Character

Dixon CJ (would allow the appeal)

1. The appellant appeared before a stipendiary magistrate and a of Victoria upon a charge of larceny of a fountain pen and pencil set having a value of 20 pounds 7s. 0d. Earlier in the day he had been convicted before the justice of the peace of another larceny and sentenced to six months' imprisonment. On that occasion it appeared that the appellant had previously been convicted and that in New Zealand a sentence of two years' imprisonment had been imposed upon him.

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At the end of the evidence in support of the information counsel for the defendant joined in the application for the informant that the charge be dealt with summarily. In the discussion which ensued the magistrate referred to criticisms made in England of the use that was made of the power in inappropriate cases and asked whether the counsel was prepared either to assure him that the defendant had no criminal record or, if he had one, to disclose it. The defendant's counsel declined to adopt either course.

7. …The question is therefore a more general one: it is whether, for the purpose of forming an opinion that the charge is or is not from any circumstances fit to be prosecuted by proceedings as for an indictable offence rather than to be disposed of summarily, magistrates may go outside the circumstances disclosed by and in the course of the proceedings before them and inquire into what the Summary Jurisdiction Act 1879 (Imp.),s. 13 (1), describes as "the character and antecedents of the person charged"…

8. …But a reconsideration of the matter has led me to think that the better opinion is that the magistrates are not intended to go outside the circumstances which appear from or in the course of the proceedings before them, begun by the laying of the charge, for the purpose of forming an opinion whether by reason of previous convictions or the character and antecedents of the defendant he should be dealt with by a court which was not so restricted as the magistrates would be in the sentence that might be imposed or the course that might be taken with the defendant if convicted. The magistrates form the tribunal which is to judge of the defendant's guilt or innocence of the charge, if it is to be dealt with summarily, or of the sufficiency of the case made against him to put him on his trial, if they decide to proceed as for an indictable offence. In either case to interpret s. 72 as meaning that before embarking upon that duty, or at all events before reaching a conclusion, the magistrates might or should discover whether the defendant had been previously convicted or had a bad character or antecedents, would be to treat the provision as authorising or requiring a violation of the general rule that a tribunal of fact passing upon the guilt or innocence of a defendant should not be informed of the defendant's criminal record or bad character or antecedents before the tribunal pronounces a finding of guilt.

9. This general rule is subject to specific exceptions or qualifications the grounds of which are as well recognised as the exceptions themselves. The most important is, of course, found in the cross-examination of a prisoner to credit, if he gives evidence on his own behalf and, in Victoria, if such cross-examination is allowable under s. 432 (e) of the Crimes Act. But these exceptions only serve to give emphasis to the general rule which in truth has gone far beyond a precept of the law of evidence and has become a principle which pervades the law governing the conduct of criminal proceedings.

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11. The conclusion I have reached is that to give an interpretation to the proviso to s. 72 which would make it necessary or proper for the magistrates before they have determined the proceeding against the defendant to inquire into his character or antecedents, particularly into the existence of a criminal record, would be out of accord with the principle now traditional which protects a defendant upon a criminal charge from undue prejudice which must be derived from a knowledge of his character and antecedents by the tribunal passing on his guilt or innocence…

McTiernan J (would dismiss the appeal)

2. …They might, however, after receiving such proof not be of opinion that the charge is fit to be prosecuted on indictment rather than to be disposed of summarily. This constitutes the strength of the argument for the appellant because the knowledge of the justices that the accused had been previously convicted may tend to his prejudice, and therefore the legislature presumably, so the argument runs, did not intend that a prior conviction should ever be one of the circumstances of which the justices should obtain any knowledge until after conviction, when it would be material on the question of punishment. It may be conceded that every reasonable presumption should be made that it was not the intention of the legislature to subvert the principle of a fair trial. But I think this is not a satisfactory criterion by which to narrow the meaning of the words "any circumstances" so as to exclude from the consideration of the justices the previous convictions of the persons charged. For, as I have endeavoured to show, the circumstance that he has a bad record could very pointedly raise the question whether he could be adequately punished if he was not committed for trial

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It is at least a doubtful assumption that, if the justices learned that the accused had been previously convicted, they neither could nor would any longer deal with him fairly, as it would be presumed until then. If they proceeded to try him summarily, why should it be presumed that they would fail to act judicially - solely on the evidence which is relevant to the issue of guilt upon the charge before them - and that they would deny him a fair trial? I agree substantially with the reasoning which led Sholl J. to his conclusion upon the question of the true construction and application of the first proviso of the section. I cannot find anything in the decisions cited as having a bearing on the question, which shows that the conclusion is wrong.

Williams J (would dismiss the appeal)

2. Section 72 imposes on the justices two duties - first that of deciding whether to dispose of the offence summarily and secondly, if they so decide, that of so disposing of it. The duty of the justices is to form an opinion whether there are any circumstances which make it advisable that the accused should be sent for trial before a jury rather than that he should be tried by them summarily. The discretion to choose between the two forms of trial is confided to the justices. It is confided in very wide terms. The justices may take into consideration "any circumstances". The only apparent limits to the exercise of the discretion are that it must, like every other discretion, be exercised bona fide for the purposes for which it was conferred. The words "any circumstances" read literally would appear quite plainly to authorise the justices to take into consideration any relevant circumstances or, in other words, any circumstances reasonably capable of assisting them to form the requisite opinion. In forming that opinion it would appear equally plainly to be open to the justices to take into consideration the adequacy of the punishment which they could inflict if they convicted the accused compared with the punishment which could be inflicted if the accused was convicted by a jury. They could bona fide believe that, as between two accused persons, one of good and the other of bad character, it would be justifiable to grant the former a summary trial but to refuse it to the latter. For this purpose it would be relevant for them to inquire into the character and antecedents of accused persons, good or bad, including their prior convictions.

