Ground of Appeal 1(c) : absence of a jury direction
70 The complaint with respect to this ground of appeal concerns the failure of the trial judge in his summing up to direct the jury as to the use they might make of the evidence of the "lie" to the Department of Social Security and the suggestion by the Crown to the appellant that he was a person who was willing to lie when it suited him. It was submitted that it was crucial for the trial judge to have directed the jury that this evidence was admissible only as to the appellant's credit and that they could not use it to engage in propensity reasoning. That is, they could not reason that because the appellant had admitted to defrauding Social Security, this made it more likely that he had committed the offence with which he was charged.
71 His Honour's direction to the jury in his summing up with respect to the appellant's good character evidence was as follows (at AB 805-806):
"The accused called evidence to establish that he is a person of good character. That evidence was to the effect that he has no prior criminal convictions and indeed has never previously been charged with a criminal offence, either here or in Lebanon where he spent his early life. You may accept that, if that evidence were not true the Crown would have led evidence to rebut it.
The accused has also led other evidence to the effect that generally he is a man of good character, particularly in his family and personal relationships and that he is a man who takes his religion seriously. On the other hand it has emerged that he was dishonest in his dealings with the Department of Social Security in relation to a carer's pension for his wife. It is a matter for you to decide whether you think that in any relevant sense the accused is a man of good character . If you think that relevantly to the charge he faces he is a man of good character then you may take that into account in the following way. First of all the fact that he is a person of good character entitles you to consider the improbability of him having committed the offence alleged . In other words you are entitled to take the good character of the accused into account on the question of his guilt . Secondly, the accused has given evidence in this trial. The fact that he is a person of good character would support his credibility. This is a factor which the accused is entitled to have you take into account therefore when deciding whether or not you accept his evidence. None of this, of course, means that good character provides the accused with some kind of defence. It is only one of the many factors which you are to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused. In other words of course people do commit crimes for the first time and evidence of previous good character cannot prevail against evidence of guilt which you find convincing notwithstanding the accused's previous good character." (emphasis added)
72 The portion of the above passage which I have first emphasised comprised the only reference by the trial judge to the pension card issue apart from the following passage towards the end of his summing up where he was relating to the jury the submissions of the Crown and the defence. He said (at AB 837):
"Mr Webb reminded you of the extent to which the accused relies upon his good character in the ways that I have already mentioned you may use that evidence and said in effect that you would not regard as significant the evidence as to obtaining a social security benefit to which he was not entitled. Mr Webb submitted that the accused admitted what he had done to you and that you would regard him as a truthful witness."
73 His Honour had correctly instructed the jury in the portion of his summing up (the second part that is emphasised) that it was entitled to take into account the appellant's good character when considering the improbability of his having committed the alleged offence. Further, he correctly directed the jury that that evidence would support his credibility. The complaint that is made is that, having referred to the fact that he was dishonest in his dealings with the Department of Social Security in relation to the carer's pension for his wife, and that this fact may impact upon whether they considered him to be a man of good character, his Honour did not go on to instruct the jury as to what use they could make of that evidence if they accepted that it negated the evidence of the appellant's good character and established him as a person of bad character. In other words, the only direction that his Honour gave was that the jury in determining whether the appellant was a man of good character could take the pension card issue into account. That direction was then immediately followed by a direction that they were entitled to use the fact that the appellant is a person of good character (if they so found) when considering the improbability of his having committed the alleged offence.
74 By not directing the jury that if they found the appellant was a person of bad character as a consequence of his dishonest dealings with Centrelink, they could only use that evidence when considering the appellant's credibility but could not take it into account on the question of the appellant's guilt. A finding by the jury that the appellant was a person of bad character did not entitle them to consider the probability of his having committed the offence with which he was charged because of that fact. Without such a direction so it was submitted, the jury may well have taken the view that if they found the appellant to be a person of good character, they were entitled to consider the improbability of his committing the offence as charged, and that if they considered him a person of bad character, they were entitled to consider the probability of his committing that offence.
75 Reliance was placed by the appellant upon the decision of this Court in R v Hamilton (1993) 68 A Crim R 298. Hunt CJ at CL, with whom Finlay and Levine JJ agreed with respect to the relevant considerations applicable to the raising of character, commenced his judgment (at 299) by noting that under s 412 of the Crimes Act 1900 evidence of good character may demonstrate that it is unlikely that, as a person of good character, the accused would have done the act charged. As a corollary, the evidence may also support the credibility of a denial by the accused that he or she did the act or did it with the relevant specific intent and hence the unlikelihood of his or her guilt.
