R v Guieseppe Oliverio No. SCCRM 93/418 Judgment No. 4341 Number of Pages 13 Criminal Law and Procedure (1993) 70 a Crim R 5, (1993) 61 Sasr 354

[1993] SASC 4341

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ (1), MILLHOUSE(2) AND OLSSON(3) JJ

CWDS
Criminal law and procedure - appeal against conviction - causing death by dangerous driving - counsel for appellant put appellant's character in issue - Crown cross examined appellant demonstrating had record of prior traffic of fences - appellant's counsel failed to proof appellant properly or take any steps to check with Crown before putting character in issue - consideration of duty on counsel - conduct of counsel so incompetent that it resulted in a miscarriage of justice. R v Sarek (1982) VR 971; Re Knowles (1984) VR 751; R v Birks (1990) 19 NSWLR 677 and R v Hamilton (NSW Court of Criminal Appeal, 6 July 1993, unreported), applied.

HRNG ADELAIDE, 6 December 1993 #DATE 22:12:1993
Counsel for appellant:     Mr P J Rice QC
Solicitors for appellant:    Wag Morris Pearce and Associates
Counsel for respondent:     Mr J J Doyle QC
Solicitors for respondent: Director Of Public Prosecutions

ORDER
Appeal allowed - retrial ordered.

JUDGE1 KING CJ This is an appeal against a conviction by verdict of a jury in the Supreme Court of two crimes of causing death by dangerous driving. 2. The accident which gave rise to the charges occurred at night at Montacute Road, Campbelltown. There was a collision between the motorcar driven by the appellant and a car driven by a Miss Hutchinson. In consequence of the collision Miss Hutchinson's car left the road and collided with poles, resulting in the death of two of the passengers. The occupants of the two cars were members of a group which had been spending the evening together. The appellant's car was travelling behind Miss Hutchinson's car. There were two lanes for traffic travelling in the direction in which these two vehicles were travelling. The appellant pulled out to overtake Miss Hutchinson's car. His car travelled alongside Miss Hutchinson's car for a short distance whereupon the offside front of Miss Hutchinson's car and the nearside rear of the appellant's car came into collision. It was that collision which caused Miss Hutchinson's car to veer off the road and to collide with a street sign and then a stobie pole. 3. The accident occurred at 1.37 am. At 3.03 am breath tests disclosed that the appellant had a blood alcohol concentration of 0.066 per cent. A blood sample was taken at 4.15 am and was analysed to contain not less than 0.08 per cent. There was expert evidence that on those readings the appellant would have had a blood alcohol concentration of about 0.088 per cent at the time of the accident. The critical factual issue at trial was whether the collision was caused by the appellant's car cutting in to the path of Miss Hutchinson's car or whether it was caused by Miss Hutchinson's car veering out. The marks on the road were inconclusive and the case for the prosecution depended principally on the evidence of Miss Hutchinson. She claimed that the appellant cut in in front of her. The appellant gave evidence on oath denying that and saying that his course remained steady in the outer lane until impact. 4. Counsel for the defence at trial cross-examined a witness for the prosecution by the name of DiBlasio, who was a passenger in the appellant's car, as to the appellant's driving ability. The witness replied "He is a pretty good driver. He got his licence, the first time and everything." 5. In the appellant's examination-in-chief, the following evidence was given:
    "Q. Have you ever been to court for anything, at all.
    A. Yes.
    Q. What was that.
    A. Discharging an air gun, in my back yard.
    Q. If you could just tell the jury very quickly what the
    circumstances of that were.
    A. I was shooting at my wall, garage wall in the back yard
    and the nextdoor neighbour just rang the cops - police,
    because just got scared because he saw a rifle, but it was
    only an air gun.
    Q. And you received a summons for it.
    A. Yes.
    Q. And you went to court.
    A. Yes.
    Q. You paid a fine.
    A. Yes.
    Q. What, approximately $200.
    A. $270.
    Q. Have you ever been in trouble with the police and going
    to court at all -
    A. No.
    Q. Do you have any drug problems.
    A. No." 6. Following this evidence, the learned trial judge gave leave to counsel for the prosecution to cross-examine the appellant concerning five prior driving offences. The evidence given on that topic was as follows:
    "Q. Did you, on 11 October 1990, receive a fine for failing
    to indicate in your vehicle, which lost you two demerit
    points.
    A. Probably. Can't remember.
    Q. Looking at that document I produce to you, is that a
    document in your name.
