Baker (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0086

JASON BAKER (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victims of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and the complainants.

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JUDGES:	McLEISH, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2024
DATE OF JUDGMENT:	7 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 87
JUDGMENT APPEALED FROM:	[2022] VCC 2225 (Judge Mullaly)

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CRIMINAL LAW – Appeal against conviction – Eight charges of sexual offending against child – Failure of defence counsel to call good character evidence – Whether rational forensic explanation for failure – Whether substantial miscarriage of justice – Appeal allowed – Retrial ordered.

Criminal Procedure Act 2009, s 276; Evidence Act 2008, ss 110, 112 referred to.

Bishop v The Queen (2013) 39 VR 642; DPP v Newman (a pseudonym) (2015) 45 VR 302; Saw Wah v The Queen (2014) 45 VR 440; TKWJ v The Queen (2002) 212 CLR 124, applied.

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Counsel
Applicant:		Mr DA Dann KC
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
NIALL JA
KAYE JA:

Following a trial in the County Court, the applicant was convicted of eight charges of sexual offending against his biological daughter, comprising one charge of indecent act with a child aged under 16 years (charge 1), one charge of sexual activity in the presence of a child under the age of 16 years (charge 2), one charge of incest (charge 3), one charge of sexual assault of a child under the age of 16 years (charge 4), three charges of sexual assault of a child aged 16 or 17 years under his care, supervision or authority (charges 5, 6 and 7), and one charge of sexual penetration of a child or lineal descendant (charge 8). Following a plea on his behalf, the applicant, on 7 December 2022, was sentenced to a total effective sentence of 13 years and 9 months’ imprisonment, with a non-parole period of 9 years and 3 months.
The applicant seeks leave to appeal against conviction on one ground, namely:
A substantial miscarriage of justice has occurred in circumstances where:
(a)good character evidence was elicited from a Prosecution witness;
(b)good character evidence was not called as part of the Defence case;
(c)a direction as to the use of good character evidence was not requested; and
(d)a direction as to the use of good character evidence was not given to the jury.
The notice of application for leave to appeal against sentence was filed on 17 May 2023. Accordingly, the applicant also makes application, under s 313 of the Criminal Procedure Act 2009, for an extension of time within which to file the notice of application for leave to appeal.

Background

The applicant was born in October 1970. At the time of the events that were the subject of the charges, he was aged between 41 and 49 years. He was married to MC, and there were three children of the marriage, MA[2], MJ,[3] and the complainant. MJ and the complainant are twins, and were born in July 2003. At the time of the alleged offending, the complainant was aged between 9 and 16 years.
[2]A pseudonym.
[3]A pseudonym.
During the relevant time, the family lived in Taylors Lakes. In 2019, while the family home in Taylors Lakes was being renovated by the applicant, the complainant, her mother and her twin brother MJ stayed with the mother’s parents at their home in Airport West.

