Court of Appeal (Vic)|2014-02-14|Before: Weinberg JA

Saw Wah v The Queen [2014] VSCA 7 (14 February 2014)

DPP v Saw Wah (Unreported, County Court of Victoria, Judge Cannon, 27 February 2013 (Conviction))

1 The applicant stood trial in the County Court at Melbourne on two charges of sexual penetration of a child under 16 (charges 2 and 5) and five charges of indecent act with a child under 16 (charges 1, 3, 4, 6 and 7). He was convicted on charges 1 to 4, and acquitted of charges 5 to 7. He was sentenced to a total of five years and six months' imprisonment with a non-parole period of three years and seven months.

2 The applicant now seeks leave to appeal against conviction only. He relies upon the following two grounds:

The trial judge erred in ruling that, in the event the applicant called evidence of good character, the Crown would be permitted to call evidence in rebuttal, resulting in a substantial miscarriage of justice.

The trial judge was in error in refusing to give the jury a direction that the delay in complaint had caused a significant forensic disadvantage to the applicant, resulting in a substantial miscarriage of justice.

3 There was originally an additional ground relating to uncharged acts. However, that ground was expressly abandoned before the hearing of this application.

4 The applicant is of Burmese origin, and a member of the Karen Ethnic Community. So too is the complainant, 'C'. The applicant came to this country in 2006 with his wife, having spent many years previously in a refugee camp in Thailand.

5 C was born in June 2000. She emigrated with her family to Australia in about 2005. The applicant and C's family became friends through a mutual interest in Karen cultural activities, particularly traditional 'Done' dancing. The applicant was a teacher of that form of dance.

6 C's mother and father both regularly took part in Done dancing. Her mother was a dancer and her father a musician. In the latter part of 2009, and early 2010, the applicant arranged for dance practice sessions to be held at a number of locations, including his home. The applicant's family, and that of C, were close, seeing each other socially as well as for dance practice.

7 The Crown alleged that on three separate occasions, between December 2009 and January 2010, the applicant sexually interfered with C. All of these offences were said to have been committed in the front room of the applicant's home.

8 The first occasion related to an incident that was said to have occurred between 1 December 2009 and 1 February 2010. C was aged 9 at the time, and had just completed grade 3. C and her family attended at the applicant's home for dance practice. After practice was over, C was sitting on the couch in the front room watching television when the applicant sat down next to her. He put his hand under her underpants and fondled her vagina (charge 1). He then inserted his finger into her vagina (charge 2).

9 The second occasion involved an incident that took place within the same broad timeframe, but after the first occasion. C and her family went to the applicant's house, this time on a social visit. C was playing outside when the applicant asked her to come indoors. She went to the front room of the house. There was a bed in that room. The applicant sat down on the bed next to C. He put his hand inside C's underpants and once again fondled her vagina (charge 3). Moments later he repeated that act (charge 4).

10 As previously indicated, the Crown alleged a third occasion in the course of which it was said that the applicant had digitally penetrated C, and twice fondled her vagina (charges 5 to 7). These incidents were said to have occurred during another social visit by C and her family to the applicant's home. The jury acquitted the applicant on all three of these charges.

11 The Crown also alleged, as part of its case, that the applicant had engaged in numerous other acts of a sexual nature with C. These were 'uncharged acts', based upon statements in C's VARE to the effect that the applicant had touched her 'heaps of times'.

12 The only persons said to have been present at the time of the offending were C and the applicant. Essentially it was her word against his.

13 C first complained to her mother in about May 2011, some 15 months or so after the last offending was said to have taken place. C's evidence was that she had not said anything to anyone about the applicant's behaviour towards her until she observed, in the shower, that her vagina was 'longer' than that of her sister. Her comment to that effect was drawn to her mother's attention. Eventually, under persistent questioning, C told her mother what she claimed the applicant had done to her.

14 It is perhaps important to note that C agreed with defence counsel's suggestion to her, in the course of the special hearing, that she felt pressured by her mother's questions, and believed that she had to answer them.

15 C took part in a VARE on 21 May 2011. The applicant was interviewed by police on 11 July 2011. He denied all of C's allegations. A special hearing was conducted on 30 August 2012, and C was cross-examined by counsel appearing for the applicant.

16 In the course of the trial, the Crown called evidence from C (being the VARE, and the recording of the special hearing, both of which were tendered as exhibits), C's mother and father, two doctors who had examined C (but whose evidence did not advance the Crown case), the applicant's daughter-in-law, and the informant.

17 It is unnecessary to refer to the evidence of any of these witnesses in any detail. It is sufficient to note that in cross-examination, C's mother accepted that, on occasion, after dance practice sessions at the applicant's home, other people would stay behind for a meal. She claimed, however, that usually it was just her family that stayed behind.

