R v Wiggins (No 7)

1. [1]

   This interlocutory judgment concerns the scope of s 110 of the Evidence Act 1995 (NSW) and the statutory concept of divisibility of character. In particular, it concerns three issues: the extent to which character can be divided, in how many different “particular respects” an accused’s character can be raised and whether I would follow the decision of Davies J in R v AKB (No. 7) [2018] NSWSC 1120 (“AKB”). I made my rulings on 6 September and indicated I would publish my reasons later. Although these reasons post-dating my decision are lengthy, the application raised complex questions.

2. [2]

   Matthew Wiggins is currently on trial for the murder of Darko Janceski and the intentional infliction of grievous bodily harm on Darko Janceski’s father, Slobodan Janceski, on 14 April 2012. This matter has had a most unfortunate procedural history. The current trial commenced before me (and a jury of 15) on 8 August 2022, over ten years since the events and over nine years since the accused was arrested. David Dalton SC appears for the accused with Tom Woods of counsel.

3. [3]

   At a brief mention of the matter at 3.30pm on 5 August 2022, Mr Woods informed the Court that on Monday morning before the jury was empanelled, I would be required to make an advance ruling as to whether if the accused raised his character in three particular respects, the Crown would be permitted to adduce evidence to rebut that claim. The Crown indicated that the accused has a criminal history. As was later revealed, in addition to a criminal history including three separate convictions for assault occasioning actual bodily harm, and one for affray, the Crown was in possession of telephone intercept material implicating him in further uncharged acts of violence. The accused was also associated with the Comanchero Motorcycle Club at the relevant time.

4. [4]

   The accused’s good character had never been raised at any of the earlier trials nor had this issue arisen before in the nine years since the accused was first charged. Although Mr Woods described the issue as a “short point”, as these reasons will reveal, it was not.

5. [5]

   On 8 August 2022, whilst the jury panel was waiting, further oral submissions were made, which I have summarised below. I indicated that if a ruling was required before the trial commenced, I would need to adjourn until the following day to consider the submissions and relevant authorities. In the circumstances, Mr Dalton SC accepted that the ruling could be deferred until later in the trial.

6. [6]

   The trial progressed and on 5 September 2022, Mr Dalton SC provided written submissions identifying four particular respects in relation to which the accused proposed to raise his good character. Oral submissions were made on 6 September 2022 at which time I made rulings and reserved my reasons.

The initial character issue

1. [7]

   The accused’s argument changed somewhat over time.

2. [8]

   On Friday 5 August 2022, Mr Woods on behalf of the accused foreshadowed the accused’s submission on good character as follows:

3. [9]

   In relation to the proposed claim that the accused has no criminal convictions for “organised crime” offending, Mr Woods clarified that he was not only referring to specific provisions in the Crimes Act 1900 (NSW) (eg s 93T, “participation in criminal groups”) but making a more general claim that none of the accused’s convictions could be factually characterised as “organised crime”.

4. [10]

   Mr Woods also submitted that as the accused sought to adduce evidence only about a lack of convictions, the Crown would be similarly limited in its ability to rebut this claim to evidence of convictions (ie the accused’s criminal record):

5. [11]

   Although he did not expressly state so at the time, it later became apparent that Mr Woods relied upon the decision of Davies J in AKB in support of this latter proposition.

6. [12]

   On Monday 8 August 2022 there was a slight revision of the argument, Mr Dalton SC proposed that the accused’s entire criminal record be placed before the jury and that the Crown would not be permitted to adduce evidence of any “further factual embellishment” of those convictions given the decision in AKB. The Crown opposed the application and submitted it would be entitled to rebut any claim the accused made about a lack of convictions.

7. [13]

   I raised two concerns with Mr Dalton SC at that time. First, it seemed to me that if the accused tendered his criminal record and then submissions were made that he lacked convictions for “firearms” or “organised crime” that would provide factual colour to his criminal record which the Crown would be entitled to “fill out” in rebuttal. Secondly, given count 2 on the indictment alleges the intentional infliction of grievous bodily harm, there would be a risk that evidence of the accused’s assault convictions would cause the jury to engage in impermissible tendency reasoning in relation to count 2 and unfairly strengthen the Crown case in relation to both counts.

8. [14]

   The Crown clarified that it might consent to the accused adducing his criminal record and submitting that there were no offences for murder or use of a firearm, but that it would oppose anything beyond this and the question would ultimately depend on the direction sought.

9. [15]

   As stated, the issue was deferred so that the jury could be empanelled.

The revised character issue

1. [16]

   By 5 September 2022, when the Crown case was reaching its close, the accused re-agitated the issue by way of brief written submissions. This time, the accused submitted that he was entitled to adduce evidence of his good character in four particular respects without the Crown being permitted to rebut that evidence (in fact, the accused submitted that the Crown has no evidence in rebuttal). The four particular respects were as follows:

   1. (1)

      The accused has no convictions for drug offences;

   2. (2)

      The accused has no convictions for firearms offences;

   3. (3)

      The accused has and no convictions for criminal group charges; and

   4. (4)

      The accused has no convictions for dishonesty.