The offending

Charge 1 alleged that the applicant committed an indecent act with a child under 16 years of age. Charge 2 alleged that the applicant engaged in sexual activity in the presence of a child under 16 years of age. Both charges were ‘course of conduct’ charges. Charge 1 covered offending between 8 July 2012 and 30 June 2017. Charge 2 covered offending from 1 July 2016 to 7 July 2019.
The prosecution alleged that, during those dates, and commencing when the complainant was approximately nine years of age, the applicant made her watch him masturbate as he viewed pornography, which he also made the complainant view. The incidents occurred two or three times each month in the bedrooms or laundry of the home, while the complainant’s mother was at work. When the complainant was aged about 12 years, the applicant ceased using pornography, but he continued to masturbate in front of her. As the complainant’s body matured, the applicant began to touch her sexually, including touching her vagina. That offending continued until the complainant turned 16 years of age.
Charge 3 alleged that, between 8 July 2015 and 7 July 2016, the applicant committed incest by engaging in an act of sexual penetration with the complainant. The complainant alleged that, while she was in her room on the telephone, the applicant got on top of her and began to digitally penetrate her vagina while she was still clothed. Charge 3 was not a course of conduct charge, but in her evidence the complainant said that that conduct by the applicant was not confined to a single occasion.
Charge 4 alleged sexual assault of a child under the age of 16 years. It was alleged that, when the complainant was approximately 14 or 15 years of age, the applicant commenced to touch her vagina with his tongue and mouth. The first incident occurred when the complainant was lying on her bed. The applicant laid on top of her, removed her pants and underwear, and proceeded to offend against her while she attempted to resist him.
Charges 5 and 6 each alleged that the applicant sexually assaulted a child aged 16 years or under 17 years under his care, supervision or authority. The two charges related to a single incident that occurred between 29 September and 30 October 2019 when the complainant was 16 years of age. On the occasion in question, the applicant demanded that the complainant come to his bedroom. When she refused, he physically picked her up and carried her to the bedroom while she resisted. There, he rubbed her vagina and breasts under her clothes. The applicant then simulated sexual intercourse by rubbing his penis against the complainant’s vagina while they were both clothed.
Charges 7 and 8 were respectively charges of sexual assault of a child aged 16 years or under 17 years under the care, supervision or authority of the applicant, and sexual penetration of a child or a lineal descendant. Charges 7 and 8 relate to the same incident, which was the last incident, according to the complainant. On a date between 1 October and 20 November 2019, the complainant was home alone when the applicant arrived there. The complainant had arranged to meet up with a friend, but the applicant refused to permit her to leave. He then pulled the complainant from the door, took her to a room, and touched her breasts and vagina, while she screamed and tried to move away (charge 7). The applicant then placed his fingers inside the complainant’s vagina (charge 8).
In addition to the charged acts, the prosecution also relied on evidence of uncharged acts. The complainant and other witnesses gave evidence that the applicant inappropriately massaged the complainant, that conduct commencing with him massaging her after she had attended soccer training. In addition, the complainant and other witnesses gave evidence that, on multiple occasions, the applicant would enter the bathroom while the complainant was in the shower.

Complaint

The complainant first complained of the offending in November 2019. In that year, she was in Year 10 in a secondary college at North Keilor. On 7 November 2019, CT[4] a teacher at the school, was conducting a transition activity with the complainant’s class. She set a task for the students to write down on a piece of paper anything that they would like to ‘let go of’ in transitioning to the senior school, which was to commence the following year. The complainant wrote a note, which was placed in a box. On 26 November 2019, CT read the note, which stated that there were some things that she had never been able to talk about, and which included:
I’ve been sexually abused my whole life. I’ve never talked to anyone about it!!!
[4]A pseudonym.
After CT read the note, she referred it to the Wellbeing Coordinator at the school. A meeting was held with the complainant, in which she confirmed that she had written the note, and said that her father had offended against her. On the following day, 29 November 2019, police attended the complainant’s school, and the complainant confirmed to police that the applicant had sexually abused her. She wrote some details on a piece of paper for police, because she was having difficulty talking about what had occurred. Subsequently, on 19 December 2019, the complainant participated in a video recorded interview (a VARE).
On 16 January 2020, the applicant was interviewed by police.
In the interview, the applicant denied the offending. In his defence at the trial, it was alleged that the complainant had been abused by her grandfather, and that the complainant had a motive to lie in her evidence due to other family circumstances.

The proposed ground of appeal

The proposed ground of appeal is to the effect that, in the trial, the defence had available, but did not seek to rely on, or obtain a direction to the jury as to, good character evidence, which would have supported the defence of the applicant.
The applicant had no previous convictions, and, on his plea, a number of character references were tendered on his behalf. In his recorded interview with police in respect of this matter, the applicant expressly stated that he was a person of good character, that he had no allegations against him, and that there was ‘no … scratch against my name …’. In the course of the trial, the applicant’s son, MA, was called to give evidence on behalf of the prosecution. In cross-examination, MA gave evidence that could be characterised as good character evidence concerning the applicant, particularly in his role as parent to MA, his brother and the complainant.
The applicant had previously been charged with sexual offending against his sister. That offending was alleged to have occurred between 1985 and 1987, when the applicant was between 14 and 16 years of age. The prosecution in that case had withdrawn those charges before the committal hearing in respect of them.
Although the proposed ground of appeal focuses on the failure of defence counsel to call any other good character evidence, it is necessary to provide some context to that aspect of the trial. Accordingly, it is necessary to summarise, albeit briefly, the evidence that was adduced in the trial.

