Tanner v The Queen
[2001] WASCA 60
•12 MARCH 2001
TANNER -v- THE QUEEN [2001] WASCA 60
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 60 | |
| COURT OF CRIMINAL APPEAL | 12/03/2001 | ||
| Case No: | CCA:198/2000 | 9 FEBRUARY 2001 | |
| Coram: | MALCOLM CJ ANDERSON J STEIN AJ | 9/02/01 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction allowed New trial ordered | ||
| PDF Version |
| Parties: | STEPHEN ROBERT TANNER THE QUEEN |
Catchwords: | Criminal law Directions to jury Sexual offences against two children Evidence given of uncharged acts Sufficiency of directions as to uncharged acts Failure to give "two complainants" direction Evidence of motive to lie Sufficiency of direction on motive Delay in making complaints Directions given in accordance with Evidence Act s 36BD as to how to use evidence of delay Requirement to give "balancing" direction Sufficiency of balancing direction Character evidence discretion to exclude evidence of bad character |
Legislation: | Criminal Code s 329(11) Evidence Act 1906 (WA), s 36 BD |
Case References: | Connell v The Queen (No 6) (1994) 12 WAR 133 Cook v The Queen (2000) 22 WAR 67 De Jesus v The Queen (1986) 68 ALR 1 Kailis v The Queen (1999) 21 WAR 100 Matthews v The Queen [1973] WAR 110 Palmer v The Queen (1998) 151 ALR 16 R v Anderson (1973) 5 SASR 256 R v Beserick (1993) 30 NSWLR 510 R v Dolan (1992) 58 SASR 501 R v Grech [1997] 2 VR 609 R v K (1997) 68 SASR 405 R v S (1998) 103 A Crim R 101 R v T (1996) 86 A Crim R 293 R v Uhrig, unreported; SCt of NSW; 24 October 1996 Crofts v The Queen (1996) 186 CLR 427 Dawson v The Queen [2001] WASCA 2 De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998 Forbes v The Queen, unreported; CCA SCt of WA; Library No 950226; 20 February 1995 Leary v The Queen [1975] WAR 133 Lombardo v The Queen [1999] WASCA 127 Lowndes v The Queen (1999) 163 ALR 483 Matusevich v The Queen (1977) 137 CLR 633 Melbourne v The Queen (1999) 73 ALJR 1097 Nicoletti v The Queen, unreported; CCA SCt of WA; Library No 970578; 4 November 1997 R v MacDonald (1995) 84 A Crim R 508 Rodd v The Queen [2000] WASCA 329 T v The Queen [2000] WASCA 153 Trescuri v The Queen [1999] WASCA 172 Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998 Wedd v The Queen [2000] WASCA 273 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : TANNER -v- THE QUEEN [2001] WASCA 60 CORAM : MALCOLM CJ
- ANDERSON J
STEIN AJ
- CCA 231 of 2000
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Directions to jury - Sexual offences against two children - Evidence given of uncharged acts - Sufficiency of directions as to uncharged acts - Failure to give "two complainants" direction - Evidence of motive to lie - Sufficiency of direction on motive - Delay in making complaints - Directions given in accordance with Evidence Act s 36BD as to how to use evidence of delay - Requirement to give "balancing" direction - Sufficiency of balancing direction - Character evidence - discretion to exclude evidence of bad character
(Page 2)
Legislation:
Criminal Code s 329(11)
Evidence Act 1906 (WA), s 36 BD
Result:
Appeal against conviction allowed
New trial ordered
Representation:
Counsel:
Appellant : Mr T F Percy QC & Mr P E Harris
Respondent : Mr D Dempster
Solicitors:
Appellant : Mark Andrews & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Connell v The Queen (No 6) (1994) 12 WAR 133
Cook v The Queen (2000) 22 WAR 67
De Jesus v The Queen (1986) 68 ALR 1
Kailis v The Queen (1999) 21 WAR 100
Matthews v The Queen [1973] WAR 110
Palmer v The Queen (1998) 151 ALR 16
R v Anderson (1973) 5 SASR 256
R v Beserick (1993) 30 NSWLR 510
R v Dolan (1992) 58 SASR 501
R v Grech [1997] 2 VR 609
R v K (1997) 68 SASR 405
R v S (1998) 103 A Crim R 101
R v T (1996) 86 A Crim R 293
R v Uhrig, unreported; SCt of NSW; 24 October 1996
(Page 3)
Case(s) also cited:
Crofts v The Queen (1996) 186 CLR 427
Dawson v The Queen [2001] WASCA 2
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998
Forbes v The Queen, unreported; CCA SCt of WA; Library No 950226; 20 February 1995
Leary v The Queen [1975] WAR 133
Lombardo v The Queen [1999] WASCA 127
Lowndes v The Queen (1999) 163 ALR 483
Matusevich v The Queen (1977) 137 CLR 633
Melbourne v The Queen (1999) 73 ALJR 1097
Nicoletti v The Queen, unreported; CCA SCt of WA; Library No 970578; 4 November 1997