3. But it is submitted that the legislature, in the absence of express words, could not have intended to authorise the justices to make such an inquiry because this would conflict with the settled principle of the criminal law that, save in exceptional cases, evidence of the bad character of an accused person is inadmissible to prove his guilt and can only be taken into consideration by the judge, if he is convicted, in determining the proper punishment…

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5. We were referred to the prior history in Victoria of s. 72 and also to the history of the corresponding legislation in the United Kingdom. I shall not refer to this legislation in any detail. This has already been done in the reasons for judgment of Sholl J. in the court below and in the reasons of other members of this Court. I cannot derive any reliable assistance in solving the present problem from carrying out a further investigation. The problem should be solved, in my opinion, by adhering to the cardinal principle that in order to ascertain the intention of the legislature you attribute to the words of a statute their ordinary natural grammatical meaning. The words "any circumstances" cannot, in my opinion, be limited in the manner suggested…

Fullagar J (would allow the appeal)

7. These matters being out of the way, the question for decision may be stated as being whether what are rather vaguely called the "character and antecedents" of a person charged with an indictable offence, to which s. 72 of the Crimes Act 1928 applies, are or are not matters relevant for consideration by justices in deciding whether they will deal with the charge summarily. If the answer to this question should be in the affirmative, it would seem clear that some inquiry into these matters ought to be undertaken in every case in which an exercise of the power given by s. 72 is asked for by the prosecution or by the defence, or is suggested by the justices of their own motion. It would also seem clear that such an inquiry should not be limited to the matter of prior convictions but should extend to all those many and various matters which may carry weight with a court when it is called upon to pronounce sentence after conviction.

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9. It is plain that s. 72 of the Crimes Act 1928 does not expressly provide that an investigation of the character and antecedents of the person charged shall or may be undertaken before the discretion given by that section is exercised. And, so far as implications are concerned, any implication to be found is, in my opinion, to the contrary. The material words of the proviso are: "if the justices are of opinion that the charge is from any circumstances fit to be prosecuted by proceedings as for an indictable offence rather than to be disposed of summarily." I would agree that the words "from any circumstances" are very wide. But the question to be determined in the light of "any circumstances" is whether the charge is "fit to be prosecuted" in the one way rather than in the other. I would not, of course, say that the language used is incapable of including a reference to the possibility of adequate punishment, but I would certainly say that the reference is prima facie to the charge itself, to the alleged acts constituting the commission of the offence charged, and to nothing else. It is not really correct to say, as the learned Solicitor-General said, that to read the section as not including "character and antecedents" involves a "reading down" of the word "circumstances". I would say, on the contrary, that prima facie the word does not include a reference to character and antecedents.

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18. These considerations appear to me to lend strong support to the view which I should certainly have taken without reference to any historical matter. That view is simply that a statute ought not to be construed as abrogating a fundamental principle of criminal law unless it appears very clear that such an abrogation is intended. And, in the present case, so far from this appearing very clear, the word "circumstances" in its context refers, in my opinion, prima facie to circumstances surrounding the commission of the crime itself, and not to such extrinsic facts as that the person charged is a very virtuous person or a very vicious person.

Kitto J (would dismiss the appeal)

5. But let it be assumed that the rule excluding prior convictions from proof in the course of the case for the prosecution would provide, if it were an absolute rule, a ground for treating the expression "any circumstances" as not including prior convictions of the person charged. Should the same result be considered to follow when it is recognised that the rule is not absolute…

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If prior convictions, proved during the prosecution's case in accordance with this or any other qualification to the general rule, are to be understood as excluded from the circumstances described in s. 72 as "any", it must be because, unless convictions are always excluded, even when rightly before the justices, the section would necessitate an inquiry into the existence of prior convictions in every case, and so contradict the rule completely. In my opinion the answer is that s. 72 takes the circumstances known to the justices exactly as it finds them at the time when the decision as to the appropriate mode of prosecution comes to be made, neither prescribing a separate investigation of facts nor interfering in the least with the principles which up to that time have applied to the conduct of the proceedings. Its meaning seems to me to be that the justices are to take account of all those circumstances in the material before them which are in any way relevant to the choice of procedure, having regard to every aspect of the prosecution of the charge, including the imposition of appropriate punishment in the event of a conviction

The Court (Gibbs, Stephen, Mason, Murphy and Wilson JJ)

1. This is an application for special leave to appeal from a judgment of the Court for leave to appeal against a conviction for murder [1979] VicRp 49; (1979) VR 497.

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9. The argument advanced on behalf of the applicant before us was based on two grounds, namely (a) that the learned trial judge misdirected the jury in response to their inquiry whether there were any fingerprints on the murder weapon; and (b) that the learned trial judge failed adequately to instruct the jury on the use to be made of evidence as to the character of the applicant.

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23. The second ground on which the application is brought is that the learned trial judge failed adequately to instruct the jury on the use to be made of evidence as to the character of the applicant. There was evidence that the applicant had not been previously convicted, that he was happily married, that he loved his children and had never been violent to them or to his wife and that he had been a satisfactory employee. The only reference to this evidence in the charge was a brief mention by the learned trial judge that the applicant had no prior convictions.

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25. There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. We agree with what was said on this point in Reg. v. Schmahl [1965] VicRp 95; (1965) VR 745, at p 750 . No doubt, speaking generally, it is right to add, as was said in that case, that if such a direction is asked for it would be wise to give it. (at p333)

26. In the present case no direction as to the evidence of the applicant's good character was asked for. There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved. No miscarriage of justice was in our opinion occasioned by the omission to give a direction on this question.

McHugh J (would dismiss the appeal)

1. The issue in this appeal is whether a trial judge who has directed the jury that evidence of the good character of the accused is to be taken into account on the issue of that person's guilt errs if he or she does not also direct the jury that that evidence can be taken into account when considering the accused's credibility.

