R v Rihia [2000] VSCA 235

Court of Appeal (Vic)|2000-11-17|Before: TADGELL, CHERNOV, JJ.A. and BALMFORD, A.J.A.

Criminal law - Intentionally causing serious injury - Character evidence - Whether evidence of bad character admissible - Discretion to exclude.

I shall invite Chernov, J.A. to deliver the first judgment.

I turn first to the circumstances relevant to the offending. The applicant and the complainant are New Zealanders who have lived in Australia for many years. They have been married since about 1975. In May 1996 the applicant went to New Zealand, apparently for an indefinite stay. While he was there, the complainant told him that she did not wish their marriage to continue. The applicant returned to Australia in November 1996 and the complainant confirmed what she had earlier told him about wanting to end the marriage. It seems that the applicant was reluctant to accept this situation and became upset, angry and abusive towards the complainant. For a while after his return, however, he remained at the matrimonial home. On one occasion during this period the complainant, in order to be alone and away from the applicant,

decided to occupy a bedroom with a latch on the door so that she could lock out the applicant. This made him angry and in the course of one of his expressions of anger, he threatened to pour boiling water and petrol on her.

The applicant was eventually persuaded by the complainant in early 1997 to leave the house, having been given money by her to find alternative accommodation. The complainant continued to live in the house with her daughter, son-in-law and two grandchildren. After the applicant had moved out, he continued to visit his family, on occasions staying for some hours and even overnight. Because the relationship between the parties was strained due to the applicant's refusal to accept the separation, the complainant usually sought to stay away from him whenever he visited her home. Often she would just go to her room and remain there while he was in the house.

During one of his visits, on Saturday 11 January 1997, the applicant took it upon himself to clean the carpet in the loungeroom and in preparation for that, boiled water in a pot on the kitchen stove. At about the same time, the complainant was getting ready to go out that evening to a nearby dance. The applicant asked her where she intended to go that evening but she merely told him that she was going "out" and refused to let him accompany her. This made the applicant upset and angry and as a result, a heated exchange took place between them and the complainant asked him to leave the house, but the applicant refused to do so. Apparently, not long after that incident, in the late afternoon or evening, the complainant happened to be walking through the living room when, without any warning, the applicant threw at her water out of a bucket. The water flew past the complainant and hit a wall. She went to her bedroom and stayed there for some time. She got dressed to go to the dance and, shortly after 8 p.m., went to the kitchen to have something to eat. One of the pots of water that the applicant had put on the stove to boil was, by then, either boiling or close to boiling. According to the complainant's evidence, while she was facing the kitchen bench preparing food, the applicant took the pot of boiling water off the stove, stood behind her and slowly poured its contents on to her neck, shoulders and back, thereby causing her excruciating pain and severely scalding her. Notwithstanding this and her yells for help, the applicant did not try to attend to her injuries, but immediately left the home. The complainant was taken to hospital where it was diagnosed that she had areas of blistering over the nape of her shoulders, behind her left ear and over the anterior aspect of her left chest. There was also extensive reddening over the neck, shoulders and the left side of the face.

Later that evening, at approximately 9.30 p.m., the applicant attended the local police station and told the constable on duty that he accidentally spilt boiling water on the complainant but that she was alleging that he did it on purpose. He claimed that he did not mean to do it. He also said that some of the water splashed on to him but the police evidence was that they did not observe any burns or wet clothing on the applicant at that time. On 13 January 1997 the complainant reported to the police that the applicant had assaulted her by pouring boiling water over her. As a result, the applicant was interviewed on the following day. In his record of interview he stated that his spilling of the boiling water on the complainant was an accident.

Prior to the commencement of the trial before the jury, his Honour conducted a voir dire to determine whether evidence of the applicant's threat to pour boiling water and petrol on the complainant (to which I have referred) was admissible. In the course of the cross-examination of the complainant by counsel for the applicant in the course of that voir dire, the complainant said that she had been physically abused by the applicant during the 20 years of their marriage. Later, during discussions between his Honour and the applicant's counsel, his Honour reminded him what the complainant had said in her evidence on the voir dire about her background of physical abuse. It was clear, however, that the Crown did not intend (and probably would not have been permitted by his Honour) to adduce evidence of the applicant's abusive conduct towards the complainant. Subsequently, his Honour ruled that evidence of the applicant's threat, to which I have referred, was admissible.

