R v Hooker (No 1) – Character ruling

1. [1]

   HIS HONOUR: Yesterday I acceded to an application made by the accused for an advanced ruling on evidence pursuant to s 192A of the Evidence Act 1995 (NSW). That was on the basis, in accordance with s 192A, that a relevant question had arisen and I considered it appropriate to provide an advance ruling. I ruled that in the event that the accused raised her character in the manner indicated, the evidence which the Crown proposed to lead in response, contained in Exhibit VD-9, would not be admissible. My reasons for that ruling are as follows.

2. [2]

   The accused is on trial for murder. Her trial commenced before me sitting with a jury on 2 March 2026. The Crown case closed just before 4pm yesterday, which was Thursday in the second week of the trial. That there was a question that may require resolution by me was flagged shortly before 4pm on the Wednesday afternoon. As it happened, the jury was not required on Thursday morning due to the unavailability of the defence psychiatrist, Dr Andrew Ellis, whose evidence, for reasons of his availability, had been interposed in the Crown case.

3. [3]

   He commenced giving evidence on Wednesday and was scheduled to return at 2pm on Thursday. The time on Thursday morning was used for argument on this issue. It was necessary to resolve the question prior to the conclusion of Dr Ellis’ evidence (the ruling being relevant to his evidence), and certainly before the close of the Crown case.

4. [4]

   The question of whether an accused will raise character and, if so, what the Crown’s response will be will arise, perhaps with very limited exceptions, in every criminal trial. In many cases the question will be very quickly answered, but it is a question that needs to be considered.

5. [5]

   As it happens, the question here was not straightforward. Its resolution was even less so. While the complexity involved may have been greater than had been anticipated, that simply underscores the importance of identifying and raising legal issues well in advance. I provide these reasons today shortly after the event of my ruling in order that they reflect my actual reasoning, whatever its shortcomings, having regard to the limited time for consideration.

6. [6]

   Central to the question of admissibility, both to the evidence the accused proposed to lead and that which the Crown proposed in rebuttal, is s 110 of the Evidence Act. That section provides:

7. [7]

   It is necessary to understand, firstly, the evidence that the accused indicated she intended to lead. I was told on the application the intention was to ask the officer-in-charge whether the accused has any criminal history. It was anticipated the answer would be “No”. The answer is relevant to the issues in the trial: Evidence Act, s 55.

8. [8]

   Despite the presence of various exclusionary rules in the Act, such evidence is admissible pursuant to s 110(1).

9. [9]

   In terms of the use proposed to be made of the evidence, the accused also indicated that, based on the anticipated answer, she would seek the following directions, albeit they remained in draft form.

10. [10]

    The first direction it was indicated would be sought was as follows:

11. [11]

    It was indicated a further direction would be sought as follows:

12. [12]

    It does not, of course, automatically follow that the directions it was indicated would be sought will be given. All parties, however, accepted it was relevant to know the use that would be sought to be made of the evidence.

13. [13]

    Tendered on the voir dire by the prosecution was a bundle of material consisting of a court attendance notice relating to a charge of damaging property brought against the accused, associated facts, a statement of Tracey Dargan of 24 March 2009, a statement of Sherelle Hooker of 28 January 2008, the statements of two police officers, two images of a broken window, an image of the front cover of the original police prosecutor folder, and the relevant COPS event.

14. [14]

    Also tendered was the JusticeLink record in relation to the matter (Exhibit VD-10). That material established that the accused on 7 December 2008 was charged with an offence of intentionally or recklessly damaging property, that being the lounge room window of Ms Dargan on that same day.

15. [15]

    From the material tendered, it appears the prosecution case was essentially contained in the statement of Ms Dargan and her daughter, Ms Sherelle Hooker. The prosecution indicated that, subject to my ruling, it was proposed to lead paras (4) through to (8) of Ms Dargan’s statement, which are as follows:

16. [16]

    It was also proposed to lead part of Ms Sherelle Hooker’s statement which was, essentially, supportive of the statement of Ms Dargan. It was further indicated that the evidence would be adduced in that statement form. That is, it was not intended to call any witness.

Was the evidence, if otherwise admissible, available as evidence in rebuttal pursuant to s 110 of the Evidence Act?