R v MacDonald (1995) 84 A Crim R 508
Rodd v The Queen [2000] WASCA 329
T v The Queen [2000] WASCA 153
Trescuri v The Queen [1999] WASCA 172
Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Wedd v The Queen [2000] WASCA 273
Woods v The Queen (1994) 14 WAR 341
(Page 4)
1 JUDGMENT OF THE COURT: At the conclusion of argument in this appeal, the Court ordered that the appeal against conviction should be allowed and that there should be a new trial, and indicated that reasons would be published in due course. These are the reasons of the Court for allowing the appeal.
2 On 3 February 2000, the appellant was presented for trial in this Court before a Judge and jury on an indictment containing 22 counts of sexual misconduct involving two children. Ten counts involved the complainant K, who was the appellant's stepdaughter and 12 counts involved the complainant T, who was a close friend of K. The offences were alleged to have been committed on numerous occasions between 1 January 1994 and 28 February 1999 when K was between nine and 14 years of age and T was between the ages of eight and 13. The offences involved digital and penile penetration, cunnilingus and mutual touching of genitalia. The appellant gave evidence at trial and was convicted on all 22 counts.
3 There were six grounds of appeal and we will deal with them in turn.
Ground 1
4 By this ground, the appellant pleads that the learned trial Judge erred in law by misdirecting the jury as to the onus of proof.
5 This arises out of a mistake which the trial Judge made in explaining to the jury quite late in her address the effect of s 329(11) of the Code. That is the section which deals with the onus of proof as to knowledge of relationship in cases involving sexual offences by relatives. It provides that:
"On a charge under this section it shall be presumed in the absence of evidence to the contrary -
(a) that the accused knew that he or she was related (whether lineally or as otherwise referred to in this section) to the other person; and
(b) that people who are reputed to be related to each other in a particular way (whether lineally or as otherwise referred to in this section) are in fact related in that way."
(Page 5)
6 In instructing the jury as to the effect of this section on the onus of proof, her Honour said:
"The law provides that it is presumed, in the absence of evidence to the contrary, that the accused knew that he or she was related to the other person and that people who are reputed to be related to each other in a particular way are in fact related in that way.
In the whole of this trial that's the only exception to the principle that the onus of proving absolutely everything is on the accused, but in any event although it's a matter for you, it doesn't really seem again to be an issue in this case." [Emphasis added]
7 It is accepted that the word "accused" is not a mistype in the transcript. The tape-recording of this part of the proceedings has been checked and certified to be correct.
8 Obviously, what her Honour meant to say was that the legal presumption referred to was "the only exception to the principle that the onus of proving absolutely everything is on the Crown".
9 Neither counsel noticed the mistake. It was so obviously a slip of the tongue in the context of the charge as a whole that it could not possibly have misled the jury.
10 We have not been provided with the transcript of the addresses of counsel to the jury, but it is apparent from her Honour's charge to the jury that during the addresses of counsel the jury was told more than once that the onus of proof was upon the Crown. In the early part of her summing up, her Honour said:
"Coming to the general principles first, the onus of proof, as you have heard more than once, is upon the crown to prove each and every element in respect of the counts in the indictment and you cannot convict in respect of any count unless you are satisfied beyond reasonable doubt in respect of all of the elements relating to that count."
11 Later she instructed the jury that "the accused doesn't have to prove anything". Still later, she said of the appellant, "He is entitled to remain in the dock, to remain silent, and to say to the crown, 'Well, you've brought the charge. You prove it'."
