Where the Crown excludes charges involving a second complainant from the indictment and indicates it will seek to call that complainant's evidence in rebuttal if the accused raises good character, defence counsel should seek an advance ruling from the trial judge on the admissibility of the rebuttal evidence under ss 135 and 137 of the Evidence Act 1995. A failure to seek such a ruling, where the evidence may be excludable, may constitute incompetence capable of grounding a miscarriage of justice (per Adams J, dissenting). The majority held that the failure to seek such a ruling did not render the trial unfair where the outcome of such an application was uncertain and counsel's decision not to adduce character evidence was a legitimate tactical choice.
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