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Supreme Court 13 March 2026

R v Hooker (No 1) – Character ruling

[2026] NSWSC 322

Homicide
CRIME MURDER JURY TRIAL EVIDENCE CHARACTER EVIDENCE EVIDENCE ACT S 110 ADMISSIBILITY

Citation: [2026] NSWSC 322
Court: Supreme Court of New South Wales
Date: 13 March 2026
Judge(s): Dhanji J

Background

The accused is on trial for murder before a jury in the Supreme Court. The Crown case closed during the second week of trial, and before the defence case opened, a question arose about character evidence the accused wished to lead.

The accused indicated she intended to ask the officer-in-charge whether she had any criminal history, anticipating the answer would be "no." This evidence was to be used in support of two arguments: first, that the lack of a history of violent behaviour was relevant to whether the Crown had disproved extreme provocation beyond reasonable doubt; and second, that it supported the partial defence of substantial impairment — on the reasoning that a person without a history of violence would be unlikely to act violently absent a mental health impairment.

The Crown sought to rebut any such character evidence by tendering material (Exhibit VD-9) relating to a 2008 charge of intentionally or recklessly damaging property — specifically, the accused allegedly breaking a lounge room window during a confrontation. Critically, that charge had been dismissed in the Local Court after the complainant did not attend and the prosecution offered no evidence. The Crown proposed to lead the underlying witness statements about the conduct, rather than call any witness. The accused sought an advance ruling under s 192A of the Evidence Act 1995 (NSW) on whether the Crown's proposed rebuttal evidence would be admissible.

  • Whether the accused's proposed evidence (that she has no criminal convictions) constituted evidence of general good character, thereby triggering the Crown's right to lead rebuttal evidence under s 110(2) of the Evidence Act 1995 (NSW).
  • Whether the Crown's proposed rebuttal evidence — the underlying facts of a charge that was dismissed when the prosecution offered no evidence — would impermissibly controvert the accused's acquittal (the principle of incontrovertibility).
  • Whether, even if not excluded on incontrovertibility grounds, the Crown's proposed evidence should be excluded under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice.

Decision

Character evidence and s 110: Dhanji J accepted, following N Adams J's reasoning in R v Wiggins (No 7) [2022] NSWSC 1249, that an absence of criminal convictions is not a self-contained "particular respect" of character but rather a mode of proof of general good character. The accused did not submit otherwise. Accordingly, leading evidence that she had no convictions would constitute evidence of general good character under s 110(1), which in turn would enliven the Crown's right under s 110(2) to lead evidence that the accused was "not generally a person of good character" — subject to other exclusionary rules.

Incontrovertibility: The Court examined the status of the 2008 Local Court dismissal. The charge had been dismissed when the prosecution offered no evidence, apparently because the complainant did not attend. This raised the question of whether the dismissal amounted to an acquittal that could not be controverted. Although the judgment text as available does not set out the full reasoning on this point, the Court considered the relevant provisions of the Criminal Procedure Act 1986 (NSW) — including ss 202, 205 and 208 — and the broader common law principles regarding the finality of acquittals, drawing on authorities such as The Queen v Carroll and R v Suteski. The nature of the dismissal — effectively for want of prosecution rather than after a contested hearing on the merits — was a significant factor in the analysis.

Probative value versus unfair prejudice (s 137): Even assuming the evidence was not excluded on incontrovertibility grounds, Dhanji J considered whether the proposed rebuttal evidence should be excluded under s 137. Two features weighed heavily against admission: first, the conduct alleged was never tested or proved, given the charge was dismissed without evidence being heard; and second, the incident was remote from the present charge — both in time (approximately 17–18 years prior) and in nature (property damage during a personal dispute, as distinct from homicide). These considerations bore directly on the limited probative value the evidence could carry and the significant danger of unfair prejudice to the accused.

Ultimately, Dhanji J ruled that the Crown's proposed rebuttal evidence (Exhibit VD-9) would not be admissible if the accused raised her character in the manner indicated.

Orders Made

  • The accused's application for an advance ruling under s 192A of the Evidence Act 1995 (NSW) was granted.
  • The Crown's proposed rebuttal evidence (Exhibit VD-9) was ruled inadmissible in the event the accused led evidence of having no criminal history.

Key Takeaways

  • An absence of convictions constitutes evidence of general good character, not a self-contained "particular respect." Applying the principle from R v Wiggins (No 7), the Supreme Court confirmed that leading evidence of "no convictions" amounts to evidence of general good character and opens the door to general character rebuttal under s 110(2), rather than limiting rebuttal to the question of whether convictions exist.

  • Dismissed charges require careful analysis before use as rebuttal. A Local Court dismissal, especially one resulting from the prosecution offering no evidence, raises significant questions about incontrovertibility and the propriety of leading the underlying factual allegations as character evidence. The manner and basis of the dismissal was held to be a material consideration.

  • Remoteness in time and nature significantly diminishes probative value. Evidence of alleged conduct nearly two decades old and of a fundamentally different character to the offence charged struggled to survive a s 137 analysis, particularly where the conduct was never judicially established.

  • In delivering the ruling under time pressure during trial, Dhanji J emphasised the importance of identifying character evidence issues well in advance. The complexity of the questions involved highlighted the difficulties that arise when these matters are not resolved before the trial commences.

  • The precise forensic use a party wishes the jury to follow is a relevant factor in determining the admissibility and treatment of character evidence. Both parties accepted the relevance of articulating the specific reasoning chain supporting the proposed evidence, and the Court confirmed that sought-after directions do not automatically follow from the tender of character material.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 110, 137, 192A
- Criminal Procedure Act 1986 (NSW), ss 202, 205, 208
- Criminal Records Act 1991 (NSW)

Cases:
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- R v Wiggins (No 7) [2022] NSWSC 1249
- The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
- R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
- Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- DS v R [2018] NSWCCA 195; (2018) 274 A Crim R 551
- Abdallah v R [2019] NSWCCA 294
- Galvin v R [2006] NSWCCA 66; (2006) 161 A Crim R 449
- R v Le [2002] NSWCCA 193; (2002) 130 A Crim R 256