18 Defence counsel who cross-examined C at the special hearing put to her quite squarely that she had never attended the applicant's home in either December 2009 or January 2010. C rejected that suggestion, insisting that she had gone to the house with her family for dance practice in December 2009, and on social visits in January 2010.

19 The applicant, in evidence, denied all of C's allegations. He said that there were three dance practice sessions held in the lead up to a dance performance for Burmese New Year celebrations on 19 December 2009. The first two of these sessions were held on 5 and 6 December 2009, at a school. The third was at his home, on 18 December 2009. He produced his personal diary for that year which referred specifically to the practice sessions in December, and contained a list of attendees for the third session. That list did not include C's mother.

20 The applicant said that there were no dance practice sessions at all in January 2010.

21 In cross-examination, the applicant said that he did not keep a record of whether musicians attended the practice sessions. However, he was certain that C's father had not attended the session on 18 December 2009. By reference to earlier practice sessions, he agreed that he did not always record the names of the dancers at every practice session. He also acknowledged that his diary was not a complete record of all practice sessions. He maintained, however, that it was simply not possible for C's mother to have been at the practice session held at this home on 18 December 2009.

22 The applicant had no prior convictions of any kind. He had, however, been convicted in the Magistrates' Court at Werribee, on 16 March 2011, of having driven under the influence, careless driving, and leaving the scene of an accident. These offences were all committed after the alleged assaults upon C had taken place.

23 The question of good character first arose early on in the trial. Defence counsel raised this issue with the judge. He foreshadowed that, as part of the defence case, he might wish to adduce evidence that the applicant had no prior convictions of any kind, and also that he was of good character generally.

24 It seems that counsel determined that it was appropriate to address this issue because, in discussions that he had had with the prosecutor, she had, in effect warned him that if he led any evidence of good character, in whatever form, she would call rebuttal evidence. She apparently intimated that this rebuttal evidence consisted of 'rumours' of past, unspecified sexual misconduct on the part of the applicant. It appears that those 'rumours' concerned matters that were entirely unrelated to C's allegations, and therefore to the offences charged.

25 Concerned by what the prosecutor had said, defence counsel sought an indication from the judge as to whether such rebuttal evidence would in fact be permitted to be led. In the course of the discussion that ensued, counsel drew her Honour's attention to s 110 of the Evidence Act 2008. The judge herself referred to several leading cases dealing with good character evidence, including, in particular, the decision of the High Court in Melbourne v The Queen.[1]

26 The judge at that stage very properly raised with the prosecutor the need for any rebuttal evidence to be relevant. Her Honour expressed reservations as to whether evidence of 'rumours' of past sexual misconduct, unconnected with the charges being heard, could ever satisfy that test. She did not, however, say anything about the admissibility of evidence in that form.

27 The prosecutor replied by indicating that she had now considered the matter more carefully. She accepted that, as matters stood, she could not rely upon rumours of prior sexual misconduct to rebut evidence of good character. She said that the reason why she had initially thought that it might be permissible to lead evidence in that form was because of the width of the provisions of the Evidence Act 2008 governing rebuttal evidence. She noted that s 110 provided, in terms, that rebuttal evidence would not be caught by the hearsay rule, the opinion rule, the tendency rule or the credibility rule.[2]

28 As a result, the prosecutor told the judge that she would not persist with any application to lead evidence involving rumours of unrelated sexual misconduct. She added, however, that she might seek to lead such evidence if defence counsel 'strayed into areas of sexual behaviour'.

29 Just what the prosecutor had in mind by that statement is by no means clear. Even if defence counsel had led evidence as to his client's prior good conduct in relation to sexual matters, it is impossible to see how mere scuttlebutt as to sexual offending, wholly unrelated to the issues in the trial, could possibly be led in rebuttal.

30 Similarly, it is difficult to imagine that the prosecutor could conceivably be granted leave, under s 104(2), to cross-examine the accused about such matters if he chose to give evidence.

31 However, the prosecutor's threat of what she might do if good character evidence were led seems to have caused defence counsel considerable anxiety. He responded, somewhat defensively, by saying that he doubted that he would be able to find a witness who could comment on the applicant's sexual behaviour in general, or his reputation in that regard. Counsel ought, of course, to have taken a much firmer stance. He would have been fully justified in insisting that the prosecutor be made to withdraw her threat, which was, of course, based on a misconception as to the law.

32 The judge, rather than telling the prosecutor peremptorily that under no circumstances would she be permitted to call evidence of 'rumour', went off on something of a tangent. Her Honour noted that matters of general reputation were one thing, and a person's observation of the accused's behaviour with children another. She said that she had doubts as to whether evidence of good character with regard to sexual behaviour generally would be of any great assistance to the defence in the context of this trial.

