R v Hinschen [2008] QCA 145

SUPREME COURT OF QUEENSLAND

CITATION: R v Hinschen [2008] QCA 145

PARTIES: R v HINSCHEN, Beau Ernest (appellant)

FILE NO/S: CA No 249 of 2007 / SC No 27 of 2007

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Mackay

DELIVERED ON: 6 June 2008

DELIVERED AT: Brisbane

HEARING DATE: 1 April 2008

JUDGES: Fraser JA, Fryberg and Lyons JJ / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where the appellant was convicted after a trial of one count of murder – where the appellant appealed on the ground that the trial judge’s discretion miscarried because the trial judge failed to direct the jury as to the legal effect of evidence about the appellant’s good behaviour – where the appellant submitted that the trial judge ought to have directed the jury to consider the improbability of the appellant having committed the offence in light of the history of his good character deposed to by witnesses – where it was clear that the trial judge’s remarks to the jury drew to the jury’s attention their entitlement to take into account the fact that the evidence of the appellant’s character was inconsistent with the offence – where the trial judge did not express those remarks as a direction – where there was some evidence that might have explained why the trial counsel did not seek such a direction – whether the jury would have failed to give the evidence of the appellant’s good character such weight as it deserved – whether by not making the direction to the jury the discretion of the trial judge miscarried / Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15, cited / Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, distinguished / Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, distinguished / TJWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited / Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited

COUNSEL: P J Callaghan SC for the appellant / M J Copley for the respondent

SOLICITORS: Robertson O'Gorman for the appellant / Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: On 4 September 2007 the appellant was convicted after a trial of one count of murder. He appeals on the ground that the trial miscarried because the trial judge failed to direct the jury as to the legal effect of evidence about his good character.

Such a direction is not required in every case in which character evidence is adduced.¹ The submission for the appellant was that the trial judge's discretion miscarried because the issues in this trial were such as to demand an appropriate character direction.

On behalf of the respondent it was contended that no such direction was required and that to give it would have distracted the jury from the more significant issues in the case, possibly to the appellant's detriment. The respondent also contended that in any event there was no miscarriage of justice and that, assuming that such a direction was required, the Court should dismiss the appeal by applying the proviso in s 668E(1A) of the Criminal Code 1899 (Qld).

In order to address these competing submissions it is necessary to summarise the evidence, the issues, and the relevant parts of the trial judge's summing up.

Summary of the evidence

The Crown case was that the appellant had killed Suzanne Standing whilst she was outside her home in North Rockhampton on the evening of Friday 5 August 2005. It was a shockingly violent killing. The medical evidence of Dr Buxton was that the deceased was gripped around the throat, but not with a degree of ferocity that was likely to be fatal. She was struck in the face with sufficient force to shatter her nasal bones and her cheek bone was broken, and she had two black eyes. Dr Buxton said those injuries were consistent with a head-butt but also consistent with a kick or kicks. The deceased had been stabbed three times. One stab wound was to the chest, one was to the front of the neck and penetrated the carotid artery, and the third was to the side of the neck and pierced the jugular vein. If the first two wounds had not been inflicted the deceased may well have died anyway from the third, although it was possible she may have survived. On the evidence the first two stab wounds were the fatal ones, either separately or in combination.

Standing had a young child in respect of whom she was in a custody dispute with Scott Jobling, with whom she had previously been in a relationship. There was to be a court hearing about the custody dispute on Monday 8 August 2005.

Telephone records of communications between Jobling and the appellant directed the attention of the police to the appellant. Upon a search of the appellant's residence the police found photographs of the deceased's house stored on the appellant's digital camera. The appellant then gave a series of inconsistent statements during voluntary interviews with the police, starting on Wednesday 10 August 2005.

The appellant at first denied any involvement at all in the murder. He did, however, implicate Jobling. He referred to his discussions with a mutual friend to the effect that Jobling had not had a good relationship with the deceased and that Jobling might be responsible. He said that the mutual friend said that Jobling had said to her something along the lines of "it would be cheaper if I got someone else to do it". The appellant explained away the photographs in his camera by saying that he took them after the murder, on Tuesday 9 August 2005, to show the mutual friend.

In the appellant's second interview, which commenced very late on the same day (10 August 2005) and continued into the following day, the appellant agreed that he had told some lies in his first statement. In particular, when confronted with a suggestion that the appellant's camera records indicated that the photographs of the deceased's house had been taken on the Tuesday before the murder, he claimed that they were taken on the Friday (the day of the murder). He said that he had been with Jobling when the photographs were taken for the purpose of their use by Jobling in the imminent custody proceedings. The appellant continued to deny any involvement in the death, but he claimed that in a conversation with Jobling about two weeks before the death, Jobling had "just turned around and looked at me with the blankest expression in his face and said would you every kill anyone?" The appellant said he gave a negative response. The appellant further implicated Jobling, saying that a mutual friend had told him that Jobling and another person had said to each other in the past "that you kill mine I'll kill yours", but the appellant did not take it seriously.