2. [17]

   The accused acknowledged that he has a criminal record, including for offences of violence, but that would not prevent him from raising good character in these particular respects. The accused relied on AKB, as well as Decision restricted [2021] NSWCCA 74. It was also submitted that the accused would be entitled to a good character direction, in terms both that he is less likely to have committed a planned offence of murder (count 1) and in relation to his credibility. Mr Dalton SC provided a draft direction in the following terms:

3. [18]

   The Crown submitted that it would be entitled to raise the evidence in the Crown bundle (summarised below) to rebut the accused’s claim of good character in particular respects (as well as cross-examine him, should he give evidence). In response to the accused’s reliance on AKB, the Crown referred to R v Stalder (1981) 2 NSWLR 9, Eastman v The Queen (1997) 76 FCR 9 and R v Rogerson and McNamara (No 12) [2015] NSWSC 1099. The Crown further submitted:

The Crown case and relevant evidence at trial

1. [19]

   Although I have summarised the Crown case in other interlocutory judgments, it is necessary to briefly do so again for the purposes of this ruling.

2. [20]

   On 14 April 2012, a man wearing a balaclava, motorcycle helmet and sunglasses shot the deceased and violently assaulted the deceased’s father who tried to apprehend him. It was clearly a planned execution. During the altercation with the deceased’s father, the gunman’s helmet and sunglasses were dislodged and left at the scene. The DNA profile of the accused was found on both of these items.

3. [21]

   The Crown case is circumstantial and a number of strands of evidence are relied upon including descriptions of the gunman as being a trained fighter. The accused has a licence to box and was an amateur MMA fighter at the time. The accused also had a gun licence and a motorbike licence. Significantly, there is evidence that the accused had a motive to kill the deceased: he believed that the deceased had shot the accused’s close friend Goran Nikolovski. The accused had a tattoo of Goran Nikolovski’s name and a shrine to him at his bedside. Intercepts reveal his frustration at the police investigation into his friend’s death.

4. [22]

   Other evidence relied upon by the Crown includes that descriptions of the motorbike used by the gunman generally match the description of a motorbike purchased in suspicious circumstances by a friend of the accused’s close friend Derek Ferguson. There was unusually high telephone activity between Mr Ferguson and the accused both on the day of the shooting and the day that a press release describing this bike was released.

5. [23]

   It is part of the defence case that there were other people who also had a motive to kill the deceased. In particular, there is evidence that the deceased believed that the Comanchero had a “contract out” on his life because of the unsatisfactory basis upon which he left that club. The accused also relied on evidence to suggest the accused’s DNA could have been deposited on the items left at the scene at an earlier time.

6. [24]

   Relevant to the present application, telephone intercepts have been played in the Crown case between the accused and Mark Buddle, who was, at the relevant time, the self-appointed president of the Comanchero. I excluded one of those recordings because the accused spoke in such an aggressive and disrespectful way about police, an inference arose that the accused had had adverse dealings with police which raised bad character: R v Wiggins (No. 6) [2022] NSWSC 1189. I have also excluded portions of the footage of the accused’s MMA fights which depicted the accused stomping on his opponent and otherwise attacking him, under s 137 of the Evidence Act: R v Wiggins [2021] NSWSC 719.

Evidence on the present application

1. [25]

   The Crown tendered a folder in relation to the accused’s character that became exhibit VD 9. It contained the following material:

   1. (1)

      The accused’s NSW criminal history showing one conviction for assault occasioning actual bodily harm on 17 June 2012. The Facts Sheet discloses that the accused punched the victim to the left side of his face leaving him dazed and bleeding. The victim received bruising and swelling to the face. The record also shows an affray offence on 19 December 2010.

   2. (2)

      ACT criminal history showing a conviction for assault occasioning actual bodily harm on 14 July 2012. The Facts Sheet discloses that the accused struck the first victim over the head with a bottle, knocking him unconscious. He punched the second victim five to six times in his face, then punched the third victim to his left jaw. The accused’s telephone was lawfully monitored by police at that time. The police suspected that the Crown witness Mr Ferguson was also involved in the commission of these offences. The accused is recorded saying, on various unanswered calls early that morning: “Oi I bashed three of them”; “I put the bottle around his head”; “we fucken, cops are looking for us, bye.”; “we just punched on with some people and we got cops looking for us everywhere. We in like Fyshwick area and, can you please give me a call, thank you.”; “cops are everywhere, so we hiding underneath a truck for hours, Oh I’m fucked”.

   3. (3)

      Queensland criminal history showing an offence of assault occasioning bodily harm on 16 January 2012. No facts were attached to that record.

   4. (4)

      Agreed facts tendered in the trial, showing inter alia the accused’s contact with Mark Buddle between 1 November 2011 and 25 July 2012 (including 10 phone calls and four in-person meetings, including at Mark Buddle’s house).

