R v Velasquez
[2004] VSCA 106
•31 May 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 322 of 2002
| THE QUEEN |
| v. |
| MARCO VELASQUEZ |
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JUDGES: | BATT, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 May 2004 | |
DATE OF JUDGMENT: | 31 May 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 106 | |
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Criminal law - Good character of accused put in issue by accused's counsel - Evidence led of prior convictions of accused - Counsel's conduct could have resulted in a forensic advantage - Accused not deprived of a fair trial.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr N. Papas | Schembri & Co. |
BATT, J.A.:
I will invite Buchanan, J.A. to give the first judgment in this matter.
BUCHANAN, J.A.:
On 26 November 2002, a jury, after a trial in the County Court, found the applicant guilty of one count of false imprisonment, two counts of causing injury intentionally, eight counts of rape, one count of indecent assault and one count of robbery. After a plea, a total effective sentence of seven years and eleven months was imposed and a non-parole period of four years and nine months was fixed.
The applicant seeks leave to appeal against his conviction on the following grounds:
"2.That the introduction of the bad character of the applicant by his own counsel led to an unfair trial and accordingly the convictions constitute a miscarriage of justice.
3.The learned trial judge erred in allowing the prosecutor to lead in evidence the prior convictions of the applicant.
4.The learned trial judge erred in allowing the prosecutor to cross-examine the accused as to his prior convictions."
Having regard to the grounds of the application, the facts may be stated in a short compass.
The applicant is aged 33 years. The offences arose from the events of the early hours of 8 June 2001 when the applicant picked up a 20-year-old prostitute in St Kilda. The complainant gave the applicant directions to a car park where she was in the habit of rendering services to her customers. Instead, the applicant drove her to the beach. He refused her request to drop her off, and restrained her. At the beach he assaulted her physically and committed a series of rapes and indecent assaults upon her. He kept her restrained for a period of several hours, before departing in his car, taking with him her mobile phone and a locket. Shortly
afterwards the complainant in a distressed state flagged down a passing truck driver.
The complainant was examined by forensic medical officers and samples were taken from her person. Examination confirmed recent vaginal and anal trauma. She also had a large bruise or an abraded area on her left buttock and other minor injuries about her mouth. The source of some of the semen found in her vagina and anus was the applicant.
The applicant was arrested later that morning. After his arrest, the applicant initially denied being in St Kilda that morning and denied picking up a prostitute. After a break in the interview, the applicant stated that he wished to change his account. He admitted that he had been with a prostitute in St Kilda that morning. He said that she had initiated sex, performing oral sex on him. He denied any vaginal or anal penetration. He admitted taking her telephone, but denied assaulting her.
At the trial, the applicant's counsel introduced evidence of his client's good character. He put it to the informant that, apart from motor traffic offences, the applicant had no criminal convictions and elicited the response that the applicant had convictions for not answering bail. Thereupon, the prosecutor applied for permission to lead evidence of the applicant's prior convictions. He submitted that the applicant had put his character in issue and said that he proposed in re-examination of the informant to prove prior convictions of the applicant, including two convictions for stating a false name and address. In the course of his reply, counsel for the applicant said: "I certainly have been endeavouring to put my client's character in issue." Counsel for the applicant characterised the prior convictions, including stating a false name and address, as "Road Safety Act matters" or "offences to do with the driving of his motor car".
The trial judge granted permission to elicit the prior convictions in re-examination of the informant. The applicant had been convicted on charges of speeding and drink driving, eight charges of driving while disqualified and two charges of stating a false name and address. Some of the later convictions attracted sentences of imprisonment.
The applicant gave evidence. Before he commenced cross-examining the applicant, the prosecutor sought permission pursuant to s.399 of the Crimes Act 1958 to cross-examine the applicant as to his prior convictions. Section 399 provides that a person charged and called as a witness shall not be asked, and if asked shall not be required to answer, any question tending to show that he has been convicted of any offence other than that with which he is charged unless, inter alia, he or his advocate has asked questions of witnesses for the prosecution with a view to establishing his own good character (sub-s.(5)) and the permission of the trial judge has first been obtained (sub-s.(6)). The trial judge granted the permission sought. The prosecutor cross-examined the applicant as to his prior convictions and was able to suggest to the applicant that, consistently with his giving false information to the police, he was now "prepared to lie to hide your offences".
In this Court, counsel for the applicant submitted that counsel below failed to grasp the significance of the applicant's prior convictions. Some of the offences were serious and some displayed dishonesty. There was no possible forensic advantage to be gained in introducing the issue of the applicant's character. Counsel's decision to do so occasioned a miscarriage of justice, so it was said.
In R. v. Ali, Batt, J.A. said:
"[T]he question for an appellate court when the conduct of the case by defence counsel is called in question is whether that conduct, objectively viewed, was reasonable or capable of explanation on the basis that it could have resulted in a forensic advantage ..."[1]
[1][2004] VSCA 58 at [12]. See TKWJ v. R. (2002) 212 C.L.R. 124.
In the present case, I am of the opinion that counsel's decision could have resulted in the applicant gaining a forensic advantage. While the applicant's prior convictions prevented him from claiming an unblemished reputation, the defects of
character which they exemplified were not those of a rapist or an assailant of defenceless women. The applicant's prior convictions show that he treated court orders with contempt and was prepared to lie to the police. Counsel may have thought that the drawing of those conclusions was worth the price of being able to put the applicant forward as a man without any record of violent or sexual offences, or indeed any offences against other persons.[2] That is not necessarily the judgment that everyone would make. Whether it was beneficial to the applicant would have depended to an extent on the atmosphere at the trial. Nevertheless, in my view, counsel's decision was reasonable, and may well have conferred a forensic advantage upon his client.
[2]Cf. R. v. Lewis (2002) 137 A.Crim.R. 85.
Accordingly, I do not think that the applicant was deprived of a fair trial by the actions of his counsel. Nor do I think that the trial judge erred in allowing the prosecutor to lead evidence or cross-examine the applicant as to his prior convictions.
I would refuse the application.
BATT, J.A.:
I agree.
EAMES, J.A.:
I also agree.
BATT, J.A.:
The order of the Court is -
Application for leave to appeal against conviction dismissed.
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