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Supreme Court 18 July 2018

R v AKB (No. 7)

[2018] NSWSC 1120

Assault & violence
EVIDENCE CRIMINAL LAW CHARACTER EVIDENCE S 110 EVIDENCE ACT WHETHER CROWN CAN CROSS EXAMINE ON UNCHARGED ACTS

Citation: R v AKB (No. 7) [2018] NSWSC 1120
Court: Supreme Court of New South Wales
Date: 18 July 2018
Judge(s): Davies J

Background

The accused stood trial, with earlier rulings in the proceedings having excluded evidence of alleged assaults on the deceased in Iran between 2007 and 2009, and other evidence of the accused's behaviour toward the deceased in the earlier years of their marriage. Those exclusions were based on remoteness and unfair prejudice outweighing probative value.

During the trial, the accused sought to adduce evidence from a police officer that he had no criminal record. This was a deliberate, targeted move to raise good character in a particular respect under s 110 of the Evidence Act 1995 (NSW), rather than a broad claim of general good character.

In response, the Crown sought to re-introduce the previously excluded evidence of assaults and other bad behaviour toward the deceased. The court was asked to rule on whether s 110(3) permitted the Crown to do so.

  • Whether the accused's evidence of having no criminal record constituted adducing good character evidence "in a particular respect" under s 110 of the Evidence Act 1995 (NSW).
  • Whether, once an accused raises good character only in a particular respect, the Crown's rebuttal evidence is confined to that same particular respect.
  • Whether the Crown could cross-examine the accused on, or lead evidence of, uncharged acts of violence toward the deceased in response to the accused raising his lack of a criminal record.

Decision

Davies J held that by tendering evidence of no criminal record, the accused was raising his character only in the particular respect of his criminal antecedents. This was a deliberate exercise of the right afforded by s 110(1), which permits an accused to put good character in issue either generally or in a particular respect, rather than on an all-or-nothing basis as was the position at common law.

The court applied the principles established in R v PKS and confirmed in Regina v Zurita [2002] NSWCCA 22. Those cases make clear that where an accused limits the character evidence to a particular respect, s 110(3) confines any Crown rebuttal to that same particular respect. The Crown cannot use the accused's partial character claim as a gateway to introduce broader bad character evidence.

The Victorian Court of Appeal's analysis in San Maung Saw Wah v The Queen [2014] VSCA 7 was also cited in support of that construction. Davies J concluded that the other evidence the Crown sought to rely upon, namely the evidence of assaults and bad behaviour toward the deceased, fell outside the particular respect in which character had been raised and therefore could not be adduced under s 110(3).

Orders Made

• I rule accordingly.

Key Takeaways

  • Under s 110 of the Evidence Act 1995 (NSW), an accused may raise good character in a particular respect without opening the door to general bad character evidence. This departs from the common law "all or nothing" approach confirmed in Zurita.
  • Where an accused adduces evidence only of having no criminal record, the good character claim is limited to that particular respect, and Crown rebuttal is correspondingly confined to that same issue.
  • Section 110(3) operates as a limiting mechanism: rebuttal evidence must match the particular respect in which good character was raised, and evidence going beyond that respect is not rendered admissible merely because some character evidence has been adduced.
  • Evidence previously excluded on grounds of remoteness and unfair prejudice does not become admissible simply because the accused later raises good character in a separate, narrower respect.
  • The decision affirms the principle, drawn from PKS, Zurita, and San Maung Saw Wah, that defence counsel may strategically calibrate the scope of good character evidence to limit the Crown's ability to adduce rebuttal material.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 110, 112, 137, 165
- Crimes Act 1900 (NSW), s 556A

Cases
- R v PKS (Court of Criminal Appeal NSW, 1 October 1998, unreported)
- Regina v Zurita [2002] NSWCCA 22
- San Maung Saw Wah v The Queen [2014] VSCA 7