   5. (5)

      “Gang Identification Form – New Receptions” from the Metropolitan Remand and Reception Centre dated 18 January 2013, disclosing that when he entered custody on remand for the present charges, the accused identified as an associate of the Comanchero, dating back six years.

   6. (6)

      Transcript of a telephone call between the accused and unknown male on 22 July 2012 in which the accused appears to have threatened someone by saying, “I’m very good mates with Buz [sic, Gaz] and, and Mark Buddles, I’ll tell you now, mate, make one phone call and there’ll be a fuckin’ problem. He’s chopped … I’ll tell you know.”

   7. (7)

      Transcript of a telephone call between the accused and Jon Marco Sanchez on 2 October 2012 during which Sanchez said to the accused, “you’re like one of my good mates man”, and, “I loved how you knocked that chick out.”

   8. (8)

      Transcript of a telephone call between Christopher Madden and Sarah Stuart on 2 October 2012, disclosing a conversation in which Sarah Stuart was trying to find out the name of a person who “sort of looks very similar to Fergo, got a shaved head, tatts and shit”, because “on Sunday night, me and [sounds like] Shaq were out … and Fergo and his mate were there”; “Fergo’s friend decided that it was okay for him to punch me and Shaquira in the head”, “more than once, twice”; “Shaq’s got cuts on hers ‘cause he slammed her into a wall”; “but, I still wanna know who the fuck his friend is, because he just, like he hit two chicks”. The description provided is consistent with the accused at that time.

   9. (9)

      Transcript of telephone call between the accused and Sonya Morrissey on 21 December 2012; the accused said, “honestly, if I had a problem with you, you think I’d be talking to ya”, “you would be missing”.

The Evidence Act

1. [26]

   The right of an accused person to adduce evidence of good character, and the Crown’s right to rebut this evidence, are governed by s 110 and s 112 of the Evidence Act 1995 (NSW) which are in these terms:

2. [27]

   The fact that an accused person can raise his or her character in a “particular respect” (ie that a person’s character can be “divisible”) is a change to the common law brought about by the Evidence Act.

3. [28]

   The Evidence Act does not define what is meant by evidence that an accused person is “a person of good character”. It is accepted that the common law definitions apply. In Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, Kirby J (albeit in dissent) described character evidence in this way at 40 [105]:

4. [29]

   Similarly, McHugh J described it in this way at 15 [33] (footnotes omitted):

5. [30]

   In Melbourne, the High Court held, by majority, that the trial judge is not obliged to give a character direction; there is a discretion as to whether or not to give one having regard to the probative value of the evidence in two respects. McHugh J stated at 14 [30]-[31]:

6. [31]

   That there is no requirement to give a character direction was confirmed in Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 at [21], in which Gaudron, Kirby and Callinan JJ observed the following at [21]:

7. [32]

   Evidence of good character, if accepted, is relevant. As Gaudron J observed in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 (“TKWJ”) at [35] (footnotes omitted):

8. [33]

   I considered the history of the law pertaining to character evidence in some detail in FB v R [2020] NSWCCA 137 at [309]-[356].

9. [34]

   Although there have been a number of decisions of the Court of Criminal Appeal (“CCA”) concerning character evidence generally, there has been surprisingly little consideration of the scope of the statutory concept of divisibility of character.

10. [35]

    One of the first decisions to consider s 110 of the Evidence Act was R v Zurita [2002] NSWCCA 22. The appellant in that case had a criminal record which included larceny, mid-range PCA, being an unlicensed driver, and an assault found proved but dismissed under s 556A of the Crimes Act 1900 (NSW). He stood trial for the aggravated sexual assault of his 12-year-old stepdaughter. He sought to raise character in a particular respect in that he had no convictions for child sexual assault. The trial judge indicated that if he did so the Crown would be able adduce his criminal record. Regrettably, the trial judge made no mention of s 110 of the Evidence Act.

11. [36]

    On appeal, Howie J (with whom Hodgson JA and Levine J agreed) observed at [14]-[15]:

12. [37]

    Howie J concluded at [19]:

13. [38]

    PKS was a case involving sexual offences against a child in which evidence of good character in respect of young children was admitted. The decisions in Zurita and PKS are authority for the proposition that if an accused person charged with one type of offence (eg sexual offences) seeks to raise his good character in respect of that type of behaviour only, the Crown cannot adduce evidence that he or she has criminal convictions or is otherwise of bad character in respect of other types of offences (eg larceny).