76 His Honour then referred to the fact that once character has been raised by the accused, the Crown becomes entitled to elicit or lead evidence of bad character to rebut the evidence of good character upon which the accused relies. That is now subject to provisions such as s 112 of the Evidence Act.
77 After noting that the admissibility of evidence of bad character is subject to the discretion of the trial judge to exclude it in circumstances now covered by provisions such as s 135, s 137 and s 192 of the Evidence Act, his Honour observed that prejudice is inevitable from the admission of such evidence although mere existence of that prejudice alone will not justify the discretionary exclusion of it. His Honour then continued (at 299-300, omitting citations):
"The jury must carefully be directed that the evidence of the accused's bad disposition may be used by them only as rebutting the evidence of good character upon which the accused relies; they must not use it as showing that the accused, as person of bad disposition, was likely to have committed the crime with which he or she has been charged. But no matter how carefully the jury may be directed and no matter how conscientiously they may seek to comply with those directions, it is clear that usually such evidence of bad disposition can be damning to the accused, and that it can significantly reduce any prospect that he or she will be acquitted."
78 Reliance was also placed upon the following passage from the joint judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ, in Zoneff v The Queen (2000) 200 CLR 234 at 245:
"23. A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.'
24. A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence."
79 The lies to which the above passages from Zoneff refer, related to lies allegedly told by the accused when cross-examined - it was not the Crown's submission that those lies were capable of stemming from a consciousness of guilt. The trial judge was apparently concerned that there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to any lies which had been elicited in cross-examination. He gave a direction which their Honours in the High Court considered inappropriate. The appropriate direction in the circumstances was that which they essayed in [23] of the judgment referred to above.
80 It seems to me that the direction to which Hunt CJ at CL referred in Hamilton, and which I have extracted in [77] above is the type of direction to which the joint judgment was referring in Zoneff with appropriate adaptations. In the present case the trial judge correctly directed the jury that the appellant's dishonest dealings with the Department of Social Security could be taken into account by them when considering whether or not the appellant was a person of good character. That was a very live issue in the trial. His Honour failed to warn the jury that it was not to follow a process of reasoning to the effect that just because the appellant had been shown to have been dishonest in his dealings with the Department of Social Security, that that was evidence that could be utilised for the purpose of determining whether he was guilty of the offence charged. That, of course, involved criminality of an entirely different nature to his dishonesty in relation to the pension card issue.
81 The failure to so warn the jury, especially, where the reference to the pension card issue was immediately followed by an instruction that it was open to the jury, if they found the appellant to be a person of good character, to take that into account on the question of his guilt, clearly gave rise to the risk of a misunderstanding by the jury as to the significance of that issue and, in particular, to the risk that they might well consider that any finding by them of bad character, could be taken into account on the question of the appellant's guilt.
82 For the foregoing reasons and in particular, given the juxtaposition by the trial judge in his summing up of his reference to the appellant's dishonest dealings with the Department of Social Security and the use to which the jury could utilise evidence of good character on the question of the appellant's guilt, it became imperative for his Honour to direct the jury that they must not use evidence of bad character, if so found, to show that the appellant was likely to have committed the offence with which he had been charged.
83 The Crown nevertheless submitted that a Hamilton-type direction was unnecessary. It relied upon the following passage from the joint judgment of Gleeson CJ and Hayne J in Dhanhoa v The Queen (2003) 199 ALR 547 where at 554 [34], their Honours said:
"It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards or of the kind referred to in Zoneff , every time it is suggested in cross examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies."
84 In their joint judgment, McHugh and Gummow JJ stated the test (at 559 [60]), where an accused's out of court statement is said to be a lie but the Crown does not suggest that the accused has lied because he had a consciousness of guilt, in terms that there is no miscarriage of justice where the trial judge has failed to direct the jury as to the use they can or cannot make of the accused's lies unless the accused establishes that it is a reasonable possibility that the failure to direct the jury "may have affected the verdict".
85 The Crown points out, correctly, that no request was made by trial counsel for the appellant to the trial judge that the jury be directed against engaging in propensity reasoning with respect to any evidence of bad character that they might find. It submitted that the position with respect to evidence of bad character should be no different to that with respect to evidence of good character where it is now established that the trial judge is not obliged to direct a jury about an accused's good character, but has a discretion whether or not to do so after evaluating the probative significance of the evidence in relation to both the accused's propensity to commit the crime charged and the accused's credibility: Melbourne v The Queen (1999) 198 CLR 1 at 14 [30] per McHugh J; at 57 [157] per Hayne J.