In this interview a number of other inconsistencies in the appellant's previous statements to the police were put to him, particularly concerning his telephone contacts and movements about the time of the death. One of those matters concerned a conversation with his girlfriend, Claire Dredge. The appellant said that on about the Wednesday before the death he lied to her by saying that he would be occupied on Friday (ie, the day of the death) from about 4.00 pm until about midnight in travelling to and from and working at the Blackwater mine. (It is about two hours driving time from Rockhampton.) The appellant explained that he had to lie to his girlfriend sometimes because he found it "hard to . . . prioritise university and spending time with her". The appellant said that rather than being at Blackwater, he had in fact driven out with Jobling on the road near the deceased's property to take the photographs; he had returned home and printed out the photographs; he had gone out to the university and thrown the photographs away there (because they were of no use); he had returned home at 4.00 pm; there he had eaten and done some university work and watched television; he then telephoned his girlfriend at about 9.30 or 10.00 pm and falsely told her he was then at Blackwater; and later in the same evening he had an intimate communication through a message service on his computer with a girl in Canada he had never met.

The appellant also gave varying versions of the particular times of these events, and there were some inconsistencies between his version and that of Claire Dredge. (Claire Dredge gave evidence that the appellant had told her on about Tuesday or Wednesday of the week of the death that the appellant would be absent from Rockhampton on Friday because he had to go to Blackwater to fill in for some other workers who were on strike, and that he would not be back in Rockhampton until later that night.)

After that interview concluded, the appellant started crying and giggling in succession. He then sat in silence for a while before confessing to police that he had murdered the deceased. He repeated that confession in a recorded interview (exhibit 9), in a recorded re-enactment (exhibit 10) and in a later written statement (exhibit 12), which together were described at the trial as "the first confession".

In the appellant's first confession he said that Jobling had first asked him to kill the deceased about two weeks before the event because the appellant wanted custody of their son. The appellant said that Jobling promised him $8,000, which was enough for the appellant to repay a loan for his car. (The appellant was behind on his car repayments and he had no apparent prospect of finding the money, other than from his parents coming to his aid, as they later did.) The appellant said that he initially demurred but that Jobling persisted in his request.

The appellant said that on the Monday immediately before the death he agreed to kill the deceased if Jobling paid him $9,000 and that Jobling agreed to pay that amount in cash on the following Monday.

The appellant said that Jobling told him to kill the deceased on either a Tuesday or Friday, those being the days on which the appellant had custody of the child. The appellant said that on the Tuesday before the death they drove together out to the deceased's house where the photographs were taken in order to show the appellant where to go. Jobling gave particular directions about where the appellant could park his car, how to approach the deceased's house along a railway line, and when would be the best time. The appellant said that he felt that he could not back out of his agreement and that otherwise "it was either Sue or me". (This was a reference to threats by Jobling, later detailed by the appellant.)

The appellant claimed that on the day of the death Jobling continued to apply pressure to him, saying that the appellant did not have "the balls" to do it, to which the appellant responded that he would do it. The appellant said that Jobling said that he would see the appellant the following day to arrange to pay him and added that he would be at his parents' house that evening to arrange his alibi.

The appellant described in detail the events preceding the death. He said he drove out to the place identified by Jobling where he could park, taking a bicycle, a bag and a knife wrapped in a tea towel. His plan was to strangle the deceased and he took the knife in case he needed it. From the parking spot he rode his bicycle to the railway line running parallel to the highway where the deceased's house was; he rode along that line until he was opposite the deceased's house; he left his bike there, crossed the highway and hid in a place in shadow in the deceased's backyard. He smoked a cigarette whilst waiting there but put the cigarette butt in his bag, as he said Jobling had told him to do so, so that there would be no evidence.

The appellant said that about 8.00 pm he moved to sit near the door from the house that led to the carport, Jobling having told him that the deceased would leave her house at about 9.00 pm. He described the noise made by the opening and shutting of the back sliding glass door when the deceased left the house to go towards her car at about 9.10 pm. He then described the killing in detail. There was a struggle in which both fell to the ground. When the deceased attempted to escape the appellant punched her in the face several times. (There was evidence to the effect that there was bruising on the appellant's right hand knuckles and a small abrasion between his fingers on that hand, as well as minor bruising on the surface of his left hand, those injuries being consistent with hitting or punching something. He told police that these punches were the explanation for those injuries to his hands.)

After attempting to strangle the deceased, he noticed that her legs were still moving so he ran to the bag, got the knife out and stabbed the deceased twice, once in the neck and then once through the chest.

He said that as he was walking back along the train line to his bike, he rang his girlfriend and told her that he was in Blackwater and that he would see her in about two hours.

He described how he cleaned his knife under the tap to get rid of the blood and washed the tea towel and his clothes after he returned home. He said that later that night he went to his girlfriend's place.

When Jobling did not come and see the appellant on the following days, he telephoned him on Monday 8 August but was unable to contact him. (The call was confirmed by records of the telephone usage.)

He then explained his failure to confess to the police in the first interview on Wednesday 10 August as being due to his fear and unreadiness "to face up to what I had done". He explained his confession as being a result of him being unable to bear the feelings he had anymore. He acknowledged that he had done something terribly wrong and he accepted that he was "totally responsible" for it and relieved at having admitted to it.