(Page 6)
12 In our opinion, in the context of the charge as a whole, the mistake had no capacity to mislead the jury as to where the onus of proof lay. This ground of appeal is not made out.
Ground 2
13 This ground pleads that the learned trial Judge erred in law in that she failed to adequately direct the jury as to the use which the jury could make of evidence of uncharged acts. As well as the specific evidence which was given by the two complainants in support of the offences charged in the indictment, the complainant K gave some generalised evidence of other conduct which was not the subject of any charge. It is settled that in these circumstances the trial Judge must give a direction to the jury as to how to use that evidence. The precise content of an appropriate direction will depend on the facts of the case and upon the nature and volume of the behavioural evidence. The evidence of uncharged acts may be so extensive or so specific as to be of real significance in terms of its prejudicial effect. On the other hand, the evidence may be truly subsidiary to the evidence of the specific acts charged in the counts on the indictment. Cases in the first category invariably call for strong directions, not only as to how the evidence may be used, but how it may not be used, and, in particular, that it may not be used to reason that because the accused engaged in that conduct on those other occasions he was the sort of person who did that kind of thing and so was likely to have committed the offence charged: R v Grech [1997] 2 VR 609. Cases in the second category may call for different treatment: R v K (1997) 68 SASR 405; R v Dolan (1992) 58 SASR 501.
14 In this case, the evidence of uncharged acts given by K was very general. It amounted to no more than that the appellant did the sort of thing alleged in one of the counts "at other times" and that he did the things alleged in several other counts "two or three times a week". The complainant T gave no evidence of uncharged acts.
15 It is the kind of case which Thomas JA had in mind in R v S (1998) 103 A Crim R 101 when he said, at 111:
"The real danger to an accused lies in the evidence of specific acts, and if a jury does not accept a complainant's evidence about the specific acts it is very difficult to think that they are going to accept the allegation that 'he kept doing the same sort of thing'. It therefore seems to me that there will be many cases where the suggested warning about the evils of propensity
(Page 7)
- evidence would be at best confusing, and at worst counterproductive."
16 The direction given by her Honour was in the following terms:
"You have heard evidence suggesting that Stephen Tanner did other things of a sexual nature, other than these things in the indictment … there's [K's] evidence that after the first few counts on the indictment Stephen touched her perhaps two or three times a week in a sexual manner after that. Obviously, the counts in the indictment don't reflect anything like two or three times a week.
It is important when those issues arise to remember that Stephen Tanner is not on trial for anything which is not the subject of those 22 counts. Evidence of that type of those other things is only before you so that you can see the whole of the relationship between them in its full context. If you accept that the other events of that type did happen, that provides you with no more than background information which assists you to evaluate these; but the one thing that you absolutely must not do is reason that because he did other things then he must necessarily have done any or all of the things that are set out in the indictment, or that if you're not sure about a particular thing in the indictment it is all right to convict on it because he would have done something else on some other time. That is absolutely not the way you reason. You are asked about these matters - no others."
17 This direction instructed the jury plainly to the effect that:
(a) the appellant was not charged with offences arising from conduct extraneous to the 22 counts;
(b) the evidence of general conduct was to enable the jury to see the relationship between the appellant and K;
(c) it was no more than background information;
(d) if they accepted it, the general evidence could be used only to assist the jury to evaluate the evidence in relation to the charges;
(Page 8)
- (e) the jury was not to engage in propensity reasoning; they could not proceed to a conviction by reasoning that because he did other things they could convict him of the offences charged even if they were not sure about the evidence with respect to those offences.
18 In the particular circumstances of this case, a stronger warning was not required.
19 Exception was taken to that part of the direction in which her Honour instructed the jury not to reason "that because he did other things then he must necessarily have" committed the offences charged. It was submitted that this invited, or at least left it open to the jury to reason that because the applicant "did other things" he might have committed the offences charged.