2. At a more general level, the appeal raises the following matters:

(a)         whether directions to the jury about the accused's good character should be mandatory or discretionary;

(b)         the nature of any such direction;

(c)          the nature and usefulness of good character evidence generally.

3. Roy Bernard Melbourne (the accused) was convicted of murder in the Supreme Court of the Northern Territory on 13 June 1996 after a trial before a jury and Thomas J. The Court of Criminal Appeal of the Northern Territory (Martin CJ, Gallop and Angel JJ) dismissed his appeal against the conviction. Pursuant to a grant of special leave, he now appeals to this Court.

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7. At his trial, the accused did not deny that he had stabbed the deceased. However, he sought a conviction for manslaughter on the ground of diminished responsibility. Section 37 of the Criminal Code (NT) provides to the effect that a person who suffers from diminished responsibility shall not be guilty of murder and is guilty of manslaughter only. In order for the accused to make out the defence of diminished responsibility, it was necessary for him to prove that at the time of the stabbing he was "in such a state of abnormality of mind as substantially to impair his capacity to understand what he was doing or his capacity to control his actions or his capacity to know that he ought not do the act.

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15. In support of his claim that he was a person of good character, the accused adduced evidence that he had no previous convictions for a criminal offence other than a conviction for drink-driving in 1975, and evidence that he was not "adversely known to the police". He also adduced evidence of his character and personality from those who knew him. It will later be necessary to refer to this character evidence in more detail.

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30. In my opinion, notwithstanding the rules laid down in these English and New Zealand cases, this Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both:

(a) the accused's propensity to commit the crime charged; and

(b) the accused's credibility.

31. The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character.

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36. For more than a century, the common law has drawn a distinction between the admissibility of evidence of good character and the admissibility of evidence of bad character in a criminal trial. Evidence of good character is readily admitted because it is regarded as tending to prove that the accused is unlikely to have committed the crime in question. Evidence of bad character is admitted only in exceptional circumstances even where the courts regard it as tending to prove that the accused is likely to have committed the crime in question.

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44. The explanation by Gibbs CJ of the rationale of the rule concerning bad character evidence demonstrates that, in determining the admissibility of such evidence, the courts have accepted, consciously or unconsciously, that character evidence is likely to divert the tribunal of fact from the true issues in the case. It is likely to divert the jury from properly evaluating the strength or weakness of evidence that more directly bears on whether or not the accused committed the crime in question.

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48. It would be anomalous if before evidence of bad character or criminal propensity is even admitted it is subject to a rigorous evaluation of its probative significance, and yet good character evidence of dubious probative value is not only admitted, but is required to be the subject of a mandatory direction favourable to the accused even if the trial judge considers that the direction is not warranted in the circumstances of the case.

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53. In my opinion, the character evidence relating to Mr Melbourne was not of such probative significance in relation to his credibility as to require the trial judge to give a direction that the evidence bore favourably upon Mr Melbourne's credibility. The evidence was that the accused had no previous convictions other than a conviction for drink-driving in 1975 and was not "adversely known to the police". Various descriptions of his character and personality were given by those who knew him, such as:

(a) evidence from Mr Gooch that the accused was a "quiet man", a man who was "always gentle", and who, apart from this occasion, had "never" been "aggressive";

(b) evidence from Mrs Barnes that the accused was "very quiet";

(c) evidence from Mr Daniels that the accused was "a very amiable sort of person";

(d) evidence from Mrs Hinde that the accused was "a very quiet, well-behaved gentleman".

54. None of this evidence had any direct probative bearing on the truthfulness or credibility of the accused. It was all directed to the unlikelihood that he would commit the offence charged. The trial judge gave an adequate direction in this regard. Whether or not the trial judge intended, but forgot, to give a credibility direction with respect to the character evidence, no miscarriage of justice has occurred. If her Honour had given such a direction, it would have given the accused an advantage to which in point of law he was not entitled. Not only was this not a case requiring a credibility direction, in my opinion it would have been a wrongful exercise of discretion to have given it.

Gummow J (would dismiss the appeal)

59. The appeal should be dismissed. I agree with the reasons for judgment of Hayne J and would add only the following.

60. As Hayne J points out, the appellant did not deny that he inflicted the injuries causing the death of his neighbour. The "previous good character" of the appellant in this Court was said to go to the issue whether the jury should accept that he had sought to tell the truth when interviewed by police and later by experts subsequently called to give evidence of his mental condition. The appellant put forward a defence of diminished responsibility within the meaning of s 37 of the Code. It may be accepted that if, in these conversations, the appellant had been trying to establish some false basis for a later plea of diminished responsibility, that circumstance may have had some significance, as a matter of inference, in deciding his mental condition at the time he slew the victim.

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79. I prefer as consistent with the established position in this Court, the statement of Thomas J in his dissenting judgment in Falealili:

"[I]f the evidence of the accused's good character is both probative and relevant the Judge will, almost as a matter of course, direct the jury as to its significance in summing up the defence case. It would be unfair not to do so. If, on the other hand, the purported character evidence is lacking in probative force and of remote relevance to the charge in issue, the Judge may decide that a good character direction is not warranted. Or the Judge may consider that it would be prudent to proffer a good character direction, but then to qualify it in order to put it in perspective having regard to the circumstances of the case. To proscribe that, whenever character evidence is adduced or elicited, a good character direction should be given and that it must generally embrace both the credibility and propensity limbs of the direction is an unnecessary fetter on that discretion.

