than the appellant’s previous convictions, had not been notified to him. He complained that leave to cross-examine had not been sought. He complained that there was evidence led of a number of accusations against the appellant which had not been substantiated and where his guilt had not been proved. He also complained about the evidence given by John Brame about the Donna Bennett allegations and the cross-examination of the appellant on this topic. The trial judge rejected the application for a mistrial, but gave no reasons.
There was argument about what, if any, evidence could be called in rebuttal, and particular reference was made to the record of interview that was the subject of the agreed facts. The trial judge ruled that the appellant’s character had been put in issue and that the prosecution was entitled to call rebuttal evidence, including the evidence of the video interview in September 2001.
Mr Richards renewed his application for a mistrial and submitted to the trial judge that the various allegations relating to violence towards Tania Brame by the appellant had not been the subject of any notice to him and therefore he had been placed at a forensic disadvantage. The trial judge deferred ruling on that application. Evidence was then called from Tania Brame and Matthew Brame, the son of the appellant. When the evidence had been completed, counsel for the appellant reminded the trial judge of his application for a mistrial. The trial judge ruled that all the matters to which defence counsel had referred were within the knowledge and purview of the appellant and he refused the application.
The appeal
Mr Tilmouth QC submitted that there has been a miscarriage of justice because the appellant has been denied a fair trial. The first three grounds of appeal complain that the trial judge erred in:
1.Failing to order a mistrial after the admission of the evidence of the appellant’s bad character without notice to the defence, or without leave being sought by the prosecution;
2.Failing to order a mistrial after the disclosure during cross-examination of John Brame of the evidence relating to the accusations of Donna Bennett; and
3.Permitting the prosecution to split its case and adduce further evidence of bad character during the cross-examination of defence witnesses.
Mr Tilmouth QC submitted that counsel for the appellant was never informed prior to the cross-examination of the appellant that it would be alleged that there were three occasions upon which the appellant assaulted Tania Brame. He submitted that the Crown had failed to inform the appellant’s solicitors or counsel that the Crown intended to cross‑examine the appellant on these subjects. It was further submitted that the prosecutor failed to seek leave of the Court to cross-examine the appellant as to his character. It was submitted that if leave had been sought prior to any questions being asked, then disclosure of the topics would have been made to the trial judge and counsel for the appellant could have informed the judge of the failure of the prosecutor to advise him of the topics proposed to be the subject of cross-examination before the character of the appellant was put in issue. The trial judge would have been required to consider whether to grant leave to cross-examine in circumstances in which the prosecutor had failed to fully inform the appellant’s legal advisors about the detail of those matters relating to the appellant’s character upon which the prosecutor intended to cross-examine. Further, it was submitted that the evidence relating to the allegations of Donna Bennett should not have been pursued by the prosecutor in cross-examination and to have done so resulted in the trial being unfair. Mr Tilmouth QC submitted that the trial became a trial about character and it was therefore unfair and a miscarriage of justice had occurred.
Mr Rofe QC submitted that the material relating to bad character, particularly the material about Tania Brame was within the knowledge of the appellant and that if the obligation of disclosure had been breached, then that failure had not resulted in a miscarriage of justice because the matters which were the subject of cross-examination were always within the knowledge of the appellant. Mr Rofe QC conceded that it may well be that counsel for the appellant had misunderstood the position in that he believed that questions as to his client’s bad character could only be limited to matters where there had been a conviction. Consequently, the appellant’s counsel may not have sought instructions from his client about matters relevant to his client’s character, other than details of previous convictions. Mr Rofe QC conceded that the appellant’s counsel may well have believed that he could call evidence of his client’s good character as being a non-violent man to children and thereby not lose the benefit of the protection of s 18(1)VI of the Act.
In response, Mr Tilmouth QC submitted that it was not to the point whether the matters upon which the appellant was cross-examined were within his knowledge and, therefore, should have been within the knowledge of his counsel. Rather, he submitted the question was whether the appellant could receive a fair trial and whether there had been a miscarriage of justice.