    A. Yes.
    Q. Is that a record of your demerit points.
    A. Yes.
    Q. Having looked at the first entry, 'Failed to indicate',
    dated 11 October 1990, does that refresh your memory as to
    whether you committed that offence, or not.
    A. Yes.
    Q. The second entry is 'Exceeding speed in town', and
    recorded there, it was committed on 15 May 1991, with a loss
    of three demerit points concerning you doing 82 kilometres
    per hour in a 60 zone. Do you agree you committed that
    offence.
    A. Yes.
    Q. The third entry is that you failed to indicate and
    committed a traffic offence on 29 July 1991, which resulted
    in a loss of two demerit points.
    A. Yes.
    Q. The next entry is that you exceeded the speed limit in
    town on 8 September 1991 by doing 100 kilometres per hour in
    a 60 kilometre zone.
    A. I don't know why it says 'town'.
    Q. Did you commit that offence on that day.
    A. yes, but I don't know - I don't think it was in town.
    HIS HONOUR: In a town, probably.
    XXN Q. Do you recall where you committed that offence.
    A. No. But I know it wasn't -
    HIS HONOUR Q. It wasn't in the city.
    A. Yes.
    XXN Q. It was in a suburb somewhere, was it.
    A. Yes. Probably. Q. Did that result in a loss of three
    demerit points.
    A. Yes.
    Q. On 20 November 1991 did you exceed the speed limit again
    by doing 84 kilometres per hour in a 60 zone.
    A. Yes.
    Q. Did that result in a loss of three demerit points.
    A. Yes.
    Q. Was your licence disqualified as from 24 January 1992 to
    23 April 1992.
A. Yes, three months, yes." 7. After the completion of the appellant's evidence counsel for the defence called a Miss Atkinson who gave evidence of the appellant's good character and said in cross-examination that she knew nothing of his driving history. 8. It is a ground of appeal that the appellant's counsel failed to make adequate enquiry of the appellant or the prosecution with respect to the appellant's antecedents and in particular whether there was a record for traffic offending and failed to give the appellant informed advice as to the consequences of putting his character in issue. 9. An affidavit of the appellant was before us. There was exhibited to the affidavit extracts from the written instructions which he gave to the practitioner who acted both as his counsel and solicitor concerning prior offending. The instructions said that he had not been to court apart from the airgun matter. The written instructions do not disclose any reference to driving offences or to offences in respect of which he had not been to court. The appellant deposed that he had not been asked about the driving offences. He was not advised about and did not understand the consequences of putting his character in issue. There was also before us an affidavit of the practitioner in which he deposed that the appellant had not informed him that he had a record of driving offences and the practitioner agreed that he did not specifically ask the appellant about driving offences. The practitioner said that during the trial he was under the mistaken impression that he had asked the appellant about driving offences but, having checked the written instructions, now agrees that that was not so. 10. The relevant principles governing a ground of appeal of this kind are set out in the judgment of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at p.685 as follows:
    "The relevant principles, may be summarised as follows:
    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." 11. In R v Hamilton a judgment of the NSW Court of Criminal Appeal delivered on 9th June 1993, unreported, Hunt CJ at CL outlined the procedure which he considered should be followed by counsel for the defence and the prosecution preparatory to a decision to put character in issue.
    "All of this makes it obvious that counsel for an accused
    (and I include here a solicitor for the accused where acting as
    the advocate) bears a very heavy burden when advising the client
    in relation to the decision which the client must make as to
    whether good character should be raised. That advice can only
    be given properly when it is based upon a full knowledge of what
    may be elicited or led by the Crown should character be raised
    by the accused. It is not sufficient for counsel merely to rely
    upon a belief based only on information provided by the accused.
    To put it bluntly, a person facing a criminal trial which may
    have a severe consequence to his or her liberty and/or
    reputation is not always a reliable source of such information.
    Such unreliability may result from the client's educational
    standards, culture, health, embarrassment or lack of
    comprehension. It may also result from the client's mendacity.
    Not only is it wise, it is imperative, that the information
    which the client gives be checked from a source which is
    reliable before any forensic step is taken to raise character.
    Although a police antecedent form (the P16 form, as it is known)
    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 computerized
    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.