80. In some cases the good character of the accused may be an integral part of the defence. A number of reputable persons may have testified as to the accused's character. In other cases the so-called evidence of good character may be little more than a passing reference, included by defence counsel, perhaps, simply because there is no other defence. In other cases the established facts of the case may itself indicate that, irrespective of how unblemished the accused's reputation may be, he or she can barely be described as a person of good character. Because the circumstances will vary greatly it is not possible to lay down comprehensive guidelines as to when and how the Judge's discretion should be exercised. Nor is it desirable to do so. Unless guidelines are treated as being just that, guidelines and no more, they could themselves inhibit the exercise of a Judge's discretion to do what is most appropriate having regard to the facts of the particular case."

Kirby J (would allow the appeal)

89. The Crown accepted that the trial judge had been correct to conclude that the appellant had established that, prior to the killing of the deceased, he had a "good character". The Crown was even prepared to concede that a direction concerning the appellant's credibility was "technically applicable". Its argument was that (a) the giving of such a direction was discretionary, not mandatory; (b) the failure of counsel to seek further direction when the partial instruction on good character was given was fatal; and (c) in any case, the statements of the appellant to which a credibility direction would be relevant were made out of court and, for the most part, were inadmissible hearsay used by medical experts to ground their opinions. This meant, so the Crown submitted, that no miscarriage of justice had occurred which required a retrial. Whatever might be the case where an expert expresses an opinion based on direct observations and grounded in that expert's particular discipline[108], in this case the expert opinions for both sides rested on out-of-court statements of the appellant which were never proved by sworn testimony. Such statements were therefore not properly admissible[109]. The opinions based upon them were not strictly available. To the extent that the appellant had enjoyed the benefit of those expert opinions, it was an advantage to which he was not strictly entitled. As such evidence went to his defence, on an issue upon which he bore the onus of proof, the want of a direction on credibility occasioned no injustice. Once the appellant failed to give evidence confirming the facts on which the expert opinions were based, any use of those opinions was in the nature of a windfall for the appellant.

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108. The foregoing is reason enough to reject the notion, found in many English decisions, that "good character" is synonymous with the absence of prior criminal convictions. The latter may be an indication of the former; but it is not necessarily so. I agree with Henry J's remark in R v Falealili that "there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person's good character. It may be a factor in assessing good character, but standing on its own it is generally neutral." Proof of an absence of previous convictions, without more, would not, therefore, attract a judicial obligation to give directions about "good character". Fairness and balance in a charge to a jury might warrant mention by the judge of that fact. But for a "good character" direction, more evidence would be needed. To the extent that this distinguishes the rule applicable in New Zealand from that applicable in England, I prefer the former.

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118. The trial judge in this case was therefore obliged to give a direction on good character. The obligation arose not because the appellant had no relevant prior convictions but because additional affirmative evidence was received at the trial which suggested that, before the killing, the appellant was what the law would classify as a person of "good character". The obligation was one incumbent upon the judge. But as it happened, in this case, it was reinforced by the application of counsel for the appellant.

119. Correctly, the judge at the trial gave part of the applicable direction, drawing to the attention of the jury the consideration that the past good character of the appellant might make it less likely in their view that he would act in the criminal way inherent in the charge of murder. However, although asked, the judge omitted to direct the jury that they might also take the established "good character" into account in assessing the credibility of the appellant's out-of-court statements to police and medical experts.

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129. It was for that reason that the appellant was entitled to have the jury instructed on the approach which they should take to his credibility based upon the fact that, before the trial, he was a person whom the jury could consider to be of good character. This was not a case where it was inevitable that the jury would reject the appellant's claim of diminished responsibility. The expert evidence on the subject was divided. There was some circumstantial evidence which supported the conclusion favourable to the appellant. It cannot be said affirmatively that the appellant lost no real chance of a verdict of not guilty of murder but guilty of manslaughter.

Hayne J (would dismiss the appeal)

140. In these circumstances, what was the issue that required the trial judge to tell the jury that the previous good character of the accused could be taken into account in deciding whether to believe what he had said out of court? Counsel then appearing for the appellant had sought to persuade the jury that they should not accept the accuracy of what the appellant had said to police. And trial counsel did not seek to argue, at trial, that the appellant's character could be used to support the jury's acceptance of what the appellant had said to the expert witnesses. Trial counsel for the appellant did seek to persuade the jury that his client had tried to tell the truth to police but he did not seek to buttress that argument by any but the most passing and inconsequential reference to the appellant's previous good character.

141. Having regard to the way trial counsel for the appellant dealt with these matters in his address to the jury, I do not accept that there was any issue at the trial about the use of the appellant's previous good character as an aid to the jury deciding whether to accept the accuracy of what he had said out of court or deciding whether he had tried to tell the truth. That would be reason enough to conclude that this trial did not miscarry for want of the direction for which the appellant contends. It is as well, however, to go on to consider some other, more general questions relating to directions about the previous good character of an accused. But before turning to consider some of those issues, it is necessary to restate some basic propositions.

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152. The argument that an accused is of previous good character seeks to attribute a single qualitative description ("good") to an indivisible character. But people are not divisible into two classes: those who are good and those who are not. And the use that a jury may make of such evidence as is given about the previous character of an accused will vary greatly according to the circumstances of the case. It will vary according to what is said about the previous character of the accused and what relationship (if any) that has to the case that it is sought to make against the accused. The submissions of trial counsel acknowledged that in this case the evidence of the appellant's good character had little to say about his credibility; in my view it provided no assistance to the jury on any question of the appellant's credibility.

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157. There is no reason to depart from the conclusion stated in Simic, namely, that there is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. Of course, if a direction is given, it must be accurate. Ordinarily, however, unless the evidence that is led about the character of the accused has an immediate and obvious connection with an issue in the case, it is better that the judge say nothing of how the jury may use such evidence in reasoning to its conclusions beyond any restatement of counsel's arguments that may be thought necessary or desirable.