20 We do not accept this submission. The direction was not an invitation to reason in that fashion and the jury would not have so understood it. Neither did the direction, as a whole, leave that manner of reasoning open. The direction was very close to the common form of direction in which juries are regularly instructed not to reason that because the accused committed uncharged sexual acts, he must have committed the offences charged in the indictment. See, for example, R v Beserick (1993) 30 NSWLR 510 at 516 where Hunt CJ at CL said that, amongst other things, the jury must be warned with respect to evidence of uncharged acts that they must not reason that "because the accused may have done something wrong with the complainant on some other occasion or occasions, he must [our emphasis] also have done so on the occasion which is the subject of the offence charged". Her Honour's direction to the jury satisfied the test as so formulated. A very similar direction was held to be sufficient in Kailis v The Queen (1999) 21 WAR 100 per Malcolm CJ at 125 - 126.
21 This ground of appeal is not made out.
Ground 3
22 By this ground, it is pleaded that the learned trial Judge failed to give a "two complainants" direction. Counsel for the Crown conceded that her Honour did not do so. In our opinion, this was an essential direction and the failure to give it has caused the trial to miscarry. It is well-settled that where there is a joint trial of allegations by more than one complainant, it is imperative that the jury be warned specifically as to the
(Page 9)
- use that may and may not be made of the evidence of one child when considering the evidence of the other. A recent statement of the principle is to be found in Cook v The Queen (2000) 22 WAR 67 at 81 - 82 in the judgment of Anderson J, where his Honour said:
"As this was not a similar fact case, and there were multiple counts involving two complainants, there was a requirement to warn the jury not only that proof to their satisfaction of guilt upon one count must not lead them automatically to a guilty verdict on any other count but that the evidence led in proof of an offence against one complainant did not prove an offence against the other complainant. The choice of words is a matter for the trial judge, of course, but in whatever terms the direction is given, it must instruct the jury not only that they must draw a distinction between the evidence on each count and the evidence on every other count, but that they must not supplement the evidence on any particular count involving one complainant by looking at the evidence about the other complainant."
24 The omission to give this direction may have been compounded by the direction given towards the end of the summing up, which arguably was to the effect that the jury could take all of the evidence into account in considering the accused's guilt on each charge. What the learned Judge said was (AB 685):
"I think I have in dealing with that covered all of the legal elements and summarised in very brief terms the evidence which relates directly to each of those counts, although of course, as I said to you, there's a lot of other evidence - in particular the evidence of the accused which bears directly on
(Page 10)
- all of them in the sense that he simply denies that any of them happened for the reasons that he has given. All of the rest of the evidence is evidence which goes to issues like motive, whether there has been a recent complaint, consistency, and things of that kind. You need to take it all into account."
25 That direction, coupled with the omission to give a clear "two complainants" direction, may have left the jury with the impression that in considering the guilt of the accused with respect to an individual count involving one complainant, they could have regard to evidence led in support of a count involving the other complainant - that they could take the evidence of one girl into account when considering whether or not to believe the evidence of the other.
Ground 4
26 By this ground of appeal, it is pleaded that the trial Judge failed to adequately direct the jury as to the relevance of motive.
27 At trial, it was an important part of the appellant's case that the complainants had lied about the events in question. The complainants (especially K) were cross-examined on the basis that they had a motive to make false allegations against the appellant. It is accepted on both sides that motive on the part of the complainants to tell lies in evidence was a significant issue at trial. Indeed, this was recognised by her Honour when, in her address to the jury at AB 651, she said, "The question of motive, motive to attack the accused, motive to concoct false evidence loomed very large in parts of this trial". It was for that reason that her Honour decided to give a direction to the jury with respect to the question of motive. Essentially, the motive suggested on behalf of the appellant was that his relationship with K's mother had broken down and there was extreme hostility between them, and the mother had recruited K and T to tell lies about the appellant. The other motive which was suggested was that K blamed the appellant for her mother's unhappiness and she and T put their heads together to get the appellant into trouble in order to punish him.
28 At AB 653 - 654, her Honour gave the following direction:
"Those are the competing issues in relation to whether there was a motive to concoct and, if so, whether it led to concoction, but let me give you a very important warning about this whole issue. The question for your determination in relation to each of
(Page 11)
- these counts is not, 'Do any of the prosecution witnesses have a motive to lie?' The question is whether you are satisfied beyond reasonable doubt that the accused is guilty.