    In the absence of such an undertaking and where inquiries are
    still continuing, it is imperative that, before taking any
    forensic step to raise character, counsel for the accused should
    raise his or her predicament with the trial judge in the absence
    of the jury. The judge will no doubt be in a stronger position
    to remove any obstacles in the way of such information being
    supplied, wherever those obstacles may lie, alternatively, the
    judge may stand the witness down and proceed with another
    pending the arrival of that information. What the reaction of
    the judge will be to the request for an indulgence should
    ordinarily depend upon considerations such as the timeliness of
    the original request for this information, the stage at which
    the trial has reached and the prejudice which the accused will
    suffer if an indulgence is not granted." 12. I would endorse that passage as setting out the practice which ought to be observed in this State where there is a question of putting character in issue. 13. I would not be prepared to characterise the actions of counsel for the defence in the present case as "incompetence", still less "flagrant incompetence". While I have endorsed the practice recommended in Hamilton's case, I doubt whether it is a practice which has hitherto been sufficiently established in South Australia to characterise the failure of a practitioner to observe it as incompetence. The fact is that the practitioner inquired of his client about previous offending but was misled, no doubt unintentionally, by the answer given. I do not think that it is unreasonable for a practitioner who asks a client whether he has been to court for any other matters, to expect that the question will elicit all prior convictions and court appearances. The practitioner might not expect the client to withhold information about offences which had been dealt with by a plea of guilty through the post as distinct from physically appearing in court. Whilst I think that the practitioner would have served his client's interests better if he had asked specifically about driving offences and had checked the answers with the prosecution, I believe that the characterisation of the practitioner's conduct of the matter as incompetence would be harsh. 14. Nevertheless it is clear that there was an unfortunate misunderstanding. The practitioner thought that he had covered the matter with his client. The client was not aware that the answers which he gave would result in a disclosure of the traffic convictions. The question which has to be resolved is whether what occurred so vitiated the trial as to result in a miscarriage of justice. 15. I think that the disclosure of these traffic convictions might well have had a gravely prejudicial affect upon the trial. The jury had to make up its mind whether it could accept Miss Hutchinson's account beyond reasonable doubt and reject the appellant's account beyond reasonable doubt. The appellant had had more drinks than he ought to have had before driving but his blood alcohol concentration was by no means high. The knowledge that the appellant had a bad driving record might well have been so prejudicial as to be decisive. 16. The learned trial judge correctly directed the jury that the prior convictions could only be taken into account in assessing the appellant's credibility, but I am left with a real concern that this case might have been decided not upon the evidence bearing upon the events of the night but upon prejudicial material which would not have been before the jury if the appellant had been fully advised and had understood his rights. 17. 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. There was a further ground of appeal. An affidavit by Mr DiBlasio was placed before us in which he deposed that he had withheld evidence favourable to the appellant, which he would otherwise have given, by reason of having been assaulted and threatened in the precincts of the court. There seems to be no doubt that there was an altercation in the precincts of the court just over an hour before DiBlasio gave evidence. It is a very disturbing allegation. The use of violence and threats towards a witness in the precincts of the court strikes at the heart of the ability of the courts to do justice. I express the hope that everything possible has been done to investigate this allegation and, if it occurred, to bring the offender or offenders to justice. Such behaviour must be firmly discouraged. 18. The Solicitor-General contended that the contents of DiBlasio's affidavit as to the matters which he claims to have withheld in his evidence, was not admissible as fresh evidence and he contested DiBlasio's credibility on the point. As in my opinion the appeal should be upheld on the ground already dealt with, it is not necessary to reach a conclusion as to this ground of appeal. 19. In my opinion the appeal should be allowed, the conviction should be set aside and there should be a new trial on the information.

JUDGE2 MILLHOUSE J I agree. I add only that I am appalled at the report of the incident in the precincts of the Court involving the witness Di Blasio. It goes to the heart of criminal justice if witnesses are not to be able, without fear, to tell "the truth, the whole truth and nothing but the truth" in the witness box. 2. We have, of course, only Di Blasio's account of what happened but if anything like it did occur - I agree with the Chief Justice that it probably did - then not only should those who assaulted and otherwise intimidated him be dealt with but immediate steps should be taken to make sure that no such incidents occur in the future. Witnesses must be protected against harm or threats of harm to themselves or anyone else unless they "pull" their evidence. 3. I am confident that the Sheriff will take the action necessary now that the incident has come to light.