1. [17]

   The first issue was whether the evidence, if not otherwise excluded, would be admissible pursuant to s 110(2) or (3) as a result of the evidence proposed to be led by the accused. As I have indicated, the evidence proposed to be led is that the accused has no convictions. The evidence does not directly rebut this. The records indicate that the charge was dismissed. The cover of the prosecutor’s folder indicates that the complainant, Ms Dargan, did not attend court. Inferentially, as a result, no evidence was offered, resulting in the dismissal of the charge. That result is confirmed by the JusticeLink record.

2. [18]

   The evidence that was proposed to be led is, in that context, not of any conviction or even facts leading to conviction, but, rather, evidence of particular conduct. As such, it did not directly contradict the proposed assertion that the accused has no convictions.

3. [19]

   Character is an issue of some complexity. It is not a binary concept, as criminal lawyers are sometimes want to treat it: see Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32. The issue of the relevance of an absence of prior convictions was considered in some detail by N Adams J in R v Wiggins (No 7) [2022] NSWSC 1249. Her Honour said at [62]:

4. [20]

   It was not submitted on behalf of the accused that I would not follow the decision of N Adams J. That being the case, the evidence is, therefore, evidence the accused proposed to lead as evidence of general good character. The evidence the Crown indicated it would lead in response, if permitted, is evidence “the defendant is not generally a person of good character”. That evidence would have been admissible pursuant to s 110(2) unless otherwise excluded.

Was the evidence otherwise excluded?

1. [21]

   In considering whether there was some other basis for exclusion, two features of the evidence proposed to be led by the Crown were immediately apparent. Firstly, as I have indicated, whilst the accused was charged with a criminal offence, no doubt based on the evidence in the statements, that charge was dismissed on the prosecution offering no evidence.

2. [22]

   The second feature of the evidence was the extent to which the conduct was removed from the present charges, both in terms of proximity in time and the nature of the event. Both issues are of some significance to the question of admissibility. The first issue raised the question of whether the evidence is inadmissible on the basis it would controvert the accused’s acquittal. The second issue raised a question of whether the evidence was inadmissible on the basis that its probative value was outweighed by the danger of unfair prejudice.

Incontrovertibility

1. [23]

   As I have said, the charge was dismissed on the prosecution offering no evidence. Questions arise in such circumstances as to the status of the “dismissal”. Was there a hearing on the merits? If not, what significance does that have for the question of incontrovertibility?

2. [24]

   Chapter 4 of the Criminal Procedure Act 1986 (NSW) is headed “Summary Procedure”. Division 3 of Chapter 4 is headed “Hearings” and contains ss 190 through to 210. Section 202 provides as follows:

3. [25]

   It can be seen that sub-section (1) is in mandatory terms, the Court “must” determine summary proceedings in accordance with the Act, while sub-section (2) is in permissive terms, “may”. That relates to the ways in which the Court can satisfy the mandatory requirement in sub-section (1).

4. [26]

   One of the options provided by s 202(2) is the dismissal of the charge. That is what occurred here. Section 205 of the Criminal Procedure Act provides:

5. [27]

   Also relevant is s 208 which provides:

6. [28]

   As can be seen, s 208 differentiates a dismissal based on a withdrawal of the charge where there has been no hearing at all from other forms of hearing. Where there has been a “hearing” but no evidence is offered, there is nothing in the Criminal Procedure Act to distinguish the effect of that dismissal from a dismissal following a hearing at which evidence was called. In short, there is nothing in the Criminal Procedure Act that would make relevant the quality of the evidence leading to the nature of the dismissal. In those circumstances, I was of the view that the dismissal operated like any other dismissal following a hearing and the principle of incontrovertibility operated.

7. [29]

   The principle was stated by Barwick CJ in Garrett v The Queen (1977) 139 CLR 437 at 445; [1977] HCA 67 as follows:

8. [30]

   Here, the crime previously charged against the accused is relatively simple. The allegation was that she smashed a window by her deliberate act and that she did so intentionally or recklessly. In those circumstances, without contravening the principle of incontrovertibility, the prosecution could lead evidence that the accused smashed the window. That does not, of itself, establish a crime. However, that said, absent any criminal intent, the evidence of breaking the window is not relevant to the accused’s character.

9. [31]

   In short, the Crown required both the act and the intent in order to rebut evidence of good character. It follows that no part of the evidence relating to the smashing of the window would be admissible in the event of the accused raising character.

