R v Zurita

[2002] NSWCCA 22

CITATION:	Regina v Zurita [2002] NSWCCA 22
FILE NUMBER(S):	CCA 60638/01
HEARING DATE(S):	13/02/02
JUDGMENT DATE:	13 February 2002
PARTIES :	Regina v Victor Augusto Zurita
JUDGMENT OF:	Hodgson JA at 27, 29; Levine J at 28; Howie J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0194
LOWER COURT JUDICIAL OFFICER :	Phegan DCJ

COUNSEL :	W.G.Dawe QC - Crown P.R. Boulten - Appellant
SOLICITORS:	S.E. O'Connor - Crown Hardinlaw - Appellant
CATCHWORDS:	Evidence - Admissibility and relevance - Trial judge refusing to allow accused to raise character in part - whether it gave rise to miscarriage of justice.
LEGISLATION CITED:	Crimes Act 1900 - ss 61J(1), 556A Evidence Act 1995 - ss 108(3), 110 Criminal Appeal Act 1912 - s 6
CASES CITED:	R v PKS (CCANSW, 1 October 1998) Mraz v The Queen (1995) 93 CLR 493 Wilde v The Queen (1998) 164 CLR 365
DECISION:	Appeal allowed, verdict and sentence quashed and a re-trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

60638/01

HODGSON JA
LEVINE J
HOWIE J

WEDNESDAY 13 FEBRUARY 2002

REGINA v VICTOR AUGUSTO ZURITA
JUDGMENT

1 HOWIE J: The appellant was convicted after trial on a charge of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900. As a consequence of the jury’s verdict, on 15 November 2001 Judge Phegan sentenced the appellant to imprisonment for 12 months with a non-parole period of 9 months. There is an appeal against that conviction but no application for leave to appeal against sentence. The appellant was granted bail by the Supreme Court pending the hearing of the appeal on 29 November 2001.

2    The facts can be briefly stated. The complainant was the stepdaughter of the appellant and was aged 12 years at the time of the alleged offence. The fact that she was under the age of 16 years was the matter of aggravation pleaded in the charge. The Crown case was that on 18 June 1997, the complainant, the appellant, the complainant’s mother, her younger brother and her grandmother, had driven to the Blue Mountains in the family motor vehicle. The purpose of the trip was so that the mother and grandmother could consult with a solicitor. While they were inside the solicitor’s home, the two children and the appellant remained in the vehicle, which was parked outside the premises.

3    The complainant alleged that, while her brother was asleep and when she was on the verge of falling asleep, the appellant placed his hand inside her panties and penetrated her vagina with his fingers. The complainant estimated that he left his fingers there for “a couple of minutes”. The complainant then sat up and the appellant withdrew his hand. The complainant left the vehicle and went inside the solicitor’s home asking to use the toilet. She stayed inside the premises with her mother and grandmother but made no complaint concerning the appellant’s conduct. A short time later the family returned home together.

4    Some time in 1999 the complainant told a school friend that, when she and her mother went to the Blue Mountains, her stepfather had “fingered” her. Some months after this conversation, the complainant raised the allegation with her grandmother. On 4 June 1999 the police received notification of the complaint.

5    The police were unable to speak to the appellant about the matter until 22 January when the appellant voluntarily attended the Hurstville police station. The appellant participated in an electronically recorded interview in which he denied the allegation. The interview was played to the jury in the Crown’s case. In the course of the interview, he suggested that the allegation was a result of the influence of the complainant’s mother on her. The appellant did not give evidence at trial.

6    There are six grounds of appeal that have been filed and relied upon on the hearing of the appeal. The first two grounds relate to the failure of the appellant to place character evidence before the jury. The other grounds relate to the admission of evidence of complaint and the directions given by his Honour about that evidence and the complainant’s evidence generally.

7    The complaint encompassed in the first two grounds of appeal is that the trial miscarried because, by reason of the manner in which evidence of good character was considered both by the trial judge and counsel, the appellant was denied the ability to place evidence before the jury that he had no convictions for offences of the nature for which he was on trial. The two grounds were argued, and can be considered, together.