JUDGE3 OLSSON J This is an appeal by leave against the conviction of the appellant, by verdict of a jury, of two offences of causing death by dangerous driving. There are two grounds of appeal. 2. First it is asserted that the conduct of counsel for the appellant at the trial was so grossly incompetent that a miscarriage of justice resulted, by reason of the placing of the appellant's character in issue. The second is that an important witness, who was said to be able to give evidence which tended to exculpate the appellant, was, within the precincts of the court and during the course of the trial, assaulted and so intimidated by a relative of the alleged victim of the offence charged that he did not give that evidence. The facts giving rise to the appeal are dealt with at some length in a series of affidavits placed before this court. 3. At the trial the appellant was represented by counsel of some experience in the conduct of criminal trials. 4. The case for the Crown was presented on the basis that it was asserted that, in the early hours of 28 June 1992, the appellant was driving a red Ford Falcon motor vehicle belonging to his father in an easterly direction along Montacute Road, Campbelltown. He had, as his only passenger, the witness DiBlasio. At about the same time a Holden Camira driven by a Miss Hutchinson, having as its passengers Antonio Cutri and Stephanie Gumple, was also driving in the same direction on that road. An impact occurred between the two vehicles, as a consequence of which the Camira crashed into a stobie pole and the two passengers were killed. 5. The occupants of both vehicles were known to one another and had been to separate parties that evening. The two cars had halted on Montacute Road for a short time to enable the occupants to speak to an acquaintance who had stopped and was having some difficulty with a Ford Mustang vehicle which he had been driving. 6. Following that interlude both the Camira and the Falcon were driven off in an easterly direction. The vehicle driven by Miss Hutchinson left first and was followed, shortly thereafter, by the appellant in the Falcon. 7. The witness DiBlasio had, in fact, been a passenger in the Mustang but had changed over to the appellant's vehicle. It appeared that both the Camira and the Falcon were being driven to the same end destination. 8. It should be recited that the appellant had been drinking during the evening. On the basis of a breath analysis later carried out it appeared that, on a "count back" basis, his blood alcohol reading was at about 0.08% at the time of the incident the subject of the charges. There was, however, no evidence that his faculties were overtly impaired at the time. 9. After an initial period of acceleration the Falcon was travelling several car lengths behind the Camira for some distance, both vehicles being driven at about 90-95 kph. However, the Camira was seen to be blowing a considerable amount of smoke, which caused discomfort to the occupants of the Falcon. At the time both cars were proceeding in the nearside lane. 10. It is common ground that the appellant pulled out, entered the outside lane and accelerated so as to pass the Camira and avoid the smoke. The vehicles travelled side by side for a short distance and then the Falcon drew ahead and almost passed the Camira. 11. It is beyond question that, when the Falcon had almost passed the Camira, some contact occurred between the left hand rear portion of the Falcon and the right hand front portion of the Camira. In the result both vehicles became out of control. As I have earlier recited, that driven by Miss Hutchinson collided with a stobie pole, with the result that both of her passengers were killed. 12. The major issue which developed at the trial was as to whether, as he contended, the appellant was simply driving in a straight line in the outside lane at time of impact and the Camira somehow contacted the Falcon, or whether the appellant actually veered across towards the Camira, thereby causing the contact with it. 13. Miss Hutchinson contended that what occurred was that the appellant in fact cut across in front of her vehicle before it was safe to do so; and that this caused the impact. The appellant asserted that he had not varied his line of travel at all. 14. An experienced police investigator who attended the scene examined what objective signs were available. He was unable to express any positive opinion as to which of the two versions was correct. In his view such signs as were apparent were consistent with either scenario. 15. When called to give evidence on behalf of the Crown the witness DiBlasio claimed that, at about the time of the impact, he was not concentrating either on the road or the appellant. He claimed that he had been drinking that night and was unaware of what had caused the accident. Although pressed he claimed to have been unable to give any indication of the course of the travel of the Falcon once it had pulled out to pass the Camira. 16. Counsel for the appellant called him to give evidence. Prior to calling him he had proofed the appellant as to the latter's version of events and had merely asked him something to the effect as to whether he had ever been in trouble with the police and had gone to court. The appellant truthfully told his counsel that he had only ever gone to court once before - in relation to an offence committed when he was 18 years old. This related to discharging an air gun which proved to be unregistered. His prosecution was apparently the consequence of a neighbour complaining to the police, because the neighbour saw the appellant discharging what was thought to be a rifle. 17. It is clear that counsel for the appellant at the trial did not ask him about any prior traffic offences, nor did he explain to the appellant the significance of putting his character in issue. 18. During the course of the appellant's evidence counsel placed his character in issue by asking whether he had ever been in trouble with the police, other than in respect of discharging the air gun. The appellant truthfully answered that question in the negative and went on to depose that he did not have any drinking or drug problems. 19. At the conclusion of the appellant's cross examination as to the events of the night in question, the Crown prosecutor sought and obtained leave to cross examine the appellant with a view to demonstrating that he had a bad record of prior traffic offences. This came as a total surprise to counsel for the appellant, who told the presiding judge at the time "obviously I took instructions from him and asked him if he had been in trouble with the police regarding criminal matters and that those matters did not arise." 