Five days later, the appellant gave a different version to his solicitor, who recounted it to the police. The solicitor had told the appellant that the solicitor did not believe the confession. In response, the appellant claimed to have assisted Jobling by collecting him in his car and allowing Jobling to use a knife taken from the appellant's residence. The appellant claimed that he had dropped Jobling off at the vacant house and waited for him there, thinking that Jobling would only threaten or frighten the deceased. He said that Jobling had returned to the vehicle and bragged about the killing. The appellant's explanation for not having given this version to the police was that the appellant was afraid of what Jobling might do to him and to his girlfriend.

The final version given by the appellant was the one upon which he relied at trial. This was contained in an affidavit sworn for the purposes of a bail application. It was tendered as part of the prosecution evidence at trial.

In this affidavit the appellant said that he had gone with Jobling to the deceased's house and attacked the deceased. He said he did this because Jobling threatened harm to him and to his girlfriend. The appellant said that Jobling produced a small black revolver whilst the two were at the appellant's residence, pointing it at the appellant and making threats. The appellant said that Jobling had said the word "choices", a reference to an earlier conversation in which Jobling had told the appellant he had three choices - in effect, that one of the deceased, the appellant or the appellant's girlfriend would die.

The appellant said that when he was attempting to strangle the deceased and fell to the ground, Jobling pointed the gun at the appellant's head and said, "hold onto the bitch otherwise there'll be two dead people here tomorrow." Jobling then gave the knife to the appellant and told him to stab the deceased.

The appellant claimed that because Jobling had the gun pressed to his head he stabbed the knife into the right side of the deceased's neck, deliberately not too deeply. He said that Jobling straddled the deceased and the appellant moved away. Jobling said, "this is for breaking my heart" and stabbed the deceased in the heart with the knife going into the hilt. The appellant said that when Jobling also repeatedly kicked the deceased in her head the appellant attempted to intervene. (He said that this was the explanation for his injuries to his hands.)

The appellant's explanation for his first confession was that he was afraid of Jobling both for himself and even more for his girlfriend. He said that when he dropped Jobling at home after the killing Jobling had said to him, "is it 2 Moss Court" (which he said was a reference to the appellant's girlfriend's address), as a result of which the appellant returned there to be with her from then on. He claims to have seen a car driving slowly past the house after he arrived there.

The Crown adduced evidence from Jobling's parents supporting Jobling's alibi. The Crown also pointed out that had Jobling intended to participate in the killing there would have been no need for the photographs on the appellant's camera to have been taken at all, yet the evidence showed clearly that they had been taken through the cracked windscreen of a car in Jobling's possession on the day upon which the photographs were apparently taken, 2 August 2005.

Further, the Crown adduced evidence from a friend of the appellant's, Saxty, that shortly before the death the appellant had told him that Jobling had offered to pay him $10,000 to kill the deceased because of maintenance and other issues. Saxty said, in substance, that the appellant should not get involved. In cross-examination, Saxty agreed that the appellant had responded to the effect that he wasn't going to do it.

Telephone records showed that the appellant called Jobling on the date that the appellant said in his first confession had been nominated for payment, 8 August 2005, as well as earlier phone calls at 11.25 am and 1.55 pm on 5 August.

The appellant relied upon evidence said to cast doubt about the reliability of the appellant's first confession. The appellant had clearly described only two stab wounds - one in the neck and one in the chest - but there were three wounds. It was submitted that this left open the possibility that Jobling had inflicted a wound of which the appellant was unaware. The Crown argued that the appellant might easily have been unaware of the number of stab wounds he had inflicted.

The appellant also relied upon medical evidence pointing out that the cheekbone is a very strong bone and that the damage to it was consistent with kicks, which would cause more damage than a punch. In addition, the appellant also pointed to some curiosities in the appellant's first confession:

- The appellant said that he had travelled to the deceased's house the morning after the death, at about 10.00 am and saw police there. That was wrong because the triple 0 call was made at 10.16 am.

- The appellant said that Jobling had approached the appellant two weeks before the death, calling him at 1.00 am to collect him from Jobling's brother's place after watching a Parramatta v Roosters game of rugby league. The evidence was those teams did not play in that period and the telephone record showed that the 1.00 am phone call happened one week, rather than two weeks, before the killing.

-The appellant said that he went with Jobling to Hungry Jack's in the early afternoon of 1 August, whereas work records establish that Jobling was not in Rockhampton on that day.

-The appellant said that Jobling collected him in the early afternoon on 2 August to take the photos but the timing mechanism on the camera suggested the photos were taken at about 10.30 am.

-The appellant said that he had been charged with the murder at a point in time when he had not yet been charged.

The appellant also challenged on various grounds the credibility of Jobling's parents, who had supported Jobling's alibi:

- Mrs Jobling's denial of having warned Jobling about not talking to the appellant while he was in the watch-house was contradicted by police evidence.

-Whereas Mrs Jobling first told police that she had got home at around 5.45 pm, in evidence she said that it was 6.40 pm, so that her son did not borrow her car until around 7.00 pm.