So, I would be thinking carefully about whether you would want to go into that particular area in any event. [emphasis added]

And if it is going to go into that area it might be that [the prosecutor] does wish to raise something by way of rebuttal. So steady as she goes... And you might want to have a chat with [the prosecutor] also before you were thinking of perhaps going into more detail about general reputation and the accused's behaviour as observed by others. [emphasis added]

35 The position at that stage was that the defence had been put on notice by the prosecutor that any attempt to adduce evidence of good character might have damaging consequences. In fact, there was no justification for any such warning to have been given since there was no rebuttal evidence available, in admissible form, that was relevant, or able to be led.

36 The question of good character did not arise again until the ninth day of the trial, towards the end of the Crown case. Here it is necessary to set out, in some detail, the transcript of the discussion that took place.

HER HONOUR: [Counsel for the accused], you have something to raise.

COUNSEL FOR THE ACCUSED: There is, Your Honour. When the informant gives evidence this morning I'd been intending to ask of her whether or not Mr Saw Wah had prior convictions. He has a matter, Your Honour, at Werribee Magistrate's on 16 March of 2011. I've got a LEAP extract of it but they were four charges; careless driving of a motor vehicle, failing to stop a vehicle after an accident, failing to report to police, owner not present and exceeding the prescribed concentration of alcohol. It doesn't reveal when the offence date is from the document that I have.

HER HONOUR: Yes.

COUNSEL FOR THE ACCUSED: I had raised with Your Honour at the start of the trial what would be the case if character evidence was called as in witnesses called to attest to his good reputation. That's not something that the defence will be doing, but I did intend to lead from the informant that, from my reading this must be a subsequent because the offending is at the end of 09 into 2010, that he had no prior convictions. I wanted to raise it, Your Honour, as to determine whether, if I did do that, my friend would be permitted to adduce evidence of the conviction on 16 March of 2011 for the drink-driving and other driving matters. Perhaps before I finish, Your Honour - - -

HER HONOUR: I've just been having a look at the law on character evidence. You're entitled to adduce evidence of good character - under the common law it wasn't admissible, now it is under the Evidence Act as I understand it - and if then you were wanting to ask the informant as at the time that the offences were said to have been committed he had no prior convictions.

COUNSEL FOR THE ACCUSED: What I hope to do, Your Honour, would be firstly determine in discussions with the informant that if I simply ask the question, does he have prior convictions, relying on, if you like, the legal definition of prior convictions, that this would appear to be a matter that the conviction postdates the date of the alleged offending here, that was simply all that I would ask. I wasn't going to ask Your Honour on that basis to give a direction to the jury about good character and I wasn't going to mention good character in the close. Simply the fact that 'you've heard evidence that he has no prior convictions. My concern, Your Honour, I guess, is perhaps slightly heightened given that [C's mother] in an answer yesterday, Your Honour, and nothing was made of the comment, I think made a comment at one point that she thought Mr Saw Wah was drunk. I intended to say nothing about that and hoped that nobody else would say anything about that and the jury's mind wouldn't be brought to it. But if there's evidence then before the jury of this drink-driving matter then that might take a greater significance than perhaps it would otherwise. There's been no suggestion by - - -

HER HONOUR: The point of leading evidence of no prior convictions or any character evidence, I suppose, in the words that I've been looking at it, it goes to a person's inherent moral character, I think is one of the expressions that's used. The 'exceed PCA', yes, I understood was - sorry, the exceed prescribed concentration of alcohol in circumstances where [C's mother] talked about him being affected by alcohol on one occasion would be a cause for concern, I would have thought, and you don't want anything said about that. But what you're wanting to do anyway at this stage is see what the informant would be prepared to say in that regard.

COUNSEL FOR THE ACCUSED: And if the informant would say, 'Look, all right, if you ask me I'll say he has no prior convictions', whether my friend in re-examination would be permitted to ask the informant had there been a subsequent, is there a subsequent conviction, and then adduce evidence of the drink-driving and driving offences.

HER HONOUR: There's no suggestion that on the occasion of the alleged offending he has been affected by alcohol.

COUNSEL FOR THE ACCUSED: No. The effect of - - -

HER HONOUR: But it is slightly misleading because really without a direction from me you're wanting to convey to the jury that he's a man who has no prior convictions, no blemish against his name, and you can use his good character, even though you're not getting a direction, you don't seek a direction, but you can use his good character to assess the unlikelihood or to go to the unlikelihood of him committing these offences.

COUNSEL FOR THE ACCUSED: Yes. Perhaps maybe I could suggest a compromise, that the convictions in March of 2011, perhaps I could put to the informant that other than being convicted for driving offences in March of 2011 he otherwise has no prior convictions, and then it perhaps doesn't go quite to the point of there being the exceeding prescribed concentration of alcohol and avoid the risk of perhaps the evidence of [C's mother] being given greater significance than it would otherwise, and would, without giving the jury the full story, convey that he's been in front of the courts once for driving matters and not for other matters.

HER HONOUR: I'll hear from the learned prosecutor.