86 I would reject the submission that the principle so articulated in Melbourne is equally applicable to evidence of bad character. As McHugh J points out in Melbourne at 16 [36], the common law has for more than a century drawn a distinction between the admissibility of evidence of good character and the admissibility of evidence of bad character in a criminal trial. As his Honour observed:
"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."
87 His Honour then goes on to refer to the development by the common law of strict rules for the admissibility of evidence designed to prove that, by reason of his or her character or propensities, the accused is likely to have committed the crime with which he or she is charged. This is known as propensity evidence and is the subject of specific provisions in the Evidence Act. But what is clear is that evidence of bad character cannot be used by a jury to infer guilt in the substantially less restricted way in which evidence of good character can be used by the jury for the purpose of inferring lack of guilt.
88 In my opinion, given that immediately before the trial judge had specifically directed the jury as to the use they could make of evidence of good character, he had indicated to the jury that, in effect, they could take into account the appellant's dishonest dealings with the Department of Social Security when determining whether he was a man of good character, his Honour should have appreciated that there was a real risk or danger that the jury, if they came to the view that the appellant was not a man of good character, might impermissibly apply to their conclusion that he was a person of bad character, similar reasoning to that which they had been directed they could utilise if they found good character. To adopt the expression of McHugh and Gummow JJ in Dhanhoa, there was a reasonable possibility that the failure of the trial judge to direct the jury that, if they found bad character as a consequence of the pension card issue, they could not use that evidence other than with respect to the appellant's credibility. In particular, they could not take it into account on the question of his guilt in the sense that, because he was a person of bad character, it was more probable that he committed the offence charged.
89 Finally, the Crown submitted that because the evidence relating to the pension card issue had been introduced, albeit accidentally, by the appellant and was thereafter deliberately expanded upon in his evidence-in-chief for the purpose of bolstering his credibility in denying his involvement in breaking open the flywheels to recover their contents, no miscarriage of justice resulted from the failure of the trial judge to give what was referred to as a Hamilton direction.
90 There is no doubt that trial counsel for the appellant sought to turn the issue to the appellant's advantage. In his final address he submitted to the jury that at the end of the day what was important in the trial was whether or not the appellant had been honest with the jury. The following was advanced (at AB 793):
"He told you something which you might not think might not otherwise be in his interests but he told you the truth in his evidence and in respect of that matter that is something that you would take into account in my submission in his favour."
91 In the Crown Prosecutor's final address, reference was made (at AB 751) to the volume of evidence about the appellant's character. It was also put to the jury that there was evidence that the appellant provided false information to Centrelink in relation to his carer's pension and that he had lied to Centrelink. The following submission was then made:
"I anticipate that the defence will indicate to you that the revelation by the accused of this lie demonstrates his truthfulness, and the Crown suggests that you would reject any such submission. The fact is members of the jury that the accused lied when it suited his purposes, and admitting to a lie does him no credit. The Crown submits to you that you would not use the fact that he lied and then admitted it to find that he is in fact a witness of the truth."
92 There is no doubt that the Crown confined its submissions to the jury with respect to the pension card issue to the contention that that evidence was highly relevant to the appellant's credibility. However, in my opinion, neither that fact nor the fact that trial counsel for the appellant sought to utilise the evidence in order to bolster the appellant's credibility detracts from the risk that the jury unless instructed otherwise may have impersonally considered that they could use any finding by them that the accused was not a person of good character, to reason that it would make it more likely that he had committed the offence charged. That risk I consider to be both real and significant given the juxtaposition by the trial judge in his summing up of the pension card issue and the use that the jury might legitimately make of evidence of good character on the question of the appellant's guilt. The jury unless instructed otherwise, may have impermissibly considered that they could use any finding by them that the accused was not a person of good character to reason that that would make it more likely that he had committed the offence charged. There was at the very least, a reasonable possibility that the jury convicted the appellant because, having found that he was a person of bad character due to his dishonest dealings with Centrelink, it was more probable that he was guilty of the offence with which he was charged.
93 I have already noted that trial counsel for the appellant did not seek a Hamilton direction from the trial judge. Rule 4 therefore applies. In my opinion the overriding duty of his Honour to ensure a trial according to law obligated him, irrespective of whether the direction was sought, to instruct the jury accordingly: BRS v The Queen (1997) 191 CLR 275 at 302, 306. The defence case very much depended upon the jury's belief in the honesty of the appellant which in turn depended upon their finding that he was a person of good character. The failure of the trial judge to properly direct the jury resulted in the appellant being denied a real chance of an acquittal and hence a fair trial. In these circumstances, in my opinion, there has been a miscarriage of justice as a consequence whereof leave should be granted pursuant to Rule 4 and this ground of appeal should be upheld.