-Both Mr and Mrs Jobling denied having seen Jobling behave violently towards the deceased, but there was evidence that they had in the past not intervened when Jobling was threatening and physically assaulting the deceased in their presence.

-Mr Jobling did not tell police in his statement that his son had left the house to go home briefly to pick up toys; he only remembered that when he looked at his wife's statement.

The appellant also relied upon the fact that police found a gun, of the description given by the appellant, at Jobling's house. The gun was not capable of being fired but ammunition was also found. It was submitted that there was no opportunity for the appellant to have found out about the location of the gun before he swore his affidavit.

There was also evidence that Jobling was willing and able to threaten and to use violence. There was evidence that when the appellant was in custody Jobling placed a contract on his life and the threat was treated as being credible in that the appellant and his family were placed in protection.

Reliance was also placed on the evidence that Jobling's shoes returned a positive presumptive for blood but no DNA profile was obtained.

Evidence of the appellant's good character

On behalf of the appellant evidence of his good character was adduced both in the Crown case and the defence case.

The defence established that police were surprised that the appellant was a suspect. He had been a leader in his school, after finishing his first year of university at home he had moved to Rockhampton in the second year, he had worked to support himself, he was in a steady relationship with his girlfriend, and he was not a heavy drinker. He had no prior offences and came from a well respected family.

Claire Dredge, who had been the appellant's girlfriend for four years, said that he had never been violent, lost his temper, raised his voice or even spoken about violence with her. He was a loving and caring boyfriend. Her mother swore that she had never seen the appellant evidence any violence or heard him raise his voice, and she described him as respectful, well-behaved and thoughtful.

The appellant's father gave evidence of the appellant's gentle nature and the absence of any problems in his behaviour at school or at home. He had never been aggressive to people, animals or property, had always complied with the rules, and had done what he had been asked to do.

In the defence case, the principal at the appellant's former school pointed to school records demonstrating the absence of any misbehaviour and pointing to exemplary behaviour. The teacher in charge of health and physical education and formerly music at the appellant's school said that the appellant had not got into any fights, he had not heard him discuss or engage in violence, and the appellant had been a student leader, a strong band member, a role model for younger students and one who performed community service work through community organisations.

Similar evidence was given by the appellant's aunt. The manager of the video store where the appellant worked said that he had never heard the appellant raise his voice or evidence any violence at all.

The Issues

The Crown case was that the first confession was true: Jobling was not with the appellant when the appellant killed the deceased. The defence case was that whilst the appellant was present at the scene of the crime Jobling had a gun pointed at him for most of the relevant period.

The Crown prosecutor disavowed any reliance on derivative liability which otherwise might have flowed from the application of s 7 or s 8 of the Criminal Code.

It followed, as it was put in the summing up by the trial judge:

"If you are satisfied that the first confession is untrue, or if you can't decided whether it's true or not, then you can't be satisfied beyond reasonable doubt that Mr Hinschen killed Ms Standing, and he must be found not guilty of any offence open on the indictment."

In addition to emphasising to the jury what were said to be inconsistencies or weaknesses in the Crown case, defence counsel referred to the inconsistency between this particularly violent offence and the compelling evidence of gentleness in the appellant's character. It was put to the jury that this undeniably ferocious attack was the work of a psychopath, consistent with the violent predisposition of Jobling to the deceased but inconsistent with the evidence concerning the appellant's character.

Whilst defence counsel characterised the killing as the work of a psychopath, it was submitted on behalf of the Crown that it "doesn't contend for anything more than that Beau Ernest Hinschen, by his own words and deeds, has revealed that he did this, how he felt about it and why he did it. We're not putting any other attribute on him. We're relying on what he said and did."

The prosecutor asked the jury to discount the evidence of the appellant's good character saying, "you heard today and earlier in the trial about what a good high school student Mr Hinschen was. What a good boy he was. Well . . . I'd ask you to be more concerned with what sort of man he became. I'd ask you to be more concerned with his handiwork, as Dr Buxton described it." After referring to the medical evidence demonstrating the viciousness of the attack on the deceased the prosecutor continued, "the Crown will ask you to really put that immediately relevant matter into consideration. Not that his family must be dreadfully disappointed, or that Claire or her mother are too naïve or blissfully ignorant, or unable to deal with the reality of the situation in which they find themselves."

The summing up

Apart from the absence of a direction concerning character, no criticism was made of the summing up: senior counsel for the appellant described it as "lucid, concise and balanced".

The trial judge emphasised that the critical question was whether the first confession was true. The jury "would have to be satisfied ultimately that that confession is true"; that "the proper approach is to understand that the prosecution case depends on you, the jury, accepting that the evidence of the prosecution's principle witnesses and the confession on which the prosecution relies was true and accurate beyond reasonable doubt, despite the evidence called on behalf of the defendant."

His Honour said that the verdict would be not guilty if the defence evidence was credible and reliable and provided a satisfactory answer to the prosecution case; and that if the jury thought that the defence evidence was not convincing but were left in a state of reasonable doubt as to what the true position was then the verdict would also be not guilty.