10. [32]

    That, however, was not the end of the matter. There is other evidence contained in the material proposed that, in my view, does not controvert the earlier acquittal. In particular, the evidence that the accused went to the home of Ms Dargan, where she spoke to her, stating the words “I heard you called me a slut and want to fight me” and subsequently yelled out words to the effect of “get out here you slut and fight me”.

11. [33]

    Given that that evidence would not controvert the earlier acquittal, it was necessary to consider whether it was excluded by some other mechanism and, in particular, s 137 of the Evidence Act.

The probative value of the evidence and the danger of unfair prejudice

1. [34]

   Section 137 of the Evidence Act mandates the exclusion of evidence where the probative value of the evidence is outweighed by the danger of unfair prejudice. The proper approach to the assessment of probative value of evidence was resolved in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14.

2. [35]

   Having regard to the definition of “probative value” in the Evidence Act, it was necessary to assess the possible use to which the evidence might be put at its highest.

3. [36]

   The evidence proposed was limited to the words to which I have referred spoken by the accused in 2008. In terms of the issues in the trial, the good character relied on by the accused is her good character at the time of the act causing death. That good character, as relied on, is, of course, built on her past character across the course of her life to that point. The proposed evidence contradicts that good character. Nonetheless, more proximate conduct would be more probative of the issue. With respect to the age of the material, the event was close to 18 years ago and 15 years prior to the events in this trial. The accused was 29 years old at the time and, certainly, well in adulthood. Nonetheless, the event is of some age and, as a matter of ordinary human experience, the conduct is less significant given it is removed from the events now in question.

4. [37]

   To emphasise the point made above, it might be observed that had the accused in fact been found guilty of the charge, there would likely have been a real question as to whether a conviction would have been entered. If a conviction was entered, it would have been well and truly spent by the time of the events the subject of this trial pursuant to the Criminal Records Act 1991 (NSW). That would not have barred its use in these proceedings; there is an exception in the Criminal Records Act to the restriction on the use of spent convictions in proceedings such as these. Nonetheless, the manner in which convictions are treated under the Criminal Records Act is a legislative reflection of the diminishing relevance of criminal conduct over time.

5. [38]

   While the age of the earlier event was significant, of possibly greater significance is that the earlier conduct did not involve any actual physical violence, nor did the evidence establish that the accused would necessarily have engaged in violence, although on the evidence that must have been a real possibility. The simple fact is, however, it did not occur.

6. [39]

   Further, while I accept violent behaviour could include threatening or menacing behaviour, I was of the view that the conduct, even if accepted, could still be reconciled with the directions proposed by the accused.

7. [40]

   Ultimately, the view I formed was that the probative value, while not insignificant, was not high. That then required consideration of the danger of unfair prejudice. It was not suggested that this was a case where the evidence might be used for a purpose to which it is not logically connected.

8. [41]

   Mr Quilter SC, however, pointed out that that is not the full ambit of unfair prejudice. In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, Kiefel CJ, Bell, Keane and Edelman JJ said at [17]:

9. [42]

   This, it must be said, is not a raft of conduct. Nonetheless, it is a matter of some age.

10. [43]

    Underlying what their Honours said in Hughes v The Queen is the prejudice to an accused in meeting an allegation. The difficulty in meeting the allegation in this case results not simply from the age and potential difficulty in recall of the precise circumstances surrounding it, but also, given the manner in which the evidence would be led, the inability of the accused’s counsel to cross-examine the witnesses. The inability to cross-examine witnesses has been recognised as a matter relevant to unfair prejudice: see R v Le [2002] NSWCCA 193; (2002) 130 A Crim R 256; R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509; Galvin v R [2006] NSWCCA 66; (2006) 161 A Crim R 449.

11. [44]

    Apart from any difficulty in meeting the allegation, there would be a difficulty for the accused in explaining any circumstances around the event or, ultimately, putting forward a competing account based on a clear memory.

12. [45]

    The assessment required involves evaluative judgment with respect to which there is only one correct answer. That there is only one answer does not, however, reflect the simplicity of the task. While the matter was, in my mind somewhat finally balanced, I was ultimately of the view that the probative value of the evidence was outweighed by the danger of unfair prejudice. That being the case, the inevitable conclusion was that the evidence was inadmissible pursuant to s 137.