20. It then rapidly emerged, in the course of his further cross examination, that the appellant had a record of no less than five recent prior traffic offences - three being speeding offences and two offences of failing to indicate. It also emerged that he had had his licence disqualified for a period of three months from 24 January 1992 to 23 April 1992, as a consequence of the demerit points which he had accumulated. None of the offences in question had led to court proceedings, but had resulted in the issue of traffic infringement notices. 21. The defence case closed with these highly prejudicial items of information being virtually the last evidence that the jury heard, before counsel addressed and they retired to consider their verdicts. Indeed, having put the various traffic offences and the disqualification to the accused, the Crown Prosecutor concluded the cross examination by suggesting to the appellant that what had in fact happened was that he had approached the Camira at an excessive speed, overtook it quickly and swerved back in front of it, thereby causing it to run off the road and result in the death of the two passengers in it. 22. It is, in my opinion, difficult to envisage the generation of a more damning and prejudicial atmosphere, given that, at that stage, the case largely rested upon an assessment of the word of one witness as against another. 23. It is beyond dispute that, not only did counsel for the appellant at the trial not specifically ask the appellant about any prior bad driving record or explain to him the consequences 6 of putting his character in issue, but he also took no steps whatsoever to check with the Crown as to what might be alleged by it, in the event that the appellant's character was put in issue. 24. As to the ground of appeal related to the witness DiBlasio, an extraordinary state of affairs is indicated by the material now placed before the court. It is conceded that, whilst in the precincts in the court and prior to giving evidence, this witness was assaulted by one Mario Cutri, the brother of one of the deceased victims of the accident. This was reported both to the court security personnel and the police at the time. 25. Moreover, Cutri was in the company of other persons who were said to be exhibiting an aura of hostility towards DiBlasio. DiBlasio deposes that, at the time of the assault, Cutri said to him words to the effect, "You better go in there and say the right thing, you better go in there and tell the truth just the way it was". It is said that he also made other statements to DiBlasio, which the latter construed as being of a threatening nature. 26. As I understand the situation, it is further not in dispute that Cutri was sitting in the body of the court whilst DiBlasio gave evidence. DiBlasio now asserts that Cutri was not only staring at him, but also made at least one motion or gesture which DiBlasio construed as being of a threatening nature. It is deposed by DiBlasio in an affidavit that, as a consequence of these incidents, he did not tell the court all that he really knew about the accident, because he was apprehensive as to the outcome to him personally if he had done so. 27. Whilst this court has not entertained any oral evidence from DiBlasio on the topic, at least it can be said that it is now asserted that, had DiBlasio told the court at the trial what he truly recollected, his evidence would have been supportive of the version of events narrated by the accused. 28. Of course it must be conceded, at this stage, that it is a matter of conjecture as to what view would have been taken by the jury of DiBlasio's credibility in relation to any evidence which he might have given, having particular regard to prior statements said to have been given by him to the police. However, that is not really to the point for present purposes. What is important is the serious potential impact which the incident with Cutri had upon a potentially important witness; and what that witness might have said, bearing in mind that he had been called not by the defence but by the Crown. 29. Against that background I turn to a consideration of the specific issues arising on the appeal. 30. The broad general principle with which one must commence is that, normally, a party is bound by the conduct of counsel at the trial. The outcome of that trial will not be vitiated by what might later be thought to be a mere error of judgment onthepart ofcounsel. As was said in R v Sarek (1982)VR 971 at 982-3: "It is obviously dangerous to embark on a course of determining whether a new trial should be mounted on a basis of inexperience or remissness or defect of judgment or neglect of duty on the part of the legal practitioner appearing at the trial." 31. It is firmly established that such factors will not, of themselves, induce a Court of Criminal Appeal to quash a conviction and order a new trial, unless the court is abundantly satisfied that the conduct of counsel was so fundamental and incompetent that a miscarriage of justice occurred. (Re Knowles (1984) VR 751 at 767, R v Birks (1990) 19 NSWLR 677 at 685.) At times difficult decisions need to be made where there may well have been incompetence of counsel, but an accused has contributed to the situation by withholding important information from his or her legal advisor. However, even in such cases, the conduct of counsel may be of such prejudice to an accused as to warrant an intervention of the Court of Criminal Appeal. 32. An example of that type of situation is to be found in R v Hamilton (NSW Court of Criminal Appeal, 6 July 1993, unreported). 33. That also was a case of the character of an accused being put in issue by counsel, with disastrous end consequences. 34. As was said in Hamilton's Case the decision whether to raise character is one of the most important which an accused will have to make in the course of a criminal trial. As in the instant case, evidence of good character can be of substantial benefit to an accused. However, raising the issue of character does, in some circumstances, involve an enormous risk for an accused, because of the entitlement of the Crown then to elicit and lead evidence of bad character. 35. In the course of his reasons for decision in Hamilton's Case, Hunt CJ at CL had this to say:-

    "The jury must carefully be directed that the evidence of
    the accused's bad disposition may be used by them only as
    rebutting the evidence of good character upon which the accused
    relies; they must not use it as showing that the accused, as a
    person of bad disposition, was likely to have committed the
    crime with which he or she has been charged: Rex v Woolcott
    Forbes (at 340): Regina v Stalder (at 18). But, no matter how
    carefully the jury may be directed and no matter how
    conscientiously they may seek to comply with those directions,
    it is clear that usually such evidence of bad disposition can be
    damning to the accused, and that it can significantly reduce any
    prospect that he or she will be acquitted.
