Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Pending

The Queen v Chardon

 

[2019] QSCPR 11

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Chardon [2019] QSCPR 11

PARTIES:

 

 

 

R

v

JOHN WILLIAM CHARDON

(defendant/respondent)

FILE NO/S:

SC No 801 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

2 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2019

JUDGE:

Lyons SJA

ORDER:

That the application be refused

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CHARACTER AND PRIOR CONVICTIONS – ADMISSIBILITY IN CROSS EXAMINATION – EVIDENCE INTRODUCED BY ACCUSED – where the defendant is on trial for the murder of his wife – where no body of the alleged victim recovered – where the defendant has given evidence during his evidence in chief of his own good character – where it was a deliberate decision to advance his own good character as it was not responsive to the question asked – where evidence from a crown witness of the defendant’s sexual relations with sponsored students was unchallenged by the defence – where the defendant has given evidence involving imputations on the character of the crown witness and attacking his credibility – where the crown seeks to cross-examine the defendant on his previous convictions and other allegations of bad character – whether the threshold test in s 15(2)(c) Evidence Act 1977 has been met – whether the prejudicial effect of cross-examining on his previous convictions outweighs the damage done to the crown case by leading his good character – whether the evidence should be admitted

Evidence Act 1977 (Qld), s 15

De Jesus v The Queen (1986) 61 ALJR 1; 68 ALR 1

HML v The Queen [2008] HCA 16

Phillips v The Queen (1985) 159 CLR 45

R v Johnson [2013] QCA 257

R v Skaf [2004] NSWCCA 74

COUNSEL:

M A Green for the applicant

A J Glynn QC and M Longhurst for the respondent

SOLICITORS:

Director of Public Prosecutions (Qld) for the applicant

Paddington Law for the respondent

Introduction

  1. [1]
    After the defendant had given evidence in chief in his trial on a charge of murder of his wife, the Crown prosecutor made application during the course of his cross-examination to be allowed to ask questions of the defendant in relation to his previous convictions and other allegations of bad character pursuant to s 15(2)(c) of the Evidence Act 1977 (Qld) on the basis of  the defendant’s evidence in chief and answers to questions during cross examination.
  2. [2]
    That section provides that:

“(2) Where in a criminal proceeding a person charged gives evidence the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged or is of bad character, unless –

(c) the person has personally or by counsel asked questions of any witness with a view to establishing the person’s own good character, or has given evidence of the person’s good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding.” 

  1. [3]
    It is clear that s 15(3) provides a question of the kind mentioned in subsection (2)(c) may only be asked with the court’s permission. 
  2. [4]
    The defendant has given what I consider to be intentional evidence during his evidence in chief of his own good character.  He stated that he sponsored a lot of people for university and in particular, he was asked by Mitchillie to sponsor two nieces who had finished high school to go to university.[1]  He stated that he sponsored them.  He stated that he sponsored people but within a week or two he has to meet their families.[2]  He stated that he had been a “philanthropist” since 1998.[3]  He stated in essence that he had been sponsoring young women in the Philippines for many years for educational purposes.  
  3. [5]
    I consider that the defendant gave that evidence in chief as a deliberate decision to advance his own character. The answer was not responsive to the question which had been asked of him by his Counsel in relation to the use of Asian Dating sites.
  4. [6]
    A Crown witness, Mr Marshall Aguilor, had previously given unchallenged evidence of the nature of the payments to women in the Philippines.  He stated that Mr Chardon had told him that he does not mind helping with the students, giving them the best that he can give, giving them the luxury.[4]  He was happy to send them to school and to the best universities they want, but that he needs some sex with them.[5]  He stated that Mr Chardon told him “but if I’m in the Philippines I have my – I want my favour – I don’t mind – I mean, I want to have sex with them”.[6]  Mr Aguilor stated that Mr Chardon told him that that was something that he expected and that his role was to check up on the students and to make sure the students were not scamming him.  He stated that the “students, if possible… should be virgins” and they should provide him with what he requests.[7]  Those specific parts of his evidence in chief were not challenged under cross examination by the defendant’s counsel.  It was not suggested that Mr Chardon had not made the sponsorships conditional or that he requested virgins. The defendant has now positively asserted under cross examination that the payments to students were not “conditional” as alleged by Mr Aguilor.
  5. [7]
    Furthermore, whilst Mr Aguilor accepted under cross-examination that he was scamming money from Mr Chardon, it was never put to him that the defendant had wanted him charged and had gone to the police in relation to this.  In his evidence in chief, when taken to the Yahoo messenger email of 25 November 2011 which referred to the defendant not trusting Mr Aguilor, Mr Chardon stated that as a result of what Mitchillie had told him about Mr Aguilor ripping him off, “I was going to have him charged.  Because he stole about 15 – about 600,000 pesos”[8].  In particular, imputations were made in relation to Mr Aguilor’s credit by counsel for the defendant that he had given evidence because he wanted a reward,[9] and also cast an imputation that he had only agreed to give evidence so that it would assist him in obtaining a visa to come to Australia.  There were clearly then imputations about the character of a significant Crown witness and whilst it was not expressly put to Mr Aguilor that all of his evidence was a fabrication that was the clear imputation. 
  6. [8]
    Accordingly, Mr Green has sought permission to cross-examine Mr Chardon on his previous convictions on the basis that Mr Chardon has given evidence not only of establishing his own good character, but he has also given evidence involving imputations on the character of Mr Aguilor. 
  7. [9]
    The relevant principles were discussed in the Queensland Court of Appeal decision of R v Johnson.[10]  In that decision, Muir JA examined the principles as set out in Phillips v The Queen.[11]  His Honour stated:[12]