14. [39]

    Zurita was recently applied in Decision restricted [2021] NSWCCA 74. That decision, like Zurita, is factually straightforward. At trial, the applicant sought an advance ruling as to whether, if he adduced evidence of a lack of prior offences, charges or allegations of violence or sexual misconduct, the Crown would be permitted to rebut this with evidence of the applicant’s convictions for dishonesty. The trial judge ruled that the Crown would be so entitled; and the applicant did not raise good character as a result. On appeal, the Crown conceded error. Davies J (with whom Hoeben CJ at CL and Price J agreed) said at [49]-[51]:

15. [40]

    These cases are examples of obvious divisibility: good character regarding sexual conduct. But how else can character be raised in a particular respect besides a lack of sexual offending? In R v Telfer [2004] NSWCCA 27; 142 A Crim R 132, the accused adduced evidence that he did not have convictions for “serious offences”. The case is directed principally towards the directions a trial judge may give to the jury in the event an accused person raises character, but it does provide an example of character being raised in a “particular respect” which was criticised in the CCA for being ill-defined. At trial, the appellant sought to adduce evidence from a police officer that he was a person with no convictions for any serious offence. Like in Zurita, no mention was made of s 110 of the Evidence Act, yet the trial judge made a ruling seemingly in accordance with its terms. Thus, it was accepted that a lack of convictions for “serious offences” raised the appellant’s character in a “particular respect”. On appeal, Bell J (with whom Grove and Sully JJ agreed) said at [32]:

16. [41]

    In Regina v Makisi [2004] NSWCCA 333; 151 A Crim R 245, an accused on trial for robbery offences raised his character in the “particular respect” that he had no assault convictions, although he had convictions for goods in custody, and of having used offensive language in a public place. Although defence counsel had initially sought a limited character direction (not as to his credibility given the dishonesty conviction, only the likelihood of him committing the offence), by oversight no character direction was given, and no complaint was made at the time. The appeal was dismissed on the basis, inter alia, that it is not necessary to give a character direction in every case, that no complaint had been made below and that it did not render the trial unfair. Barr J (with whom Spigelman CJ and Hoeben J agreed) observed at [26]:

17. [42]

    In Gallant v Regina [2006] NSWCCA 339, the Court (Howie J, with whom McClellan CJ at CL and Adams J agreed) considered an appeal against a man convicted of two counts of sexual assault. It was alleged he had had sexual intercourse with a much younger woman when she was asleep. She had previously rebuffed his attention and made it clear to him she was not interested. She woke up to find him sexually assaulting her. She pretended to be asleep during the assault as she was terrified. The reasons she was scared of him were that in a social situation on a previous occasion he had said that if she did not “straighten” herself he was going to give her “a good biff over the head” and she also knew that the accused was a member of a “bikie gang”. Evidence of the latter fact was excluded at the trial.

18. [43]

    A ground alleging error in not excluding evidence of the previous threat was rejected. The remaining ground alleged incompetence of counsel for not adducing evidence of good character in the form of testimonials. In that context Howie J observed the following at [33]:

19. [44]

    In dismissing the ground, Howie J went on (at [37]-[38]) to note that there was a risk that the “very favourable ruling” that the complainant could not introduce evidence as to the appellant’s involvement in a motorcycle club could have been revisited by the Crown in rebuttal.

20. [45]

    In Seymour v Regina [2006] NSWCCA 206 162; A Crim R 576, the court (Hunt AJA with whom Simpson J and Rothman J agreed) ordered a new trial on the basis that the trial miscarried when defence counsel tendered the applicant’s record at trial to establish that the accused had an extensive record, including for violence, but not for violence against women. The applicant was on trial for an offence involving violence against a woman. Hunt AJA observed the following at [51]:

21. [46]

    His Honour also noted (at [52]) that s 110(3) permitted the appellant to raise his character “in only one particular respect” if he wished to do so.

22. [47]

    Having regard to these decisions, it seems to me, that a person who is not of general good character, who wishes to raise character in a “particular respect” must establish that that specific aspect of their character is relevant to the charged offence(s) and the trial judge will not necessarily err if no character direction is then given.

23. [48]

    Furthermore, it seems to me that the “particular respect” in which character is raised cannot be too specific or it will run the risk of misleading the jury. By way of example, if a person is on trial for the sexual assault of an adult and has convictions for child sexual assault, can such an accused raise the fact that he or she does not have convictions for sexual assaults on adults and get a full character direction? What about if there are sexual assault convictions on men but not women? There has been little judicial consideration of how finely character can be divided.

24. [49]

    The decision in Gabriel v The Queen (1997) 76 FCR 279 is authority for the proposition that an accused person must raise character intentionally but in obiter comments at 297-298, Higgins J made observations relevant to divisibility of character. The accused was on trial in the ACT Supreme Court for assaulting his drug dealer by stabbing him in the neck with a screwdriver causing him to become quadriplegic. He had a criminal history of some length. He unintentionally raised his good character by saying, in cross-examination, that he was not the sort of person to go around attacking or stabbing people. The Crown was then permitted to cross-examine the accused about his prior convictions. Relevantly, the accused “conceded” that he had previously pleaded guilty to two offences involving threatening persons with a firearm, one count of assault occasioning actual bodily harm and one count of larceny (the last two arising from the same incident). In allowing the appeal, Higgins J observed:

25. [50]

    A different approach was taken in Omot v The Queen [2016] VSCA 24. In that case, the Victorian Court of Appeal held that the trial judge was correct in ruling that if the applicant was to adduce evidence of a lack of convictions for sexual offences, the Crown would, on the facts of that case, be permitted to rebut this with evidence of convictions for offences involving violence. At [27], the court said:

26. [51]

    The above decisions suggest that each case is to be assessed on its own facts, but Gabriel provides some authority for the proposition that even a propensity for violence can be divided into subcategories to arrive at good character “in a particular respect”.