8 The appellant had a criminal record which included the following matters: a conviction for larceny in 1995, for which he was fined $250; a conviction for mid range PCA and unlicensed driver also in that year; and an assault in 1999 which was found proved but dismissed under s 556A of the Crimes Act. The assault offence was committed against the complainant’s mother and shortly after their divorce. It was common ground that the appellant had not come under notice for an offence of the nature for which he was being tried.

9    Before the evidence commenced, but after the jury had been empanelled, defence counsel raised with the trial judge the issue of the appellant’s character. Counsel said (T 22 Ln 36 – 50):

ACCUSED’S COUNSEL: Your Honour, I’m asking that the accused be considered as a person of good character for the purposes of this trial. I’m instructed that, as far as the larceny was concerned, that it was a theft of a pair of gloves. There’s the PCA. The assault takes place after this alleged offence. I’d ask you Honour that – your Honour has the ability to look at his criminal antecedents and see that, as far as this charge is concerned, a very serious charge, that he has nothing of the nature of this type of matter in his history and that he can be considered, whether it be for a limited purpose as far as these types of offence or generally that he can be considered a person of good character.

When the trial judge asked whether he was proposing to lead evidence, counsel indicated that he was not, but that the result sought might be achieved either by a statement by his Honour made with the agreement of the parties or, absent that, he would ask the police informant in cross-examination whether the appellant had a record for any of these types of offences “ without opening the Pandora’s box of the minor matters in his history ”.

10    The following then is recorded in the transcript (T 23 Ln 24-39):

“HIS HONOUR: It seems to me that, at the risk of oversimplification when it comes to good character it’s all or nothing. Either nothing is said about it, in which case the jury is encouraged to rely exclusively on the evidence going to the offence and not to be in any way affected by good or bad inferences in that respect, or that aspect of the case is opened up and it does at least risk becoming a Pandora’s box. I’m very uncomfortable about undertaking what you’ve invited me to do.
ACCUSED’S COUNSEL: Again, would your Honour consider in cross-examination of the informant without – and your Honour can make a ruling on this with respect that I could ask the informant whether he has any antecedents of this type at all. The answer will be no and that’s the end of the story….

11    The trial judge then sought the attitude of the Crown Prosecutor, who expressed his opposition to the course suggested by defence counsel. The Crown said (T 23, Ln 46-54):

…… It’s suggesting to the jury – the jury mightn’t be quite appreciative of the fine line between offences of this type and may well consider him to be a man of no – who has no offences and that’s clearly not the case. I’d suggest that if his character is to be raised, if the benefit of his good character is to be sought, the jury should be fully aware of his antecedents so that they are in a position to judge for themselves as to whether or not he is a person of good character.

12    The following is then recorded (with obvious typographical mistakes corrected by me and my underlining) (T 23-24 Ln 55-44):

HIS HONOUR: When I mentioned it, I certainly am the last to want to encourage this but, when I mentioned the Pandora’s box, it seems to me that as soon as any attempt is made to establish his good character, it’s not just a matter of prior criminal record but any number of other witnesses might be asked questions about his character.
ACCUSED’S COUNSEL: Your Honour, that’s why I’m seeking a ruling that considering the – if I could just say, the minor offences prior to the - and I don’t say that with any disregard to the actual -
HIS HONOUR: Sorry. Let me be very clear about this. I have no difficulty whatsoever in dissociating entirely his prior criminal record from this indictment, none whatsoever. I mean I could not accept that that criminal record tells us anything at all about the sort of propensity to commit this kind of offence. That, [accused’s counsel], I don’t understand to be the problem. The problem is that, in the ordinary course of events, nothing would be expected to be said about his good character unless you are prepared to open up the question of good character or whatever the Crown can find to suggest the contrary. That’s the risk. I’m not particularly concerned about his criminal record which certainly would be – I would not allow in under any circumstances, if the question of character is kept out of this case entirely. The problem, as I understand it, is what you’re trying to do is let in a little bit about his good character but, sort of, keep the lid on it. Well that’s my problem. I don’t see how you can do that.
ACCUSED’S COUNSEL: I hear what your Honour says and I understand what your Honour says and you understand what my application was, obviously.
HIS HONOUR: I have warned you, I mean, this is just for the record, that there is a very considerable danger in your exploring that territory in any cross-examination because it would have to open up the possibility that I put to you and I think that that, as I say, it is, as far as I can see, all or nothing . You either keep that matter out of the case entirely which you’re quite entitled to do or if you invite it in then you risk opening up-
ACCUSED’S COUNSEL: I heard your Honour’s ruling and it won’t be an issue at the trial.