PROSECUTOR: Your Honour, on the [C's mother'] evidence, when she let slip there was an occasion where she thought he was affected by alcoholism, I didn't intend to pursue that.

HER HONOUR: No.

PROSECUTOR: Obviously, I know the accused man intends to give evidence, and if something is said that opens that up, so be it, but I don't intend to pursue it. However, if my friend asks the informant about priors, that can only be relevant to the issue of character, and if he goes there this is opened up. And I'm not satisfied with the compromise, Your Honour, driving offences, this is bad driving offences, this is leaving the scene of an accident, failing to report an accident and being intoxicated behind the wheel. So 'driving offences' doesn't capture the flavour of this offending. So I suggest that we go nowhere near this, Your Honour. But if my friend wants to open up his priors, I can take the informant to this and I want to take the informant to the character of this offending.

HER HONOUR: All right. Yes. I think if you did go there - you've heard the learned prosecutor.

COUNSEL FOR THE ACCUSED: Yes.

HER HONOUR: She will go there too, and it does open it up I would have thought. Even though at the end of the day I'm not sure how relevant that sort of evidence is to the likelihood of him committing the offences in question.

COUNSEL FOR THE ACCUSED: Yes.

HER HONOUR: But it sounds to me..., like you would be opening a can of worms that would do more harm than good.

COUNSEL FOR THE ACCUSED: Maybe one thing that could be clarified before I decide whether or not to ask the informant, that is whether the informant is aware of the circumstances of the offending. I don't know whether she is or not. I did ask yesterday by email for the LEAP records and this is what came back. I don't know if there is a summary that's been obtained that might set out exactly what happened. But maybe - - -

HER HONOUR: Well, look, I'll stand down. Is that - - -

COUNSEL FOR THE ACCUSED: Just before you do, Your Honour, just so that I'm clear on what Your Honour is indicating, if I was to ask the informant either does Mr Saw Wah have any prior convictions or framing the question other than convictions for driving matters in March of 2011, that Your Honour would permit my friend to ask the informant in re-examination, 'Are you aware of the details of the charges that were at Werribee court on that date?' - - -

HER HONOUR: Yes, I would be minded..., if the Crown wish to take that course, because you're trying to convey that there is no conviction against your client's name where the situation is other than that. If you're raising good character, then the Crown would be entitled to re-examine about that aspect. [emphasis added]

37 It seems clear, from these passages, that defence counsel was still very much concerned about what he thought were the risks associated with the jury learning that not only had his client been convicted of a series of traffic offences, but also 'the details of those offences'. In counsel's view, that risked reminding the jury of certain evidence given by C's mother who had said, non-responsively, that, on one occasion when she attended a dance practice session at the applicant's home he appeared to be drinking.

38 In my opinion, counsel's concern was largely unjustified. In fact, the issue of the applicant's having driven whilst under the influence was of no relevance whatever to any question the jury had to resolve in this trial. It was never part of the Crown's case that the applicant had been drinking at the time of any of the alleged offending. Put simply, the defence was that none of C's allegations were true. In that sense, intoxication was nothing more than a 'red herring'.

39 Nonetheless, counsel's apprehension that the jury might, in some way, react adversely to his client if presented with the details of the traffic offences led him to raise with the judge, for a second time, what the consequences might be if he led from the informant the fact that the applicant had no prior convictions.

40 That produced a ruling that, in effect, indicated that should counsel go down that path, the prosecutor would be given leave to explore the details of those traffic matters in full. One is tempted to ask, rhetorically, so what? If the prosecutor had, indeed, been permitted to elicit evidence of that kind, it would have provided the defence with a significant weapon with which to attack the prosecution case. It would have exposed the entire prosecution case to the comment that it was a sign of utter desperation that such obviously irrelevant material had been led in an effort to overcome the weakness of C's evidence. Many defence counsel would have welcomed the prosecutor's decision to elicit such material, and would have used it to their advantage.

41 It should be said that the importance of evidence of good character is sometimes underrated. In a case such as the present, involving oath against oath, such evidence can be of particular significance. Not only does the jury learn that the accused has no prior convictions, but they are also told that this evidence bears directly upon the likelihood that he committed the offences charged. Moreover, they are also told that the accused's previous good character is relevant to his credibility. It is obviously a significant disadvantage to the defence if, for whatever reason, the evidence of good character is not led, and the directions to which the accused is entitled are not given.

42 At common law, evidence of good character was always admissible. Originally this was confined to evidence of reputation.[3] Over time, this limitation was seen to be irrational, and the common law developed so that evidence of disposition, as well as reputation, became admissible.[4] In some jurisdictions, that development was either brought about or hastened by legislation.[5]

43 Good character can, of course, be established in a variety of different ways. One possibility is to lead evidence that the accused has no prior convictions.[6] Another is to go further and call evidence as to reputation, and disposition generally.

