Stanoevski v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gaudron,Kirby,Callinan JJ,McHugh J,Hayne J
• Judgment Date: 08 February 2001
• Neutral Citation: 2001-0208 HCA D,[2001] HCA 4
• Docket Number: S251/1999
• Date: 08 February 2001

[2001] HCA 4

HIGH COURT OF AUSTRALIA

Gaudron, McHugh, Kirby, Hayne and Callinan JJ

S251/1999

Liljana Stanoevski

Appellant

and

The Queen

Respondent

Representation:

T A Game SC with S J Odgers and A S Kostopoulos for the appellant (instructed by Greg Walsh & Co)

T L Buddin SC with R A Hulme for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))

Evidence Act 1995 (NSW), ss 55, 56, 102, 104, 106, 112, 135, 192.

Legal Profession Act 1987 (NSW), s 155.

Stanoevski v The Queen

Evidence — Evidence Act 1995 (NSW) – Character evidence — Accused raised own good character — Judicial discretion to allow cross-examination of accused on alleged past misdeeds not directly related to facts in issue — Whether discretion to allow cross-examination miscarried.

Words and phrases — ‘good character’ – ‘credibility’ – ‘leave, permission or direction’ – ‘unfairness’.

ORDER

1. Appeal allowed.

2. Set aside the judgment of the Court of Criminal Appeal dated 24 February 1998.

3. In lieu thereof order that:

• (a) the appellant's appeal to that Court be allowed;

• (b) the appellant's conviction be set aside; and

• (c) there be a new trial of the appellant.

1 Gaudron, Kirby and Callinan JJ. This appeal raises questions about the meaning and application of s 192 of the Evidence Act 1995 (NSW) (‘the Act’) to the adducing of, and cross-examination on, character evidence.

The facts

2 The appellant had been in practice as a solicitor on her own account at Bankstown and Rockdale in Sydney for some years before January 1993. On 24 February 1997 she was charged, that she did, between 20 January 1993 and 5 February 1993, conspire with Glory Mae Wailes and Mira Kutlesovska to cheat and defraud NRMA Insurance Limited (‘the insurer’) of a sum of money.

3 Evidence at her trial, which took place in the District Court (Viney DCJ) of New South Wales in Sydney in February and March 1997, was given by, among others, Ms Wailes, that she had been working as the appellant's secretary when the appellant asked her to arrange for someone to take her car which was insured with the insurer so that the appellant could make a claim upon the insurer for the loss of it. In due course Ms Wailes asked another secretary in the office, Mira Kutlesovska to take the car. Ms Wailes' evidence was that the car was then taken and left at her home. On 4 February 1993 the appellant reported to the police that the car had been stolen. About a week later it was found at Ms Wailes' home. Ms Wailes and Ms Kutlesovska were also charged with conspiracy to cheat and defraud, pleaded guilty to that offence and were sentenced for it.

4 From the outset of the appellant's trial it was apparent that her character would loom large in her defence. Counsel for the appellant at an early stage of the trial informed the trial judge that he would be leading evidence of the appellant's good character. The Crown Prosecutor then foreshadowed that he would be relying upon a report entitled ‘Preliminary Report by Investigator’ (‘the report’) to respond to any character evidence adduced by the appellant. The report was then tendered and received on the limited basis that the trial judge might ascertain what it contained and understand how it might be used. It will be necessary to say something further about this report later but we simply note now that it purported to be a report of an investigation on behalf of the Law Society of New South Wales of an allegation made by Ms Wailes after the hatching of the alleged conspiracy. The allegation was that the appellant had forged the signatures of a client, J Fowler, which she had then witnessed on a document or documents to be filed in unrelated proceedings in the Family Court of Australia. Counsel for the appellant at the trial objected to the use in any way of the material in the report at the trial.

5 After argument, the trial judge ruled that if the defence adduced evidence of good character cross-examination of the appellant would be permitted on matters the subject of, and the documents contained in, the report.