13 Unfortunately throughout this exchange between counsel and his Honour, no reference was made to s 110 of the Evidence Act. That section is as follows:

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

14 It is clear that the effect of s 110(1) was to vary the common law attitude to character, which was, as the trial judge expressed it, “all or nothing”. The section permits an accused person to put forward that he or she is “either generally or in a particular respect” a person of good character. Defence counsel was seeking a ruling as to the consequence of the appellant raising his character either generally or in a particular respect, that being that he was not known to the police in respect of child sexual assault offences.

15    The course adopted by defence counsel finds support in the judgment of this Court in R v PKS (CCANSW, 1 October 1998). In that case, unlike the present, the issue of the accused’s character was raised at the conclusion of the Crown case. In the context of the circumstances in that case, this Court indicated what is needed to be done in connection with the issue of good character in the following series of propositions (pg 8-10):

“1. The first thing that had to be decided by the accused and his legal representatives was whether, his good character not having been put in issue in the Crown case, it should be raised as an issue in his own case.
2. That decision needed to be taken in the light of the provisions of Part 3.8 of the Evidence Act 1995 (NSW), and in particular the provisions of sections 110 and 112 of that Act.
3. Section 110(1) gave the accused a clear choice. He could put in issue the proposition that he was "generally a person of good character". Alternatively, he could put in issue the proposition that he was "in a particular respect a person of good character".
4. In the event that he decided to put in issue that he was "generally a person of good character", the accused was vulnerable to an application by the Crown, and made pursuant to section 112 of the Evidence Act , to cross-examine him so as to elicit that he had, in fact, prior convictions, albeit old ones, for offences of dishonesty.
5. If he decided to put in issue that he was "in a particular respect a person of good character", namely in respect of sexual misconduct with young children, whether his own children or the children of others, then the accused was not so vulnerable to cross-examination upon his old convictions for dishonesty. That was so because of the terms of section 110(3) of the Evidence Act . Such a construction of section 110(3) was adopted by Higgins J, of the Federal Court of Australia, in Gabriel v The Queen (unreported: Federal Court of Australia: Full Court, 25 June 1997).

The Court then went on:

In the light of what is stated in the foregoing propositions, counsel for the accused was entitled, in our opinion, to apply to the trial Judge for rulings on the questions:
(a) whether, if the accused gave evidence that he was "generally a person of good character", his Honour would refuse to permit cross-examination upon the previous offences of dishonesty, so refusing either by the method of refusing leave pursuant to section 112 of the Evidence Act ; or by the method of excluding such cross-examination in the exercise of the discretion conferred in that behalf by section 137 of the Evidence Act ; and
(b) whether, if the accused gave evidence that he was "in a particular respect a person of good character", namely in respect of sexual misconduct with young children, his Honour would uphold a submission that section 110(3) of the Evidence Act did not permit cross-examination upon the previous offences of dishonesty.”

16    In that case defence counsel did no more than seek that the trial judge give a “good character direction” without providing particulars of what evidence of character would be placed before the jury or to indicate what ruling he was seeking from the trial judge in respect of the issue of the accused’s character. As a result, the ground of appeal, which asserted an erroneous ruling by the trial judge on the issue of character, failed.