44 After Rowton was decided, it was determined that the Crown, in rebuttal of good character, could lead evidence of bad character. Initially, this too was confined to evidence of bad reputation. Originally such rebuttal evidence was said to go to credibility only.[7]

45 After 1898, when the accused was first permitted, in England, to give evidence in his own defence, the law permitted him to be cross-examined as to otherwise prohibited matters if he put his character in issue. This included cross-examination as to prior convictions.[8] It was generally understood that only those previous convictions that were in some way relevant, whether to establish guilt or to challenge his credibility, should be put.[9] The trial judge always had a discretion as to whether to permit cross-examination along these lines.[10]

46 Staying with the common law for the moment, it was traditionally understood that there was no such thing as putting one's character partly in issue.[11] An accused could not, for example, lead evidence that he had no prior convictions for violence, without exposing himself to having his prior convictions for dishonesty placed before the jury. It was always somewhat risky, therefore, to raise good character if there were discreditable matters that might be led in rebuttal. That did not mean that the Crown had carte blanche to lead evidence of matters that could not, sensibly, affect either the likelihood that the accused was guilty, or his credibility.[12]

47 When evidence of good character was led, it was considered 'desirable' that a direction be given as to the use to which that evidence could be put.

48 In R v Trimboli[13] King CJ observed:

No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused's previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused's previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.[14]

49 Chief Justice King went on to say that the judge was, of course, at liberty to remind the jury that people do commit crimes for the first time, and that evidence of previous good character cannot prevail against evidence of guilt, which they find to be convincing, notwithstanding the accused's previous character. These additional directions were sometimes described as 'balancing directions'.

50 The High Court considered the form that jury directions should take in relation to good character evidence in Melbourne. There it was held by majority that although a judge should normally direct the jury that good character has a dual aspect, being relevant both as to the issue of guilt and as to credibility, the failure of the trial judge in the particular circumstances of that case to have given the credibility part of that direction had not led to a miscarriage of justice.

51 In Melbourne the accused led evidence that he had no prior convictions apart from one for drink driving in 1975. He also called good character evidence of a general kind. The trial judge gave the usual 'improbability of committing the instant offence direction'. However, he did not go on to give the 'credibility direction'.

52 On appeal, it was submitted that the failure to give the direction in its entirety had resulted in a miscarriage of justice. The majority (McHugh, Gummow and Hayne JJ) rejected that submission. Their Honours noted that, hitherto, trial judges in this country had been regarded as having a discretion as to the directions they should give concerning the use to be made of good character evidence. McHugh J referred to Simic v The Queen,[15] where it was held that although there was no rule of law requiring any specific direction to be given, it would generally be 'wise' to give one, specifically if it were sought. His Honour recognised that the position in both the United Kingdom and New Zealand was different. There, the full direction was obligatory.

53 Kirby J, who dissented, would have required a full good character direction to be given in all cases. Callinan J, who also dissented, considered that such a direction should have been given in the particular circumstances of the case but agreed with the majority that the matter should remain for the discretion of the trial judge.

54 It is now clear, in accordance with the provisions of the Evidence Act 2008, that the defence may lead evidence to establish that the accused is a person of good character in ways that would never have been contemplated in the past.

55 Section 110 provides:

(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.

(2) If evidence adduced to prove (directly or by implication) that an accused is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not generally a person of good character.

(3) If evidence adduced to prove (directly or by implication) that an accused is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not a person of good character in that respect.

56 Section 112 provides:

An accused must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.

57 Thus, under s 110, the accused can lead evidence to show that he or she is a person of good character generally, or a person of good character 'in a particular respect'. Unlike the position at common law, character is no longer treated as 'indivisible'.

58 The implications of this change have only begun to emerge over time. In Bishop v The Queen[16] the appellant had been convicted of various sexual offences involving his step-daughter. His good character was advanced in both the defence opening and closing addresses. In addition, evidence was elicited from prosecution and defence witnesses to the effect that he had a good reputation, both generally, and with children. It was also established that he had never been accused of similar offending before.

59 The trial judge directed the jury that only the accused's general reputation, and not the personal opinion of any witness could be given in evidence. Quite why he did so is by no means clear. That had not been the law for a very long time, and was most definitely not the law as contained in s 110.

60 A second issue concerning good character arose in Bishop. It was understood at trial that the character of the accused had been regarded as 'indivisible' at common law. It being recognised that this was no longer the case under s 110, the trial judge, having permitted good character evidence to be led, and being constrained to give appropriate good character directions to the jury, sought also to give the 'balancing directions' of which I spoke earlier. His Honour told the jury, perfectly correctly, that evidence of good character could not 'alter proven facts', and that 'a person who had previously been of good character [could] commit a crime for the first time'. Unfortunately, he added several unwarranted comments to these balancing directions.