The complainant’s evidence

The evidence-in-chief of the complainant consisted of the VARE interview conducted by police in 19 December 2021, and she was cross-examined in three special hearings before the trial judge.
In the VARE interview, the complainant said that when she was younger, the applicant used to make her watch him masturbating and also watch videos of other people performing sexual acts. She said that those incidents occurred in her bedroom or in the applicant’s bedroom, and in the laundry. She said that he would force her to go to those rooms, remove his trousers and underwear, and commence masturbating in front of her while he would show her the videos (charges 1 and 2). The complainant said that the last occasion on which that occurred was when she was 12 years of age, when he started ‘doing things’ to her, including touching her on and in her vagina underneath her clothing (charge 3). She said that on those occasions, the applicant would put her on the bed, either remove her clothes or put his hands under her clothes, and touch her. On the first occasion, she was wearing her pyjamas. The applicant entered her room while she was on the telephone or watching her computer. The applicant moved her to where he wanted her, and then he started to touch her.
The complainant was then asked about the last occasion on which the sexual assaults occurred. She said that on that occasion, she was home alone. When the applicant arrived there, the complainant tried to leave, and said she was going to meet up with a friend. The applicant did not allow her to do so. He locked the door, pulled her into the room, put her on the bed, and touched her vagina and grabbed her breasts. As he did so, he put his fingers inside her vagina. The complainant said that the incident lasted some 10 to 15 minutes. At the conclusion, he ‘just stopped and got up and just walked off’ (charges 7 and 8).
The complainant was then asked further questions about the initial offending in which the applicant masturbated before her (charges 1 and 2). She said that that occurred every time her mother was away or at work. While he was masturbating, he would hold her face and look at her. She said that the applicant also masturbated in front of her in the laundry, when her brothers were home. On those occasions, the applicant would stand in front of the closed door, and masturbate. If the complainant tried to look away, the applicant would make her face him or pull her towards him.
In describing the circumstances that were the subject of charge 4, the complainant said that the offending occurred on multiple occasions. The applicant would enter her room, get on top of her or next to her, start removing her clothing, and start touching her vagina with his lips and tongue. She said that she would try to push him away, but was unable to do so. The complainant said that the first occasion on which that offending occurred was in 2018, and that it occurred on three or four occasions.
The complainant said that the incident, that was the subject of charges 5 and 6, occurred on an occasion when she was home alone with the applicant, after her brother MJ had left to meet with a friend. At the time of the incident, the complainant was in the study on the telephone. The applicant entered the room, and called out to her to come with him. When she declined to do so, he picked her up from the chair, carried her into a bedroom, placed her on a bed and rubbed her vagina and breasts underneath her clothing.
The complainant then described the circumstances in which she made a complaint about the conduct of the applicant. She said that in late October or early November 2019, her English teacher at school conducted a class in which the students wrote on pieces of paper things that they wished to ‘let go of’. The teacher told the class that what they wrote would go in a box and then would be thrown out. The complainant wrote a note in which she said that she had been sexually abused for all of her life and she had never talked to anyone about it.

