R v Garland
[1999] TASSC 100
•12 August 1999
[1999] TASSC 100
CITATION: R v Garland [1999] TASSSC 100
PARTIES: R
v
GARLAND, Colin James
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: 468/1999
DELIVERED ON: 12 August 1999
DELIVERED AT: Burnie
HEARING DATES: 19, 22 July, 4 - 6, 9 - 13, 16, 17 August 1999
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused person - Character and previous convictions - Relevance - Imputations by accused on character of prosecutor or witness.
Evidence Act 1910 (Tas), ss85(1)(c), (10)(c)(ii), 102A(b).
R v Unsworth 63/1986; R v Harris 12/1988; R v Jessup [1974] Tas R 64; Selvey v Director of Public Prosecutions [1970] AC 304; R v Sherrin 97/1991, considered.
Phillips v R (1985) 159 CLR 45, applied.
Aust Dig Criminal Law [564-565]
REPRESENTATION:
Counsel:
Accused: G A Richardson and S Geary
Crown: L A Mason
Solicitors:
Accused: G A Richardson
Crown: Director of Public Prosecutions
Judgment Number: [1999] TASSC 100
Number of Paragraphs: 16
Serial No 100/1999
File No 468/1999
THE QUEEN v COLIN JAMES GARLAND
REASONS FOR JUDGMENT SLICER J
(RULING DURING COURSE OF TRIAL) 12 August 1999
The Crown seeks a ruling on whether or not it is entitled to lead evidence of convictions of the accused for breaches of restraint orders, such convictions occurring during the period encompassed by the indictment and arising out of conduct by the accused towards the complainant. Varying bases are advanced which are said to warrant the reception of evidence, but at the forefront is the reliance on the principles concerning the reception of character evidence. The Evidence Act 1910 ("the Act"), s85(1) permits the cross-examination of an accused on other offences for which he has been charged in circumstances where:
"(c) the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution;"
The Act, s85(11), enables the prosecution to lead evidence of other convictions or charges where, "the nature or conduct of the defence is such as is referred to in subsection (10)(c)". The nature of the legislative provisions has been considered in Tasmanian cases, such as R v Unsworth 63/1986, R v Harris 12/1988 and R v Jessup [1974] Tas R 64. The distinction is as permitted by the principles discussed in Selvey v Director of Public Prosecutions [1970] AC 304.
The cross-examination of the complainant has been directed at a wide range of issues, many of which concern credibility. Among the issues canvassed have been her exaggeration of the number and nature of contact, misinterpretation of innocent contact, failure to notify police of the presence of the accused inside her house yard, the possibility that others might have reason to cause harm to property, and whether or not she in fact found notes and coat-hangers at various places. Her credibility is central to the jury's resolution of matters in dispute. In those respects it will be accepted, for the purpose of this ruling, that the cross-examination has touched credibility, rather than character. Credibility may be enhanced or weakened by an attack on character. The conduct of the defence said to give rise to the invocation of the Act, s85, concerns questions involving one of her former friends, Sharon Riley. The relevant questions are:
"In 1997 did you ask her to make a false statement to police to the effect that she had seen or been aware of the accused spitting on your car.
…
In 1997 did you ask her to make a false statement to police to the [sic] effect.
…
So she did lie did she.
…"Can I just suggest to you that in 1997 you asked Sharon Riley … to make a false statement to police to the effect that you were aware that the accused had put spokes or nails in the tyres of cars."
No evidence of the type of conduct referred to in the last question has been led on the trial. The complainant denied the accusations which, in all probability, were asked in anticipation of the calling of contrary evidence. The questions touched on credibility by way of an accusation of bad character. A meaning is that she was prepared to engage in the perversion of justice to gain her own end and further attempted to involve another in that course. Evidence led from Riley, if indeed it is, would go directly to character. If evidence is not led from Riley, then the assertion against character remains.
The cross-examination went beyond the parameters permitted by the principles stated in Selvey. They went beyond a denial of conduct. In the context of the case, they involve an assertion that the complainant is giving false testimony on the trial (credibility) and has attempted on other occasions to involve another in different proceedings. The conduct involves the characteristics considered by the Court in cases such as R v Sherrin 97/1991 and Phillips v R (1985) 159 CLR 45. The conduct involves questions as to character.
It is said that the evidence is nonetheless inadmissible and irrelevant. The evidence sought to be led is that of the dates and details of convictions for breaches of restraint orders on the following dates:
"27 November 1995
7 November 1995 (2)
22 October 1996
3 July 1997
6 August 1997
31 March 1998 (breach of suspended sentence)
9 October 1998."
Each conviction involved conduct concerning the complainant and affected character in that the accused was contemptuous of court orders. Several of the convictions involved events said to have occurred during the period covered by the indictment, and the convictions were recorded at times which preceded conduct said to give rise to the crime of stalking. It may be that their existence is relevant to a defence of innocent association or contact and could have been received into evidence during the cross-examination of the accused to rebut such a claim if advanced in evidence. In any event, they can be said to be relevant to the issue of the state of mind of the accused. The accused, by raising character, has placed them in issue and their reception should not be excluded by way of an artificial construct.