61 In effect, the judge improperly confined the accused's reputation for dealing with children to conduct that took place 'in the presence of others', and 'outside of the home'. None of the witnesses who testified in that case had limited their evidence in that way, nor had they intended that it should have been so understood. It was held, on appeal, that these additional comments went too far, and gave rise to a substantial miscarriage of justice.

62 In R v Zurita[17] the New South Wales Court of Criminal Appeal held that in circumstances where good character evidence is confined to a 'particular respect' rebuttal evidence will ordinarily be similarly confined. Thus, for example, evidence might be adduced by work colleagues as to the defendant's honesty as an employee. Rebuttal evidence would have to be confined to that issue, and could not delve into other areas.

63 It was accepted, of course, that evidence of good character 'in a particular respect' might be adduced to counter allegations of sexual abuse.[18]

64 It is clear from the transcript of the proceedings below that there was a considerable degree of confusion on the part of both the prosecutor and defence counsel as to how evidence of good character is to be dealt with under the provisions of the Evidence Act 2008.

65 This is demonstrated by the fact, to which I have earlier drawn attention, that defence counsel initially apprehended that if he elicited evidence of good character, that might trigger the admission, against his client, of 'rumours' of previous sexual misconduct. That was, of course, a complete misconception.

66 As far as the prosecutor was concerned, she should never have contemplated for a moment leading evidence in any such form.

67 The trial judge, upon being informed of what the prosecutor had told defence counsel, should have made it clear at once that no one would be permitted to lead evidence of unspecified rumours. However, she did not do so.

68 The prosecutor ultimately appreciated that, irrespective of the apparent width of the language employed in s 110 of the Evidence Act 2008, there was no basis for pursuing any such course. Regrettably, she left hanging a veiled threat to seek leave to introduce such evidence, if the defence 'strayed into areas of sexual behaviour'. Defence counsel was obviously troubled by that particular 'Sword of Damocles'.

69 When the issue of good character later emerged again, it did so in a somewhat different form. Defence counsel indicated that it was now his intent, subject to the judge's ruling, to elicit from the informant nothing more than that his client had no prior convictions. By this stage he had decided that he would not, as he had previously foreshadowed, seek to call witnesses as to his client's general good character.

70 Defence counsel then put forward a submission that I find difficult to understand. He indicated that, in the event that he led evidence that his client had no prior convictions, he would not ask her Honour to give the jury the usual good character direction. Indeed, he went further. He undertook to say nothing about good character at all in his closing address. All he would say was 'you've heard evidence that he has no prior convictions'.

71 Just why defence counsel felt constrained to offer such a 'compromise', effectively giving up the benefits of a good character direction, is by no means easy to grasp.

72 Perhaps he considered that by offering to give up the direction it would at least follow that the judge would not make the usual balancing comments. If so, his offer seems to me to have been ill-judged. Those balancing comments are usually innocuous. They merely remind the jury of what is, in any event, perfectly obvious. They do not, in any way, prejudice the accused. Nor do they detract significantly from the very real benefit that can accrue from the giving of a good character direction.

73 Alternatively, defence counsel may have thought that by offering the judge these assurances, there was less chance that her Honour would permit the prosecutor to go down the path of leading rebutting evidence as to the details of the traffic offences. If so, that again constituted a misjudgement. Defence counsel was, in effect, offering to forego a benefit to which his client was entitled, and getting nothing of any real value in return.

74 The judge swiftly put an end to the proposed compromise. Her Honour expressed the view that what defence counsel was seeking to do was to suggest that the applicant was a man of wholly unblemished character, which, in her opinion, would have been misleading.

75 Oddly enough, her Honour's observation resulted in defence counsel making yet another offer of 'compromise'. He then put forward the suggestion that he would ask the informant not just whether the applicant had any prior convictions, but, also elicit that there were convictions, in March 2011, for traffic offences.

76 It is interesting to note that defence counsel did not, at any stage, proffer the suggestion that perhaps the informant might simply be asked whether his client had any prior convictions for sexual offending, or violence. Perhaps it is understandable that he considered a question in that form to be dangerous.

77 The argument regarding good character continued for some time without any clear sense of direction. The judge then heard from the prosecutor. Her response to what had been put by defence counsel was blunt. She rejected the compromise that had been offered. She indicated that if counsel went down 'either path' (by which she meant if counsel sought to place before the jury evidence that the applicant had no prior convictions, or no prior convictions save for traffic matters), she would elicit from the informant full details of the driving offences.[19]

78 In truth, defence counsel should never have offered any compromise. He was well within his rights to present the case as he had foreshadowed. He was entitled to ask the informant whether his client had any prior convictions. He was even more clearly entitled to ask whether, putting traffic offences to one side, the applicant had ever been convicted of anything. The prosecutor had no business rejecting a compromise that should never have been offered.

