Schmidt v The King

Case [2024] VSCA 256

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0089
JERMAINE SCHMIDT Applicant
v
THE KING Respondent

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JUDGES: PRIEST, NIALL and ORR JJA
WHERE HELD: Melbourne
DATE OF HEARING: 7 August 2024 
DATE OF JUDGMENT: 31 October 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 256
JUDGMENT APPEALED FROM: [2023] VCC 1429 (Judge Lacava)

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CRIMINAL LAW – Appeal – Conviction – Sexual assault and rape – Whether ruling preventing defence from adducing character evidence in a particular respect occasioned miscarriage of justice – Judge erred in refusing to allow evidence to be adduced – Substantial miscarriage – Leave to appeal granted – Appeal allowed.

CRIMINAL LAW – Appeal – Conviction – Sexual assault and rape – Whether deficiencies in conduct of defence at trial occasioned miscarriage of justice – Deficiencies did not render trial unfair – Leave to appeal refused.

Evidence Act 2008, ss 32, 59, 76, 97, 110; Jury Directions Act 2015, s 54D.

Attwood v The Queen (1960) 102 CLR 353; Awad v The Queen (2022) 275 CLR 421; Baini v The Queen (2012) 246 CLR 469; Bishop v The Queen (2013) 39 VR 642; Karam v The King [2023] VSCA 13; Melbourne v The Queen (1999) 198 CLR 1; Parsons (a pseudonym) v The Queen [2016] VSCA 17; Wah v The Queen (2014) 45 VR 440 considered.

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Counsel
Applicant: Mr DA Dann KC
Respondent: Mr BF Kissane KC with Ms S Lenthall
Interested party: Mr PA Chadwick KC

Solicitors
Applicant: Emma Turnbull Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

  1. Niall JA, whose reasons for judgment I have had the advantage of reading in draft, has concluded that neither of the applicant’s grounds of appeal against conviction should succeed.  Not without considerable hesitation, I agree that particulars (a), (c) and (d) of ground 2 are not made out,[1] essentially for the reasons given by Niall JA. 

    [1]The particulars contend that a substantial miscarriage of justice occurred in circumstances where: (a) the complainant’s evidence was not challenged in a manner that was consistent with the applicant’s instructions; (c) inconsistencies in the Complainant’s evidence were not identified; and (d) the Prosecution case was not challenged in a manner that was consistent with the applicant’s instructions.

  2. It is my misfortune to have reached a different view, however, with respect to grounds 1 and 2(b), which are formulated as follows:

    1A substantial miscarriage of justice has occurred as a result of the confusion that developed about the Applicant’s entitlement to rely on good character evidence in a particular respect.

    2A substantial miscarriage of justice has occurred in circumstances where:

    …

    (b)available good character evidence was not placed before the jury;

    …

  3. I consider that a substantial miscarriage of justice resulted from the applicant having been refused permission to introduce evidence that he was of good character ‘in a particular respect’.  As a result, I would grant the extension of time for leave to appeal against conviction; grant…

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AGLC
Schmidt v The King [2024] VSCA 256
Case
[2024] VSCA 256
Decision Date

CaseChat Overview and Summary

The appellant, Schmidt, was convicted by the County Court of Victoria of sexual assault and rape. Schmidt appealed to the Court of Appeal, seeking to overturn his conviction. The appeal centred on two main issues: whether the trial judge's ruling preventing the defence from adducing character evidence in a particular respect occasioned a miscarriage of justice, and whether deficiencies in the conduct of the defence at trial rendered the trial unfair.

The Court of Appeal considered the first issue regarding the trial judge's ruling on character evidence. The court observed that the Evidence Act 2008, section 110, allows an accused to adduce evidence of good character either generally or in a particular respect. The court held that the trial judge erred in refusing to allow evidence to be adduced in a particular respect, particularly regarding the accused's lack of history of sexual misconduct with teenage female students whom he coached. The court found this error to be significant, as it prevented the defence from presenting a complete picture of the accused's character. Consequently, the court held that this error occasioned a substantial miscarriage of justice and granted leave to appeal on this issue.

Regarding the second issue, the Court of Appeal found that the deficiencies in the conduct of the defence did not render the trial unfair. The court determined that, while there were some shortcomings in the defence's presentation, these did not undermine the fairness of the trial to the extent that it warranted overturning the conviction.

The Court of Appeal allowed the appeal in part, quashed the conviction, and ordered a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Good character evidence is now — and has been for some years — covered by s 110 of the Act, which provides:110 Evidence about character of an accused(1)The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.(2)If evidence adduced to prove (directly or by implication) that an accused 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 accused is not generally a person of good character.(3)If evidence adduced to prove (directly or by implication) that an accused 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 accused is not a person of good character in that respect. As was observed in Bishop:[4]It may immediately be appreciated that, by virtue of s 110, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove good character. Thus hearsay evidence concerning a person’s reputation, which would otherwise fall to be excluded under s 59 of the Act, is admissible. Further, opinion evidence about a person, which would generally be excluded by virtue of s 76, is also admissible. So, too, is tendency evidence — evidence of ‘the character, reputation or conduct of a person, or a tendency that a person has or had’ — which would be proscribed by virtue of s 97, admissible. Finally, evidence about a person’s credibility — which generally is inadmissible because of s 102 of the Act — is admissible.[4]Bishop v The Queen (2013) 39 VR 642, 650 [33] (Priest JA). And significantly, s 110 permits an accused person to adduce evidence that he or she is a person of good character either generally or in a particular respect. So that in Parsons the Court observed that:[5]so far as evidence of good character is concerned, the plain intention of s 110 of the Evidence Act 2008 is to vary the common law ‘all or nothing’ attitude. It is thus open to an accused person to lead evidence that he or she is of good character ‘generally’ or ‘in a particular respect’.[6] Evidence of good character in a particular respect might, for example, include evidence that an accused person has no prior history of sexual misconduct with children. All other things being equal, it would comprehend the kind of evidence that the applicant’s counsel submitted was available to be called in this case; namely, the applicant had no history of sexual misconduct with teen-aged female students whom the applicant coached. So much is clear from Zurita,[7] …[5]Parsons (a pseudonym) v The Queen [2016] VSCA 17, [63] (Maxwell P, Redlich and Priest JJA).[6]Bishop v R (2013) 39 VR 642; See Wah v R (2014) 239 A Crim R 41, 52 [57]–[62] (Weinberg JA).[7]R v Zurita [2002] NSWCCA 22, [14]–[15] (‘Zurita’).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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