    All of this makes it obvious that counsel for an accused (and I
    include here a solicitor for the accused where acting as the
    advocate) bears a very heavy burden when advising the client in
    relation to the decision which the client must make as to
    whether good character should be raised. That advice can only
    be given properly when it is based upon a full knowledge of what
    may be elicited or led by the Crown should character be raised
    by the accused. It is not sufficient for counsel merely to rely
    upon a belief based only on information provided by the accused.
     To put it bluntly, a person facing a criminal trial which may
    have a severe consequence to his or her liberty and/or
    reputation is not always a reliable source of such information.
    Such unreliability may result from the client's educational
    standards, culture, health, embarrassment or lack of
    comprehension. It may also result from the client's mendacity.
    Not only is it wise, it is imperative, that the information
    which the client gives be checked from a source which is
    reliable before any forensic step is taken to raise
    character." 36. His Honour went on to point out that even an antecedent record obtained from the police is not necessarily either sufficient or reliable, because it can be out of date or incomplete. He went on to emphasize that a reliable source (and usually the most convenient) is the Crown Prosecutor; and that it is almost standard practice of all competent advocates to make a check with the Crown Prosecutor before character is raised. He opined that counsel should not only seek information as to the accuracy and completeness of an antecedent record, but ought also ask whether there is anything else known to the Crown which it would seek to elicit or lead, in the event that character were raised. In his view the Crown Prosecutor would be expected to supply that information upon request. 37. Hunt CJ at CL further went on to point out the importance of obtaining written instructions to counsel from an accused, indicating the considered judgment of that accused, he or she having first been advised of likely highly prejudicial consequences of placing character in issue if evidence of bad character is available. 38. Although, in Hamilton's Case, it appeared that the accused had been less than frank with his counsel, nevertheless, the court was satisfied that the conduct of counsel had been incompetent to such a degree that it had necessarily resulted in a miscarriage of justice at the trial. 39. In the case at bar I am abundantly satisfied that the conduct of counsel for the appellant patently amounted to the type of flagrant incompetence adverted to by Gleeson CJ in R v Birks (supra); and led to such a disastrous end result that it is impossible to avoid the conclusion that a miscarriage of justice was the necessary end result. 40. Whilst it is true that, in the course of his summing up, the learned trial judge pointed out to the jury that evidence of the prior bad driving record of the appellant was only relevant to the issue of his credibility and could not be resorted to as being indicative of his guilt, it seems to me that the damage had necessarily been done. 41. This, after all, in any event, was a case which fell for decision very much in light of an assessment of the credibility of the appellant - by way of contrast with that of Miss Hutchinson. What is here in question is not only the fact that the evidence was elicited, but also the stage of the trial at which it was placed before the jury. The resultant prejudice was, in practical terms, incapable of remedy by any form of direction. 42. When there is added to that the circumstances related to the witness DiBlasio it is immediately apparent that the convictions of the appellant cannot stand. The circumstances related to the witness DiBlasio produce an added unsatisfactory dimension to a situation in which a substantial miscarriage of justice had, on any reasonable view, taken place for other reasons. 43. I would therefore allow the appeal, set aside the verdicts and remit this matter for retrial.