79 The judge should have made the position clear, but regrettably did not do so. Instead, she indicated to defence counsel that if he pursued the course that he had foreshadowed, the prosecutor would be permitted to lead evidence of the 'details' concerning the traffic offences.

80 The judge commented that she was not sure how relevant that sort of rebuttal evidence would be to the likelihood of the applicant's having committed the offences with which he was charged. However, that observation did not alter her ruling.

81 In truth, the answer to the question that her Honour posed was obvious. The details of the traffic offences were irrelevant to the question of his guilt or innocence of these offences. Instead of making that plain, and ruling on that basis, the judge spoke of defence counsel 'opening a can of worms that would do more harm than good'.

82 Having received that intimation from her Honour, counsel sought further clarification. He re-stated the position, as he understood it to be, namely that if he asked the informant whether his client had any prior convictions, or any convictions other than for driving matters in March 2011, the prosecutor would be permitted to elicit the details of the charges dealt with on that date.

83 Her Honour repeated her earlier ruling, stating:

Yes, I would be minded...if the Crown wished to take that course, because you're trying to convey that there is no conviction against your client's name where the situation is other than that. If you're raising good character, then the Crown would be entitled to re-examine about that aspect. [emphasis added]

84 Her Honour's reasons did not constitute an appropriate response to the submission that had been advanced. One option that counsel had put forward specifically involved revealing to the jury the fact that the applicant did have other convictions, albeit for quite unrelated matters. The judge did not address that possibility in her ruling.

It must be said that defence counsel, in the course of his submissions, changed his position continually. He offered what he described as a 'compromise' because he was concerned that his client might suffer prejudice if the jury learnt the details of the traffic offences. However, if there was indeed a risk associated with those details being made known to the jury, that risk paled into insignificance by comparison with the benefit foregone by not leading evidence of good character and being denied the

advantage of a full character direction.[20]

85 The prosecutor had a duty to ensure, among other things, that the applicant received a fair trial. It must be said that she approached the issue of rebutting evidence of good character with less moderation than one might have expected. The probative value of the 'details' of the motor vehicle offending was, at best, marginal, and at worst, non-existent.

86 The judge seems to have vacillated between recognising that the course proposed by the prosecutor was highly doubtful, but at the same time insisting that the jury be given what might be described as the 'whole picture'.

87 Senior Counsel who appeared before this Court on behalf of the Crown submitted that we should take the view that defence counsel at trial had executed what might be described as a 'cunning plan', whereby he could gain the benefit of presenting the applicant as a person of entirely unblemished character when that was simply not the case. He submitted that counsel below had carefully calculated that by asking whether the applicant had any prior convictions, apart from traffic matters, he might succeed in presenting the jury with a distorted and misleading picture.

88 I reject that submission. The better view is that defence counsel who appeared below lacked any clear appreciation of the principles governing the admissibility of good character evidence, and the implications of leading evidence of that kind. The reason why he shifted his position repeatedly throughout his submissions had more to do with his uncertainty as to what he was seeking to achieve than it did as part of any carefully contrived attempt to mislead the jury. As Coghlan JA observed during the course of oral submissions, if there was a 'plan' (which I frankly doubt), it certainly did not deserve the label 'cunning'.

89 The applicant was entitled to be tried fairly and according to law. He was entitled to have the jury told that he had no prior convictions of any kind provided, of course, that this could be done in a way which was not misleading. Had his counsel simply elicited from the informant the fact that the applicant had no convictions of any kind, save for these particular traffic matters, there was no risk of the jury being, in any relevant sense, misled.

90 As it happened, the applicant was denied both the benefit of good character evidence, and the advantage, to which he was entitled, of the accompanying good character direction. He was entitled, as a matter of law, to adduce evidence that would have ensured that the jury was aware that he had no convictions of any kind save for traffic matters. The jury would then have been aware that he was not a known paedophile, and that it was not suggested that he had ever previously committed offences against children.

91 The benefit to the applicant of having that evidence before the jury would have greatly outweighed any prejudice associated with their being made aware of the details of his traffic offences. It is of course a serious matter for anyone to drive a motor vehicle under the influence of alcohol. However, I very much doubt that a modern jury, properly instructed, would use knowledge of the fact that an accused has done so when considering the strength of the case against him on charges of sexual offending.

92 In one sense, the decision not to call evidence of good character involved a forensic choice on the part of the applicant's counsel. However, it was a choice that was heavily influenced by what seems to have been a misapprehension on the part of the judge as to how the law in this area should be correctly applied. In those circumstances, I would not treat that choice as either having been freely made, or as barring this appeal from succeeding.

93 For these reasons I would grant leave to appeal on ground 1 and order that the appeal be allowed.

94 Strictly speaking, that makes it unnecessary to deal with ground 3, namely that the trial judge fell into error in refusing to direct the jury that delay in complaint had caused a significant forensic disadvantage to the applicant. However, as there is to be a new trial, I should say that I consider this ground to be without merit.

