Stanoevski v The Queen [2001] HCA 4 8 February 2001 S251/1999
ORDER
1.Appeal allowed.
2.Set aside the judgment of the Court of Criminal Appeal dated 24 February 1998.
3.In lieu thereof order that :
(a) the appellant’s appeal to that Court be allowed;
(b) the appellant’s conviction be set aside; and
(c) there be a new trial of the appellant.
On appeal from the Supreme Court of New South Wales
Representation:
T A Game SC with S J Odgers and A S Kostopoulos for the appellant (instructed by Greg Walsh & Co)
T L Buddin SC with R A Hulme for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Stanoevski v The Queen
Evidence – Evidence Act1995 (NSW) – Character evidence – Accused raised own good character – Judicial discretion to allow cross-examination of accused on alleged past misdeeds not directly related to facts in issue – Whether discretion to allow cross-examination miscarried.
Words and phrases – "good character" – "credibility" – "leave, permission or direction" – "unfairness".
GAUDRON, KIRBY AND CALLINAN JJ. This appeal raises questions about the meaning and application of s 192 of the Evidence Act 1995 (NSW) ("the Act") to the adducing of, and cross-examination on, character evidence.
The facts
The appellant had been in practice as a solicitor on her own account at Bankstown and Rockdale in Sydney for some years before January 1993. On 24 February 1997 she was charged, that she did, between 20 January 1993 and 5 February 1993, conspire with Glory Mae Wailes and Mira Kutlesovska to cheat and defraud NRMA Insurance Limited ("the insurer") of a sum of money.
Evidence at her trial, which took place in the District Court (Viney DCJ) of New South Wales in Sydney in February and March 1997, was given by, among others, Ms Wailes, that she had been working as the appellant's secretary when the appellant asked her to arrange for someone to take her car which was insured with the insurer so that the appellant could make a claim upon the insurer for the loss of it. In due course Ms Wailes asked another secretary in the office, Mira Kutlesovska to take the car. Ms Wailes' evidence was that the car was then taken and left at her home. On 4 February 1993 the appellant reported to the police that the car had been stolen. About a week later it was found at Ms Wailes' home. Ms Wailes and Ms Kutlesovska were also charged with conspiracy to cheat and defraud, pleaded guilty to that offence and were sentenced for it.
From the outset of the appellant's trial it…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Stanoevski v The Queen [2001] HCA 4
Case
[2001] HCA 4
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Criminal Appeal of New South Wales concerning the admissibility of character evidence. The appellant, a solicitor, was charged with conspiring to cheat and defraud an insurance company. During her trial, the appellant's counsel indicated an intention to lead evidence of her good character. In response, the Crown foreshadowed reliance on a report concerning an allegation of forgery made against the appellant by a co-accused. The trial judge ruled that if the defence adduced evidence of good character, the appellant could be cross-examined on matters contained within this report.
The central legal issue before the High Court was whether the trial judge had erred in the exercise of his discretion under section 192 of the *Evidence Act 1995* (NSW) by permitting cross-examination of the appellant regarding alleged past misdeeds, specifically a forgery allegation, when she had raised her own good character. This involved considering the interplay between the admissibility of character evidence, the potential for prejudice, and the scope of judicial discretion in managing such evidence. The Court also considered the application of sections 56, 102, 103, and 135 of the *Evidence Act 1995* (NSW) in relation to the admissibility and exclusion of evidence.
The High Court allowed the appeal, setting aside the judgment of the Court of Criminal Appeal. Their Honours reasoned that the trial judge's discretion had miscarried in permitting cross-examination on the forgery allegation. While the appellant had raised her good character, the evidence concerning the forgery, particularly the handwriting expert's equivocal opinion, lacked sufficient probative value to justify the potential for unfair prejudice. The Court found that the cross-examination on this matter was not properly permitted under the Act, as its probative value was substantially outweighed by the danger of unfair prejudice to the appellant. Consequently, the appellant's conviction was set aside, and a new trial was ordered.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the judgment of the Court of Criminal Appeal dated 24 February 1998.