“The trial judge was referred by defence counsel to R v SCA and, in particular, to the following passage from the reasons of Thomas JA who, referring to Phillips v The Queen, said:

“Although identifying the discretion as an entirely unfettered one, the judgment of Mason, Wilson, Brennan and Dawson JJ identifies the first four of the following considerations as a ‘valuable guide’, and the fifth as a consideration ‘to be weighed in the scales when considering the exercise of the discretion’.

  1. The legislation is not intended to make the introduction of an accused’s previous convictions other than exceptional;
  2. The prejudicial effect on the defence of questions relating to the accused’s criminal record needs to be weighed against such damage as the trial judge might think had been done to the Crown case by the imputations;
  3. On the issue of credibility it might be unfair to the Crown to leave the Crown witnesses under an imputation while preventing the Crown from bringing out the accused’s record;
  4. The actual prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit;
  5. The fact that an accused, in making imputations against the prosecution witnesses, is not doing anything more than presenting his defence, should tend against allowing cross-examination as to previous convictions. But if the accused makes quite gratuitous imputations that are not necessarily involved in the proper conduct of the defence, the court will be more ready to exercise its discretion in favour of the Crown.

Extrapolations of each of those particular considerations can be found in other parts of the judgment. On a more general level the judgment also includes the following statement:

‘It is right to stress the exceptional character of a case in which the credibility of an accused person is open to be attacked by reference to his bad character or previous convictions and it is undoubtedly right that the discretion of a trial judge to permit such an attack be sparingly and cautiously exercised.’

The court also emphasised that ‘the essential thing is a fair trial’.” (citations omitted)”

  1. [10]
    It is clear therefore that the discretion of a trial judge to permit an attack on the defendant should be cautiously exercised, but it is clear that the provision of s 15(2) are not intended to be only used in exceptional circumstances. 
  2. [11]
    In this case the prejudicial effect of questioning the defendant about his criminal record has to be weighed against the damage which has been done to the Crown case by the imputations which is considered to be the “critical consideration”.  It is clear that in this case, Mr Chardon gave evidence of him sponsoring students at universities and of assisting people and how he provided a lot of money to young women in the Philippines.  It is clear, however, that he has attacked the credibility of Mr Aguilor about the true nature of the sponsorships in the Philippines and he has also attacked his credibility by indicating that he has committed criminal offences for which he was going to be charged.
  3. [12]
    The Crown argues that it is unfair to the Crown to leave Mr Aguilor under an imputation preventing them from bringing out the defendant’s own criminal record.  In this regard, it is important to consider the nature of his criminal record.  His criminal history has been tendered and shows that on 21 June 2005 he was convicted of possessing and acquiring restricted items.  On 15 August 2014 he was convicted of one count of rape; one count of carnal knowledge of children under 16; one count of indecent treatment of a child under 16 under care; two counts of indecent treatment of a child under 16; one count of attempted rape; and one count of carnal knowledge.  He was sentenced to six years imprisonment with parole eligibility fixed after three years.  An application for leave to appeal was refused after trial.  On 21 June 2016 he was convicted after trial of indecent treatment of a child under 12 for which he was sentenced to five months imprisonment which was to be served cumulatively on the sentence he was currently serving. 
  4. [13]
    The application is opposed by Mr Glynn QC, Counsel for the defendant who has been engaged to argue this question and who has provided written submissions.[13] I have considered the material but given the pressure of making this ruling on day 13 of the trial I will not set them out in full. Whilst Counsel argues that the discretion has not been enlivened as the threshold test has not been met, I consider that the defendant has indeed made a “deliberate” decision to introduce his good character into evidence. As discussed in R v Skaf,[14] I consider that there was a subjective intention by the defendant to raise his own good character not only in the way alleged by the Crown but it would seem to me at every available opportunity he went to great pains to outline his largesse in the Philippines. He was not simply presenting his defence.
  5. [14]
    I accept that the previous convictions relate to child sex offences, which I also accept may create a heightened prejudice in the minds of the jurors. As Mr Glynn QC argued, in HML v The Queen,[15] Kirby J stated the following, citing De Jesus v The Queen[16]:[17]