R v AKB (No. 7) [2018] NSWSC 1120

1. [52]

   The accused relied on the decision in AKB to contend that if he adduced evidence that the accused had no convictions in the four particular respects, the Crown was not permitted to rebut those claims because the accused had raised his character limited to a lack of convictions in those four respects. I indicated in court on 6 September 2022 that to the extent that AKB was authority for such a proposition it was wrong, and I would not follow it.

2. [53]

   In AKB, the accused was on trial for the murder of his wife. He sought to adduce evidence from police that he was a person of good character in a particular respect in that he had no criminal record. The Crown indicated that it would seek to lead evidence of assaults by the accused on the deceased which occurred years ago in Iran that were not reported to police, among other evidence of the accused’s “bad behaviour towards the deceased”. Davies J indicated at [2]:

3. [54]

   In R v AKB (No. 4) [2018] NSWSC 1082, his Honour excluded, under s 137 of the Evidence Act, an allegation by the deceased that the accused had “bashed” her when they were in Iran between 2005 and 2007. His Honour considered the evidence had low probative value which was outweighed by the unfair prejudice to the accused. His Honour made a similar ruling in R v AKB (No. 5) [2018] NSWSC 1110 concerning other evidence.

4. [55]

   At [3]-[7] of AKB, Davies J set out the terms of s 110 of the Evidence Act and extracts from Zurita. The judgment concludes at [8]-[10]:

5. [56]

   The accused relies on AKB in the present case to support a contention that he is entitled to raise a lack of convictions for various types of offences as going to his good character in “a particular respect”. It was submitted, in reliance on AKB, that a lack of convictions is a “particular respect” of an accused’s good character. The significance of such a categorisation is that it was contended that the Crown could only rebut the claim if the accused in fact had convictions (for the relevant types of offences).

6. [57]

   I note at the outset that AKB is a short ex tempore evidentiary ruling on a discrete point during a trial. A ruling was no doubt required quickly to avoid delaying the trial. There is nothing in the judgment to suggest that his Honour was invited to consider any case law beyond the decisions in Zurita and San Maung Saw Wah at [62]. The latter decision is not concerned with whether good character can be divisible as between convictions and the lack thereof. The passage from it cited by Davies J is as follows:

7. [58]

   Further, the decision in AKB was made in the context of earlier rulings in that trial and the decision is facts-specific. That is to be contrasted with the present matter in which the issue was flagged at the commencement of the trial and I had time to consider it by the time of the legal argument. I was able to research the relevant decisions, make my rulings and reserve my reasons. It does not appear that Davies J was afforded the same opportunity.

8. [59]

   With these factors in mind, my reasons for not following AKB are as follows.

9. [60]

   First, the only three decisions cited in AKB are Zurita, PKS and San Maung Saw Wah. None of those decisions support the proposition that the words “a particular respect” in s 110 extends to whether a person has convictions or not.

10. [61]

    Secondly, the suggested “particular respect” advanced on behalf of the accused is inconsistent with the common law definitions of character I have extracted above. Based on what the High Court observed in Melbourne, character means “inherent moral qualities”, “disposition … something more intrinsic to the individual in question”, “the aggregate of qualities which distinguish one person from another”, “moral constitution”, and “a permanent and unchanging pattern of the nature of the individual”. In Bishop v R [2013] VSCA 273, Redlich JA observed the following as to raising such character in a “particular respect” (at [8]):

11. [62]

    If character refers to, inter alia, a person’s inherent moral qualities, it is difficult to see how character can be divisible such that a “particular respect” of that character (or moral quality) is a lack of convictions which can only be rebutted if there are convictions. Such an approach would mean, effectively, that the Crown can never rebut the claim of good character because an accused would never make such a claim if he did in fact have such convictions. Rather, a better view is that an absence of criminal convictions is but one mode of proof of good character.

12. [63]

    Thirdly, I am unable to find any High Court authority for the proposition that an absence of criminal convictions necessarily means that a person is of good character in any event. Kirby J expressed the opposite view in Melbourne at 42 [108] as follows (footnotes omitted):

13. [64]

    Fourthly, if the accused was correct in this assertion, it would mean that juries could be routinely misled. Evidence of character is admitted as a matter making it less likely that the accused has committed the crime charged. As said in Omot, albeit in a slightly different context, to permit an accused to introduce evidence of “good character” without the possibility of adducing rebuttal material just because that rebuttal evidence is not in the form of convictions would permit him or her to create a false impression as to character. For example, if an accused raised their good character in the particular respect that they had no convictions for mistreating children but there was an extensive FACS file showing a long history of mistreatment, it would be misleading to the jury to put the lack of convictions before them without permitting the rebuttal evidence to be adduced. Similarly, if in the present case (and contrary to the true situation) Mr Wiggins did not have any convictions for violence, it would be misleading to elicit evidence that he did not have convictions for violence without permitting the Crown to present the telephone intercepts which detail assaults by him.