3. In lieu thereof order that :
(a) the appellant’s appeal to that Court be allowed;
(b) the appellant’s conviction be set aside; and
(c) there be a new trial of the appellant.
Background
Background to the litigation
This appeal raises questions about the meaning and application of s 192 of the Evidence Act 1995 (NSW) ("the Act") to the adducing of, and cross-examination on, character evidence. The facts The appellant had been in practice as a solicitor on her own account at Bankstown and Rockdale in Sydney for some years before January 1993. On 24 February 1997 she was charged, that she did, between 20 January 1993 and 5 February 1993, conspire with Glory Mae Wailes and Mira Kutlesovska to cheat and defraud NRMA Insurance Limited ("the insurer") of a sum of money. Evidence at her trial, which took place in the District Court (Viney DCJ) of New South Wales in Sydney in February and March 1997, was given by, among others, Ms Wailes, that she had been working as the appellant's secretary when the appellant asked her to arrange for someone to take her car which was insured with the insurer so that the appellant could make a claim upon the insurer for the loss of it. In due course Ms Wailes asked another secretary in the office, Mira Kutlesovska to take the car. Ms Wailes' evidence was that the car was then taken and left at her home. On 4 February 1993 the appellant reported to the police that the car had been stolen. About a week later it was found at Ms Wailes' home. Ms Wailes and Ms Kutlesovska were also charged with conspiracy to cheat and defraud, pleaded guilty to that offence and were sentenced for it. From the outset of the appellant's trial it was apparent that her character would loom large in her defence. Counsel for the appellant at an early stage of the trial informed the trial judge that he would be leading evidence of the appellant's good character. The Crown Prosecutor then foreshadowed that he would be relying upon a report entitled "Preliminary Report by Investigator" ("the report") to respond to any character evidence adduced by the appellant. The report was then tendered and received on the limited basis that the trial judge might ascertain what it contained and understand how it might be used. It will be necessary to say something further about this report later but we simply note now that it purported to be a report of an investigation on behalf of the Law Society of New South Wales of an allegation made by Ms Wailes after the hatching of the alleged conspiracy. The allegation was that the appellant had forged the signatures of a client, J Fowler, which she had then witnessed on a document or documents to be filed in unrelated proceedings in the Family Court of Australia. Counsel for the appellant at the trial objected to the use in any way of the material in the report at the trial. After argument, the trial judge ruled that if the defence adduced evidence of good character cross-examination of the appellant would be permitted on matters the subject of, and the documents contained in, the report. In giving his reasons his Honour said that the report came down to the opinion of a handwriting expert and a statutory declaration by Ms Wailes. He then quoted the expert's opinion which, at best, could only be described as highly equivocal:" As a result of this examination I made the following observations:The writer of Liljana's signatures possesses the writing skill to produce the questioned J Fowler's signatures. There are some isolated similarities between Liljana's signatures and the J Fowler's signatures on the questioned document referred to in item 1. At the best these similarities only indicate that the writer of the Liljana's signatures cannot be eliminated from having produced the questioned J Fowler's signatures."
Evidence
Evidence Before The Court
Section 56[9] provides that except as otherwise provided relevant evidence is admissible in a proceeding.[9]"Relevant evidence to be admissible(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.(2)Evidence that is not relevant in the proceeding is not admissible." Credibility and character are dealt with in separate parts of the Act as if they were (with one exception) discrete topics[10]. [10]Section 104(4). The nature of character evidence was recently discussed at some length by this Court in Melbourne v The Queen[11]. All members of the Court there affirmed that character evidence may be relevant to an accused's propensity to commit a crime, or to the credibility of an accused, or to both of these questions[12]. [11](1999) 198 CLR 1.[12](1999) 198 CLR 1 at 14 [30] per McHugh J, 27-29 [72]-[76] per Gummow J, 46-47 [120] per Kirby J, 55 [152] per Hayne J and 69 [200] per Callinan J. In this case, when the issue of character evidence was first raised, the argument seems to have proceeded upon the basis that the evidence of good character was directed towards the accused's credibility only. But as the case proceeded it became clear that the appellant sought to rely upon evidence of her good character in whatever respects, and to whatever extent she possibly could. Little attention seems to have been paid to the possibility that different implications might arise from the reception of such evidence depending whether it went to credibility or character[13]. However, for reasons which will appear, it will not be necessary to resolve some of the questions that may arise in other cases in which character evidence is admitted. [13]See the discussion in Phipson on Evidence, 15th ed (2000) at 16.02-16.04 of the circumstances in which character evidence goes to a direct issue or issues. Section 102, in Pt 3.7, provides that evidence that is relevant only to a witness' credibility is not admissible, but s 103[14] provides an exception in a case in which credibility evidence has substantial probative value. In deciding whether the evidence has substantial probative value the court must have regard inclusively to whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and the period that has elapsed since the acts or events to which the evidence relates were done or occurred.[14]"Exception: cross-examination as to credibility(1)The credibility rule does not apply to evidence adduced in cross‑examination of a witness if the evidence has substantial probative value.(2)Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:(a)whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred."