His Honour directed the jury that the prosecution case relied entirely on answers said to have been given by the defendant in the first confession and that in order to rely on that evidence the jury had to be satisfied that the appellant did give the answers attributed to him and that they were true.

When the trial judge turned to the evidence other than the confessions, his Honour directed the jury that "the other evidence provides a context in which to consider the statements made by Mr Hinschen and can be used by you as an aid in determining whether you accept one version to the exclusion of the others. Having regard to all of the evidence can you be satisfied beyond reasonable doubt that the version of events relied on by the prosecution is true? If not, then as reprehensible as Mr Hinschen's conduct might be thought to have been, even allowing for any threats made by Mr Jobling, he has not been proven to be the actual killer and is not guilty."

After further references to the evidence, the trial judge then dealt with the rival contentions of the parties as to how the jury should view the evidence. His Honour traversed the evidence and the submissions on both sides, pointing out on various occasions that they raised matters for the jury to consider when they looked at all of the evidence.

One example of that approach concerned the question in issue in this appeal, as to the bearing of the evidence about the appellant's good character. In that respect his Honour said (I have added the emphasis):

"The defence submits that is entirely contrary to everything known about Mr Hinschen and all his previous behaviour for him to have committed an act as brutal as this alone. To have done this crime alone for the repayment of the car loan, Mr Martin submitted, would mean that Mr Hinschen was, effectively, a psychopath.

The defence relied on the evidence of Mr Cox and the evidence of Mr Hinschen's aunt, Mrs Botto. Even Detective Sergeant Tiernan appeared surprised that someone with Mr Hinschen's background would turn out to be a murderer - that's at page 80. Well, how does that affect your assessment of the other evidence?

In contrast, the defence submits that an act of brutality, as described by Mr Hinschen and consistent with the pathologist's evidence, would be in character for Scott Jobling. He had a history of making threats, he displayed violence towards Ms Standing on other occasions. One example was on the day of her sister's wedding, the evidence for which comes from Mrs Nichols at page 194. And there was also the evidence of Mr Michael Duffy. We also know that as a result of threats from Scott Jobling after their arrests, Mr Hinschen was placed in protective custody for a period - that's at pages 84 to 85. Well, how does that impact, if at all, on your assessment."

After referring to other significant aspects of the submissions by counsel for the defence and for the prosecution, his Honour returned to "the critical question" whether the jury was satisfied that the first confession was true. His Honour directed the jury that if they reached that position, that the appellant alone was present at the deceased's house and inflicted the fatal injuries on her, the jury should go on to consider whether they were satisfied beyond reasonable doubt that the appellant had killed the deceased, that he did so unlawfully, and whether he had the necessary intention to cause death or grievous bodily harm.

The trial judge then concluded that section of the summing up:

"Well, in dealing with the respective cases of the parties, I've not intentionally expressed any personal view as to what findings I think you should make; that's not my role. The purpose was to summarise the respective cases which each side has put to you, and their closing arguments, to remind you of parts of the evidence relevant to those submissions, and raise some issues for you to consider."

Appellant's submission

On behalf of the appellant it was submitted that the trial judge erred by failing to direct the jury that when considering the evidence of the appellant's good character the jury were entitled to consider the improbability of the appellant having committed the offence in light of the history of his good character deposed to by the witnesses.² It was submitted that such a direction was required because, as a result of the way in which the issues at the trial were framed, the effect of the character evidence as to the propensity of the appellant to commit this extraordinarily violent offence was at the epicentre of that which the jury was required to consider.

The submission emphasised that, apart from some evidence concerning Jobling's propensity to commit such a crime, the burden of the evidence adduced on behalf of the defence concerned the appellant's good character. It was submitted that this evidence in itself was capable of raising a reasonable doubt about the guilt of the appellant, he being a person of a character who could not possibly have committed this offence other than as a result of a gun being pointed at his head.

An allied submission was that this was a case which fell within what was described by Hayne J in Melbourne v The Queen³ as the simplest example of a case in which the circumstances oblige the trial judge to give such a direction:

"When is there an issue about the use of character evidence that will call for judicial direction of the jury? The simplest example is, of course, if prosecution and accused make contrary submissions to the jury about whether evidence of prior good character can be used by the jury in assessing the probability of the accused committing the offence charged or in assessing whether the accused should be accepted as having sought to tell the truth in statements he or she has made in or out of Court. Fairly, in such a case the Court must tell the jury what is the true position in law; that the previous good character may be used in either or both of these ways."

Discussion

That statement has no application here. It concerns a case in which the prosecution contends that evidence of prior good character cannot be used by the jury in assessing (relevantly) the probability of the accused committing the offence charged. That would be a misstatement of the law. Evidence of good character may be relied upon in disproof of guilt:

"The expression "good character" has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged."⁴

Here it was not submitted on behalf of the prosecution that good character evidence could not be used by the jury in that way. Rather, the effect of the prosecutor's submission was that the jury should discount the value of the good character evidence and attribute more weight to the evidence as to what the appellant had done and his motives for doing it.

