HCA: dishonesty and evidence of “good character”

Braysich v The Queen [2011] HCA 14 (11 May 2011)

I refer you to the summary of the judgment in relation to the facts. A central issue for determination was the use of evidence of “good character” in a criminal trial, which is helpfully review by French CJ, Crennan and Kieffel JJ.

The evidence of good character

39.

Section 998(6) imposed a legal burden on the appellant to negative, on the balance of probabilities, a dishonest purpose. The appellant called extensive evidence going to his honesty. The question arises – how should such evidence have been used? In this case, the answer is not difficult.

40.

In Attwood v The Queen the Court said[53]:

“The expression ‘good character’ has … a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged.”

Their Honours quoted with approval the observation of Cockburn CJ in R v Rowton[54]:

 

“The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried.”

The statement in Attwood and the quotation from the judgment of Cockburn CJ were reiterated in Simic v The Queen[55] albeit with the qualification, apparently directed to the statement by Cockburn CJ, that it “did not purport to be a full statement of the law on the subject”.

41.

The admission and use of evidence of good character has a long history. It dates back, as Gummow J pointed out in Melbourne v The Queen[56], to a time before the accused became a competent witness when there was generally no question of a jury using such evidence in an assessment of the accused’s testimonial credit. Its history has been characterised by conceptual confusion between reputation and actual disposition. As McHugh J said in Melbourne, character refers to the inherent moral qualities or disposition of a person. It is to be contrasted with reputation, which refers to the public estimation or repute of a person irrespective of that person’s inherent qualities[57]. The evidence in the present case went to the actual disposition of the appellant. The witnesses called on his behalf testified to their dealings with him, and knowledge of him, as an honest person.

42.

In the end, as Gummow J said in Melbourne[58]:

“The issues in the particular case and the nature of the evidence of ‘good character’ which is proffered will guide the process of reasoning of the tribunal of fact on the path to providing an answer to the ultimate question of whether the accused is guilty beyond reasonable doubt.”

The same proposition applies to the use of evidence of good character in support of the statutory defence in this case.

43.

In discussing what is required of a judge directing a jury where evidence of good character has been called, Hayne J, in Melbourne, referred to the common example of an accused of previous undoubted honesty in money matters being tried for an offence of fraudulently obtaining financial advantage. In such a case, as his Honour observed[59]:

“the judge may think it appropriate to draw the attention of the jury to the fact that prior good character may be thought, by them, to make it less likely that the accused acted with dishonest intent.”

His Honour added the caveat that on those bare facts there is no requirement that the judge give such a direction. But his observation recognised the potential relevance of evidence of honesty to the likelihood that an accused person has acted dishonestly.

44.

The statutory defence in s 998(6) raises an issue of honesty. The purpose of creating a false or misleading appearance of active trading is a dishonest purpose. Evidence of the appellant’s honesty was capable of supporting a submission that it was improbable that he acted with that dishonest purpose. The Court of Appeal’s dismissal of the evidence of the appellant’s good character as evidence which “does not address his subjective purpose or purposes”[60] was an error. The Court failed to consider the relevance of the evidence to the question whether the appellant was unlikely to have had the proscribed dishonest purpose.

 

Brisbane Barrister – David Cormack

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