Zha v The State of Western Australia

[2021] HCATrans 47

[2021] HCATrans 047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P35 of 2020

B e t w e e n -

ZHA

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KEANE J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2021, AT 3.12 PM

Copyright in the High Court of Australia

KEANE J:   For the sake of the record, I should note the appearances.

MR A.O. KARSTAEDT appears for the applicant.  (instructed by NR Barber Legal)

MR L.M. FOX, SC, appears with MS K.C. COOK for the State of Western Australia.  (instructed by the Office of the Director of Public Prosecutions (WA))

KEANE J:   Yes, Mr Karstaedt.

MR KARSTAEDT:   Thank you, your Honour.  Your Honours, the applicant, prior to the District Court trial in this matter, raised with his defence counsel the calling of character witnesses to testify on his behalf, and informed his counsel that there were a number of appropriate people who were willing to give evidence as to his good character and reputation.  This relates to proposed ground 1, your Honours. 

The proposal of the applicant was rejected by his defence counsel.  At the hearing of the appeal in the Court of Appeal, trial counsel said in evidence that it was not his practice to adduce character evidence in these sorts of cases, that, quote, it was “just not on”.  As the Court of Appeal noted in its reasons for decision, trial counsel said he did not believe character evidence influenced a jury.  The Court of Appeal also said in its reasons for decision that there did:

not appear to have been any particular disadvantage –

in the calling of character evidence.  Your Honours, in the present case, the case at trial against the applicant may be regarded as having been even…..  The whole of the prosecution case depended on the evidence of the complainant.  It was a “word against word” case, with no corroboration.  There was no early complaint.  There was no evidence of any sexual interest on the part of the applicant in children, in particular boys.  There was a denial of the allegations by the applicant on oath.  Your Honours, there are judicial statements ‑ ‑ ‑

KEANE J:   Mr Karstaedt, the facts that you just recited are facts that could be recited of many cases heard from time to time in the criminal courts of this country where there is a conviction and no one questions the safety of the conviction.

MR KARSTAEDT:   Yes.  Your Honours, that – I accept that that does occur.  …..we had very strong character witnesses and we had ‑ ‑ ‑

KEANE J:   None of whom were in a position to say anything about what happens behind closed doors.  That is the problem with this kind of character evidence, and it is why, as a matter of usual practice, it is not led on behalf of an accused who is charged with a sexual offence against a child.

MR KARSTAEDT:   Your Honours, could I just indicate that in this particular matter there were additional aspects that we say made it important for character evidence to be called.  But I do also note that there are cases in this honourable Court, the TKWJ Case, for example, where Justice McHugh said:

Evidence of good character almost always helps an accused person’s defence.  Sometimes it is the decisive factor in returning a verdict of not guilty.

That was a case which involved sexual offences against a child and there was not any qualification that in those sorts of cases the potential for character evidence to be helpful to the accused is any different from any other case. 

In the present case, it is true that the character witnesses obviously could not see what happened in private, but they did know the accused very well over a number of years and they could speak precisely as to his good character, his reputation, his honesty and trustworthiness, all of which was absent from the evidence of the complainant’s mother.

They were aware of the applicant’s interaction with his children, both from personal observations as well as from observing his record of what he was doing with his children on Facebook.  He was a very active parent who took great interest in his children, according to this, but the additional aspect that…..made it imperative in this case was the negative evidence that was adduced during the trial by both the child and by the mother, which was not for some reason objected to.

The mother did make a limited statement, which in the abstract could be taken as going towards the applicant’s good character when she said that at one stage prior to their break‑up he appeared to be a good father and that is why she was happy for him to have joint custody.  But she immediately followed this by saying he could be violent, he was volatile, he was calm at times but when things did not go his way, he became confrontational. 

