R v AKB (No. 7) [2018] NSWSC 1120

Supreme Court New South Wales

Medium Neutral Citation: R v AKB (No. 7) [2018] NSWSC 1120 Hearing dates: 18 July 2018 Date of orders: 18 July 2018 Decision date: 18 July 2018 Jurisdiction: Common Law - Criminal Before: Davies J Decision: See paragraphs [9]-[10] Catchwords: EVIDENCE – criminal law – character evidence – where accused raises character in a particular respect – s 110 Evidence Act - evidence adduced that accused has no criminal record – whether Crown can cross-examine on uncharged acts Legislation Cited: Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) ss 65, 165 Cases Cited: R v PKS (Court of Criminal Appeal NSW, 1 October 1998, unrep) Regina v Zurita [2002] NSWCCA 22 San Maung Saw Wah v The Queen [2014] VSCA 7 Texts Cited: Nil Category: Procedural and other rulings Parties: Crown [AKB] (Accused) Representation: Counsel: C Maxwell QC & R Kotsis (Crown) C Davenport SC (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Oxford Lawyers (Accused) File Number(s): 2016/311049

JUDGMENT 1. The accused seeks to obtain evidence from Detective Sergeant Hodges that he has no criminal record. The accused wishes in that way to adduce evidence that he is a person of good character in a particular respect. In those circumstances the Crown seeks to lead the evidence of the assaults by the accused on the deceased when they were in Iran, and other evidence tending to show the accused's bad behaviour towards the deceased. 2. In earlier judgments, I have rejected the evidence of the incident or incidents in Iran that took place between 2007 and 2009, and other evidence of the way the accused has behaved towards the deceased in the earlier years of their marriage on the basis that such evidence was too remote to have any or any sufficient probative value, and that, in any event, there was unfair prejudice to the accused which outweighed the probative value. 3. Section 110 of the Evidence Act 1995 (NSW) provides: 110 Evidence about character of accused persons (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. Note. The Commonwealth Act includes an additional subsection relating to unsworn statements. 1. As Howie J said (Hodgson JA and Levine J agreeing) in Regina v Zurita [2002] NSWCCA 22 at [14]: It is clear that the effect of s 110(1) was to vary the common law attitude to character, which was … "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. 1. In R v Zurita the appellant had been charged with aggravated sexual assault. He claimed that he had not been able to adduce evidence that he had no antecedent convictions for child sexual assault. The appellant had a criminal record which included larceny, mid-range PCA, being an unlicensed driver, and an assault found proved but dismissed under s 556A of the Crimes Act 1900 (NSW). The trial judge had made clear that the appellant could not raise part of his character without putting the remainder in issue. 2. In the Court of Criminal Appeal, Howie J said that no reference had been made at the trial to s 110 of the Evidence Act which varied the common law. Justice Howie said at [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. 1. In Zurita, the Court followed the earlier judgment in R v PKS (Court of Criminal Appeal NSW, 1 October 1998, unrep) where the Court set out what needed to be done in connection with the issue of good character (at pp 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). 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." (emphasis added) 1. The effect of the decision in Zurita is that in circumstances where good character evidence is confined to a particular respect, rebuttal evidence will ordinarily be similarly confined: San Maung Saw Wah v The Queen [2014] VSCA 7 at [62]. 2. Accordingly, where the accused has only adduced evidence that he has no criminal record, any cross-examination of the accused is confined to that issue. Section 110(3) has the effect that the other evidence sought now to be relied upon by the Crown may not be adduced. 3. I rule accordingly.