R v Thomas [2006] VSCA 167

R v Thomas [2006] VSCA 167 - VSCA 2006 case summary — Zoe

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The facts

2 The applicant seeks leave to appeal against her conviction on 6 counts of theft of child care fees, which allegedly occurred when she was the co-ordinator of a childcare centre in Mildura. The main issue in this appeal is whether the trial miscarried because evidence of her criminal history was admitted at trial.

3 Ms Thomas had looked after children at the centre for some time. She was appointed as the co-ordinator of the centre on 1 June 2000 and she resigned on 27 April 2001. Her duties as co-ordinator included recording children's attendance at the centre, invoicing and collecting fees, issuing receipts for payments and banking cheques and cash which she received from parents. She was also responsible for keeping computer records of children's attendance, of fees and banking records.

4 The child care centre was owned by Sharon and Carl Digby. The alleged thefts came to light after the applicant resigned from her position. Before she resigned, some parents had complained that they had received invoices for amounts they had already paid to the applicant. On 26 April, Carl Digby told her that she was being demoted from her position. The applicant resigned the next day.

5 After she left the centre, Carl Digby found a number of discrepancies in the computer records. Some parents who had complained about invoices were told that they did not have to pay amounts which records showed were still payable.

6 After Mr and Mrs Digby reported the thefts, Ms Thomas was interviewed by the police. In her interview various discrepancies in invoices, receipts and computer records were put to her. She was not able to explain these discrepancies, but suggested that parents who had alleged that they had paid cash to her were doing so to avoid paying fees they had incurred. She suggested that the Digbys might be annoyed with her because she was not "a good little girl". She produced a card from Sharon and Carl Digby given to her some time in 2000, when she had worked as the temporary co-ordinator, and read out its contents. The contents of the card, which were read into the police interview, were as follows:

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7 The applicant was charged with 21 counts of theft and was acquitted by the jury on 14 of the 21 counts. There was a directed verdict of acquittal on one other count. She seeks leave to appeal against her conviction on the remaining six counts.

The trial

8 The Crown case was that the applicant had misappropriated cash paid to her and had attempted to conceal these thefts by failing to issue receipts for payments, and altering various documents and computer records. In the case of some counts it was alleged that the attendance of children had not been recorded on the computer, and cash payments made by their parents were misappropriated. In relation to other counts it was alleged that the applicant had not recorded receiving fees and had not banked them. It was alleged that the applicant had changed computer records to conceal her theft of fees, after parents had queried fee invoices.

9 The applicant did not testify at her trial. Evidence adduced by the Crown included computer records and other documents, evidence of parents who said they had paid child care fees to the applicant and statements made by the applicant in her police interview, which included reference to the contents of the card.

10 The applicant's defence was that there was insufficient evidence that the relevant payments had actually been made to her. Parents who said they had paid fees to her were cross-examined about whether they had actually done so. It was also suggested that Carl Digby had altered computer records to give the appearance that the applicant was guilty of theft, because she had made claim for wrongful dismissal against his family company.

11 The applicant's counsel cross-examined Sharon Digby about the card she had sent to Ms Thomas. She said that she had sent the applicant a card because "when we want people to do a good job, we praise them, like we do children and then we work on the areas that are not quite as good." The applicant's counsel tendered the card as an exhibit.

12 Following the tender of the card, the Crown sought a ruling from the trial judge on whether the tender of the card had put the applicant's character in issue. In his ruling the trial Judge referred to R v Perrier (No 1),[1] in which the Court of Criminal Appeal held that the relevant question was not "whether [the accused] has elicited evidence of his good character, but whether he has raised the issue of his character as an element for consideration by the jury." His Honour held that the tendering of the card raised the applicant's character as an issue for consideration by the jury. He declined to exercise his discretion to exclude the evidence that the applicant had previously pleaded guilty to two counts of theft.

The appeal

13 The main ground of appeal related to the admission of evidence of the applicant's criminal history. It was submitted that the trial judge erred by finding that the card put her good character in issue and that, even if the finding that Ms Thomas had raised her good character was correct, his Honour should have exercised his discretion to exclude the evidence.