Callinan J (would allow the appeal)

202. A question was raised about the relevance of the appellant's out-of-court assertions and the use to which they could be put. The statements by the experts which I have quoted, repeating out-of-court assertions by the appellant and statements by him recorded in the record of interview, were received as original evidence. No objection was taken, or any qualification sought to be made to them at the trial. The record of interview was tendered and relied on by the Crown. The jury were entitled to believe or not believe the statements that were made out of court in that record. That they might do so meant that they necessarily had to give consideration to the appellant's honesty. That in turn meant inevitably that his character for this purpose was a relevant factor in determining his guilt.

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211. In my opinion the credibility of the appellant was in issue in this case although he did not give evidence. That issue arose in respect of some evidence which was admissible and other evidence which although inadmissible if objected to, was not the subject of any objection. A credibility direction should therefore have been given. This is not an appropriate case for the application of the proviso as I cannot say that the appellant has not lost a real chance of a verdict of diminished responsibility. I would allow the appeal and order a retrial.

Howie J

1. The appellant was convicted after trial on a charge of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900. As a consequence of the jury’s verdict, on 15 November 2001 Judge Phegan sentenced the appellant to imprisonment for 12 months with a non-parole period of 9 months. There is an appeal against that conviction but no application for leave to appeal against sentence. The appellant was granted bail by the Supreme Court pending the hearing of the appeal on 29 November 2001.

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7. The complaint encompassed in the first two grounds of appeal is that the trial miscarried because, by reason of the manner in which evidence of good character was considered both by the trial judge and counsel, the appellant was denied the ability to place evidence before the jury that he had no convictions for offences of the nature for which he was on trial. The two grounds were argued, and can be considered, together.

8. The appellant had a criminal record which included the following matters: a conviction for larceny in 1995, for which he was fined $250; a conviction for mid range PCA and unlicensed driver also in that year; and an assault in 1999 which was found proved but dismissed under s 556A of the Crimes Act. The assault offence was committed against the complainant’s mother and shortly after their divorce. It was common ground that the appellant had not come under notice for an offence of the nature for which he was being tried.9    Before the evidence commenced, but after the jury had been empanelled, defence counsel raised with the trial judge the issue of the appellant’s character. Counsel said (T 22 Ln 36 – 50):

ACCUSED’S COUNSEL: Your Honour, I’m asking that the accused be considered as a person of good character for the purposes of this trial. I’m instructed that, as far as the larceny was concerned, that it was a theft of a pair of gloves. There’s the PCA. The assault takes place after this alleged offence. I’d ask you Honour that – your Honour has the ability to look at his criminal antecedents and see that, as far as this charge is concerned, a very serious charge, that he has nothing of the nature of this type of matter in his history and that he can be considered, whether it be for a limited purpose as far as these types of offence or generally that he can be considered a person of good character.

When the trial judge asked whether he was proposing to lead evidence, counsel indicated that he was not, but that the result sought might be achieved either by a statement by his Honour made with the agreement of the parties or, absent that, he would ask the police informant in cross-examination whether the appellant had a record for any of these types of offences “without opening the Pandora’s box of the minor matters in his history”.

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12    The following is then recorded (with obvious typographical mistakes corrected by me and my underlining) (T 23-24 Ln 55-44):

HIS HONOUR: When I mentioned it, I certainly am the last to want to encourage this but, when I mentioned the Pandora’s box, it seems to me that as soon as any attempt is made to establish his good character, it’s not just a matter of prior criminal record but any number of other witnesses might be asked questions about his character.

ACCUSED’S COUNSEL: Your Honour, that’s why I’m seeking a ruling that considering the – if I could just say, the minor offences prior to the - and I don’t say that with any disregard to the actual -

HIS HONOUR: Sorry. Let me be very clear about this. I have no difficulty whatsoever in dissociating entirely his prior criminal record from this indictment, none whatsoever. I mean I could not accept that that criminal record tells us anything at all about the sort of propensity to commit this kind of offence. That, [accused’s counsel], I don’t understand to be the problem. The problem is that, in the ordinary course of events, nothing would be expected to be said about his good character unless you are prepared to open up the question of good character or whatever the Crown can find to suggest the contrary. That’s the risk. I’m not particularly concerned about his criminal record which certainly would be – I would not allow in under any circumstances, if the question of character is kept out of this case entirely. The problem, as I understand it, is what you’re trying to do is let in a little bit about his good character but, sort of, keep the lid on it. Well that’s my problem. I don’t see how you can do that.

ACCUSED’S COUNSEL: I hear what your Honour says and I understand what your Honour says and you understand what my application was, obviously.HIS HONOUR: I have warned you, I mean, this is just for the record, that there is a very considerable danger in your exploring that territory in any cross-examination because it would have to open up the possibility that I put to you and I think that that, as I say, it is, as far as I can see, all or nothing . You either keep that matter out of the case entirely which you’re quite entitled to do or if you invite it in then you risk opening up-

ACCUSED’S COUNSEL: I heard your Honour’s ruling and it won’t be an issue at the trial.

13. Unfortunately throughout this exchange between counsel and his Honour, no reference was made to s 110 of the Evidence Act. That section is as follows:

110 (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.

14. It is clear that the effect of s 110(1) was to vary the common law attitude to character, which was, as the trial judge expressed it, “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. Defence counsel was seeking a ruling as to the consequence of the appellant raising his character either generally or in a particular respect, that being that he was not known to the police in respect of child sexual assault offences.

...

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.

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26. I propose that the appeal be allowed, the verdict and sentence quashed and that there be an order for a re-trial.