As to the suggestion that the appellant should have known about matters relating to Tania Brame, I consider that those matters could only possibly relate, firstly, to matters where charges had been brought against the appellant and, secondly, those matters which had been the subject of the police interview of the appellant. The third allegation of violence made by Tania Brame had never been followed up by police and had never been put to the appellant. He denied that that incident ever took place. In those circumstances, even if he had been asked by his counsel to recall matters which might be put to him about his character, those allegations would never have come to the appellant’s mind as he denied that the incident had ever occurred. In respect of the other two matters, I am of the view that it is asking a great deal of an accused person, when considering matters relating to his character which may become the subject of cross-examination, to expect him to remember every incident in his life that may be relevant to that question. That is one of the reasons why there is a requirement upon the prosecutor to inform defence counsel about the extent of any proposed cross-examination and to seek leave of the trial judge to cross-examine as to character. In seeking leave, the prosecutor will tell the court the topics upon which the prosecutor intends to cross-examine, thereby giving defence counsel an opportunity to put submissions as to whether leave should be granted. If notice has not been given to the defence about a topic of proposed cross-examination, leave should rarely be granted on that topic, unless good reason can be shown for not having given such notice.
Whether leave be sought to cross-examine in respect of character
Unlike a number of interstate legislative provisions that require leave of the trial judge to cross-examine the accused about his character, s 18 of the Act contains no such requirement. Mr Rofe QC conceded that the position in South Australia is the same as the position in other states where there is such a legislative requirement.
In R v Kostaras, Doyle CJ considered the question of whether leave to cross-examine an accused about his character was required.[1] He observed:
“The South Australian provision, although similar to provisions in other states, contains no provision requiring that leave be obtained from the judge before an accused is cross-examined about character on the basis that the accused has given evidence of his own good character. But the High Court has made it clear that the legislative provision does not confer a right to cross-examine. When an accused gives evidence of his own good character, that enlivens a discretion on the part of the judge whether to allow such cross-examination, and as to the extent of the cross-examination. Application should be made to the judge for leave to cross-examine, before cross-examination is undertaken in reliance on s 18(1)VI(b): Matusevich v The Queen (1977) 137 CLR 633 at 640; Phillips v The Queen (1985) 159 CLR 45 at 51-252.”[2]
[1] (2002) 222 LSJS 373
[2] Ibid at 384[72]
Although the Chief Justice was referring to s 18(1)VI(b), the same requirement to obtain leave is applicable to s 18(1)VI(a).
In Phillips v The Queen, the High Court considered the application of s 15(2) of the Evidence Act 1977 (QLD) which is a section in similar terms to s 18(1) and (2) of the Act.[3] Section 15(2) of the Queensland Act requires permission of the court to ask questions tending to show that the accused is of bad character or had previous convictions. In a joint judgment, Mason, Wilson, Brennan and Dawson JJ said:
“Section 15(2)(c) of the Act provides expressly that any questioning as contemplated by that provision shall be subject to the permission of the court. Not all statutes dealing with the subject in Australia contain such a proviso but undoubtedly it not only expresses a rule of practice which should always be observed in all jurisdictions (cf. Matusevich v The Queen) (37) but gives statutory recognition to the basic discretion inherent in all criminal trial judges to exclude evidence otherwise admissible if it would unfairly prejudice the accused person.”[4]
[3] (1985) 159 CLR 45
[4] Ibid at 51
Deane J considered the position prior to the enactment of statutory provisions which gave effect to the long-established position at common law. He said:
“The principle that “the prior convictions or bad character of a person charged with an offence cannot be proved by cross-examination or otherwise before a tribunal which is concerned with the question of his guilt or innocence of the offence charged” is “fundamental in the administration of criminal justice”: see per Fullagar J., Hall v Braybrook (89). “It seems to have appeared as a rule of evidence towards the close of the seventeenth century and under the influence of judicial practice and statutory enactment gradually to have hardened into a principle, a principle to any infringement of which all concerned in the criminal law are highly sensitive because of the prejudice to the issue of guilt which is thought inevitably to ensue”: per Dixon C.J., Hall v Braybrook (90). In England, it was said by Willes J., in 1865 that, though such evidence is relevant to the issue of guilt, it is excluded for reasons of policy and humanity “because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety-nine”: Reg v Rowton (91). The long experience of the common law is that such evidence in a jury trial is liable to besmirch justice with the ugly stain of prejudice or prejudgment.”[5]
[5] Ibid at 59-60
It is clear from the discussion in Phillips’ case that a trial judge has an overriding discretion to exclude evidence if the judge considers that questions as to the character of an accused person would result in that person not obtaining a fair trial. In considering the exercise of the discretion, the trial judge should have in mind that the introduction of an accused person’s previous convictions or bad character in a trial are exceptional, and that in determining whether to permit such questions the trial judge should consider what damage has been done to the prosecution case by imputations made by the defence upon the prosecution witnesses, and whether it would be unfair to the prosecution case to leave the prosecution witnesses under such imputations whilst preventing the prosecution from bringing out the accused’s record and bad character. The question for a trial judge is whether the prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit. The discretion is at large, but, in determining whether to exercise the discretion, trial judges should have regard to the fact that evidence of bad character, including an accused’s criminal record should be excluded and that in exercising their discretion to permit an attack to be made upon an accused’s character, trial judges should exercise that discretion sparingly and cautiously.[6]
[6] Ibid at 57
In my view the failure of the prosecutor to seek leave and the failure of the trial judge to require the prosecutor to seek leave when she first commenced to cross-examine the accused about his character was an error, with a consequent result that the trial judge was never required and never gave himself the opportunity to consider whether he would permit cross-examination and to what extent that cross-examination would be permitted. The trial judge not only has a general discretion whether to permit such cross-examination, but also has a discretion to limit the extent of the cross-examination to topics within parameters that the trial judge considers should be permitted to ensure a fair trial. The ultimate question for the trial judge is whether the accused would be deprived of a fair trial if cross-examination on certain topics were permitted.