The prosecutor's arguments concerning the character evidence were made in support of submissions asking the jury to be "more concerned" with the sort of man the appellant had become, and to be "more concerned" with his "handiwork". These submissions assumed the legitimacy of the use of good character evidence in assessing the probability of the accused having committed the offence, but sought to discount it in comparison with other evidence, such as the appellant's first confession and Jobling's alibi evidence.

Had the prosecutor submitted that the jury was not entitled to use the evidence of the appellant's good character in assessing the probability of the accused committing the offence, it would have been necessary for the trial judge authoratively to inform the jury that the evidence could be used by the jury for that purpose. In such a case, anything short of a direction by the trial judge would have been insufficient. A jury is entitled to ignore the trial judge’s comments on the evidence and the trial judge is required so to inform the jury. A direction would have been required, to give the judge's imprimatur to the law the jury was obliged to heed.⁵

But that is not this case. As I have indicated the submissions on behalf of the prosecutor merely sought to persuade the jury to give more weight to the appellant's first confession and other matters supporting it.

The discretion of the trial judge whether or not to give a direction as to good character is to be exercised in light of the probative significance of the evidence in relation to the accused's propensity to commit the crime charged and the credibility of the accused.⁶ In this case, the evidence of the appellant's good character did have probative significance in relation to his propensity to commit the crime with which he was charged. In particular, the character evidence that he appeared to be of a gentle disposition strongly contrasted with the extreme violence of this offence.

So much was recognised in the extract from the summing up quoted above and particularly the trial judge's question emphasised in that extract: "Well, how does that affect your assessment of the other evidence?".

The effect of that question must be viewed in the context of the conduct of the trial and the passages in the summing up immediately preceding and following it. The character evidence had been much emphasised in the evidence adduced for the defendant but it was not a significant focus of defence counsel’s address to the jury. His address focussed on an analysis of what were said to be weaknesses and inconsistencies in the details of the Crown case. The address took about two hours. It occupies about 42 pages of the transcript, between pages 484 to 526. There is an oblique reference to character at page 487, the evidence is summarised and relied upon at page 510, and there are some further brief references to it, most clearly at pages 517 and 523. Whilst the significance of the character evidence was an issue, it was far from being at the epicentre of the defence case.

It is plain that the trial judge’s remarks and his Honour’s question drew to the jury's attention their entitlement to take into account the fact that the evidence of the appellant's character was inconsistent with the brutality of this offence in assessing whether the appellant had committed it. The contrast referred to by his Honour between the offence being "in character" for Jobling and the character evidence concerning the appellant appropriately emphasised that impact of the character evidence.

I accept the appellant's counsel's submission that the trial judge did not express those remarks as a direction to the jury. So much appears both from the text of the remarks and from the concluding statement in that section of the summing up which indicated that his Honour was there raising issues for the jury to consider.

Nevertheless there is, in my opinion, no reason to think that in this case the jury would have failed to give the evidence of the appellant's good character such weight as it deserved. In this respect the failure of the trial judge to frame the remarks as a direction differs from a failure to give directions on other topics (e.g., as to identification evidence) where the jury, without proper guidance, conceivably might misuse the evidence to the detriment of the accused. The direction which the appellant submits should have been given here was not one which was required to warn the jury to avoid a "false chain of reasoning".⁷

In this case, as it was put in the joint judgment of Gibbs, Stephen, Mason and Murphy and Wilson JJ in Simic v The Queen⁸ (referred to by McHugh J and Gummow J in Melbourne v The Queen):⁹ "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."

The trial judge's comments served to remind the jury of that obvious point of the evidence. They were apt to remind the jury both of the strength of the character evidence and of the legitimate use to which the jury might put it.

There is here also the complication that the more comprehensive direction which the appellant contends ought to have been given might have tended to emphasise in the jurors’ minds the disparity between the character evidence adduced on behalf of the defence and the evidence of the appellant's character as it appeared from his own statements to the police and other evidence. It was clear even on the version of events which the appellant asked the jury to accept that the appellant admitted to having lacked the strength of character to escape the situation in which he claimed to have found himself, having been present at and involved in this extremely violent offence, having repeatedly lied to the police, having hindered their investigation into a brutal murder, and having deceived others. In the latter respect it is necessary to refer only to the evidence that, days in advance of the event, the appellant lied to his girlfriend about where he would be at the time when the offence occurred.

The appellant's counsel disavowed any submission that a character direction was required concerning the appellant's credibility. Of course, having regard to the numerous and fundamental inconsistencies in the various versions given by the appellant to the police, any such direction would have reflected very adversely upon the appellant. I do not accept the submission on behalf of the appellant that those credibility issues are entirely irrelevant to the question whether a direction should have been given concerning the effect of the character evidence upon the propensity of the accused to commit this crime. In the particular circumstances of this case the lies told by the appellant in his various versions tended to reveal a disparity between the perception of his character sworn to by various witnesses and as it appeared from the other evidence.

Considerations of that kind were reasonably capable of having informed defence counsel’s failure to seek the direction, either when the trial judge provided a draft of the proposed summing up to counsel for their comments or after the summing up had been given. That is a relevant consideration in determining whether a miscarriage of justice has occurred.¹⁰

For those reasons I am not persuaded that the failure of the trial judge to expand upon the comments his Honour made concerning the assessment of the character evidence or his Honour’s failure to express those comments in the form of a direction amounted to an error in his Honour's discretion, or that the omission to give the direction now contended for was productive of any miscarriage of justice.