Hodgson JA

27. I agree.

Levine J

28. I agree.

Hodgson JA

29. So the orders of the Court are as proposed by Howie J.

Spigleman CJ

1. I agree with James J

James J

2. Antoine (Tony) El-Jalkh appealed against his conviction after a trial in the District Court before Judge Williams and a jury on a charge that between 1 August 2002 and 1 May 2003 he conspired with Paul Alexander Kellaway and others to import into Australia prohibited imports to which s 11.5(1) of the Criminal Code Act 1995 (Cth) and s 233B of the Customs Act (since repealed) applied, being not less than a commercial quantity of methylenedioxymethamphetamine (MDMA). The appellant was sentenced to a term of imprisonment for 12 years with a non-parole period of seven years six months commencing on 11 October 2005, the date on which the jury returned its verdict of guilty, the appellant having been at liberty on bail until the verdict of guilty was returned. In the event of his appeal against his conviction being dismissed, the appellant seeks leave to appeal against the sentence imposed on him.

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5. There was only one principal issue at the trial. In both his opening address and his closing address counsel for the appellant at the trial told the jury that there was no dispute that there had been a conspiracy to which Kellaway and a man named Scott McGee had been parties, to import into Australia a commercial quantity of MDMA and that the only issue at the trial was whether the appellant had been a party to that conspiracy.

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Ground 4 — Failure to give good character direction

94. This ground of appeal was based on a part of the appellant’s evidence in chief, very close to the end of the evidence in chief, which was in the following terms:

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Q. When you say you’ve never been arrested, have you ever been charged with a criminal offence in --

A. Never been arrested or charged or anything Sir.

Q. In Australia?

A. Anywhere in the world Sir.”

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97. No application was made at the trial for directions about character and the trial judge did not give any directions about character.

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99. I am not satisfied that in giving the evidence about his never previously having been arrested or charged with a criminal offence the appellant was intending to raise good character. The evidence was given in the context of the appellant proffering a reason why he had not told the full truth when interviewed by police. He said he had not told the full truth, because, not having previously been arrested or charged with any offence, it was a novel and terrifying experience for him to be interviewed by police.

100. The appellant gave evidence to a similar effect in cross-examination, where the following questions and answers occurred:-

“Q. So why didn’t you tell them the truth?

A. Because I was scared sir.

Q. What were you scared about, telling them the truth?

A. No sir, I’m scared because I’ve never been charged before, I’ve never been interviewed before, I’ve never had anything done with the police before.”

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103. In the present case, if good character had been raised, there was, on the appellant’s own evidence, much countervailing evidence of bad character. On the appellant’s own evidence, he had introduced Carlos to Kellaway and McGee for the purpose of money laundering and the proposed arms deal, whether or not it was illegal under Australian law, depended on the cooperation of members of the Chinese and Syrian armed forces who the appellant believed to be corrupt.

104. If the trial judge had been asked for and had given directions about the character of the appellant, the judge would have been required to remind the jury of evidence tending to show bad character on the part of the appellant, so as to enable the jury to determine whether it should find that the appellant was a person of good character.

Simpson J

158. I agree with James J

Bathurst CJ

1. I agree with Johnson J. I would only add the following in relation to Ground 5.

James J

6. I agree with the judgment of Johnson J and with the further remarks of the Chief Justice.

Johnson J

7. The Appellants, Calvin Abbosh and Saleh Bene, appeal against conviction and sentence, following a joint trial in the Sydney District Court before his Honour Judge Finnane QC and a jury in 2010.

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93. The Appellant Bene raised good character. The trial Judge gave the jury a written direction concerning good character which is not challenged in this Court (MFI21, paragraph 14).

94. However, during the course of the summing up, his Honour made additional observations to the jury on the issue of good character. His Honour said (SU30):

"Mr Bene is a person of good character, a police officer has said he had no previous criminal convictions and you can take that into account in determining whether or not he committed the offence. Now good character is not a sort of shield that prevents anybody ever being convicted of anything. Everyone until he is first convicted is a person of good character. There have been some amazing people who have been convicted in our courts over the years. I suppose the most spectacular fall from grace was that of Mr Allan [sic] Bond, he was a hero in Australia for winning the America's Cup, within a few years he had been convicted of fraud. The fact that he was a person of good character did not prevent a prosecution of him for fraud, nor did it prevent his conviction. No doubt it was taken into account by the jury at the time. Well you are invited to take it into account too. Certainly it has to be said that people of good character are much less likely to commit crimes than people of bad character. I think that is all I can really say about that."

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99. I am not persuaded that the direction given to the jury failed to communicate the use which the jury could make of evidence of the Appellant Bene's good character. It is noteworthy that no further direction was sought from trial counsel for the Appellant Bene, nor was any objection taken to the content of the written direction on this issue.

100. Of course, the trial Judge was at liberty to remind the jury of the self-evident proposition that people do commit crimes for the first time: R v Trimboli at 74.

101. The trial Judge placed an unhelpful anecdotal gloss upon the good character direction by the reference to Alan Bond. Such a comment was likely to distract rather than assist the jury. There is a risk that such a gloss will detract from the direction on good character to which an accused person is entitled at law.

102. That said, I am not persuaded that the present direction gave rise to any miscarriage of justice. This view is fortified by the absence of complaint by trial counsel for the Appellant Bene.

Johnson J

1. The Appellant, Nobutomo Tonari, appeals against his conviction by a jury in the District Court on 27 August 2012 with respect to five counts of aggravated sexual intercourse without consent under s.61J(1) Crimes Act 1900 and two counts of indecent assault under s.61L of that Act.

Ground 5 - The Trial Judge Erred in his Directions as to the Relevance of the Appellant's Good Character

122. The Appellant gave evidence that he had never been charged, arrested or convicted of any offence in Japan or elsewhere. Detective Fiennes confirmed that the Appellant had no criminal history in Japan, following enquiries made with Interpol, and that he had no criminal history since his arrival in Australia in April 2011. Defence counsel addressed the jury on the Appellant's good character.