If there is a motive and if there is evidence which is consistent with manufacture of these charges, that would help you to reject the evidence of those witnesses or would give rise and would help to give rise to a doubt and would therefore perhaps point you in the direction of not being satisfied beyond reasonable doubt, but the accused doesn't have to prove anything. The accused does not have to prove that there was any motive to lie or any concoction. Even if there is no motive to lie on the part of any person, it doesn't follow that the accused is guilty. For a finding of guilt to occur, you must be positively able to accept the evidence of the prosecution witnesses [T] and [K], or parts of that evidence, sufficiently to enable you to convict on one or more counts.
That motive issue, although it loomed large in the trial, it is relevant but relevant only as one thing, one potential strand in your reasoning which, if you accept that there was motive, could have been concoction, leads you to have a reasonable doubt. That is the only thing."
29 The main complaint about this direction is that what is missing from it is the important warning, invariably given, that even if the jury rejects the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth. R v Uhrig, unreported; SCt of NSW; 24 October 1996 per Hunt CJ at CL at 16 to 17, approved in Palmer v The Queen (1998) 151 ALR 16 per Brennan CJ, Gaudron and Gummow JJ at 21.
30 We are of the opinion that this direction should have been given. When motive to lie is a significant issue, the danger is that unless the direction is given, the jury might move directly from a rejection of the motive to lie put forward by the accused to an acceptance of the complainant's allegations, without pausing to consider whether, motive to lie or not, they were satisfied the complainant was telling the truth. This danger is not averted by a direction to the effect that even if the jury is satisfied there was no motive to lie, it does not follow that the accused is guilty. As true as that may be, it does not convey the message which the standard direction conveys: that witnesses with no motive to lie may still not be telling the truth.
(Page 12)
Ground 5
31 By this ground of appeal, it is pleaded that the learned trial Judge failed to direct adequately on the issue of delay in the making of complaints.
32 It would appear from the evidence that the first disclosure made by K was in the early part of 1999. She was then 14. Her evidence was that she told her boyfriend that she had been "raped" by the appellant. Later she told one of her girlfriends and shortly after that she told her girlfriend's mother "because I knew that she was writing a book about victims - what happened to me, so I talked to her" (AB 52). Her girlfriend's mother advised her to tell her own mother "because it would take a lot off my chest". This she did in March 1999 and her mother took her to the Mandurah police station and an investigation was commenced. From this evidence it would appear that there was a delay of some five years between the first offence alleged in count 1 and the first complaint by K. T made no disclosure or complaint until she was questioned following upon the statement made by K to the Mandurah police.
33 With respect to this delay, the learned trial Judge told the jury:
"They are not obviously recent complaints because most of the events about which those conversations are concerned were a fair while ago, at the time of the relevant conversations. They are in evidence for two purposes: to enable you to assess whether complaints at those times were inconsistent or consistent with recent concoction, that's the issue that I've already spoken about, and also since they were complaints that were made in a rather delayed way you can use the delay, the explanation, if any, for the delay in considering the credibility of the witnesses in relation to those events.
Since they were delayed, it is necessary that I say to you that the absence of complaint or a delay in complaining doesn't necessarily indicate the allegations are false and indeed there may be good reasons why the victim of an offence such as these alleged may hesitate in making or refrain from making a complaint."
34 The latter part of this direction complies with the requirements of s 36BD of the Evidence Act 1906 (WA) which is in the following terms:
(Page 13)
- "Where on the trial of a person for a sexual offence … evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall -
(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b) inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence."
36 In our opinion, in the circumstances of this case, and reading the charge as a whole, the criticism made by Mr Percy is based on an analysis of the summing up which is too severe. We will accept, without here deciding, that it is necessary to ensure a fair trial in which a s 36BD direction is given that the jury should be given a balancing direction; and that the balancing direction should inform the jury to the effect that, notwithstanding the matters referred to in the s 36BD direction, the jury may use the delay in complaining as going both to credibility and to the issue whether the allegations made in the complaint are false. Accepting this to be so, we are of the opinion that the direction which was given by her Honour satisfied those requirements. The direction was not confined to credibility as such. The jury were told that they could use evidence of delay in complaining "in considering the credibility of the witnesses in relation to those events [emphasis added]".