Order

I would dismiss the appeal.

FRYBERG J: In Melbourne v The Queen, Hayne J said:

“In deciding whether a trial miscarried for want of a proper direction to the jury it is essential first to identify what were the issues in the case. Only once the issues are identified can an appellate court decide if the jury should have been given some instruction that they were not. Especially is that so when the direction that it is said should have been, but was not, given is a direction about the jury's reasoning on questions of fact.”¹¹

That approach is particularly apposite in the present case.

Counsel for the appellant (who was not trial counsel) submitted:

“The defence argument ran that this was a crime of such ferocity that it must have been the work of someone who was, to use the phrase used at the trial, ‘a psychopath’, someone who was capable of such a crime was not an ordinary individual.”

I reject that submission. It is true that at the trial the appellant urged the jury to take into account his alleged good character. It is also true that the word psychopath was used in Counsel's opening and in his address. But there was no evidence that the murder was committed by someone who was a psychopath, nor was it open to the jury to draw such an inference. Counsel wisely did not frame the issue in the case by reference to any such finding. He identified the real issue soon after he began his address:

“So the issue is, did [the accused] alone inflict the two fatal wounds, that is the cut to the throat and the stab wound, he alone caused those beyond reasonable doubt. ... If you're left in reasonable doubt, then he’s not guilty.

…

The Crown says this is a simple and straightforward case, because of his confession. You might think it's anything but simple and straightforward.

They say he confessed and its true. Therefore, he's guilty. Well, as I say, if the Crown proved to your satisfaction, beyond reasonable doubt, based on his confession, in the recordings, his statement, the re-enactment, that he alone delivered the fatal blows … and if he had the necessary intent, that is intention to cause death or grievous bodily harm, he's guilty of murder.”¹²

Dutney J adopted a similar (although not identical) approach in his summing up:

“In this case, the critical question is whether the confession made immediately preceding the re-enactment and in the statement following the re-enactment and in the re-enactment – what I’ll call throughout this summing-up as ‘the first confession’ – was true. Because, if it’s true, then Mr Jobling was not present and the defendant admits to killing the deceased and makes certain statements concerning his intention. So you would have to be satisfied ultimately that that confession is true and you’ll have to be satisfied of that beyond a reasonable doubt.

... ... ...

Because of the way in which the prosecution has chosen to conduct this case, the prosecution accepts that unless you are satisfied that Mr Hinschen inflicted the fatal stab wound on the deceased he is not guilty of either murder or manslaughter. If you are satisfied that Mr Hinschen inflicted the fatal stab wounds he would be guilty of either murder or manslaughter depending on whether you are satisfied that he had the required intention.

In other words, unless you are satisfied that the first confession given by Mr Hinschen to the police is true, that is the confession contained in the re-enactment which is Exhibit 10, in the interview which proceeded it which is Exhibit 9, and the subsequent written statement, which is Exhibit 12, you must find Mr Hinschen not guilty of either murder or manslaughter. There is no other evidence, which in the absence of that confession, would be sufficient to discharge the burden of proof on the prosecution.”

After some further passages emphasising the point that apart from the confessions there was no evidence that the appellant was at the scene of the killing and that the case depended on whether the prosecution had satisfied the jury beyond reasonable doubt that the first confession was true, his Honour continued:

“Well in those circumstances you might be wondering why we’ve been here for so long and what the rest of the evidence was about. In short, the other evidence provides a context in which to consider the statements made by Mr Hinschen and can be used by you as an aid in determining whether you accept one version to the exclusion of the others. Having regard to all of the evidence can you be satisfied beyond reasonable doubt that the version of events relied on by the prosecution is true?

His Honour then reviewed that other evidence and the submissions of the parties.

There was a good deal of other evidence. The appellant called seven witnesses, of whom only four gave character evidence. He did not give evidence himself. Counsel for the appellant dealt with the other evidence in some detail. His whole address took nearly 2¼ hours and occupied 42 pages of transcript. The point about the appellant's good character occupied less than one of those pages. It was simply one of quite a number of points which Counsel made in support of his submission that the confession could not be accepted as the truth. The Judge’s review of the evidence and the submissions was also fairly extensive. He too dealt with the good character point in less than a page.

In short, the point, while doubtless important, was far from being the sole issue raised by the defence.

In a criminal trial an accused person is entitled to lead evidence of his good character on the basis that a person of good character may be thought unlikely to have committed the offence:

“The expression ‘good character’ has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. … [T]he reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn C.J. said: ‘The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried’.”¹³

It is the fact (if it be the fact) that a person is of good character (or perhaps is relevantly of good character) which tends in disproof of guilt. It is a finding of good character which has this effect, not simply the existence of some evidence tending to support such a finding. The evidence of good character is led to prove the fact of good character. A jury may accept the facts directly proved by such evidence yet still not find the accused to be of good character. In some cases the distinction between evidence tending to prove good character and a finding of good character has been blurred, usually when the evidence is uncontradicted and there is no need for precision of expression. It is however necessary to bear the distinction in mind in a case where there is evidence tending to suggest that the accused is not of good character. In such a case two questions (at least) may arise: whether the accused indeed is (or is relevantly) of good character; and if so whether, taking that fact into account along with all the other evidence, he is proved to have committed the offence beyond reasonable doubt.