13. The trial Judge gave the following directions concerning the use of good character (SU53-54):

"Another important matter which arises out of some particular aspects of the evidence is that going to the character of the accused. You have heard - and again you were reminded of this by the counsel for the accused, Mr Taylor - that there is no evidence, the police were unable to find any evidence of any prior criminal record of any sort on the part of the accused or of any investigation of a criminal nature carried out, apart from this particular matter, with regard to the accused. He has, in that sense, a completely criminal-free record. That is, I must explain, regarded as evidence of good character.

Now, you are entitled to take that evidence into account in the accused's favour in generally addressing the questions you have to decide, that it might impact on your overall assessment of the evidence and that is a perfectly legitimate use to make of that evidence.

I have to say, however, that people of good character do commit crimes. In other words, it is not a defence. If somebody is of good character, they cannot simply put forward and say 'Therefore I didn't do it, you must find me not guilty', but it is something which you may nonetheless consider assists you in your overall assessment of the evidence and, in particular, it may have some bearing on your assessment of the accused as a truthful witness. But, please remember, that while it is relevant and while it may offer some assistance to you in those particular respects, it is not of itself a defence to the charges against the accused."

124. Defence counsel sought further directions from the trial Judge on the issue of character (SU75-76). In particular, counsel sought a direction that the jury could take into account the Appellant's good character by reasoning that such a person was unlikely to have committed the offences charged by the Crown. The trial Judge declined to give any further direction concerning character, expressing the view that the direction given was sufficient.

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130. Here, the Appellant's trial counsel sought to rely upon evidence of the Appellant's good character in both respects identified by McHugh J in Melbourne v The Queen. The Criminal Trial Courts Bench Book (at [2-370]) contains a relatively straightforward suggested direction concerning good character. The trial Judge did not follow this suggested direction in this case. Of course, his Honour was not bound to do so.

131. The issue for this Court, however, is whether the directions actually given involve misdirections to the jury on this issue. I am not persuaded that they do. The jury was reminded of the evidence concerning absence of criminal convictions, and was given directions that the Appellant's good character could be taken into account in addressing the Appellant's guilt, and also in the assessment of his evidence. Nothing said in R v Robinson assists the Appellant in this case.

132. A direction that good character is not a defence is, of course, an orthodox direction: Abbosh v R [2011] NSWCCA 265 at [100].

133. Although a simpler formula of words would have been preferable, I am not persuaded that the direction given to the jury failed to communicate the use which the jury could make of evidence of the Appellant's absence of prior convictions and his good character. Nor am I persuaded that the words used by the trial Judge served to weaken the direction.

134. I would reject this ground of appeal.

Price J

222. I find myself in complete agreement with the judgment of Johnson J. I should add in respect of ground 6 that having considered the totality of the evidence before the jury, I am satisfied beyond reasonable doubt that the appellant is guilty of the offence against s 61L (counts 2 and 6) and, in respect of counts 1, 3, 4, 5 and 7, of offences against s 61l of having sexual intercourse without consent.

223. I agree with the orders proposed by Johnson J.

RA Hulme J

224. I have had the advantage of reading the judgment of Johnson J in draft.

225. I agree with his Honour's reasons and conclusions in relation to grounds 1 to 5.

Hoeben CJ at CL

1. In July and August 2014 the applicant was tried before Berman SC DCJ and a jury for attempting to wound his cousin, Sleiman Chidiac, with intent to cause grievous bodily harm (count 1) and for recklessly wounding Nowell Chidiac (Sleiman Chidiac’s sister-in-law) (count 2) or alternatively assault occasioning actual bodily harm to Nowell Chidiac (count 3). The applicant was convicted of count 1, but acquitted of counts 2 and 3.

3. The applicant has appealed against his conviction on the following ground:

Ground 1 – His Honour erred in directing the jury that it could bear in mind the possible commission of other offences by the applicant when considering his character.

The applicant concedes that this asserted error was not raised at trial and accordingly he requires a grant of leave pursuant to r 4 of the Criminal Appeal Rules.

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8. It was the Crown case that between 7.30pm and 8pm on Saturday, 9 March 2013 Sleiman Chidiac drove past the applicant’s shop in a black Range Rover on his way to his brother Yusef’s house. His three young children were in the back of the car. As he approached, the applicant “jumped” up, gestured with his hands and yelled out threats. Sleiman Chidiac stopped his vehicle around the corner and exited with his children. He could still hear the applicant yelling. The applicant returned to his shop and emerged with a knife in his right hand which he held behind his back. He then walked towards Sleiman Chidiac.

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11. The applicant approached Sleiman Chidiac with his right hand behind his back. When he came within a metre of Sleiman Chidiac, he pulled the knife from behind his back, raised it with his right hand and brought the knife down in a stabbing motion. Sleiman Chidiac grabbed at the applicant’s right wrist and the knife grazed his forearm. As Sleiman Chidiac tried to disarm him, the applicant continued to make threats.

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19. At trial evidence of good character was called on behalf of the applicant. Michael Kalil, a friend of 15 years, gave evidence that he knew the applicant as a family man and as an honest and correct person. To Mr Kalil’s knowledge he was not the sort of person who would be likely to stab anyone. In cross-examination Mr Kalil agreed that he did not know how the applicant would react when he was angry because he had never seen him angry.

20. Written character testimonials by Neyif Hanna and Michael Aboud to similar effect were tendered at trial as Exhibits C and D respectively. It was common ground that the applicant had no criminal record and was not known to police.

The Appeal

21. The applicant submitted that it was agreed that he was a man of prior good character and that this was not disputed by the Crown. His counsel concluded his closing address by reference to his applicant’s good character.

22. In summing up to the jury, the trial judge instructed them to take the applicant’s good character into account. The applicant accepted that his Honour’s direction as to good character was unexceptionable except for the final paragraph where his Honour said (emphasis added):

“On the other hand, Mr Habib is not an eighteen year old. He is older than that and so you might think the fact that he has not, up until now, committed any criminal offence is an important matter that you can take into account. On the other hand, of course, as Mr Russell acknowledges, there were perhaps offences that Mr Habib did in fact commit that night, threatening somebody with a knife, carrying a knife in a public place, so bear that in mind too when you consider Mr Habib’s character.”