14. [65]

    Further authority for the proposition, should it be needed, that a trial judge should decline to permit character in a particular respect to be raised if it would mislead the jury also arises from PKS. In that case, the accused had “spent” convictions and sought to adduce evidence that he had no convictions. The court (Wood CJ at CL, Sully and Ireland JJ) observed the following at 11:

15. [66]

    Although the High Court held in Melbourne that it is not mandatory for a character direction to be given in every case in which good character evidence is raised, in NSW the practice is that a character evidence direction will usually be given if the trial judge considers it appropriate to do so in the circumstances of that case. Usually, the jury is directed that they can use the evidence in the two discrete ways referred to by McHugh J in Melbourne at 14 [30]-[31]. The first of those is that the evidence adduced makes it less likely the accused person committed the charged offence(s). How can such a direction be given if there is credible evidence that the accused is not of good character in the particular respect provable by evidence other than convictions?

16. [67]

    It cannot be the case that a trial judge would be required to mislead a jury by telling them that a lack of convictions in the particular respect makes it less likely the accused has committed the charged offence(s) when there may be an abundance of other material as to the accused’s bad character that makes it, if anything, more likely that he or she committed the offence.

17. [68]

    Fifthly, there is authority both predating and postdating the Evidence Act which proceeds on the basis that if good character is raised in the form of a lack of convictions, it can be rebutted by other evidence. In R v Stalder [1981] 2 NSWLR 9 at 19-20, Street CJ stated, albeit at a time when character was indivisible under common law principles:

18. [69]

    A similar approach was taken by the High Court in TKWJ which concerned whether defence counsel’s decision at trial not to lead evidence of the accused’s good character, despite such evidence being available, caused the trial to miscarry. Counsel did not do so because of concern that the Crown Prosecutor would seek leave to lead evidence of another complainant (“K”) to rebut the evidence of good character. All five judges (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held that the appeal should be dismissed. Gaudron J, observed the following at [36]:

19. [70]

    Similarly, McHugh J observed the following in TKWJ at [90]:

20. [71]

    It was not suggested by the High Court in TKWJ that the Crown would be precluded from adducing rebuttal evidence in the form of allegations that had not resulted in convictions.

21. [72]

    Sixthly, further support for the conclusion that an absence of criminal convictions is not the same as being of good character per se can be found in sentencing practice in NSW. Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) enumerates mitigating factors relevant to an offender. It is relevantly in these terms:

22. [73]

    If an absence of criminal convictions went only to being of good character, it would not need to be separately enumerated in sub-s (3)(e). It is to be accepted that this is a different statutory context than s 110 of the Evidence Act but the common law definition of good character is applicable in both statutory contexts.

23. [74]

    Seventhly, I have not been able to find any decision in this court in which AKB has been followed.

24. [75]

    Eighthly, not only have I been unable to find any decision in this court in which AKB has been followed, the only reference I have found to it in my searches is by the author of Uniform Evidence Law (15th ed, 2020, Thomson Reuters) at 931 (fn 166) where it is suggested that the decision is “questionable”:

25. [76]

    Finally, there is no support for the accused’s proposition in the Australian Law Reform Commission (“ALRC”) report, Evidence: Interim Report (August 1985). On the contrary, when the report refers to indivisibility of character it refers to a “particular respect” as being analogous to a particular “character trait”, as seen for example at 803 of the report.

26. [77]

    For these reasons, I have arrived at the conclusion that AKB is plainly wrong and I am not bound to follow it.

27. [78]

    I would note, however, that Davies J could have arrived at the same result via s 137 of the Evidence Act, which has always been a valid approach both before and after the enactment of s 110: see Stalder and TKWJ above. In R v OGD (No 2) (2000) 50 NSWLR 433; [2000] NSWCCA 404 at [102]-[108], it was held that evidence led by the Crown to rebut evidence of good character is subject to the exclusionary provisions of Pt 3.11 (ss 135-137). This was more recently affirmed by Payne JA in Clegg v R [2017] NSWCCA 125 at [41].