17 In the present case, although no reference was made either to s 110 or the decision in PKS, it is clear that defence counsel was seeking a ruling as to whether he would be permitted to raise the issue of the appellant’s character without leave being granted to the Crown to raise the appellant’s criminal antecedents. The ruling was sought in respect of good character both generally and in a particular respect. Defence counsel even went so far as to indicate the nature of the evidence he sought to adduce in cross-examination of the police officer. In my opinion no more was required of him to raise the issue appropriately before the trial judge.

18    However, as a result of his Honour’s indication that character was indivisible and that, if good character were raised in any form, the appellant was at risk of his criminal antecedents being placed before the jury, defence counsel accepted that a ruling had been made to the disadvantage of the appellant. As a consequence counsel determined not to raise the issue in the Crown’s case.

19    Although strictly speaking his Honour made no ruling on the issue of character, defence counsel was entitled to accept that his Honour held the firm view that the appellant could not raise part of his character. It is clear that in this regard the trial judge was in error and as a consequence the appellant was effectively deprived of placing evidence before the jury that he had no antecedents for offences of child sexual assault. In fact, had the matter been properly considered, that aspect of his character might have been widened to encompass a lack of antecedents for sexual offences generally.

20    The Crown on the hearing of the appeal has acknowledged that his Honour was in error but has argued that although faintly at the end of the day there was no resulting miscarriage of justice. Although in written submissions it was argued that the present situation was not unlike that which existed in PKS, in my opinion as the Crown Prosecutor conceded in argument, that decision provides no answer to the ground of appeal. The Crown did not assert that, had the evidence of good character been led at the trial on a limited basis, the Crown could have rebutted it.

21 The only question, which has exercised my mind, is whether the error has resulted in no substantial miscarriage so that the proviso to s 6 of the Criminal Appeal Act should be applied. The question is resolved in the present case by asking whether the appellant lost “a chance which was fairly open to him of being acquitted”: Mraz v The Queen (1955) 93 CLR 493 at 514. In Wilde v The Queen (1988) 164 CLR 365 at 372 it was stated:

…………Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen (1977) 137 CLR 517, at p. 524; Reg. v Storey (1978) 140 CLR, at p 376; Gallagher v The Queen (1986) 160 CLR 392, at pp. 412-413. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case.

22 Basically the present case came down to the jury’s assessment of the complainant’s evidence. There was some support for her credibility in the complaint evidence which was admitted under s 108(3) of the Evidence Act to meet the suggestion made by the appellant in his record of interview that the complainant’s mother was behind the allegation. There is a ground of appeal asserting that the evidence was wrongly admitted, but for present purposes I assume that it was properly before the jury. The trial judge saw particular significance in the complaint made to the school friend.

23    However that might be, in the end of the day the appellant was in the situation of meeting a complaint of sexual assault made two years after the event where there was no evidence to corroborate the complainant. In my view it cannot be said that the error, which in effect deprived the appellant of placing before the jury his good character even to a very limited extent, did not have any impact upon the trial. I accept that the character evidence that defence counsel intended to adduce was of a negative kind: that the appellant had no antecedents for sexual assault offences. Further, the appellant would not have been entitled to a direction that character had an impact upon the credibility of his account given to the police. But I cannot predict what a jury might have made of the evidence, had it been before them, when they were assessing the complainant’s reliability. Certainly, I cannot come to the view that it would have had no impact at all.

24    In those circumstances, as unfortunate as it might be for the complainant and the community generally, I am of the view that the first two grounds must succeed and that the appeal should be allowed and the conviction quashed. It is a matter of considerable regret that the trial miscarried because no regard was had to an important provision of an Act of significance in the day to day running of criminal trials and which has been in operation since 1 September 1995.

25    None of the other grounds argued could result in any different disposal of the appeal even if they were determined in favour of the appellant and there is no reason to consider them further.

26    I propose that the appeal be allowed, the verdict and sentence quashed and that there be an order for a re-trial.

27    HODGSON JA: I agree.

28    LEVINE J: I agree.

So the orders of the Court are as proposed by Howie J.

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