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34. Looked at in context, what his Honour said was very different to the direction impugned in R v Alkaitis. His Honour’s direction made no mention of “bad character” and most particularly, did not raise the possibility of “bad character” being relevant to the likelihood of the applicant committing these offences. The total effect of his Honour’s direction was positive, so far as the applicant was concerned. It ended with an appropriate qualification that in assessing good character, the jury also had to take into account the acknowledged offending which might also have occurred that night.

35. The content of his Honour’s character direction is consistent with that which was approved by the House of Lords in Regina v Aziz [1996] AC 41. That was a case where the trial judge had given what the court described as a “credibility” good character direction in respect of two accused and a “propensity” good character direction in respect of another. There was evidence that the two offenders, who had received only the “credibility” direction had committed other illegal (dishonest) conduct for which they had not been convicted. The Court of Appeal held that all three should have received both credibility and propensity good character directions, quashed the convictions and granted retrials.

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37. It follows that I am not satisfied that there was error in his Honour’s direction as to good character. Even if his Honour did err and it is found that he should have given a more comprehensive direction which took into account the possibility of a finding of bad character, there is no indication that the jury took his direction into account in that way. There was simply no mention of bad character anywhere in either the addresses of counsel or the summing up. The summing up on character was positive in its terms and favoured the applicant. The ultimate qualification did no more than make it clear to the jury that the positive value which they could give to the applicant’s good character might need to be tempered by regard to his acknowledged earlier offending.

38. Such a conclusion is strengthened by the fact that the applicant was acquitted of counts 2 and 3, that there was no suggestion by the Crown that the applicant was not a person of good character and that counsel for the applicant did not consider it necessary to seek a redirection as to good character. Accordingly, even if there were an error in the direction, I am not satisfied that any miscarriage of justice occurred. It could certainly not be said that the applicant lost a chance of acquittal which was fairly open. This ground of appeal has not been made out.

Price J

41. I agree with Hoeban CJ at CL

Button J

42. I agree with Hoeban CJ at CL

Hoeben CJ at CL

1. I agree with Price J and the orders which he proposes

Price J

2. The appellant was tried before Freeman ADCJ without a jury in June and July 2013. He had entered pleas of not guilty to all seven counts on the indictment. Counts 1 to 4 were alleged to have been committed against the appellant’s niece, MP, whereas counts 5 to 7 were alleged to have been committed against his great niece, KM (MP’s daughter). A short summary of the trial is as follows:

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28. Having abandoned the appeal against sentence, there are four grounds of appeal against conviction. They are as follows:

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Ground 4: the Trial Judge erred in allowing evidence that the [a]ccused had been “charged but not convicted” of sexual assaults and/or of failing to direct himself as to the proper use that could be made of this evidence.”

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Ground 4: the Trial Judge erred in allowing evidence that the [a]ccused had been “charged but not convicted” of sexual assaults and/or of failing to direct himself as to the proper use that could be made of this evidence.

Argument

65. The appellant submitted that the judge erred in failing to give himself a limited good character direction regarding the appellant’s lack of convictions for sexual assault. This Court’s attention was drawn to the following passage in the judgment (Tcpt, 1 August 2013, p 25):

“There is one further area which needs to be explored. Mr Maaraoui submitted that the accused was entitled to claim good character in a particular respect in that he has no convictions for sexual assault. If I were persuaded that the accused has good character in this respect then I would direct myself that his good character is to be taken into account in two ways. Firstly, he is less likely to have committed these offences and, secondly, his denials should be given greater weight.

It is a fact that the accused has no convictions for sexual assault. However, he has been twice charged with offences of that nature. On one of those occasions he says the charges were dismissed at committal. The complainant had not been cross-examined. On the other occasion he was committed to stand trial but the complainant did not attend and the Crown offered no evidence. Whilst his character has not been impugned by conviction it has been called into question on two occasions and has not been tested. I decline to give myself a direction that he should have the benefit of good character in this respect. His character has played no part in my assessment of him either for or against him.”

69. The appellant told the judge that he had been charged with sexual offences on two separate occasions but had not been convicted. In cross-examination, he said that the first matter had been listed for trial, but the complainant had not turned up to give evidence. He had been acquitted by the jury following a direction from the trial judge.

70. The appellant agreed that on the second occasion he had been charged with sexual assault, there were two complainants. He said that the sexual assaults were “thrown out” at the committal proceedings. The appellant agreed that the complainants had not come to court. He said “they were scared to come to court”, that they could not be found (Tcpt, 15 July 2013, p 698).

71. The appellant’s counsel asked the judge to give himself a good character direction that was limited to his lack of convictions for sexual assault. As can be seen from the passage quoted at [65] above, the judge accepted that the appellant had no such convictions but observed that (Tcpt, 1 August 2013, p 26):

“Whilst [the appellant’s] character has not been impugned by conviction, it has been called into question on two occasions and has not been tested.”

72. His Honour declined the appellant’s request for a limited good character direction.

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75. The judge was clearly aware that the limited evidence of good character might be relevant to the likelihood of the appellant having committed the crimes and could be used to support his credibility. However, his Honour was not persuaded in the appellant’s circumstances that the lack of convictions for sexual offences would have any probative force in determining whether the appellant was guilty of the sexual offences, the subject of the trial, beyond reasonable doubt. In my view, the judge did not err in declining to give the direction.

76. Furthermore, it would make little sense to require the judge to direct himself as to the absence of sexual assault convictions when it is plain that he would give no weight to that evidence.

Fullerton J

79. I also agree with Price J and the orders he proposes.