If the trial judge had considered those matters in this case, then the question of the extent to which the prosecutor, if at all, would have been entitled to cross‑examine the appellant and Tania Brame would have been the subject of argument by counsel and final determination by the trial judge. No such opportunity was afforded to counsel.
The failure of counsel to inform himself about character
The failure of counsel to properly inform himself about his client’s character was discussed in R v Hamilton (1993) 68 A Crim R 298. In that case, counsel for the accused was given a copy of his client’s criminal record which showed that although he had some previous convictions, none of them were of the same nature as the offence with which he had been charged. Counsel was informed by the prosecutor that further inquiries were being made. The accused told his counsel that the antecedent report was correct. As it transpired, the accused misinformed his counsel because it later came to the notice of the prosecutor that the accused had been charged with a similar offence in the past and had failed to appear to answer the charge. By that time, counsel had cross-examined prosecution witnesses and put his client’s character in issue. The Court of Criminal Appeal in New South Wales was of the view that the accused was partially to blame for failing to properly inform his counsel about that earlier incident.[7] Hunt CJ, at CL, with whom Finlay J agreed, observed that when counsel obtains instructions from a client to raise the issue of character, that advice can only be given properly if based on full knowledge of what may be elicited or led by the Crown, should character become an issue.[8] He commented that to rely on a client’s memory or instructions is not always reliable. Nor is the antecedent report provided to the defence always reliable. The information should be sought from the prosecutor before trial or at trial and before character is put in issue. Defence counsel should always ask whether there is anything known to the prosecution which they would seek to elicit or lead in the event that character is raised.
[7] (1993) 68 A Crim 298 at 311
[8] Ibid at 300
The obligations of the Crown to supply such information is well established. In R v Hamilton, Hunt J observed:
“Although a police antecedent form … should always be in counsel’s brief, it is not necessarily either a sufficient or a reliable source. Sometimes the form is out-of-date; at other times, it is incomplete. A reliable source – and usually the most convenient – is the Crown Prosecutor, who should have access for the purposes of the trial not only to the police antecedent form but also (when appropriate) to other material which may be relevant once character is raised. I understand it to be the standard practice of all competent advocates to make a check with the Crown Prosecutor before character is raised. As already pointed out, the information which should be sought is not only the details of the client’s criminal record; counsel should also ask whether there is anything else known to the Crown which it would seek to elicit or to lead in the event that character were raised. The Crown Prosecutor is expected to supply that information upon request. By doing so, the Crown is not thereby prevented from subsequently raising other matters where it could not reasonably have been expected to have known about them at the time of the request for such information – subject, of course, to the usual discretion of the trial judge to exclude those other matters where their admission would lead to unfairness.