Decision
Reasons for decision
GAUDRON, KIRBY AND CALLINAN JJ
HUGH J
HAYNE J
His Honour went on to say that if a solicitor operated in such a slap-dash way then that could affect the jury's assessment of her good fame and character but that he wanted to make clear to them that they were not deciding whether she was guilty of some form of professional misconduct. Somewhat later his Honour emphasised that even if the jury took the view that the accused was a person of bad character or not of good character that could not be used to strengthen the Crown case against her. Decision of the Court of Criminal Appeal The appellant was convicted and sentenced on 27 June 1997 to a fixed term of imprisonment of nine months to be served by way of home detention from 27 June 1997 and expiring on 26 March 1998. She appealed to the Court of Criminal Appeal of New South Wales (Gleeson CJ, Ireland and Bruce JJ). Gleeson CJ agreed with the judgment of Bruce J and made some additional observations. His Honour said:" Once character is raised as an issue 'every element in an accused person's past tending to establish or refute his good character' becomes technically admissible, although there may arise questions of discretion...[4]".[4]R v Stalder [1981] 2 NSWLR 9 at 19. We interpolate at this point that since the decision of this Court in Melbourne v The Queen[5], whether to give a direction at all, or the form of it if given in relation to character evidence will require close attention to the relevance of the evidence to the offence, and to the issue or issues to which the evidence relates. And, subject to statutory dictates to the contrary, more than questions of discretion may therefore be involved in decisions to reject or admit evidence of bad character. Gleeson CJ was of the opinion that there was no error of discretion in permitting the cross-examination of the appellant about possible forgery. His Honour referred to the practical difficulty confronting the appellant in defending the allegation and was of the opinion that the jury had been properly directed on the use of the character evidence. His Honour also pointed out that no objection was taken by the appellant's counsel to the directions of the trial judge in relation to character: it was her decision, for tactical reasons, following a correct ruling by the trial judge, to raise the issue in her evidence in chief, and, in effect therefore, she had to suffer the consequences of that tactical decision. Finally, his Honour added, cross-examination of the issue was kept within manageable bounds. [5](1999) 198 CLR 1 at 14 [32], 16-17 [36]-[37], 19 [44], 20-21 [48]-[50] per McHugh J, 42-43 [109] per Gummow J and 51-52 [138]-[140] per Hayne J. Bruce J (with whom Ireland J also agreed) after setting out the facts and summarising the course of the trial dealt with the arguments of the appellant in that Court which were somewhat different from those which were presented here. Although it was argued in the Court of Criminal Appeal that the trial judge's discretion had miscarried in allowing the cross-examination, again no reference seems to have been made to s 192 of the Act. Bruce J was of the opinion that there had been no error in the exercise of the trial judge's discretion and that undue prejudice outweighing probative value had not been caused by the cross‑examination: in short that s 135[6] of the Act had not been infringed. [6]"General discretion to exclude evidenceThe court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:(a)be unfairly prejudicial to a party, or(b)be misleading or confusing, or (c) cause or result in undue waste of time."The appeal to this Court
Ratio Decidendi
Legal Principle Established
Established by:
GAUDRON, KIRBY AND CALLINAN JJ,
HUGH J,
HAYNE J