The child, both in his pre‑recorded evidence and in his visually recorded interview which was played at the trial, made negative comments concerning his father about his relationship with other women, that he did not pay his debts, that the bank wanted to take their house away and that he had said he was not going to pay his debts, all these sorts of things are very firmly negated by the character witnesses who say he was a calm, measured, gentle person at all times, had a very good reputation for his character.

Can I also point out that the mother’s evidence did not go to any extent towards his reputation, his integrity, his truthfulness and his honesty.  That was entirely lacking from anything she said, whereas these witnesses could speak about those important aspects, and those important aspects go to both legs of the reason why character evidence is desirable, firstly, to correct the issue whether the accused should be believed when he denies the allegations, but also – as was said in the TKWJ Case and other cases in this honourable Court – character evidence goes to the issue of the credibility that the accused did or did not commit the offences.  It goes to the merits.

Now, the mother did not give any evidence at all about his character, about his honesty, about his reputation.  It was entirely lacking.  So not only do we say that the Court of Appeal was in error in saying that the evidence of the mother was better than the evidence of the character witnesses with regard to whether he was likely to tell the truth, the fact of the matter is that there was nothing in her evidence that fell upon that issue at all.

On the other issue of the likelihood of him committing the offences, all she gave was a mixed statement relating to a particular point in time and nothing whatsoever about his honesty, integrity, reputation and so on.  We submit that in these circumstances the Court of Appeal’s decision simply, with great respect, cannot be correct and that ‑ ‑ ‑

KEANE J:   But, Mr Karstaedt, to say that, is that to say to us that we should take the matter up and give it a grant of special leave so that you can argue before us again the question whether the matters of which your client complains, as irregularities at his trial, would have affected the verdicts?  Is that really what we would end up being asked to determine – to review all the facts with a view to coming to an opinion for ourselves as to whether the Court of Appeal was wrong to conclude that if one were to regard these matters of complaint as irregularities, they would not have affected the result.

MR KARSTAEDT:   Your Honour, not entirely.  We would say that this case involves a matter of principle.  Ultimately, at the end of the day, we would ask the Criminal Court to determine the issue itself, but we say the Court of Appeal’s decision gives rise to a matter of principle in that it does not give effect to the important value of character evidence contrary to, for example, the TKWJ Case.  The Court of Appeal’s decision in this matter establishes a very low threshold for avoiding a conclusion of there being a miscarriage of justice for the calling of evidence of good character.

There is a two‑tier test for determining whether there is a miscarriage of justice.  The first leg of the test is whether there was a material irregularity.  We submit that that is clearly established, and the Court of Appeal assumed that to be the case, but ‑ ‑ ‑

KEANE J:   They assumed it for the sake of argument.

MR KARSTAEDT:   The sake of argument, but, your Honour, they did go on to recount the fact that the counsel did say that he never called – as a matter of course he does not call character evidence…..and furthermore, the Court of Appeal noted that there was no apparent disadvantage to the calling of character evidence.  Going through the witness evidence in this case painted a very different picture of the applicant as put forward by both the complainant and the ex-wife.  But, your Honour, just getting back to this ‑ ‑ ‑

KEANE J:   But not a picture of him as to how he might conduct himself behind closed doors and with the complainant.

MR KARSTAEDT:   Your Honour, yes, but the evidence that they gave of his truthfulness and honesty and integrity and good reputation on matters from which it can be inferred that he would not have done that.

KEANE J:   Did he not have the benefit of a direction from the trial judge to the jury to very much that effect?

MR KARSTAEDT:   Not based on the mother’s evidence.  There was no reference to the mother’s evidence at all.  It was based merely on the facts that the police officer gave evidence that he did not have prior convictions.  But that is standard, your Honour.  It has been said in a number of cases that bare evidence of good character does not go anywhere near the value of specific good character evidence adduced by character witnesses who know the accused. 

Your Honour, the court adopted a very low threshold for coming to this conclusion that there was no miscarriage of justice in the case.  We say this…..does provide an appropriate vehicle for the further examination of the role of character evidence, that this Court has not previously decided a case where except that there was a material irregularity in much of…..evidence the question was whether that resulted in a miscarriage of justice.