14 The grounds of appeal were later amended to include a submission that a miscarriage of justice had occurred because the applicant's counsel had incompetently tendered the thank you card in evidence, thus exposing the applicant to the admission of prejudicial evidence about her criminal history.

15 The final ground of appeal was that the trial had miscarried because the trial judge failed to give the jury a propensity warning, relating to use of the evidence of the applicant's criminal history. In his jury charge his Honour warned the jury that evidence of the applicant's "bad character" could only be taken into account in considering her credibility and could not be used in determining whether she had committed the relevant offences. Counsel for the applicant submitted that an additional propensity warning should also have been given.

The principles allowing admission of evidence of bad character.

16 It is trite law that

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23 Whether an accused has put his or her character in issue by implication, thus allowing the Crown to lead evidence of bad character, depends on the facts of the particular case. It is sometimes difficult to discern clear factual distinctions between cases which have held that the accused's good character has been put in issue for consideration by the jury, and cases where the contrary view has been taken.

24 Counsel's purpose in leading the evidence is often considered. In this case counsel for the applicant swore an affidavit declaring that "at the time that I cross-examined on the card and sought its tender I was unaware that by so doing I would risk putting the applicant's character in issue." Counsel also swore that he was unaware of a relevant authority on the matter[13] and had no idea that by tendering the card he "risked making admissible the applicant's findings of guilt for theft."

25 Although Ms Thomas's counsel may have tendered the card in order to show that the applicant was a competent employee,[14] rather than to raise the issue of the applicant's character, it is the effect of the evidence, rather than the reason for tendering it, which is determinative. Otherwise the client of counsel who did not realise that the conduct of the defence put that client's character in issue, would be better off than an accused whose counsel was well aware that the evidence raised good character. It is clear that statements made by the accused or other witnesses called on his or her behalf may be held to have raised the good character of the accused, even when the evidence was intended to achieve a different forensic purpose.[15]

26 It is for the judge to decide whether the accused has "raised the issue of his character as an element for the consideration of the jury."[16] In Dawson v R[17] the High Court considered whether evidence of bad character could be admitted on the ground that the conduct of the defence was such as to involve imputations on the character of the prosecutor or the prosecution witness.[18] Taylor and Owen JJ said that the question was not whether a reasonable jury would think that the defence cast imputations against the character of a Crown witness, but whether the judge was of the opinion that it did so.[19] The same approach applies in determining whether the accused has put his own good character in issue.[20]

27 In applying the common law and legislative exceptions which permit admission of evidence of bad character, it is important to take account of the policy on which they are based. In Phillips v R[21] the High Court was concerned with the legislative exception under which the court has a discretion to allow cross-examination of the accused about prior convictions, when the accused attacks the credit of Crown witnesses.[22] Deane J explained that the discretion allowing evidence of prior convictions to be admitted was intended to ensure "that the trial of an accused is a fair one from the point of view of both the defence and the prosecution."[23]

28 The common law principle which allows admission of evidence of prior convictions if the accused puts his or her character in issue (subject to a discretion to exclude that evidence) seems to me to rest on a similar policy basis[24] to that which underpins the statutory exceptions in s 399(5)(b). In other words, the purpose of this exception is to ensure fairness to the Crown, where the accused has sought to gain an forensic advantage by putting his or her good character in issue for consideration by the jury. As discussed above, the court has a discretion to exclude evidence of bad character.[25] In exercising that discretion, it weighs the advantage the accused gains by putting his or her character in issue, against the prejudice he or she is likely to suffer if bad character evidence is admitted.

29 A trial judge will usually be in a better position than an appellate court to assess whether good character has been put in issue, so that he or she must then consider whether to exercise the discretion to exclude that evidence. This does not, of course, preclude this Court from deciding that the trial judge has erred in deciding that the good character of the accused has been put in issue.

30 The points made above can be summarised as follows.

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34 Because the trial judge is usually in a better position than this court to determine the effect of such evidence on the jury, considerable weight should be attached to his or her finding. This case is undoubtedly close to the line.

35 In the next section of this judgment I find that the trial judge erred by failing to exercise his discretion to exclude the evidence of Ms Thomas's prior convictions. This makes it unnecessary to determine whether the tender of the card put her character in issue.