Notwithstanding that counsel for the applicant was aware that the complainant was alleging that the applicant had abused her physically during their marriage, very shortly after he commenced to cross-examine her in the course of the trial, he put questions to her concerning the applicant's relationship with, and conduct towards, members of the family other than the complainant. Counsel told her that he was not asking her about the applicant's relationship with her. Thus, he asked the complainant whether the applicant had a good and loving relationship with those other members of his family in January 1997 to which he received a reply in the affirmative. A little later he asked: "Have you ever seen Sam [the applicant] hit either of your children?" His Honour queried the relevance of whether the applicant had hit the complainant's children. The following exchange then took place between the judge and the applicant's counsel:

"COUNSEL: It is a question of the character of the accused man, Your Honour. It goes to the very issue as to whether he is the type of man to commit an offence. (My italics.) HIS HONOUR: Yes, well, it certainly goes to his character as to whether he has ever done any disreputable acts before; if you bring those matters in, no doubt, it is a matter that is relevant on all aspects, yes; you want to ask the question? COUNSEL: Yes, I do. HIS HONOUR: Yes."

The applicant's counsel then asked the complainant:

"... you've never known Sam to hit either of your children, is that correct?"

to which the complainant said she had. She was also asked:

"Have you ever known him to hit any of his grandchildren?"

In the circumstances, the prosecutor sought to adduce from the complainant in re-examination, that she had been subjected to the physical abuse at the hands of the applicant during their marriage. Prior to doing so, the prosecutor obtained a ruling from his Honour that, by his counsel's cross-examination of the complainant, the applicant's character had been put in issue before the jury. The applicant's counsel nevertheless submitted that the court should exercise its discretion to exclude the evidence principally because it was so old as to have no probative value and that its prejudicial effect would be such as to make it unjust to admit it. His Honour rejected the submission that the relevant evidence had no probative value "as character cannot be divisible by years or time". On the question of prejudice, his Honour determined that, before ruling on it, he would conduct a voir dire hearing as to the evidence the complainant was likely to give in re-examination. That evidence disclosed that, during the first ten or so years of their marriage, the complainant was physically assaulted by the applicant in various ways, including being beaten with clasped hands, having her hair pulled and being pushed against the wall by a chair. Although these abuses occurred regularly, they progressively became less frequent and stopped shortly before the time they came to Australia in about 1991. In cross-examination, the complainant said she was last abused in the 1980s, possibly the late 1970s. After hearing submissions from the parties, his Honour ruled that the evidence was admissible. Accordingly, the complainant gave evidence in re-examination in which she related previous assaults by the applicant upon her which occurred prior to 1991.

As I have said, the applicant continued to press his application for leave to appeal against conviction and he did so on the ground that his Honour erred in allowing evidence of prior misconduct of the applicant, which was remote in time, to be adduced from the complainant.

That counsel's cross-examination of the complainant at the trial put the applicant's character in issue thereby giving the Crown the opportunity to call evidence of the applicant's bad character in rebuttal, was acknowledged by Mr Swanwick who appeared for the applicant. He also acknowledged that the prosecution properly sought and obtained a ruling from his Honour that the applicant's character had been put in issue and that it was entitled to lead evidence of the applicant's bad character. In light of R. v. Perrier (No.1)[1], those concessions were, in my opinion, properly made.

Mr Swanwick submitted, however, that, in exercising his discretion not to exclude the evidence of the applicant's physical abuse of the complainant ("the rebutting evidence"), his Honour made a number of errors which vitiated his discretion.

(a) His Honour wrongly assumed as a premise on which he based the exercise of his discretion that the character of a person is not divisible and thereby rejected that a person's character is capable of changing.

(b) It was not open to his Honour to conclude otherwise than that the rebutting evidence had no or only slight probative value given that it occurred at a point in time that was remote from when the relevant offence was committed.

(c) His Honour failed to weigh the slight probative value of that evidence against its significant prejudicial effect on the applicant's case.

(d) His Honour failed to give any or any due consideration to the prejudice to the applicant by the admission of the rebutting evidence given that it would only go to the question of his credit, yet there was no logical connection between his alleged misconduct towards the complainant and his credit.