Cross-examination of complainant

In the first special hearing, the complainant, when cross-examined, said that from about the age of 10 or 12 years, either her brother MJ or her mother would sleep with her most nights. She agreed that throughout her life she had a very close relationship with both her mother and MJ, and that MJ had been very ‘co-dependent’ on the complainant. She also agreed that MC was a very overprotective mother who was affectionate towards her. She said that as she grew older, her mother would tell the applicant not to be affectionate with her. The complainant agreed that during their childhood, the applicant was very involved in both her brother MA’s sport, and also her own soccer playing. The applicant would take her to and from soccer training, and he massaged her legs and also MA’s legs after they had played sport. The complainant agreed that the applicant was closer to her and MA than he was to MJ, and that that was a source of tension in the home.
Counsel then questioned the complainant about the circumstances of the offending that was the subject of charges 1 and 2. The complainant said that those circumstances occurred on occasions when her brothers were home, and that on some occasions the applicant, while masturbating before the complainant, was interrupted by one of her brothers. She said that both of the brothers had interrupted the offending at separate times.
The complainant agreed that at the time when the applicant was masturbating in front of her or groping her breasts, he would be interrupted when someone else came into the room. She said that the door to her bedroom was unlocked. In response to further questions, she said that she did in fact have a lock on her bedroom door and that on some occasions members of the family were pounding on it. She agreed that she had not told the police about the lock on her door and that she only just recalled that fact. The complainant further agreed that as she grew older, and started going through puberty, she became self-conscious about any member of her family walking in on her while she was having a shower. She agreed that, in the course of renovations at the home, her bathroom was removed, so that she commenced taking her showers in the en suite bathroom to her parents’ bedroom.
Counsel then questioned the complainant about the incident that was the subject of charge 3. She agreed that anyone could have walked into the bedroom while the incident was occurring. She could not recall whether she yelled or screamed during it. When questioned about the incident that was the subject of charge 4, the complainant said that she could not recall what she was wearing at the time. She said that the conduct that occurred on that and other occasions always took place either in her bedroom or in the applicant’s bedroom. She said that she did not have any specific recollection of the first occasion on which that kind of conduct occurred, but she also said that on that occasion there was no one else in the home.
The complainant agreed that after she moved, with her mother and MJ, to live in their grandparents’ home during the renovations of the family home, it was the applicant who was still called upon to take her to soccer training.
The complainant agreed that when she was in Year 9 and Year 10 her father would still ‘baby’ her. She said that she wanted to have more freedom to do things that other teenagers were doing and that it created tensions when the applicant found out what she was doing. She agreed that her older brother, MA, was also strict with her and took on a fathering role with her. She disagreed that in October 2019 she had a big fight with MA as a result of which she went to a friend’s place.
Counsel then asked the complainant about the last incident which was the subject of charges 7 and 8. The complainant agreed that on that day, her mother could have come home at any time, but she added that in fact the applicant locked the door before the incident occurred. She said that at no time during the incident did her mother pound on the door or anything like that.
At the conclusion of the first special hearing, counsel put to the complainant that she was making up the allegations against her father. In response, the complainant said she was not fabricating her evidence.
The complainant was further cross-examined (by different counsel) in the second special hearing which took place on 17 June 2022. Counsel commenced that part of the cross-examination with questions about the complainant’s paternal grandfather, who had moved into the family home for a period after his wife passed away. She disagreed with a series of questions, which counsel put to her, that on one occasion the applicant walked into the kitchen to find the complainant’s grandfather engaged in sexual conduct with her. She agreed that her grandfather did move out of the house and went to Thailand, and that from that time, she had not seen her grandfather again. She disagreed with questions put to her that subsequently she had, on a number of occasions, tried to tell the applicant about her grandfather’s conduct towards her.

The complainant was then questioned about an incident that occurred at school in June 2019 involving a faked photograph in which her head had been superimposed on a topless body. In that respect, a series of text messages was put to the complaint that were later tendered in evidence. Counsel then put to the complainant that in October or November 2019 she again tried to persuade the applicant to assist her to complain about her grandfather’s conduct to her. The complainant disagreed with those propositions. She disagreed that the note, that she wrote at school dated 7 November 2019, in which she said she had been sexually abused throughout her life, referred to her grandfather and not the applicant.
The third special hearing, which took place on 5 September 2022, was very short. In the course of it, counsel for the applicant put to the complainant, and tendered, text messages that passed between the complainant and the applicant in September 2019, in which the complainant asked the applicant to pick her up on the way home. There was also a text message that the complainant sent to the applicant on 10 October 2019, stating: ‘Happy birthday!!! Love u [with three heart shapes attached]’. Counsel put to the complainant, and tendered, a letter that the complainant wrote to the applicant when she was about 12 years of age in which she expressed her strong love and affection for the applicant.