Multiple “particular” respects

1. [79]

   All of the decisions referred to above concern character being raised in one respect, being the respect pertinent to the charge(s) the subject of trial. That is consistent with the effect of s 110(3) of the Evidence Act which is to provide an accused with the opportunity to raise his good character “in a particular respect”. It is to be accepted that as a matter of statutory construction, unless a contrary intention is apparent, a word or expression in the singular form includes a reference to the word or expression in the plural form: s 8(b) Interpretation Act 1987 (NSW). But it seems to me that such a contrary intention arises in s 110(3). The concept of character being divisible contemplates a discrete aspect of a person’s character being raised as opposed to one’s character generally. To put this another way and accepting that it will always be a question of degree, raising one’s character in more than one “particular respect” is potentially tantamount to raising one’s good character generally.

2. [80]

   I am unaware of any authority for the proposition that character can be divided into multiple subcategories, all of which can be adduced at trial, whether or not directly relevant to the charged offence and despite evidence of the accused’s “bad” character, including a criminal history.

3. [81]

   It is to be accepted that if a person was on trial for two different offences, such as a drugs offence and a larceny offence, an absence of convictions or other evidence of bad character might be raised in those two respects and the Crown would be confined to rebutting those two discrete respects.

4. [82]

   However, in the present matter, the accused seeks to raise character in four respects by adducing evidence he does not have convictions in those four areas and contending the Crown is otherwise unable to rebut that evidence. It seems to me that, although each case is to be determined on its facts, there are significant problems in raising character in multiple respects in this way. One concern is that if character is raised in the form of not having convictions for crimes A, B and C (as opposed to not having any convictions at all) there is a risk that the jury will speculate as to what convictions the accused does have. This is consistent with what Howie J observed in Gallant v R extracted above at [43].

Consideration

1. [83]

   In making the rulings I did, I had regard to the principles derived from the decisions I have considered in some detail above. I propose to mirror the approach I took at the hearing of this application by addressing each of the four aspects of character relied upon by the applicant in turn.

2. [84]

   As part of his claim of good character, the accused sought to adduce evidence that he does not have any convictions for offences relating to drugs.

3. [85]

   Mr Dalton SC submitted that in this matter it was relevant to the charges that the accused lacked convictions for drug offences because there was evidence that the accused had associations with the Comanchero OMCG, who were involved in drug supply. I indicated my position at that time, consistent with what I have already stated above at [47], that when a person of general bad character, seeks to raise good character in a particular respect, that respect must be relevant to the charged offence(s).

4. [86]

   The Crown case is that the accused killed the deceased to avenge his friend’s death. It is not the Crown case that the shooting had anything to do with drugs. On that basis, I ruled that Mr Wiggins’ absence of drug convictions was not relevant and hence inadmissible.

5. [87]

   Even if, contrary to my finding, such lack of convictions was relevant, the question would have arisen as to whether character can be raised in multiple respects without raising general character in any event. I note again the risk that the jury would speculate as to what convictions the accused did have.

6. [88]

   As part of his claim of good character, the accused sought to adduce evidence that he does not have any convictions for offences relating to firearms

7. [89]

   The Crown does not have any material to rebut this proposition but, as has been summarised above, the accused does have several convictions for assault and there is other intercept material suggesting additional assaults and threats beyond those convictions. Given that I informed the parties that I considered AKB to be wrongly decided and I did not propose to follow it, it would have been open to the Crown to adduce material in any form to rebut his association with firearms had it been available to the Crown.

8. [90]

   This aspect of the application raises the issue I averted to above at [49]-[51]: can the fact that the accused has no history of using firearms be separated from the fact that that he is not a person of good character insofar as committing other acts of violence is concerned? As stated above, there is some authority to support answers both in the positive and negative to this question (Gabriel and Omot). The Crown’s position was that raising good character as to no convictions for firearms was tantamount to raising good character insofar as offences of violence are concerned, and there was ample material to rebut that.

9. [91]

   As stated above, there has been very little judicial consideration as to how finely character can be divided. The obiter comments in Gabriel would suggest that an absence of bad character insofar as firearms is concerned is able to be raised separately from violence generally.

10. [92]

    Given the unfortunate procedural history in this matter and the uncertainty in the authorities on this point I ruled that the accused would be able to adduce evidence of this discrete aspect of his character without the Crown being entitled to rebut it by adducing evidence of his bad character for physical assaults. But the question of whether a character direction ought to be given was a different matter.

11. [93]

    A further complicating factor to this aspect of the application was this: although it is possible to accept that the fact that someone has no history of gun violence could be severed from their history of assaults, the fact that the accused has no history of firearm offences could only be relevant to count 1 – the planned shooting murder of the deceased. Count 2 on the indictment is a count of intentionally inflicting grievous bodily harm on the deceased’s father contrary to s 33 of the Crimes Act 1900 (NSW). The violent assault bears some similarity to his three convictions for assault occasioning actual bodily harm and one for affray. No good character direction flowing from his lack of convictions for gun violence on count 1 could extend to count 2, and the Crown had evidence to directly rebut any good character in relation to count 2 in any event.

12. [94]

    Mr Dalton accepted that any good character direction on count 1 could not extend to count 2. I have set his suggested direction out at [17] above.