“It is therefore the duty of courts, and of prosecutors, to ensure the fairness of the trial, especially so because accusations of criminal offences against children are specially likely to arouse feelings of prejudice and revulsion in the community which will normally be shared by jurors.”

  1. [15]
    In coming to a determination of the application I am conscious of the fact that this is a completely circumstantial case. I consider, in assessing the fairness to permit cross-examination with respect to the accused’s previous convictions in his trial, that the previous convictions are for unrelated offending and that the first offences occurred twenty years ago and more than 13 years before this alleged offence.  Furthermore I am concerned that given the nature of the previous offending it could have very significant impact on the fairness of the trial.  It is also clear, given the way in which the cross-examination has evolved that the Crown prosecutor is in a strong position to make submissions as to the defendant’s character and credibility in his closing address without the need to resort to his prior criminal history.
  2. [16]
    I consider therefore that it would be, in all of the circumstances, unfair to permit the cross-examination of the defendant with respect to his previous convictions.
  3. [17]
    The application is therefore refused.

 

Footnotes

[1]  T 12-27 ll 13-15.

[2]  At l 16.

[3]  At l 22.

[4]  T 7-33 ll 6-7.

[5]  At ll 7-8.

[6]  At ll 12-14.

[7]  At ll 31-32.

[8]          T 12-30 ll 24-25.

[9]  T 12-91.

[10]  [2013] QCA 257.

[11]  (1985) 159 CLR 45.

[12]  [2013] QCA 257 at [20].

[13]  MFI Y.

[14]  [2004] NSWCCA 74.

[15]  [2008] HCA 16.

[16]  (1986) 61 ALJR 1 at 3; 68 ALR 1 at 4-5. 

[17]  [2008] HCA 16 at [57].

Close

Editorial Notes

  • Published Case Name:

    The Queen v John William Chardon

  • Shortened Case Name:

    The Queen v Chardon

  • MNC:

    [2019] QSCPR 11

  • Court:

    QSCPR

  • Judge(s):

    Lyons SJA

  • Date:

    02 Sep 2019

Litigation History

EventCitation or FileDateNotes
Primary Judgment-02 Oct 2018Application for Judge alone trial refused: Boddice J.
Primary Judgment[2019] QSCPR 401 May 2019Application to exclude evidence of a previous domestic violence incident at trial refused: Douglas J.
Primary Judgment[2019] QSCPR 930 Jul 2019Application to exclude alleged confession allowed: Lyons SJA
Primary Judgment[2019] QSCPR 1013 Aug 2019Application to exclude evidence of prosecution witness refused: Lyons SJA.
Primary Judgment[2019] QSCPR 1102 Sep 2019Application by the Crown to cross-examine the defendant in relation to his previous convictions and other allegations of bad character; application refused: Lyons SJA.
Primary JudgmentSC (No Citation)09 Sep 2019Date of Conviction (Lyons SJA).
Primary JudgmentSC (No Citation)11 Sep 2019Date of Sentence (Lyons SJA).
Notice of Appeal FiledFile Number: CA263/1904 Oct 2019Appeal against conviction; application for leave to appeal against sentence

Appeal Status

Appeal Pending
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.