Other evidence

After the recordings of the complainant’s VARE interview, and of the cross-examination of her in the special hearing, were played to the jury, the first witness called in the trial was Dr Daniel Sullivan.
Dr Sullivan is a consultant forensic psychiatrist, employed by the Victorian Institute of Forensic Mental Health. Dr Sullivan had not examined or interviewed the complainant or the applicant. He gave evidence that the relevant literature reported that there was a high prevalence of sexual abuse in the community, and a degree of under-reporting of that abuse. He said that the text messages and other documents, that were tendered in cross-examination of the complainant, evinced a degree of ambivalence by the complainant concerning the applicant. In some contexts, the complainant did not consider that she had any problems with the applicant, but, in other contexts, she sought to avoid situations, because she saw problems. Dr Sullivan noted that the letter, which the complainant wrote to the applicant when she was 12 years of age, and in which she communicated some affection towards the applicant, was developmentally appropriate for a person of that age. Dr Sullivan concluded by stating that, according to the literature, people react in very different ways to sexual abuse. There is no specific response, by a complainant, from which it is possible to infer that the abuse did, or did not, occur.
The complainant’s twin brother MJ participated in a VARE interview, which was tendered at the trial as his evidence-in-chief. He was cross-examined in the trial by counsel for the applicant.
In the VARE, MJ said that, on many occasions, he had observed his father trying to hug the complainant, and the complainant would always say, ‘Get off me’. MJ further said that the complainant was the applicant’s favourite child. He had always shown a lot of interest in the complainant, and he would try to push her in what she was doing when she was playing soccer. On numerous occasions, the applicant would massage the complainant when she was sore after playing soccer. When he was doing so, the complainant would tell him to stop, and the applicant would respond, ‘You have to get all the spots’. The massages took place on the bed, and the complainant would be lying on her stomach. In the course of the massage, the applicant would massage the complainant on her bottom, although the complainant’s injury was to her leg. At the time of the massages, the complainant was wearing her soccer clothes. MJ also said that on one occasion, when the applicant was massaging the complainant, she screamed loudly.
MJ also said that his parents’ bedroom was at the front of the house, and there were two bedrooms at the rear, one of which he shared with his brother MA, and the other which was occupied by the complainant. MJ said that on occasions when he was younger, he would like to sleep with the complainant overnight, but the applicant never let him do so.
MJ also said that when their mother and brother were not at home, the complainant always wanted him to stay at home. He said that she would never want to take a shower when she was at home alone. The applicant would tell the complainant that she had to have a shower and wash her hair, and she would have a shower in her parents’ bathroom. MJ further said that on a couple of occasions when the complainant was in the bathroom, the applicant would enter it, and the complainant would scream, ‘Get out’.
The applicant’s former wife, MC, gave evidence that in November 2019 she was called to attend the complainant’s school. On arrival, she was shown a piece of paper, written by the complainant, in which she said she had been abused.
In her evidence, MC then described the work that she was engaged in between 2012 and 2019. She acted as an integration aide at a school, and also in the evenings worked with Lorraine Lea, a business trading in linen and homewares, in which she attended at parties and conferences. The applicant was employed as a works supervisor, and his usual hours of work were from 8:00 am until 4:00 pm. When MC had to attend functions for Lorraine Lea in the evening, the applicant looked after the children.
MC was then asked about observations that she had made about the behaviour of the applicant towards the complainant. She said that quite often, when the complainant came home after attending sporting activities, the applicant would tell her to lie on a bed, which was in her bedroom or in their bedroom, and he would massage her leg ‘and go very high up the upper thigh’, whereupon the complainant would scream or yell for him to stop. MC said that the massages took place when the complainant was between 13 and 15 years of age.
MC also observed other behaviours by the applicant towards the complainant. Quite often, he would touch her on the shoulders and, in response, the complainant would flinch. On other occasions, the applicant would touch the complainant on her thigh. The complainant, on those occasions, would be sitting on a chair, and the applicant would approach her, and give her a cuddle, and his hands would end up on her upper thigh. MC said that she had told the applicant he could not do things like that, to which he would respond, ‘Stop, that’s my daughter, I can do that’. MC also said that, when she walked into their bedroom, she would observe the applicant lying next to the complainant and almost on top of her. On those occasions, MC would ask him about what he was doing, and he would respond, ‘Aren’t I allowed to lie next to my daughter’.
MC said that when the complainant was about 13 or 14 years of age, she never wanted to have a shower when she was home alone with the applicant. The complainant would say to her, ‘Mum, make sure you’re around if I’m showering’. If MC instructed the complainant to have a shower, the complainant would refuse to do so unless MC was at home.
The complainant’s maternal grandmother, LL,[5] gave evidence that when the children were growing up, she regularly visited them and spent time with them. LL said that as the complainant grew older, the applicant spent a lot more time with her than with his two sons. On a few occasions when the complainant was having a shower in the morning, LL could hear her calling out, ‘Get out, get out’. When LL went to see what was occurring, the applicant would be in the shower room, while the complainant was having a shower. LL would say to the applicant that he should go and attend to the boys and get them ready for school, and she would tell the applicant that he should not be in the bathroom while his daughter was having a shower.
[5]A pseudonym.