(e) His Honour failed to consider that any fairness that was to be accorded to the Crown by reason of the conduct of the applicant's counsel at the trial, would be met if, instead of permitting the Crown to call evidence as to the applicant's bad character, his Honour had ruled that the applicant's counsel was to be limited in his final address to the jury to pointing out that there was no evidence that during the last 15 years the applicant had done anything discreditable to the complainant.

Before proceeding to deal with these submissions, it is convenient to note that a critical issue in the case was whether the applicant intended to pour boiling water over the complainant. It was essentially to that issue that the applicant's counsel sought to adduce evidence of his client's good character because, if that were established, it would give rise to the presumption that the applicant was unlikely to have committed the crime with which he was charged[2]. Although it may be debatable whether the decision by the applicant's counsel so to cross-examine the complainant was a wise one, I note that the applicant was found not guilty of the first count which charged that he intentionally caused serious injury to her.

Mr Swanwick's submission that his Honour proceeded on the false premise that a person's character is incapable of division or change was based on his Honour's statement that "character cannot be divided by years or time". In my opinion, however, his Honour did not exercise his discretion on any such false premise. First, it is obvious that his Honour did not say that a person's character is incapable of changing. It would simply make no sense to read the sentence in question in the way contended for by Mr Swanwick and I doubt whether, in the end, he really thought otherwise. In the context of the law and practice of sentencing, for example, it is recognised that the character of the person being sentenced is capable of changing and any such change is taken into account in determining the appropriate sentencing disposition. It can be assumed that this experienced judge was well aware of that situation.

Secondly, what his Honour meant when he said "character cannot be divisible by years or time" was that, in determining whether the applicant was a person of good character, regard must be had to the whole of his relevant past and not just to an isolated part of it. In my view, his Honour was correct in so stating the position. It is to be borne in mind that once the accused's good character is established, it raises the presumption that he is unlikely to have committed the crime in question. It also goes to the question of credit. But once it is found that, on the consideration of the whole of the accused's relevant past, he has lost his good character by reason of any of his past conduct, the benefit of the presumption is also lost to him and it is irrelevant at what point in time prior to the trial this has occurred. As Viscount Simon L.C. said in Stirland v. D.P.P.[3]:

"An accused who 'puts his character in issue' must be regarded as putting the whole of his past record in issue. He cannot assert his good conduct in certain respects without exposing himself to inquiry about the rest of his record so far as this tends to disprove a claim for good character."

Street, C.J. in R. v. Stalder[4] explained that "[t]his statement of the law establishes the technical admissibility of every element in an accused person's past tending to establish or refute his good character. It still leaves open to the trial judge, however, the very real duty of determining, where objection is taken, whether as a matter of discretion any particular matter should be disallowed or excluded if in the circumstances the judge thinks it unfair."

Thus, subject to discretionary exclusion, once the accused puts his or her character in issue, the accused cannot confine probative rebutting evidence to any particular period of time or to any aspect of his or her character - Donnini v. R.[5] and Stalder[6]. In the latter case, for example, the accused claimed in his unsworn statement that he could not understand how he came to shoot the stranger because he was a person of non-violent disposition. In light of that, the Crown was permitted to adduce evidence of the accused's prior convictions relating not only to armed robberies but also to driving and property offences. Similarly, in R. v. Winfield[7], the accused, who was charged with indecent assault upon a woman, called evidence as to his character in relation to women and the Crown was permitted to adduce evidence of his general (bad) character.

Consequently, the applicant's counsel in this case could not, by adducing evidence of his client's good character confined in time to January 1997, exclude rebutting evidence going to that issue in respect of a prior period. Similarly, the cross-examination of the complainant about the applicant's relationship with persons other than the complainant, could not exclude rebutting evidence of his relationship with the complainant.

It is in this context that his Honour's statement on which Mr Swanwick relies, must be read. In my view, what his Honour said in that sentence was that the Crown was not confined in adducing rebutting evidence of bad character to the period during which the applicant has claimed that he was of good character. Inferentially, his Honour also rejected the contention that, in the circumstances, the rebutting evidence was so stale as to have no real probative force.

