Citation: R v Manevski [2016] NSWSC 1032
Court: Supreme Court of NSW
Date: 29 July 2016
Judge: Button J
Background
The accused stood trial in Newcastle on a charge of murder, with an alternative count of being an accessory after the fact. The central issue in the murder count was whether she had entered a joint criminal enterprise to kill or cause grievous bodily harm to the deceased.
During defence cross-examination of the investigating officer, it was established by agreement between counsel that the accused had no prior criminal convictions. Both parties accepted this amounted to raising good character in a particular respect only, not good character generally.
The accused then gave evidence herself. Near the end of her examination-in-chief, in response to a question about whether she had ever agreed to cause injury to the deceased, she said: "No, never, ever. Anyone that knows me knows I would never do anything like that to anyone." The Crown applied for leave to cross-examine her on an earlier incident to rebut that impression.
Legal Issues
- Whether the accused's answer in examination-in-chief constituted an intentional raising of good character, either generally or in a particular respect, within the meaning of s 110 of the Evidence Act 1995 (NSW)
- Whether the character raised was limited to a particular respect (a propensity not to agree to commit violence with others), as the defence argued, or extended more broadly to a general disposition against violence
- Whether leave to cross-examine on the rebuttal evidence should be granted under s 112 of the Act, having regard to the factors in s 192(2)
- Whether the probative value of the proposed cross-examination was outweighed by the danger of unfair prejudice under s 137 of the Act, requiring exclusion or limitation
Decision
Button J was satisfied that the accused's statement, "Anyone that knows me knows I would never do anything like that to anyone," was a deliberate assertion in the witness box, going beyond the limited character evidence introduced by agreement through the officer in charge. His Honour found that the accused had intentionally raised her good character in a way that conveyed, at least by implication, that she was not a violent person generally. That finding satisfied the preconditions in s 110(3) for admitting rebuttal evidence.
His Honour rejected the defence submission that the statement should be read narrowly as an assertion only about a propensity to agree with others to commit violence, rather than a general assertion of non-violence. The plain meaning of the words, in context, conveyed a broader claim about the accused's character.
The Crown sought to cross-examine on a specific prior incident recorded in a witness statement, in which the accused was said to have pressed a small branch against a young woman's forehead, made threats to kill her and her family, and declared herself to be "a fucking psycho." Button J found that the incident, if put in its entirety, carried a serious risk of unfair prejudice that outweighed its probative value in rebutting the character evidence. The most prejudicial elements, particularly the extreme language used, created a real danger that the jury would reason improperly about tendency.
Accordingly, leave was granted on a strictly limited basis. The Crown was permitted to cross-examine only on a sanitised version of the incident: that the accused, some years earlier, during a dispute with a young woman, pressed a small branch against her forehead and made a threat against her and her family. Button J also indicated that clear jury directions would be given in the summing-up to confine the jury's use of that evidence to the limited purpose for which it was admitted.
Orders Made
Leave was granted to the Crown Prosecutor to cross-examine the accused, but only on the following restricted terms:
- That some years ago, as part of a dispute with another young woman, the accused pressed a small tree branch against her forehead
- That the accused made a threat against the young woman and her family
- That, to the extent the accused's evidence-in-chief suggested otherwise, it was not correct
Additional directions:
- The permitted questions were to be asked immediately, not deferred to the end of cross-examination
- Questions concerning a case in reply were left to be addressed as needed
Key Takeaways
- Under s 110 of the Evidence Act 1995 (NSW), the precondition for admitting rebuttal character evidence is that the accused positively and intentionally raised good character, either generally or in a particular respect; mere inadvertent or incidental references to character do not suffice.
- A discursive answer given by an accused in examination-in-chief, going beyond what had been introduced by counsel's agreement, can constitute an intentional raising of character even where the original agreed evidence was limited in scope.
- Where rebuttal evidence spans both a probative core and highly prejudicial additional detail, the court may grant leave on a restricted basis rather than admitting or excluding the evidence in its entirety.
- Section 137 of the Act operates as an important constraint on rebuttal character evidence: even where the s 110 preconditions are satisfied and leave is granted under s 112, evidence that carries a serious risk of unfair prejudice exceeding its probative value must be excluded or trimmed.
- Button J confirmed that jury directions remain an integral part of managing rebuttal character evidence, and expressly noted the intention to direct the jury on the strictly limited use to which such evidence could be put.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 110, 112, 137, 192, 192(2)
Cases:
- Gabriel v The Queen (1997) 76 FCR 279
- PGM v The Queen [2006] NSWCCA 310; (2006) 164 A Crim R 426