The complainant’s older brother, MA, was called by the prosecution to give evidence. He described an incident that occurred on 13 October 2019 in which there was a physical altercation between himself and the complainant. He said that the altercation occurred over something that he did not agree with, he became upset and pushed the complainant, and said that she ought not have done what she did. In response, the complainant pushed MA back, got upset, started to cry and left.
Following that part of MA’s evidence, the prosecutor, pursuant to leave under s 38 of the Evidence Act 2008 (‘Evidence Act’), asked MA a series of leading questions. Specifically, the prosecutor suggested that MA had fabricated his version of the incident, in order to support the applicant, and that since he had found out about the allegations made by the complainant against the applicant, MA had taken the applicant’s side. In response to those questions, MA responded, ‘I disagree, there’s never been a side’. MA agreed that after the allegations against the applicant became known in 2019, he had continued to reside in the house with the applicant. He also agreed that he no longer had contact with MC, the complainant or MJ, and he added that that was ‘not by choice’.
MA was then cross-examined by counsel for the applicant. In the course of cross-examination, he said that the applicant was more of an affectionate parent to each of his children than was MC. The applicant would hug his children and protect them, including the complainant. MA said that his mother disapproved of that, and would tell the applicant not to touch the children and to leave them alone. MA also said that he never saw the complainant distressed when she was around her father, and he never saw the applicant acting in a manner which he thought to be suspicious or concerning relating to her.
In cross-examination, MA further noted that, at one point, his grandfather lived with the family in their home in Taylors Lakes. On one occasion, the complainant said to MA that their grandfather was ‘really creepy’, that he made noises at night, and told her sometimes to come into his bedroom.
MA further said that he never recalled interrupting the complainant and the applicant in a bedroom, that he never recalled knocking on a door and not being permitted to enter, or observing the applicant dragging or forcing the complainant to go into a room. He also did not ever recall hearing the complainant yell out or ask for help.
MA said that the applicant was involved in his football team as a first aid trainer, which included strapping and massaging the players. The applicant was also involved in the complainant’s soccer club, and he would watch every game she played in and also training. He said that after a game, the applicant would massage the complainant in the loungeroom. At that time, the complainant would be fully clothed in her sports outfit, and MA never saw anything improper occurring in those massages. MA also denied that he ever saw the applicant walk into the bathroom while the complainant was having a shower.
At the conclusion of his evidence, MA was asked to describe what the applicant was like as a parent. MA responded:
My father was the most supportive, loving father I could have ever asked for, and I think what my brother and sister could ever have asked for. Um, anything we ever wanted, he tried to give to us. He was just a hardworking man and done everything for his family.
Finally, in answer to a question by counsel as to whether he had ever seen anything that gave him concern about the applicant’s relationship with the complainant, MA responded, ‘None whatsoever’.
CT gave short evidence as to the circumstances in which the complainant wrote the note in the course of the pastoral care activity that was conducted by CT at the school in November 2019. CT explained that when she subsequently saw the note, she took steps to ascertain who had written it. As a consequence, she spoke to the complainant and, in a series of questions, ascertained that the person about whom she was making the complaint was the applicant.
HS,[6] who was the Director of Students at the school, also gave evidence on that aspect of the case. She confirmed that the complainant had identified the applicant as the person who had abused her. As a result, SOCIT was contacted.
[6]A pseudonym.
The final evidence that was adduced before the jury was the record of interview, which the police had conducted with the applicant on 16 January 2020. In the interview, the applicant said that while he had a good relationship with the complainant, he had a closer relationship with his sons. The applicant said that MC was very protective of the complainant, and that he was not allowed to touch her. The complainant never slept by herself in her bedroom. Ordinarily, MC would sleep with her, and, if MC was not available, her twin brother MJ would do so. The applicant explained that in 2019 the complainant and the applicant did not live in the home in Airport West. During that time, MC would, however, bring the complainant to the Airport West home on the evenings on which there was soccer training, and that the applicant would drive her there. When he did so, the applicant would remain at training and watch it. The applicant also explained that in previous years, MC would sometimes be absent from the home due to work commitments. On those occasions, the complainant and MJ would stay at MC’s sister’s or parents’ home. He said that there was never any occasion on which he and the complainant would be at home on their own. He said that MJ was always present, and, if he were not present, MA was there. The applicant also said that the children, including the complainant, never showered in the en suite bathroom to the main bedroom, and that they took their showers in the separate bathroom.
The applicant was then asked to speak about ‘a sexual relationship’ that he had with the complainant. To that question, the applicant responded, ‘I don’t have a sexual relationship with [the complainant]’. He said that he did not spend time alone with the complainant, other than for her soccer. He again reiterated that MC was very rigid about not permitting him to have physical contact with the complainant.
Later in the interview, the police interviewer put to the applicant the allegations made against him by the complainant. In response, the applicant denied each of those allegations. In particular, he specifically denied massaging the back of the complainant’s legs after soccer. He said that on most of those occasions, when he did massage her, either MC or MJ were present. At the conclusion of the interview, he said that he loved his wife and his children, and that he was shocked, devastated and bewildered by the allegations.