Where the Crown Prosecutor does not have that information immediately available, he or she is expected to seek that information from the police. Criminal histories (which include all charges as well as all convictions) are computerised and, even where the trial is being held in a country area, details will be available by facsimile from the closest access to that computer. Obviously enough, the earlier the request is made of the Crown for this information, the easier it will be to obtain it in time before any forensic step has to be taken to raise character. This is of particular importance when the trial is to be heard in the country. There will, however, be cases where the Crown Prosecutor simply is unable to assure counsel for the accused that the whole of the relevant information has been obtained. It may be that, although for some legitimate reason inquiries have still not produced the required information, the Crown Prosecutor will be prepared to give an undertaking that nothing subsequently ascertained will be raised, but such cases would understandably be infrequent.” [9]
[9] Ibid at 300-301

If the Crown prosecutor does not provide complete information, or if the Crown prosecutor indicates that there are further inquiries being conducted, then the matter should be raised with the trial judge before counsel embarks upon cross-examination of the prosecution witnesses which puts his client’s character in issue. The trial judge may well grant an adjournment until all inquiries have been made, or the judge may rule that the prosecution is bound by the information provided to the defence and not permit the prosecution to cross-examine or lead evidence of bad character where the facts have not been notified to the defence. Hunt CJ said:
“The present case well exemplifies what can go wrong when counsel proceeds to raise character without a full knowledge of what may be elicited or led by the Crown in rebuttal. The hearing of the appeal proceeded upon the basis that it was unnecessary for us to resolve the conflict in the evidence placed before this Court between the appellant and his former solicitor and barrister as to whether the appellant had disclosed the domestic violence matters to his counsel or as to whether he was adequately advised as to the consequences of not disclosing any such matters should his character be raised.”[10]
[10] Ibid at 301
He went on to say:
“The prejudice – in a case where his client had been charged with sexual intercourse without consent and with inflicting actual bodily harm with intent to have that sexual intercourse – of having admitted against him evidence of the robbery charge (with its details of assaulting a female) and of the allegations against him in the domestic violence charges was catastrophic.”[11]
[11] Ibid
The issue for the court was whether the error made by counsel was of such a nature, in the circumstances of the case, as to have led to a miscarriage of justice. As was rightly pointed out, not every error of counsel will have those consequences. Hunt CJ concluded that a miscarriage of justice had occurred despite the accused’s own blameworthiness in not telling his counsel the truth.
On that topic, Levine J observed:
“Of course it is the general rule that an accused person is bound by the way in which his legal advisers conduct the trial on his behalf irrespective of whether or not his instructions are carried out and a conviction will not be set aside merely because decisions by his legal representatives as to the trial’s conduct were made without or contrary to instructions or because those decisions were consequent upon errors of judgment or negligence. The wide discretion available to counsel as to the manner in which proceedings are to be conducted is acknowledged, including, for example, the decision as to which witnesses are to be called, what line of questioning is to be adopted, what submissions are to be made or arguments put, in other words all those usual matters that attend the structure of the presentation of the defence case in answer to that brought by the Crown. A departure from instructions, disobedience of instructions, incompetence, negligence, errors or judgment – none of these is sufficient of itself to attract the intervention of the appellate court. What is critical is that any conduct or omission which so can be categorised as above must in fact lead to a miscarriage of justice before the court will interfere.”[12]
[12] Ibid at 311-312
Levine J concluded that there had been a disproportionate prejudice to the appellant flowing from the reception of the evidence and from cross-examination of the witnesses and a consequent miscarriage of justice had occurred as the appellant had not been afforded a fair trial.
The decision in Hamilton was considered in R v Oliverio.[13] In that case, defence counsel asked his client, who was charged with causing death by dangerous driving, whether he had any prior convictions to which the reply was one minor offence that involved an airgun. It transpired that the appellant had a previous record which included five prior driving offences. The Crown was permitted to cross-examine the appellant. One of the grounds of appeal was that the appellant’s counsel had failed to make adequate inquiries of his client or the prosecution about his client’s antecedents and, in particular, whether he had a record for traffic offending. It was submitted that counsel failed to give the client informed advice as to the consequence of putting his character in issue. King CJ agreed with the views expressed in R v Birks (1990) 19 NSWLR 667 at 685 by Gleeson CJ who summarised the principles:
“1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve error of judgment or even negligence.
