Regina v Zurita

The Court then went on: In the light of what is stated in the foregoing propositions, counsel for the accused was entitled, in our opinion, to apply to the trial Judge for rulings on the questions: (a) whether, if the accused gave evidence that he was "generally a person of good character", his Honour would refuse to permit cross-examination upon the previous offences of dishonesty, so refusing either by the method of refusing leave pursuant to section 112 of the Evidence Act ; or by the method of excluding such cross-examination in the exercise of the discretion conferred in that behalf by section 137 of the Evidence Act ; and (b) whether, if the accused gave evidence that he was "in a particular respect a person of good character", namely in respect of sexual misconduct with young children, his Honour would uphold a submission that section 110(3) of the Evidence Act did not permit cross-examination upon the previous offences of dishonesty." 16 In that case defence counsel did no more than seek that the trial judge give a "good character direction" without providing particulars of what evidence of character would be placed before the jury or to indicate what ruling he was seeking from the trial judge in respect of the issue of the accused's character. As a result, the ground of appeal, which asserted an erroneous ruling by the trial judge on the issue of character, failed. 17 In the present case, although no reference was made either to s 110 or the decision in PKS, it is clear that defence counsel was seeking a ruling as to whether he would be permitted to raise the issue of the appellant's character without leave being granted to the Crown to raise the appellant's criminal antecedents. The ruling was sought in respect of good character both generally and in a particular respect. Defence counsel even went so far as to indicate the nature of the evidence he sought to adduce in cross-examination of the police officer. In my opinion no more was required of him to raise the issue appropriately before the trial judge. 18 However, as a result of his Honour's indication that character was indivisible and that, if good character were raised in any form, the appellant was at risk of his criminal antecedents being placed before the jury, defence counsel accepted that a ruling had been made to the disadvantage of the appellant. As a consequence counsel determined not to raise the issue in the Crown's case. 19 Although strictly speaking his Honour made no ruling on the issue of character, defence counsel was entitled to accept that his Honour held the firm view that the appellant could not raise part of his character. It is clear that in this regard the trial judge was in error and as a consequence the appellant was effectively deprived of placing evidence before the jury that he had no antecedents for offences of child sexual assault. In fact, had the matter been properly considered, that aspect of his character might have been widened to encompass a lack of antecedents for sexual offences generally. 20 The Crown on the hearing of the appeal has acknowledged that his Honour was in error but has argued that although faintly at the end of the day there was no resulting miscarriage of justice. Although in written submissions it was argued that the present situation was not unlike that which existed in PKS, in my opinion as the Crown Prosecutor conceded in argument, that decision provides no answer to the ground of appeal. The Crown did not assert that, had the evidence of good character been led at the trial on a limited basis, the Crown could have rebutted it. 21 The only question, which has exercised my mind, is whether the error has resulted in no substantial miscarriage so that the proviso to s 6 of the Criminal Appeal Act should be applied. The question is resolved in the present case by asking whether the appellant lost "a chance which was fairly open to him of being acquitted": Mraz v The Queen (1955) 93 CLR 493 at 514. In Wilde v The Queen (1988) 164 CLR 365 at 372 it was stated: …………Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen (1977) 137 CLR 517, at p. 524; Reg. v Storey (1978) 140 CLR, at p 376; Gallagher v The Queen (1986) 160 CLR 392, at pp. 412-413. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen . The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case. 22 Basically the present case came down to the jury's assessment of the complainant's evidence. There was some support for her credibility in the complaint evidence which was admitted under s 108(3) of the Evidence Act to meet the suggestion made by the appellant in his record of interview that the complainant's mother was behind the allegation. There is a ground of appeal asserting that the evidence was wrongly admitted, but for present purposes I assume that it was properly before the jury. The trial judge saw particular significance in the complaint made to the school friend. 23 However that might be, in the end of the day the appellant was in the situation of meeting a complaint of sexual assault made two years after the event where there was no evidence to corroborate the complainant. In my view it cannot be said that the error, which in effect deprived the appellant of placing before the jury his good character even to a very limited extent, did not have any impact upon the trial. I accept that the character evidence that defence counsel intended to adduce was of a negative kind: that the appellant had no antecedents for sexual assault offences. Further, the appellant would not have been entitled to a direction that character had an impact upon the credibility of his account given to the police. But I cannot predict what a jury might have made of the evidence, had it been before them, when they were assessing the complainant's reliability. Certainly, I cannot come to the view that it would have had no impact at all. 24 In those circumstances, as unfortunate as it might be for the complainant and the community generally, I am of the view that the first two grounds must succeed and that the appeal should be allowed and the conviction quashed. It is a matter of considerable regret that the trial miscarried because no regard was had to an important provision of an Act of significance in the day to day running of criminal trials and which has been in operation since 1 September 1995. 25 None of the other grounds argued could result in any different disposal of the appeal even if they were determined in favour of the appellant and there is no reason to consider them further. 26 I propose that the appeal be allowed, the verdict and sentence quashed and that there be an order for a re-trial. 27 HODGSON JA: I agree. 28 LEVINE J: I agree. 29 HODGSON JA: So the orders of the Court are as proposed by Howie J.

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