95 Counsel for the applicant, in his written submissions, argued that the delay of 15 months between the last occasion of alleged offending and the making of a complaint by C led to the applicant suffering a significant forensic disadvantage. This delay, according to counsel, meant that the complainant could not identify the occasions of the alleged offending with specificity as she could not identify the dates on which the dance practice or the family visits to the applicant's home had occurred. That in itself, it was argued, caused him to lose the opportunity to establish which other people were present at the dance practice or at his home on the occasions that C's family were there too. Defence counsel also argued that the delay denied the applicant the ability to call evidence of an alibi.

96 In my opinion, the judge was perfectly entitled to conclude that although there was forensic disadvantage to the applicant by reason of the delay in complaint, that disadvantage did not rise to the level of being significant.

97 Almost every case involving delay in complaint will result in some forensic disadvantage to the accused. Of course, matters of sexual offending against children often go unreported for lengthy periods. In any event, there was nothing peculiar, or special, about the disadvantage in this case. The fact that the applicant could not, for

example, rely upon an alibi (hypothetically speaking) falls well short of establishing that the forensic disadvantage that he suffered was significant.

98 The other matters upon which the applicant relied, such as his inability to call witnesses as to precisely what was happening at his home on the occasions in question, take the matter no further. None of those persons were said to have been present when the offences were committed. The rest is sheer speculation.

100 For the reasons set out above the appeal should be allowed and a new trial be had.

101 Having had the considerable benefit of reading the reasons of Weinberg JA, for the reasons that his Honour gives, I agree that ground 1 should be upheld, and ground 3 rejected. The application for leave to appeal against conviction should thus be granted, the appeal allowed, the convictions and sentences quashed, and a new trial ordered.

[2] Of course, it did not follow from s 110 of the Evidence Act 2008 (Vic) that mere 'tittle tattle' could be adduced to rebut evidence of good character. To construe s 110 in that way, as though, under the guise of rebuttal evidence, it permitted irrelevant and otherwise inadmissible evidence to be led, would be an absurdity. Moreover, the section does not in any way diminish the force of s 137, which requires the court to reject evidence adduced by the Crown if its probative value is outweighed by the danger of unfair prejudice to the accused.

[3] R v Rowton [1865] EngR 53; (1865) 169 ER 1497 ('Rowton'). In Melbourne, McHugh J commented upon the weakness of relying on reputation evidence to convey valuable and accurate information about a person.

[4] See Stirland v Director of Public Prosecutions [1944] AC 315; Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353; Eastman v The Queen (1997) 76 FCR 9 and Bishop v The Queen [2013] VSCA 273.

[5] See for example, Crimes Act 1900 (NSW) s 413 and Evidence Ordinance 1971 (ACT) s 56. These provisions had the effect of abrogating the rule in Rowton's case.

[8] Criminal Evidence Act 1898 (UK) s 1.

[10] Selvey v Director of Public Prosecutions [1970] AC 304.

[11] R v Winfield [1939] 4 All ER 164.

[12] It is difficult to imagine that traffic offences, not involving any high degree of moral obloquy, would ever be sought to be led in rebuttal of evidence of good character, and there are no reported cases, of which I am aware, where the prosecutor has sought to do so. The present case is, in that regard, unusual.

[16] [2013] VSCA 273 ('Bishop').

[18] In R v PKS (Unreported, New South Wales Court of Criminal Appeal, Wood CJ at CL; Sully and Ireland JJ, 1 October 1998), a case involving sexual offences against a child, evidence of good character in respect of young children was admitted.

[19] Just what that would have entailed is uncertain. Did the prosecutor have in mind any more than the actual blood-alcohol reading associated with the driving offences? Did she propose to call witnesses as to everything that had occurred leading up to and after the collision? It seems to be an almost inescapable conclusion that little real thought had been given to what was in her mind.

[20] That is, the direction on good character evidence as well as the direction on bad character evidence. No form of words is required for a direction of the former kind. However, were the prosecutor to adduce evidence of the latter in response to the admission of good character evidence by the defence, counsel for the applicant would be entitled to seek a direction from the judge to the effect that the jury may use the evidence when assessing the accused's credibility and may not use the evidence to infer that the accused was more likely to have committed the offences because he was a person of bad character: R v Perrier (No 1) [1991] VicRp 37; [1991] 1 VR 697; R v Thomas [2006] VSCA 167; Donnini v The Queen [1972] HCA 71; (1972) 128 CLR 114; BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275; R v Stadler [1981] 2 NSWLR 9 and R v Rihia [2000] VSCA 235.

Saw Wah v The Queen [2014] VSCA 7

At a glance

Court

Decision date

Before

Source

Judgment (133 paragraphs)

Saw Wah v The Queen [2014] VSCA 7 (14 February 2014)

Parties

Cases Cited (7)