6 In giving his reasons his Honour said that the report came down to the opinion of a handwriting expert and a statutory declaration by Ms Wailes. He then quoted the expert's opinion which, at best, could only be described as highly equivocal:

‘ As a result of this examination I made the following observations:

The writer of Liljana's signatures possesses the writing skill to produce the questioned J Fowler's signatures. There are some isolated similarities between Liljana's signatures and the J Fowler's signatures on the questioned document referred to in item 1. At the best these similarities only indicate that the writer of the Liljana's signatures cannot be eliminated from having produced the questioned J Fowler's signatures.’

7 His Honour then summarised the objections that had been made by the appellant's counsel, including that the use of it by the prosecutor would cause incurable unfair prejudice to his client and could well result in a trial within a trial over the issues raised.

8 His Honour said:

‘ The difficulty is this of course, that it is a matter for the accused whether she raises her good character in a positive way. If nothing is said the jury is entitled to assume that she is a person who doesn't have convictions.

The evidence thus far is that at the relevant time she was a practising solicitor, however, if she positively raises the fact of her good character then the Crown is left with this problem and I call it a problem because I would have thought he would be obliged to bring these matters to her notice. Seized, as it is, with the material in the file from the Law Society investigator, it seems to me the Crown would be obliged to put those matters to the accused and so far as the Court is concerned, although it may create some degree of prejudice to the accused, nonetheless the defence is aware of the situation and it is a matter for them whether they wish to take the step of the accused positively referring to good character.

It seems to be though that in all the circumstances the course is open to me to admit the cross-examination referred to if that eventuality arises. So I will have to reject Mr Skinner's application that that sort of cross-examination be forbidden.

Subject to further developments in the trial I would grant the leave to the Crown unless some other matter arises that would cause me to hold a different view.’

9 In the argument which led to the ruling that we have just quoted the Crown Prosecutor referred his Honour to ss 102 1, 104 2 and 106 3 of the Act.

These sections are all contained within Pt 3.7 of the Act which has the heading ‘Credibility’ and which enacts various provisions in relation to the reception of credibility evidence and the circumstances in which cross-examination about it may be permitted. No reference appears to have been made in the argument to Pt 3.8 of the Act which is concerned with character and s 192 which specifies the matters which a court must take into account in deciding whether to grant leave or permission to permit cross-examination, and the adducing of evidence when permission or leave is required for either of these to be done.

10 The first time that character evidence was adduced in the trial was in the prosecution case when the appellant's counsel asked a police officer, Detective Senior Constable Lindsay McGillicuddy, to confirm (which he did) that the appellant had no prior convictions.

11 The appellant elected to give evidence. She swore that she had never been convicted of any offence and that this was the first time that she had been accused of something of this nature, ‘a dreadful crime’.

12 The appellant's counsel then sought to make a pre-emptive strike against the cross-examination foreshadowed by the Crown Prosecutor and the subject of the ruling by the trial judge, by referring to the report and asking the appellant what had happened in relation to it. She said that a full investigation of her practice had been undertaken and that statutory declarations (being declarations containing allegations by Ms Wailes of forgery) were just ‘blatant lies’, and that the allegations were totally untrue and outrageous.

13 The cross-examination of the appellant at the trial occupies some 102 pages of transcript. Some 15 or so pages of it are almost entirely taken up with matters contained in the report. By reason of the nature of the cross-examination parts of the contents of the report inevitably found their way into evidence. No thought seems to have been given to the consequence that the jury had placed before them secondary evidence of the contents of documents in circumstances in which the documents themselves were not admissible and which the jury would not see.

14 The appellant denied forgery and any impropriety in respect of the documents in the report, including those which she had witnessed. She did however accept that some purported signatures of the client J Fowler did not look like the signature of her client. The interrogation by the Crown Prosecutor with respect to the documents was wide ranging. It included invitations to the appellant to explain Ms Wailes' motivations, suggestions that the appellant was making false allegations about Ms Wailes, and an attempt by the prosecutor to have the appellant explain why Ms Wailes might herself have forged the documents. The cross-examination also involved an inquiry into the appellant's practice over the years with respect to affidavits and other documents. It culminated in an unsuccessful attempt by the prosecutor to tender the ‘Family Court documents’.

15 The appellant in her case called a number of independent character witnesses who extolled her honesty and integrity. One of these was a solicitor, Mr...