13. [95]

    Having regard to the principles that a direction cannot be given that would mislead a jury and the fact that there is no requirement to give a character direction in any event, I indicated that any direction to be given could not include the words “good character”.

14. [96]

    As part of his claim of good character, the accused sought to adduce evidence that he does not have any convictions for offences relating to organised crime.

15. [97]

    There was a lack of clarity in what was sought in this “particular respect” (I note the observations of Bell J in Telfer (see above at [40]). The only offence pertinent to organised crime would seem to be s 93T of the Crimes Act (“participation in criminal groups”) which provides in broad terms that persons who participate in or direct a “criminal group” with knowledge of the group and that their participation will contribute to the occurrence of criminal activity are guilty of an offence, as well as setting out separate offences for, for example, assault and property damage as part of a criminal group. Subsection (6) provides that a person need not be a member of the group to “participate”.

16. [98]

    It is to be accepted that the accused’s convictions are for, effectively, pub brawling, and he has no convictions for organised crime. But he was a self-confessed associate of the Comanchero OMCG; he disclosed as much when first taken into custody. Moreover, the jury has already heard evidence that he was friends with Mark Buddle who was the head of the Comanchero at the relevant time.

17. [99]

    I raised with Mr Dalton SC the relevance of raising character in this respect given that the Crown case is that the accused killed the deceased as an act of personal revenge and not as part of any contract put out by the Comanchero. He submitted that there had been evidence before the jury as to his association and the accused’s application was to rebut that.

18. [100]

    When I raised this with the Crown it was submitted that although the Crown puts its case on motive as being an act of personal revenge, the accused relies on evidence to suggest that someone connected with the Comanchero might have shot the deceased. On the Crown case, the accused’s connections with persons such as Mr Buddle did not preclude him from being the shooter even if it was done pursuant to a contract put out against the deceased.

19. [101]

    Had the matter not been complicated by this evidence suggesting that the Comanchero had a contract out on the deceased, I would have not permitted character to be raised in this respect as it would not be relevant. Given the Crown’s position, I am satisfied it has bare relevance.

20. [102]

    The Crown accepted that it had no material to prove that the accused was a member of the Comanchero. It was also accepted that he had no convictions for being in an OMCG. Again, the Crown’s position was that the accused should not be permitted to divide his character so finely as to adduce evidence for lack of firearms and OMCG convictions without the Crown being permitted to adduce the evidence of his propensity for assaults.

21. [103]

    Again, I had doubts as to whether this is an appropriate way to divide character but there was the relevant evidence about his Comanchero associations already before the jury which might have led them to speculate that he was in fact a member.

22. [104]

    As with the firearms aspect of this application, I ruled that the fact that the accused had no OMCG convictions or membership could be adduced (to avoid the jury speculating) but that I would not give a direction which used the words “good character” given his bad character relevant to count 2 and the obligation not to mislead the jury. The accused is not a man of good character insofar as violence is concerned.

23. [105]

    Again, I considered this limited direction to be appropriate given what the High Court held in Melbourne and Stanoevski. A good character direction is not always required, it depends on the probative value of the evidence which I consider to be very low in this matter, particularly given the complicating factor of count 2 being similar conduct to that exhibited by the accused in the past. Despite this, the jury would require some assistance as to how to use this limited evidence of lack of specified convictions. On that basis, I proposed a limited direction which would not use the words “good character” noting, inter alia, that although the accused was an associate of the Comanchero, he was not a member and had no convictions related to being a member.

24. [106]

    Finally, as part of his claim of good character, the accused also sought to adduce evidence that he does not have any convictions for offences relating to dishonesty.

25. [107]

    Mr Dalton SC conceded that this could only be relevant should the applicant give evidence. I noted that in the nearly 10 years since the accused was first arrested (15 January 2013) he has never given any version to police nor given evidence at his previous trials. I suggested to Mr Dalton SC that in the circumstances such a contention was somewhat speculative. He accepted this and deferred the question until the defence case. Accordingly, I was not required to make any ruling on 6 September 2022.

26. [108]

    On Thursday 8 September 2022, the Crown case closed, the defence case opened, and the accused gave evidence for the first time. At the conclusion of his evidence, Mr Dalton SC renewed his application to be permitted to adduce evidence that the accused does not have any convictions for offences relating to dishonesty. Given the lateness in the day, the Crown sought time overnight to consider its position. I indicated that if such evidence was adduced, in the interests of consistency, I would only be able to give a direction in the limited form I had foreshadowed which would not include the words “good character”.

27. [109]

    The following day, Mr Dalton SC indicated that if I were to give only a limited direction, he withdrew the application. When he did so, I indicated the concerns I have as to character being raised in multiple respects identified above at [82].

Conclusion

1. [110]

   Accordingly, I permitted evidence to be led that the accused did not have convictions for firearms or any OMCG-related matters.

2. [111]

   By way of postscript, I note that at the conclusion of the defence case, Mr Dalton SC informed the court that he did not wish any limited character directions to be given at all.