In the TKWJ Case it was clear that there was not a material irregularity because there was a good forensic reason for not calling the character evidence because…..rebuttal evidence of the State that a…..complainant also made allegations.  There is nothing like that in this case.  In this case – this would be the first case that this Court would be called upon, as far as I can see, to adjudicate upon the question of whether an accepted material irregularity did occasion a miscarriage of justice.

We say the character evidence in this case, if I could use the colloquialism, ticked all the boxes.  There were people who were impressive, of mature age, there was one – a witness who had more than one degree.  They were people in business and the people who knew the appellant well.  They could speak about all aspects of his character.  They were strong character witnesses.  They were available.

Your Honour, can I also perhaps say this…..  So that just takes me to the point that we say the case does have strong prospects of success on the merits, that the Court of Appeal clearly, with respect, with great respect, erred in concluding that the mother’s ambivalent evidence, which included bad character evidence, supplanted the need for all other character evidence and is simply not the case, we would say.

We would say there are good prospects of success.  I know the following matter I just wish to mention is not possibly regarded as very important…..of this matter but obviously this is a case of immense importance to the applicant, not only for…..substantial sentence of imprisonment but there is various legislation which is going to – is very likely to impact on him in a very serious manner.  This is a very serious case for the applicant.

But, your Honours…..that this case does involve a matter of principle.  It involves a question of the threshold that is appropriate in determining whether an irregularity, a material irregularity does occasion a miscarriage of justice.  The test is…..significant possibility that it might have affected that outcome.  We say that that threshold – the threshold of that test would clearly have been achieved had this evidence been adduced. 

The court’s view that the mother’s…..evidence which spoke badly about the accused in a number of respects and which only spoke about him at a particular point in time and only spoke about his isolated role as a father at an isolated point in time clearly did not supplant his appropriateness in the desirability of calling good character evidence.

As I say, your Honours, this was an evenly balanced case and the character evidence clearly would have had a distinct possibility of producing another result.  We say the case is an appropriate vehicle for the Court to consider the issue of character evidence but also to consider when a material irregularity can be said to arise from what is, in our submission, clearly a material irregularity.

There are cases in other jurisdictions ‑ New South Wales, Queensland – where cases on facts which our case clearly matches in terms of strength of character evidence and the circumstances of the case where the courts allowed the appeal.  So far as I understand, in Western Australia the courts have never allowed an appeal on this basis, on the basis that it comes within poor character evidence, and we say the courts in Western Australia have adopted, particularly in this case, too low a threshold for deciding that there is no material irregularity.

As I say, your Honour, the case does have very serious ramifications for the applicant and we would submit that this is a matter that…..with great respect, special leave…..examine the two‑tiered test of the miscarriage of justice in the specific context of failure to call good character evidence, which has never been determined in this Court. 

Clearly, yes, your Honours, at the end of the day the Court would be asked to make a determination on the evidence, but it would simply be a case of asking this Court to re-decide the issue.  It involves matters of principle, it involves questions of law as to…..appropriate test for determining material irregularity in a case like this.

It is not very different from a case where the proviso is invoked to maintain that there was not a substantial miscarriage of justice where the court has to examine whether an accepted irregularity did cause a miscarriage of justice.  This is way similar to the question being accepting or assuming there has a material irregularity, whether that gives rise to a miscarriage of justice and we say the courts in this particular case did not approach that matter in the correct manner.

I do accept what your Honour has pointed out, that there are cases where it is a “word against word” case where it is merely the complainant’s evidence against the accused’s evidence, where there is no sort of complaint, but by the same token there are – and where convictions have been not challenged.  But there have also been cases of that nature where character evidence has been called and where the verdict by the jury was not guilty and we say there is a…..possibility – and that is the ultimate test, that in this case, clearly, that may well have been the outcome.

