R v Thomas [2006] VSCA 167

1 I have had the considerable advantage of reading in draft the reasons for judgment of Neave, J.A. For the reasons given by her Honour, I too would allow the appeal. I agree with the disposition which her Honour proposes.

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:

"Dear Cheryl, just a note to say thank you for holding the fort at Giggles while we were on holiday. I have complete trust in your abilities and I can honestly say that it's the first time I have been away and not been worried about what's going on or what could happen. It was a big responsibility for you, as you well know the potential for accidents is very big. But as always you've done a wonderful job and probably even managed to save us money. Thank you for working so hard and being so practical."

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

"[e]vidence of bad character is admitted only in exceptional circumstances even where the courts regard it as tending to prove that the accused is likely to have committed the crime in question."[2]

17 As Gibbs, C.J. explained in Perry v R[3], the rationale for excluding evidence of bad character or propensity to commit particular kinds of crimes, [4] even though such evidence may be relevant to the question whether the accused has committed the crime with which he or she has been charged, is that

" it is likely to be unfairly prejudicial to the accused."

18 Section 399(5)(b) of the Crimes Act 1958[5] sets out some of the exceptions to the principle that evidence of bad character is normally inadmissible. If certain conditions are satisfied, these provisions give the court a discretion to admit evidence of prior convictions.[6] The discretion arises where the accused is a witness and where witnesses for the prosecution have been cross-examined with a view to establishing the accused's good character, or the accused has given evidence as to his own good character, or where the nature or conduct of the defence has involved imputations on the character of the prosecution or witnesses for the prosecution.[7]

19 An accused who is not called as a witness is not caught by s 399(5)(b). There is, however, an additional common law exception to the rule that evidence of bad character is inadmissible, which allows admission of evidence of prior convictions if the character of the accused has been put in issue[8]. The court's permission is not required before that evidence is led, though the court has a discretion to exclude the evidence on the grounds of fairness to the accused. In R v Perrier (No 1) the Court of Criminal Appeal said that the Crown should seek a ruling from the court on whether the character of the accused has been put in issue, "so as to have that question determined and so as to afford the accused...an opportunity of submitting that as a matter of discretion the evidence should not be received." [9]

20 The common law exception does not allow evidence of the accused's bad character to be led simply because the accused has attacked the character of a prosecution witness. In R v Butterwasser[10] Lord Goddard, C.J. said that:

"it is certainly contrary to what all the present members of the court have understood during the whole of the time they have been in the profession - that where the prisoner does not put his own character in issue, but has merely attacked the witnesses for the prosecution, evidence can be called for the prosecution to prove that the prisoner is a man of bad character."

21 In this case Ms Thomas did not give evidence on her own behalf, so that evidence of her prior convictions was only admissible if she put her own character in issue.

When is good character put in issue by implication?

22 The contents of the card did not explicitly put the applicant's character in issue, but arguably did so by implication. In P v R[11], King, C.J. commented that

"There is always a difficulty where there is no express assertion of good character, but it is claimed that it is to be found by implication in other evidence... Where an accused person, by his description of himself or his activities, is, by clear implication, conveying to the jury that his character is such that he would not be likely to commit the offences charged against him, there is no doubt that the accused person loses the protection of the section."[12]

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.

(a) The test for determining whether the good character of the accused has been put in issue, is not whether a reasonable jury would think that this is the case, but whether the judge is of the opinion that it does so;

(b) counsel's purpose in leading the evidence is relevant, but is not determinative;

(c) the policy basis for allowing admission of evidence of bad character, where the accused has put his or her character in issue, is to ensure fairness to the prosecution by permitting that evidence to be rebutted;

(d) at common law the fact that the accused has attacked the character of a prosecution witness does not, without more, expose him or her to admission of evidence of bad character;[26] and

(e) where the threshold requirement for the admission of evidence of bad character is satisfied, the court has a discretion to exclude it. The nature of this discretion is discussed in more detail below.

Did the trial judge err in finding that the tendering of the card raised the issue of the applicant's character?

31 The applicant's counsel, Mr Priest, Q.C. submitted that the tendering of the card did not put the applicant's character in issue, because the contents of the card related only to the applicant's competence as an employee.

32 Counsel for the Crown submitted that the applicant's character had been put in issue because "anyone reading the card could only... form a view that Mrs Thomas was an honest and trustworthy individual."

