AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 13 February 2002

Regina v Zurita

[2002] NSWCCA 22

Sexual offences
EVIDENCE ADMISSIBILITY AND RELEVANCE

Citation: Regina v Zurita [2002] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 13 February 2002
Judges: Hodgson JA, Levine J, Howie J

Background

The appellant was convicted in the District Court of aggravated sexual assault under s 61J(1) of the Crimes Act 1900, following a jury trial before Phegan DCJ. The complainant was the appellant's 12-year-old stepdaughter, and the alleged offence occurred in 1997 during a family trip to the Blue Mountains. The appellant denied the allegation throughout, including in a recorded police interview, and did not give evidence at trial.

The appellant had a minor criminal record, including a 1995 larceny conviction, a mid-range PCA offence, and an assault against the complainant's mother in 1999 that was found proved but dismissed. Crucially, he had no prior record for any offence of a sexual nature.

Before evidence commenced, defence counsel sought to place before the jury the fact that the appellant had no antecedents for offences of this type, either by a judicial direction or through targeted cross-examination of the police informant. The trial judge declined to permit this limited character evidence, expressing concern that raising character at all would be an "all or nothing" exercise opening a "Pandora's box."

  • Whether the trial judge erred in refusing to allow the defence to lead limited evidence that the appellant had no prior convictions for sexual offences
  • Whether the refusal to permit this partial character evidence gave rise to a miscarriage of justice
  • Whether any other grounds of appeal (relating to complaint evidence and judicial directions) warranted separate consideration

Decision

The Court of Criminal Appeal found that the trial judge had misapplied the relevant provisions of the Evidence Act 1995, particularly s 110, which permits an accused to adduce evidence of good character in a limited or partial way. The judge's "all or nothing" approach was an error, and no proper basis existed to prevent the defence from eliciting the narrow fact that the appellant had no record for sexual offences.

Howie J, with whom Hodgson JA and Levine J agreed, accepted that the character evidence in question was of a negative kind: that the appellant had no antecedents for offences of this nature. It would not have entitled the appellant to a direction going to his credibility, given he did not give evidence at trial. However, the court found it was impossible to say the evidence would have had no impact on the jury when assessing the complainant's reliability in a case that turned entirely on her word against a denial made two years after the alleged event, with no corroboration.

The court concluded that the error deprived the appellant, at least to a very limited extent, of his ability to place relevant character material before the jury. In a case resting solely on the assessment of the complainant's evidence, that deprivation could not be dismissed as inconsequential. Accordingly, the first two grounds of appeal succeeded.

The remaining grounds were not determined, as their resolution could not have altered the outcome of the appeal.

Orders Made

  • Appeal allowed
  • Verdict and sentence quashed
  • Re-trial ordered

Key Takeaways

  • Under s 110 of the Evidence Act 1995, an accused is permitted to adduce evidence of good character on a limited basis, such as the absence of prior convictions for offences of the type charged, without necessarily opening up their entire criminal history.
  • A trial judge's refusal to permit partial character evidence, based on a misapprehension that character must be raised on an "all or nothing" basis, constitutes a legal error capable of giving rise to a miscarriage of justice.
  • Where a trial turns entirely on the credibility and reliability of a complainant, with no corroborating evidence, the Court of Criminal Appeal will not readily conclude that the denial of limited character evidence was harmless.
  • The Court of Criminal Appeal expressed considerable regret that the miscarriage arose from the failure to apply a provision of the Evidence Act 1995 that had been in force since 1 September 1995.
  • A conviction will be quashed where the appellate court cannot be satisfied that the trial error had no impact on the jury's verdict, even where the character evidence excluded was narrow in scope.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 556A
- Evidence Act 1995 (NSW), ss 108(3), 110
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- R v PKS (Court of Criminal Appeal NSW, 1 October 1998)
- Mraz v The Queen (1995) 93 CLR 493
- Wilde v The Queen (1998) 164 CLR 365