KEANE J:   Thanks, Mr Karstaedt.  You have the red light, I am afraid.

MR KARSTAEDT:   Your Honours, unless anything specific I can perhaps assist the Court with – just in relation to ground 2, could I say ‑ ‑ ‑

KEANE J:   You have the red light, Mr Karstaedt.  The red light is on.

MR KARSTAEDT:   Thank you then, your Honour. 

KEANE J:   Yes, Mr Fox.

MR FOX:   Your Honours, given the assumption that counsel’s failure to adduce character evidence was the material irregularity – I stress the assumption – the only issue was whether there was a significant possibility that the character evidence, had it been adduced, might have affected the verdict.

In substance, in my submission, all that the applicant takes issue with is the outcome of the Court of Appeal’s evaluative judgment seeking to substitute that court’s evaluative judgment with that of this Court.  My friend is no doubt correct in his submission that this Court has not previously engaged with the question of the significant possibility that the result might have been affected.  In my submission, the simple answer to that proposition is that this Court is, of course, not a court of criminal appeal.  No general point of principle arises.

Can I turn to why, in the respondent’s submissions, the evaluative judgment was in fact correct.  The first point we would make is what your Honour Justice Keane has already articulated, that the proposed character evidence did not speak to his domestic life, being the nature of the offending, not just offending of a domestic nature – sorry, of a sexual nature, I ought to say, but rather it was offending also of the nature committed in a domestic context against his very own son.

That is the context in which the character evidence fell to be considered in determining whether there was a significant possibility of a different outcome.  However, there was evidence of his good character as a parent.  That evidence was sourced from what might be, from the applicant’s perspective, an unusual witness in that the evidence of his positive character as a parent came from his estranged wife.  In my submission, that has been more readily accepted by the jury because she is uniquely qualified to talk about his character in that context and it is favourable evidence from a witness who clearly might be expected to be hostile to the applicant, not just because she was an estranged spouse but because she was the mother of the victim and it would have been clearly obvious to the jury, in my submission, that she was certainly in the victim’s camp, not in the applicant’s camp, in that sense.

It is for that reason that the Court of Appeal concluded this was – I quote – “strong evidence of the appellant’s good character in relation to his children”.  The Court of Appeal’s conclusion was not that the absence of good character evidence had a significant possibility of affecting the outcome.  Rather, the Court of Appeal’s conclusion was that the absence – and I put emphasis on this – further evidence of good character had no significant possibility of affecting the outcome.

Given that the proposed additional character evidence could only touch, in substance, upon his reputation in a business and social context, rather than anyone who was clearly informed about the domestic or parental character of the applicant, it was necessarily of comparatively modest weight.

His behaviour as a father, indeed his behaviour as a husband had a logical connection with the type of offence for which he was charged and convicted – the sexual penetration of his own son.  His good reputation in the business community and in the community generally lacked that logical connection with the offence charged.  Yes, the additional character witnesses had some knowledge of his interactions with his children, but the Court of Appeal’s conclusion was that finding that they had knowledge of that particular aspect of his character was limited.

The second reason, in my submission, why it would not have made any significant difference is the nature of the direction that was given.  The jury were directed that, in substance, they must approach an assessment of the applicant’s evidence on the basis that he was of good character.

Can I take your Honours to page 31 of the application book, please, to the relevant aspect of the trial judge’s charge.  The first half of the page concerns a standard Liberato direction which is important, in my submission, for the context of what then followed at line 30 onwards, which was the character direction.  It is made clear to the jury that it is a direction, what has been said, not a comment and observation or a suggestion.  The direction was given on the basis that the applicant was of good character.

Yes, my friend is correct.  The trial judge only referred to the absence of criminal history in giving this direction.  But that was merely the foundation for what effectively became an incontrovertible fact in the way the direction was given.  The direction was given to the jury that it was an established fact that he was of good character, and that was to dictate their assessment of the probability of the offending having occurred as alleged and it was to impact their assessment of the likelihood that the applicant’s denial of offending was indeed true.