33 The trial judge ruled that

"counsel by his tendering of the card has raised the issue of the accused's character as an element for the consideration of the jury."

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:

"Where the accused suggests he is of good character and the Crown proposes to tender evidence of prior convictions, a highly important consideration in exercising the discretion is the relative weight on the one hand of the advantage gained by the accused by the steps which have been taken by him or on his behalf in an endeavour to show his good character, and on the other hand the degree of prejudice which may result to the accused from proof of the prior convictions."

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:

"In this trial you have heard some evidence, what is called evidence of bad character. The general rule is that evidence that the accused had been previously in Court and pleaded guilty to other charges is generally not admissible. The accused's guilt must be proved, generally speaking, by evidence relating only to the charge or charges brought against him. However, in this case an exception to that general rule has been permitted to be given, that the accused in March of 2003 pleaded guilty to two counts of theft. I give you the following directions of law about the use of that evidence there is one way in which you may use [this evidence] and one way in which you may not. You are entitled to use the evidence as to the credit of the accused. That is to say you may use it against the accused when considering what weight you should attach to it. In this trial there are statements to the Police as contained in the record of interview. You may, if you choose, consider that what the accused said is less to be trusted because of her bad character. However, you are not entitled to use it as evidence that the accused committed the crime or crimes charged in this case. You are not entitled to say this person is not of good character, therefore, it is more likely she is guilty. To do that would be contrary to the law, because the law provides that an accused is not to be judged by his or her past but by what, if any, offence is proved against him or her at this trial."

46 While this direction would have been perfectly correct if the evidence as to bad character had been properly admitted, it could not overcome his Honour's error in allowing admission of evidence of the accused's prior convictions.

47 The applicant was acquitted of 15 of the 21 counts of theft on which she was presented. Counsel for the Crown submitted that the acquittals showed that the convictions reflected a careful consideration by the jury of each count in the presentment and that admission of the evidence of the prior thefts had not prejudiced the jury. I do not accept this view. There were many possible explanations for the acquittals on the other 15 counts, including the evidence adduced in cross-examination of the parents and the computer records.

Did a miscarriage of justice occur because of the incompetence of the applicant's counsel in tendering the thank you card in evidence?

48 My finding on the issues above make it unnecessary for me to reach a conclusion on this ground of appeal. I have already indicated my opinion that the tender of the card attacked the Digby's credibility, rather than putting the applicant's good character in issue. If this view is correct it would create a logical barrier against establishing a miscarriage of justice arising from counsel's alleged incompetence in tendering the card, despite the fact that he was unaware of the risks of doing so.

Lack of propensity warning

49 The third ground of appeal was that the learned trial judge failed to give the jury a sufficient warning about propensity reasoning. Strictly speaking it is unnecessary for me to make a decision on this ground, because I consider that the applicant's conviction should be quashed on the ground indicated above. In my view, however, his Honour gave a sufficient warning to the jury in the circumstances of this case.

50 The learned trial judge directed the jury on a number of occasions about the use which could be made of evidence of the applicant's prior offences. Shortly after the evidence was given he directed the jury that it "could not be used as rendering guilt more likely" nor could the jury say that because "a person had been involved in this other situation, they must have done that." The jury was instructed that the evidence could only be used as relevant to her credibility. His Honour made a similar point three times in his charge. As noted above, when directing the jury on what he described as "bad character" he said

"You may, if you choose, consider that what the accused said is less to be trusted because of her bad character. However, you are not entitled to use it as evidence that the accused committed the crime or crimes charged in this case. You are not entitled to say this person is not of good character, therefore it is more likely she is guilty. To do that would be contrary to the law because the law provides that an accused is not be judged by his or her past but by what, if any, events

are proved against him or her at this trial."

51 The applicant submitted that by referring to Ms Thomas' "bad character" he had invited the jury to engage in propensity reasoning, so that an explicit propensity warning was required. This ground of appeal cannot be sustained. The judge gave clear and strong warnings about the use which could and could not be made of the evidence of prior convictions. As in R v Mateiasevici[31] any additional warning relating specifically to propensity could have been prejudicial to the respondent by drawing attention to the propensity character of the evidence.

52 I would therefore grant the application for leave to appeal and treat the appeal as being heard instanter and allowed. The convictions should be quashed and a new trial ordered.

53 I have had the benefit of reading in draft the reasons for judgment of Neave, J.A. I agree with her Honour that it is unnecessary to determine whether the tendering and admission into evidence of the card sent to the applicant by the Digbys had the effect of putting the applicant's character in issue, although I am inclined to the view that the conclusion of the trial judge that it did have that effect was correct.