It is further said that the evidence ought be excluded in the exercise of discretion. In part, this trial contains elements of artificiality. The Crown did not lead evidence of the conduct said to have brought about the breached orders. Thus, the complainant has been unable to give a complete narrative of the events said to have occurred during the period encompassed by the indictment. Whilst this may be appropriate by reference to one set of legal principles, namely the protection of an accused by being judged by means of propensity or previous character, the situation changes once he or she has placed character in issue. The fact that he has been convicted of like conduct involving the complainant helps to fill in the missing portion of the narrative. Exercise of discretion on the basis of prejudice becomes a further artificial construct if the fact of conviction has a direct nexus with the parties. In Phillips v R, the appellant had contended that his association with the victim of a rape arose from her request to purchase from him, prohibited drugs. The attack went to the issue of consent which involved her creditworthiness. As Deane J stated at 64, the question involves a balancing act as he said:
"The extent of the damage done to the prosecution case by imputations on the character of a prosecution witness will largely depend on the content of the imputations and the importance of the evidence of the particular witness. The extent of that damage will plainly be relevant to a consideration of the question whether cross-examination to credit should be permitted. The relationship between the evidence of the particular witness and the evidence of the accused will, however, also be relevant to a consideration of that question. Thus, it is likely to be more readily apparent that the objective of securing a fair trial from the point of view of both accused and prosecution requires that cross-examination to credit of a witness be permitted in a case where the evidence of the particular prosecution witness is in conflict with the actual evidence of the accused than in a case where no such conflict exists. In the former case, cross-examination to credit of the accused may well be necessary to avoid the false impression that the conflict of evidence falls to be resolved on the basis that the witness is a person of bad character while the accused is a person whose character is not suggested to be other than unblemished. In the latter case, the considerations favouring the permitting of such cross-examination are likely to be less cogent since, putting to one side illegitimate use of it, evidence of the bad character of the accused will not be directly relevant to the question whether the evidence of the particular witness should be accepted."
Those remarks are apposite to the circumstances of this case. Insofar as there is an obligation to exercise discretion, it will be exercised in favour of the reception of the evidence.
The evidence which may be led is:
(i) the date, nature of tribunal and the nature of the conviction;
(ii) the date of the event giving rise to the conviction;
(iii) the date of the application which resulted in conviction.
During the course of argument, counsel for the Crown contended that the Crown was entitled to lead evidence of the actual conduct which gave rise to the eventual convictions. The Act permits the reception of evidence of character, in addition to evidence of charges or convictions. It may be that different considerations apply to that evidence. One problem might be the pursuit of secondary questions which, in turn, involve an evaluation of the conviction. Another might be with the exercise of discretion and prejudice, unless the areas of evidence are particularised or proofed. This ruling in no way encompasses these issues.
The prosecution further seeks to lead evidence of the existence of a restraint order at a time when it is said the complainant engaged in consensual sex with the accused at a time outside the dates prescribed by the indictment. During the course of cross-examination, counsel for the accused suggested to the complainant that, rather than maintaining a distance from the accused, she permitted him to visit her at her home in Lockett Street and engaged in consensual sex.
The indictment alleges conduct amounting to a course of stalking between 11 March 1997 and 16 April 1998. The evidence is that the complainant lived at Locket Street for some two months from April 1996. The Crown led evidence of the relationship between the parties, the fact of marriage, and the dates of birth of their children. It led further evidence that the parties had separated in October 1998.
The question ought not have been put without leave since it might have offended the provisions of the Evidence Act 1910, s102A(b). The circumstances of its making may have been such that counsel for the Crown was taken by surprise. Its relevance is difficult to discern. It is not relevant to the period alleged in the indictment. The existence or non-existence of an act of consensual sex in no way touches the question of whether the approaches made by the accused between March 1997 and April 1998 were unwelcome. In some way it could be said to be relevant to credit and such is precluded by the legislation. It may be that it is relevant, since it forms part of the history of the relationship and, despite misgivings, it will be accepted as such for the purpose of this ruling. Nevertheless, it was asked and a denial was made by the complainant. It may be that the appropriate course would be to exclude evidence from the accused as to his claim of occurrence.
The prosecution seeks to meet the assertion by leading in re-examination evidence of the existence and terms of a restraint order at the relevant time. The terms of the order include that the accused not:
"directly or indirectly approach the complainant;
loiter within 50 metres of any land or premises in which the applicant may from time to time be living or staying;
enter the land or premises at … land and premises at which the applicant may from time to time be living or staying …".
It is said that the reception of the evidence would support the complainant's testimony that there was no consensual physical contact on the relevant occasion. It is said that she would be less likely to permit contact in the light of previous conduct which had caused her to obtain a restraint order. There is logic in that position, but it is the form of logic which Parliament has attempted to inhibit in its enactment of the Evidence Act, s102A . It may be that she was less likely, but earlier consent to a sexual relationship does not render later refusal more likely, or earlier rejection less likely. Such is the impact of the legislative provisions.
The question giving rise to the application can be approached in two ways. The first is that consensual sex in April or May 1996 made it less likely that the complainant would prohibit contact between herself and the accused between March 1997 and April 1998. If such be the case, then given that the question has been asked, the converse logic is valid. The complainant would be less likely to engage in consensual contact because of a prior occurrence. On that basis, the evidence could be received.
The second approach is that the question could only be relevant to credit. If such be the case then, absent some other evidentiary principles, the party is bound by the answer. If evidence is to be led by the defence, then evidence of the existence of an order could be said to corroborate or enhance the credibility of the complainant.
The ruling is that in the event that the defence is permitted to lead evidence of the claimed event in April and May 1996, then evidence of the existence and terms of the order may be led. If resolution of that question is to be deferred until the defence case then, assuming the defence to be successful, it can be led by way of rebuttal. If, given that the question has been put without objection by the prosecution, counsel for the Crown will not make a future objection and is content for the evidence to be led, then evidence of the existence and terms of the order may be led as part of the Crown case.
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