Thus, the jury presumed to act faithfully in accordance with the directions, must have approached their task from the starting point that he was of good character and that decreased the probability of offending and increased the likelihood of his denials being truthful.  Further character evidence would not have impacted the jury’s deliberations when one has regard to the direction that was given.  There is nothing in the direction on good character that is qualified.  He is of good character.  The direction was given.  No further good character evidence would have strengthened the direction that then followed.

That proposition, in my submission, is consistent with the common law’s treatment of character evidence in the criminal law, that is character is of a binary nature.  One is of good character, or one is of bad character.  It is not a continuum.  To the extent I need cite authority for that proposition it is Justice McHugh at paragraph 34 and Justice Gummow at 47 in the case of Melbourne itself.

So, given the direction to the jury that the applicant was of good character, and the law leaves no room for any shades of grey with respect to that proposition, any further evidence in support of that incontrovertible fact would have been superfluous.

The final point with respect to that direction is that the applicant had the benefit of the good character direction absent the sting in the tail that is set out in Melbourne, being the statement to the effect that people do commit offences for the first time.  That is a significant omission in favour of the applicant because, as the Court of Appeal noted, the courts of this country are now full of cases where people with unblemished reputations, who appear to their friends, relatives and business associates to be people of otherwise impeccable character, are all too frequently found to have committed offences of a sexual nature.  So that omission of that last aspect of the Melbourne direction puts that factor in the applicant’s favour.

My friend made reference in his submissions to what was effectively described as the negative evidence of the child and the mother, no doubt a reference to the fact that the applicant would be violent, particularly towards the son, and particularly towards this son, in a discipline context, but excessive violence nonetheless, and one act that was private clearly went beyond the pale of physical discipline, dragging him by his hair from the garage to the house.

That evidence was admissible as relationship evidence, and no challenge was ever taken to it in the Court of Appeal.  But that evidence itself is contrary to the assumption of a lack of material regularity.  I make that submission because that evidence is capable of being the foundation of an objective rational forensic reason why the applicant’s counsel would not have adduced character evidence.

As I have already submitted, these people did not have intimate knowledge of what happened in the applicant’s home behind closed doors.  If all of these people were called it would leave a fertile line of cross‑examination to the prosecutor where she could have cross‑examined

those witnesses, all five of them – I make a point of the number because we have repetitious cross‑examination on the same topic – that drew to…..those witnesses the fact that this was a violent man towards his son, repeated several times over, character evidence being the last evidence that would have been adduced at the very end of the evidentiary phase of the trial and just prior to the closing addresses being delivered.

The last thing the jury would have had ringing in their ears would have been repetition by the prosecutor by way of questioning about bad aspects of the applicant’s character.  It was evidence that was capable of undermining evidence of good character from these additional witnesses produced before the Court of Appeal.  Much better, in my submission, for the applicant to simply have relied upon the unchallenged evidence of good character that was left to the jury as an incontrovertible fact and the benefit of the Melbourne direction.

The only submission, your Honours, I would make with respect to ground 2 is this.  Before the Court of Appeal there was only one particularised complaint about the lack of the proof of evidence and that concerned the discrepancy as to the evidence as to which month count 3 was said to have occurred, March or May.  That proposition can go nowhere because the Court of Appeal positively disbelieved the applicant’s own evidence on that particular point.

The ground otherwise suffers from, with respect, a gross lack of particularisation, other than a generalised reference to the evidence‑in‑chief being short, the re‑examination being short, and a relatively short closing.  No other point is particularised with respect to ground 2.  No, the applicant has not attempted to draw a link between the absence of the proof of evidence and something that was done or was not done during the course of the trial.  May it please the Court.