54 I agree with Neave, J.A. that, on the assumption that the tender of the card put the applicant's character in issue, the exercise of discretion by the trial judge (not to exclude the evidence of the applicant's prior convictions) miscarried because the resulting prejudice to the applicant was disproportionately high compared with the slight benefit that she obtained from putting the card into evidence.

55 Accordingly I agree with her Honour's proposed disposition of this appeal.

[1] [1991] VicRp 37; [1991] 1 V.R. 697 at 701 per Brooking, J.

[2] Melbourne v R [1999] HCA 32; (1999) 198 C.L.R. 1 at 16 per McHugh, J. See also Kirby, J. at 38 and Dawson v R [1961] HCA 74; (1961) 106 C.L.R. 1 at 16-17 per Dixon, C.J.

[3] [1982] HCA 75; (1982) 150 C.L.R. 580 at 585.

[4] I do not deal here with exceptions relating to the admission of propensity evidence.

[5] Crimes Act 1958 s 399 (5)(a) is not relevant in this case.

[6] If these conditions are satisfied it is not necessary to show that the circumstances are exceptional in order to exercise the discretion to admit evidence of bad character; see Phillips v R [1985] HCA 79; (1985) 159 C.L.R. 45 at 55 per Mason, Wilson, Brennan and Dawson JJ. This case concerned the operation of Evidence Act 1977 (Qld) which is in similar terms to Crimes Act 1958, s 399(5)(b).

[7] Some qualifications which are not relevant to this case are omitted from the above statement.

[8] The differences between the common law and statutory principles reflect the history of the legislative provisions. It may now be appropriate for reform in this area to be considered.

[9] [1991] VicRp 37; [1991] 1 V.R. 697 at 703.

[10] [1948] 1 K.B. 4 at 6.

[11] (1993) 61 S.A.S.R. 75.

[12] Ibid at 77 - 78. Note that in this case the issue concerned admission under section 18 of the Evidence Act (1929) (SA), a statutory provision, but the analysis is still applicable.

[13] R v Perrier No 1 [1991] VicRp 37; [1991] 1 V.R. 697.

[14] See paragraph [31], below.

[15] See for example R v Stantchev (1995) 81 A. Crim. R. 200 at 206.

[16] R v Perrier No 1 [1991] VicRp 37; [1991] 1 V.R. 697 at 702.

[17] [1961] HCA 74; (1961) 106 C.L.R. 1.

[18] The relevant section was then Crimes Act 1958 s 399(e)(ii). See now s 399(5)(b).

[19] [1961] HCA 74; (1961) 106 C.L.R. 1 at 20 - 21; see also at 15 per Dixon, C.J.

[20] See, for example, R v Perrier No 1 [1991] VicRp 37; [1991] 1 V.R. 697.

[21] [1985] HCA 79; (1985) 159 C.L.R. 45.

[22] The relevant section was Evidence Act 1977 (Qld) s 15(2), which like Crimes Act 1958, s 399(5) permits admission of evidence of prior convictions where the nature or conduct of the defence has involved imputations on the character of the prosecution or witnesses for the prosecution.

[23] [1985] HCA 79; (1985) 159 C.L.R. 45 at 62.

[24] In R v Butterwasser, [1948] 1 K.B. 4 at 6, the Court stated that it was 'elementary law' that where "where the prisoner himself puts his character in issue, evidence in rebuttal can be given by the prosecution to show that he is in fact a man of bad character".

[25] See para 19, above.

[26] R v Butterwasser [1948] 1 K.B. 4 at 7. By contrast, where s 399(5)(b) applies because an accused is called as a witness, the court has a discretion to admit evidence of bad character if the conduct of the defence involves imputations on the character of the prosecution or witnesses for the prosecution. See also R v De Vere [1982] Q.B. 75.

[27] R v Butterwasser [1948] 1 K.B. 4 at 6.

[28] In relation to the former discretion see Phillips v R [1985] HCA 79; (1985) 159 C.L.R. 45 at 58 per Mason, Wilson, Brennan and Dawson JJ.

[29] [1991] VicRp 37; [1991] 1 V.R. 697.

[30] R v Rihia [2000] V.S.C.A. 235 at 22.

[31] [1999] VSCA 120; [1999] 3 V.R. 185.