37 That means, and would have been understood by the jury to mean, that they could use evidence of delay in complaining in considering whether the complainants were telling the truth about the offences.
(Page 14)
38 This ground of appeal is not made out.
Ground 6
39 This ground raises the question whether her Honour wrongly exercised her discretion in ruling that if the appellant led evidence of his good character, she would permit the Crown to lead certain evidence about the accused which the Crown contended showed the accused to be of bad character. The particular evidence which the Crown indicated that it wished to lead on the issue of character was pornographic material in the form of computer images located at the appellant's home and material which showed that the appellant engaged in salacious "chat room" activities on the Internet with a view to forming sexual liaisons with other women while still married to, and cohabiting with, K's mother.
40 The complaint is that the effect of her Honour's so-called ruling was to inhibit the proper presentation of the appellant's defence in that the appellant was "effectively deprived of the opportunity to lead evidence of this undoubted previous good character confirming his credit and which would indicate he was unlikely to have committed the offences charged".
41 There are inherent difficulties in this ground of appeal. In fact, the transcript discloses that her Honour made no final ruling concerning the admissibility of the Crown evidence of bad character. She merely expressed preliminary views about it (AB 460 - 463). In the light of the views which she expressed, counsel for the defence took the decision not to lead character evidence as part of the defence. In a sense, that was an anticipatory tactical decision. It seems to us that no appeal point arises. The appellant was not denied a fair trial. He was not prevented from leading evidence of his own good character and the trial Judge had not yet exercised her discretion in respect to the evidence proposed to be led by the Crown. The right of the Crown to adduce evidence of an accused's bad character is conferred by s 8(1)(e) of the Evidence Act1906. Its admissibility, as such, does not depend on any exercise of discretion, but on whether it comes within the ambit of the section. It will come within the ambit of the section if it satisfies the description of evidence of "bad character". If it does satisfy that description, it is admissible if the requirements of the section are satisfied and it can only be excluded in the exercise of the trial Judge's discretion to ensure that the trial is fair: Connell v The Queen (No 6) (1994) 12 WAR 133 at 249. As Jackson CJ said in Matthews v The Queen [1973] WAR 110 at 113:
(Page 15)
- " … a trial judge has a discretion to exclude evidence otherwise admissible in law if he considers its prejudicial effect far outweighs its probative value; and it is accepted in Selvey's Case [Selvey v Director of Public Prosecutions [1970] AC 304] that there is a discretion to exclude evidence which has become admissible under s 8(1)(e) of the Evidence Act where the judge considers it would be unfair or unjust to the accused to admit it."
42 It seems to us that there can be no proper exercise of a discretion to exclude evidence of bad character unless the trial Judge knows exactly what is the evidence of good character which is sought to be led on behalf of the accused. Ordinarily, that will involve actually hearing the evidence so as to equip the trial Judge to decide whether the evidence of bad character sought to be led by the Crown is so disproportionate as to make it unfair or unjust to the accused to admit it. That, in turn, will involve a careful evaluation of the evidence sought to be led by the Crown in the light of the evidence led by the accused.
43 This stage was not actually reached. We do not know what evidence might have been led by or on behalf of the appellant as to his good character. We have not seen the material which the Crown foreshadowed that it would lead as to the accused's bad character. That her Honour made no final ruling appears clearly from her introductory remarks before making her observations as to her preliminary view. She said:
"What I say now plainly must be revisited in the light of whatever evidence is in fact adduced by and on behalf of the accused. So this is intended to be nothing more than a preliminary view by way of guidance to counsel, it being the convention that if defence counsel is seen to be following a path which may give rise to a risk that certain aspects of character will be put in issue, that a warning will be given as early as possible."
44 Her Honour's observations were, it appears to us, reinforcing an exchange with counsel which took place late in the afternoon of the preceding day. Counsel for the accused informed her Honour that she should inspect the material to which the Crown had made reference. Her Honour said:
(Page 16)
- "WHEELER J: … We can have a look at it overnight because we don't need to deal with that unless you actually do get to the stage of positively putting the accused's good character in issue.
TROWELL, MR: Yes, because it wouldn't affect - - -
WHEELER J: That's a little way down the track."
45 For these reasons, we are of the opinion that this ground of appeal is misconceived.
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