KEANE J:   Thanks, Mr Fox.  Yes, Mr Karstaedt, anything in reply?

MR KARSTAEDT:   Thank you, your Honour.  Your Honour, the point made by my learned friend that the reason why this sort of matter has not come before this honourable Court is because it is not a court of criminal appeal, but I simply need to only refer to the TKWJ Case which was a case of this nature which came to this honourable Court but which was determined on the basis that there was no material irregularity.

Your Honour, the evidence given by the mother, as I have outlined, was not good character evidence, taken as a whole.  She spoke about the accused being volatile, how he grabbed the child’s hair and dragged him.  The evidence of the proposed witnesses went way beyond that in favour of the applicant.  The direction given by the judge in this case was a standard direction.  It did not constitute good character evidence itself, it was just a direction as to the effect of character evidence, and what her Honour said at page 31, which my learned friend referred to:

It tends to show that he is a person . . . whose evidence can be accepted and relied upon.

That is at line 40.  So all her Honour said is that you have heard evidence that he is of good character, that is the effect of that evidence.

KEANE J:   Well, to be fair, she said a little more than that.  She said:

The evidence of his good character shows that it is less likely that he would commit such an offence.

MR KARSTAEDT:   Yes, but the jury would need to have focused on what that evidence was and had the evidence from the additional witnesses been adduced that direction would have carried, we submit, far more weight.

Your Honour, the direction that my learned friend said could have prejudiced the appellant and he was therefore advantaged by it not being given, that people do commit offences for the first time, I have cited the case of Saw Wah in my submissions where Justice Weinberg, with the other justices concurring, held that that balancing direction in no way is injurious to an accused, it simply repeats what is, in any event, obvious.  The Court of Appeal in the instant matter, in this particular case, said in its reasons that the absence of that balancing direction provides no reason for not adducing character evidence.

My learned friend made the submission that – that there was a downside to calling character evidence because they would have been cross‑examined on negative aspects, but that was never put in the Court of Appeal.  Lastly, it was accepted by the State in the Court of Appeal that there was no disadvantage, this is the first time that has been suggested.

In relation to ground 2, can I just say that ‑ ‑ ‑

KEANE J:   Well, it is one thing to say that there would have been no disadvantage in calling the evidence.  It is a bit different to say that there was actual disadvantage in not calling the evidence.  I think that is really the point that Mr Fox was making.

MR KARSTAEDT:   That there could have been a disadvantage?

KEANE J:   No, that there was not an actual disadvantage in not calling the evidence.

MR KARSTAEDT:   I understand.  I…..on that.  Your Honour, in relation to ground 2, we say that the ground was broadly based, it was that prejudice was suffered by reason of the trial counsel on his own evidence not having taken any proof of evidence and not having taken any notes whatsoever of what the appellant told him over the space of a number of meetings, and we say that that affected the – although we did highlight the aspect of the dichotomy between March and May, we did state to the Court of Appeal clearly that that ground was intended to address all matters concerning the presentation of the case.

We say all the stages of presentation would have been disadvantaged.  The opening, the cross‑examination, the closing, the re‑examination would have been disadvantaged.  The trial counsel would have been disadvantaged inevitably by not having – taken even any notes of what the appellant had told them.  I do point out that at the hearing of the appeal trial counsel accepted under cross‑examination that he had no recollection of the…..of what the appellant had told him.

Thank you, your Honours.

KEANE J:   Thanks, Mr Karstaedt.

The proposed appeal would not turn on the resolution of any issue of principle of general importance.  The Court of Appeal determined that the matters of which the applicant complains as irregularities at his trial would not have affected the verdicts at trial.  The interests of the due administration of justice do not arise in relation to the determination of the Court of Appeal in this regard.  Special leave will be refused.

The Court will now adjourn until 10.00 am on Wednesday, 7 April in Canberra.  Please adjourn the Court.

AT 3.50 PM THE MATTER WAS CONCLUDED