But even if the character of the applicant were to be assessed as was contended for by Mr Swanwick, namely, by reference to parts of his relevant past conduct, his misconduct towards the complainant could nevertheless have been properly taken into account in determining his character. That is because the applicant put his character in issue over a period which included the time when he physically abused the complainant. Counsel cross-examined the complainant in order to establish that his client was of good character not only at and shortly before the event in question (hence, the questions concerning the grandchildren), but also for a considerable period prior to that (hence, the questions about not having struck the complainant's children). Bearing in mind that the applicant's daughter was in her 20s at the time of the trial, the cross-examination was directed to show that the applicant was of good character for approximately 20 years or so prior to the offending conduct being the period during which he had also physically abused the complainant. That point was not lost on his Honour, who remarked during the cross-examination that counsel was asking questions "in a very broad context". Given those circumstances, the evidence of the applicant's misconduct towards the complainant during the first ten years or so of their marriage was relevant to the determination of whether the applicant was a person of good character. For these reasons, I am of the view that his Honour did not exercise his discretion on the false premise contended for by Mr Swanwick.

As to the claims summarised in paragraphs 11(b) and (c), in my opinion it was open to his Honour to hold that the rebutting evidence was probative to the issue of the applicant's character and to conclude that its prejudicial effect would not outweigh the benefit to the applicant of seeking to establish his good character so as to make it unjust to allow that evidence to be adduced. Ordinarily, where the Crown is permitted to adduce evidence to establish bad character, such evidence is probative only to the character of the accused; it does not go to the issue of his or her guilt or innocence (Donnini.[8]; Stalder[9]).

In my view, it is clear that the rebutting evidence here was capable of rationally affecting the applicant's character and was, therefore, probative to that issue. Moreover, this is not a case where the evidence should have been excluded on the ground of fairness because, although technically admissible, it had little or no weight but was gravely prejudicial to the applicant - see Driscoll v. R.[10] and the cases there referred to. There may be situations where the evidence going to the accused's character is so remote that, in the circumstances, it should not be led by the Crown.

Once it was established that the rebutting evidence was otherwise admissible, it became a matter for the trial judge to evaluate, as a matter of discretion, amongst other things, whether the prejudice of the rebutting evidence was disproportionately high when balanced against the benefit which the applicant sought to gain from putting his character in issue so as to make it unjust to permit the Crown to lead it[11]. That his Honour was aware that he had to make such an evaluation, and that he proceeded to do so, is clear from his relevant ruling. In the context of this case his Honour, who was well aware of the atmosphere of the trial, was best placed to make the value judgment on this issue and nothing that Mr Swanwick submitted has persuaded me that his Honour erred in exercising his discretion to permit the Crown to adduce the rebutting evidence.

The alleged error summarised in paragraph 11(d) seems to me to be based on a misconception. Contrary to Mr Swanwick's contention, the rebutting evidence will not be capable of being properly used by the jury in determining the applicant's character. It is only if the jury concludes that the applicant is a person of bad character that they could use such a finding of bad character on the issue of credit - see Perrier[12]. More particularly, it is only then that they may use the finding of bad character in determining the veracity of the applicant's claim that the spilling of the boiling water was an accident. His Honour charged the jury to that effect and there was no ground of appeal by which the applicant sought to impugn his Honour's charge.

I am also of the opinion that the submission summarised in paragraph 11(e) should be rejected. Counsel for the applicant did not submit to his Honour that he should make such a ruling or give such a direction. On the contrary, the whole force of counsel's submission to the learned judge was that he wished to press on with his case that the applicant was of good character. As his Honour observed in his ruling:

"[Counsel] candidly said to me in answer to my question during the voir dire on this issue that irrespective of what I rule as to the admissibility of the evidence of discreditable conduct he intends to use the evidence that he elicited from the complainant as to the accused's good character to submit to the jury that [he] is the type of person who would not be capable of ... committing the [offences] alleged in this case."

Thus, in my view, his Honour did not make a reviewable error by not making the ruling that Mr Swanwick contended he should have made.

In conclusion, I am of the view that the application for leave to appeal against conviction should be dismissed.

The judgment of the Court, therefore, is that the application for leave to appeal against conviction is dismissed.

The applicant's bail, having been granted pending the hearing and determination of this appeal, has now ceased. It will be necessary for him to be taken into custody.

[2] Melbourne v. R. (1999) 198 C.L.R.1, at 15 per McHugh, J.

[5] [1972] HCA 71; (1972) 128 C.L.R. 114 at 121-2 per Barwick, C.J.

[10] (1977) 137 C.L.R.517 at 541 per Gibbs, J.

[11] Perrier at 705 and 709 per Brooking, J. See also Donnini at 144 per Mason, J. and Stalder at 20-21 per Street, C.J.

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