R v AKB (No. 7)

The accused seeks to obtain evidence from Detective Sergeant Hodges that he has no criminal record. The accused wishes in that way to adduce evidence that he is a person of good character in a particular respect. In those circumstances the Crown seeks to lead the evidence of the assaults by the accused on the deceased when they were in Iran, and other evidence tending to show the accused’s bad behaviour towards the deceased.

In earlier judgments, I have rejected the evidence of the incident or incidents in Iran that took place between 2007 and 2009, and other evidence of the way the accused has behaved towards the deceased in the earlier years of their marriage on the basis that such evidence was too remote to have any or any sufficient probative value, and that, in any event, there was unfair prejudice to the accused which outweighed the probative value.

Section 110 of the Evidence Act 1995 (NSW) provides:

As Howie J said (Hodgson JA and Levine J agreeing) in Regina v Zurita [2002] NSWCCA 22 at [14]:

In R v Zurita the appellant had been charged with aggravated sexual assault. He claimed that he had not been able to adduce evidence that he had no antecedent convictions for child sexual assault. The appellant 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). The trial judge had made clear that the appellant could not raise part of his character without putting the remainder in issue.

In the Court of Criminal Appeal, Howie J said that no reference had been made at the trial to s 110 of the Evidence Act which varied the common law. Justice Howie said at [19]:

In Zurita, the Court followed the earlier judgment in R v PKS (Court of Criminal Appeal NSW, 1 October 1998, unrep) where the Court set out what needed to be done in connection with the issue of good character (at pp 8-10):

The effect of the decision in Zurita is that in circumstances where good character evidence is confined to a particular respect, rebuttal evidence will ordinarily be similarly confined: San Maung Saw Wah v The Queen [2014] VSCA 7 at [62].

Accordingly, where the accused has only adduced evidence that he has no criminal record, any cross-examination of the accused is confined to that issue. Section 110(3) has the effect that the other evidence sought now to be relied upon by the Crown may not be adduced.

I rule accordingly.