36 If, however, it were necessary to decide this question, I would have been inclined to find that the tender of the card attacked the Digby's credibility, without putting Ms Thomas's character in issue. At common law, the mere fact that the credibility of a witness for the prosecution has been attacked does not expose the accused to admission of evidence of bad character.[27] Part of the defence case was that Carl and Sharon Digby fabricated the theft claim, because Ms Thomas had taken proceedings against them for wrongful dismissal. In my opinion the tender of a card in which the Digbys praised Ms Thomas's work performance, cast doubt on the Digby's motives for alleging that she had stolen child care fees, rather than putting her character in issue. Similarly, counsel's cross-examination of Sharon Digby on the contents of that card was primarily designed to raise doubts about her credibility.

Assuming that the applicant's criminal record was admissible, should the trial judge have exercised his discretion to exclude this evidence?

37 Even if the tender of the card put Ms Thomas's character in issue, the trial judge should have exercised his discretion to exclude evidence of the applicant's two previous findings of guilt, because this evidence was unfairly prejudicial to the accused.

38 As I have explained above, Crimes Act 1958, s 399(5)(b) confers a discretion on the court to admit evidence of the accused's prior convictions in certain situations, while the common law rule allows admission of such evidence where the accused has put his or her character in issue, subject to a discretion to exclude that evidence. While these discretions operate at different points, the criterion which governs their exercise is "what fairness requires in the circumstances of the particular case"[28] and the court must consider similar factors.

39 R v Perrier (No 1)[29] was concerned with the exercise of the court's discretion to exclude evidence of prior convictions, which would otherwise be admissible under common law principles. The Court of Criminal Appeal said that:

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40 At the trial, counsel for Ms Thomas submitted that she did not derive any significant advantage by the tendering of the card because its contents had already been adduced by the Crown and included in the record of interview which had been read out to the jury. The card was introduced in evidence for the purpose of showing she was competent, in a context in which the Crown had suggested that she had been dismissed for incompetence. Counsel for Ms Thomas also submitted that the prejudicial effect of admission of her prior guilty pleas was likely to be very high.

41 In his ruling on this matter the learned trial judge noted that the Digby's credibility had been "strenuously challenged" in cross-examination and that it was put to Mr Digby that he had fabricated documents in order to defend a wrongful dismissal claim made by the applicant. His Honour found that "a favourable testimonial from the complainants as to the accused's honesty clearly is of considerable advantage to the accused" and that accordingly the admission of evidence of her plea of guilty to two counts of theft had probative value. His Honour also acknowledged that the evidence would have a prejudicial effect on the accused.

42 The learned trial judge had the advantage of seeing the witnesses and assessing the effect of their evidence. However, in my view his Honour over-estimated the advantage gained by the accused as a result of the tendering of the thank you card. The card was given to the applicant by the Digbys some months before the alleged thefts occurred. It did not make any clear statement about the applicant's honesty, but simply showed that she was regarded by the Digbys as a good employee at that time.

43 The jury was made aware of the contents of the thank you card because it was in the record of police interview. It is questionable whether tender of the card in its original form would have led the jury to give greater significance to its contents than to the similar evidence in the record of police interview. Nor did cross-examination on the contents of the card give Ms Thomas any greater advantage than she could have obtained if Mrs Digby had been cross-examined on the contents of the card as read out in the police interview.

44 By comparison, the admission of the evidence of the two findings of guilt on charges of theft from an employer is likely to have had a devastating effect on the defence. His Honour was required to evaluate whether the prejudice to the applicant resulting from admission of her prior convictions was disproportionately high when balanced against the benefit which the applicant would gain from the tendering of the card, and determine if it would be unjust to permit the Crown to lead this evidence.[30] For the reasons I have given, the only conclusion reasonably open to his Honour was that the prejudice to Ms Thomas was disproportionately high, compared with the negligible benefit she obtained from the tendering of the card. Accordingly, in my view his Honour's exercise of the discretion to exclude the evidence of prior convictions miscarried.

45 His Honour directed the jury as to the use which could be made of the evidence of bad character. The direction was as follows:

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Parties