In the present case the appellant submitted that a direction should have been given along the lines of that given in Melbourne v The Queen:

“[W]hen you consider that evidence as to good character ... you are entitled to consider the improbability of [the accused] committing the instant offence, having a history of good character of some 61 years, and that this is of considerable significance.”

No such direction was given or even asked for at the trial.

In Melbourne the evidence of good character was not met by any opposing evidence; the Crown did not suggest that the accused was not of good character. It was otherwise in the present case. The evidence which tends to suggest an absence of good character has been summarised by Fraser JA¹⁴ and I need not repeat it. In these circumstances it would have been necessary for the judge to instruct the jury to consider first whether the accused was a person of good character (or perhaps relevantly of good character) at the time of the killing. Because the appellant was aged only 20 and in his third year out of school, the reference to “61 years” in Melbourne would have required substantial modification. Some reference to the extent to which his perceived character as a child might have continued into adulthood may have been necessary. The jury could then have been told that a finding that he was a person of good character could be taken into account by them, along with all of the other evidence, in considering the matter at issue.

Had that course been adopted it would probably also have been necessary to instruct the jury about the use of their finding should they conclude that the appellant was of bad character. Whereas a finding of good character can be used toward the negation of guilt, a finding of bad character cannot ordinarily be used toward its affirmation,¹⁵ and could not have been so used in this case. That distinction is, as McHugh J observed, “logically anomalous”.¹⁶ It is not one which would appeal to a modern jury.

In dealing with the difficulty created for the defence case by the appellant's confession, defence counsel told the jury in his address (among other things):

“Now, people confess for reasons. Some reasons could be some people like attention seeking. There's a fine line between fantasy and reality for some people. Some people like the thrill of lying. They love duping people.”

Counsel did not expressly suggest that the jury should find the appellant to be such a person, but after nominating some other possible reasons for false confessions, he asked rhetorically, “Was this the thought process of this 20 year-old?” Had the jury focused on the question of character closely, they might have thought there was some inconsistency between such a person and the one portrayed in the good-character evidence.

There were therefore sound tactical reasons for a decision by defence counsel not to seek a direction. The appellant's case sounded better with a direction of the type given by Dutney J than it would have done had directions of the foregoing type been given.

The appellant also criticised his Honour's charge to the jury on the basis that it was phrased as a question: “Well, how does that impact, if at all, on your assessment?” He submitted that a direction was required, not a question. However the object of the direction sought was to inform the jury that evidence of good character could be taken into account in assessing guilt or otherwise. The judge asked his rhetorical question after referring to the relevant evidence. I agree with Fraser JA that in this case, as in Simic v The Queen:

“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.”¹⁷

That object having been achieved, the direction was adequate. As the High Court also said in that case, “The fate of a criminal appeal should not depend on the application of rigid formulas.”¹⁸

The appeal should be dismissed.

LYONS J: I have had the benefit of reading the reasons of Fraser JA and Fryberg J and agree with their reasons and the orders proposed. I agree that in the circumstances of this case the learned trial Judge’s discretion did not miscarry. The issues in this case were not such as to require a direction along the lines of that given in Melbourne v The Queen. I agree with the submission by the respondent that the giving of such a direction may in fact have distracted the jury from the more significant issues in the case and could possibly have been to the appellant’s detriment. I consider that the summing up by the trial Judge was indeed clear, concise and balanced. I would dismiss the appeal

Footnotes

1. Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25; Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32. ↩

2. Cf Melbourne v The Queen (1999) 198 CLR 1 at [57]; [1999] HCA 32. ↩

3. Melbourne v The Queen (1999) 198 CLR 1 at [156]; [1999] HCA 32. ↩

4. Attwood v The Queen (1960) 102 CLR 353 at 359; [1960] HCA 15. ↩

5. Cf Azzopardi v The Queen (2001) 205 CLR 50 at [50]; [2001] HCA 25. Mahmood v Western Australia (2008) 82 ALJR 372 at [16]; [2008] HCA 1. ↩

6. Melbourne v The Queen (1999) 198 CLR 1 at [30] - [31]; [79]; [157]; [1999] HCA 32. ↩

7. Cf Melbourne v The Queen (1999) 198 CLR 1 at [145]; [1999] HCA 32. ↩

8. (1980) 144 CLR 319 at 333-334; [1980] HCA 25. ↩

9. (1999) 198 CLR 1 at [22], [76]; [1999] HCA 32; See also R v Schmahl [1965] VR 745 at 750. ↩

10. Melbourne v The Queen (1999) 198 CLR 1 at [137], per Hayne J; [1999] HCA 32. TKJW v The Queen (2002) 212 CLR 124, at [16]- [17]; [24]- [28]; [2002] HCA 46. ↩