3.However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”[14]
[13] (1993) 61 SASR 354
[14] Ibid at 357
King CJ considered the decision in Hamilton’s case and confirmed that the practice and procedure to which Hunt CJ referred, and to which I have referred earlier, set out the practice which ought to be observed in this state. King CJ concluded that it was unfortunate that the accused’s practitioner had not advised his client fully of the risks and as a consequence, because of a misunderstanding, the practitioner was not fully informed of his client’s antecedents. He concluded that the disclosure of the traffic convictions may well have had a grave prejudicial effect upon the accused’s trial. He said:
“It is a rare case in which an appellate court will intervene by reason of the way in which the defence case was conducted, but I am left in the present case with such a strong impression that there may have been a miscarriage of justice in the sense that the appellant may have been deprived of a fair trial on the relevant evidence, that I feel that it would be unsafe to allow the verdict to stand. I think that justice requires that there be a new trial.”[15]
[15] Ibid at 359
As a consequence of the manner in which the trial proceeded, there was a significant amount of evidence about the accused’s bad character which was heard by the jury. In my view, if counsel for the accused had made adequate inquiries of the prosecutor, he would have known that by putting his client’s character in issue it would be alleged against the appellant that he had committed a number of acts of domestic violence against his partner, and that he was a heroin addict. Further, when the witness John Brame gave evidence about Donna Bennett and her complaint of the appellant molesting her children, counsel for the defence made an error in continuing to elicit information from John Brame which was of a hearsay nature and which was extremely damaging to the appellant’s character. That problem was compounded when the prosecutor was permitted to ask questions about Donna Bennett’s allegations. The problem was further compounded when Tania Brame was permitted to be cross-examined about acts of violence by the appellant towards her, and threats by the appellant to take the children from her. She also gave evidence in cross-examination that the appellant had a bad temper and would hit his children. She was also asked about the appellant’s drug addiction.
In my view, if all of these matters had been disclosed to the appellant’s counsel prior to him making the decision to put character in issue, then a competent counsel would have concluded that by putting his client’s character in issue his client may be so prejudiced as to not be able to obtain a fair trial. Counsel would only put his client’s character in issue if the client having been fully advised, gave specific instructions to counsel to do so.
Questions as to the consequences to the defence case of defence counsel pursuing a course which may have put his client’s character in issue should have been raised with the trial judge at an early stage in order to seek a view from the trial judge as to the extent to which, if at all, the appellant’s counsel might be permitted to cross-examine witnesses for the prosecution. Issues such as the circumstances in which the trial judge might exercise his discretion to permit cross-examination of the accused and his witnesses about the bad character and the extent of such cross-examination should have been explored with the trial judge.
When the Crown prosecutor failed to seek leave from the trial judge to cross-examine the appellant and his witnesses about the character of the appellant, the trial judge was then not in a position to exercise his discretion in respect of whether cross-examination should be permitted and the extent to which it should be permitted. In my view, when questions were first asked by the prosecutor which attacked the character of the appellant, the trial judge should have sought from the prosecutor full details of what matters she was intending to raise. The trial judge would then have been in a position to exercise his discretion as to whether cross-examination would be permitted and, if so, the extent of such cross-examination. In my view, if the trial judge had been fully informed he may well have restricted the cross‑examination of the defence witnesses.
The trial developed into a trial about character of the Crown witnesses and character of the accused. The central issue of whether the appellant had been proved to be responsible for the injuries to K became absorbed in a debate about the appellant’s character. I consider that there has been a miscarriage of justice in that the appellant has been deprived of a fair trial, and it is unfair to allow the verdict to stand. On this ground alone, I would allow the appeal.
The appellant also complains about the trial judge’s directions on the topic relating to credit. I do not consider it is necessary to deal with that complaint.
A new trial
The appellant’s counsel submitted that the Court should enter a verdict of acquittal as the conviction cannot be supported on the whole of the evidence. He referred to inconsistencies in the evidence of various witnesses. He also referred to the medical evidence of Dr Johns and Dr Donald and submitted that an analysis of that evidence established that no jury properly directed could conclude that the injuries suffered by K were inflicted at the same time. That, therefore, threw into doubt the conclusions of Dr Donald as to how the injuries may have been inflicted. The case against the appellant depended upon whether the evidence of Kathleen McBride and John Brame could be relied upon and the inferences to be drawn from their evidence. The medical evidence, if accepted, could support the inference that the prosecution sought to draw from the evidence.
In my view, these matters are all matters for determination by a jury. I reject the submission that no jury properly directed could convict the accused of either offence. I reject the submission that a verdict of acquittal should be entered.
I would allow the appeal and remit the matter back to the District Court for a retrial.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
[1] (2002) 222 LSJS 373
2 Ibid at 384[72]
3 (1985) 159 CLR 45
4 Ibid at 51
5 Ibid at 59-60
6 Ibid at 57
7 (1993) 68 A Crim 298 at 311
8 Ibid at 300
9 Ibid at 300-301
10 Ibid at 301
11 Ibid
12 Ibid at 311-312
13 (1993) 61 SASR 354
14 Ibid at 357
15 Ibid at 359

[2003] SASC 262

14 August 2003