Submissions

In support of the proposed ground of appeal, counsel for the applicant (who was not counsel for the applicant at the trial) noted that the applicant did not have any previous convictions, and on the plea, he relied on the character references of six people. Counsel noted that, apart from the passage in the evidence of MA, to which we have referred, counsel for the applicant otherwise did not call any evidence of good character on behalf of the applicant. Further, it was not put to the jury, either by way of evidence or admission, that the applicant had no previous convictions. In discussions before final address, the judge was not asked to give the jury any directions as to the use that could be made of the good character evidence that had been adduced from MA, and counsel did not refer to the issue of good character in the final address.
Counsel noted that the trial judge, in discussion with trial counsel, did raise an issue concerning the potential reliance by counsel for the applicant on the evidence of good character. It would appear that those concerns related to allegations that had been made by the applicant’s sister of sexual offending by the applicant between 1985 and 1987. The charges in respect of those allegations were withdrawn before the committal proceeding in respect of them. Counsel submitted that that concern was not an appropriate explanation for the failure of trial counsel to adduce evidence of good character, and to rely on it in final address. Counsel noted that there did not appear to be any indication during the trial that the prosecution would introduce any evidence of the allegations made by the sister of other sexual misconduct by the applicant by way of rebutting any evidence of good character that might be adduced on behalf of the applicant.
In that respect, counsel noted that on three separate occasions in the course of the trial, the judge, who was aware of the allegations which had been made against the applicant by his sister, did raise with counsel whether questions, addressed by him to witnesses, opened the issue of the applicant’s character. Counsel submitted that it is significant that on none of those occasions did the prosecutor caution counsel for the applicant that if counsel sought to rely on evidence of good character on behalf of the applicant, the prosecution would seek to adduce evidence in respect of the allegations that were made by his sister in the proceedings which had been earlier discontinued.
In those circumstances, it was submitted that there was no rational forensic explanation for the failure of trial counsel to adduce good character evidence on behalf of the applicant, and to rely on that evidence in final address. It was submitted that as a consequence, the applicant was deprived of the advantage which would have been derived from relying on that evidence, and from directions which the judge would have been required to give. Those directions would have had a bearing both on the issue of the likelihood that the applicant had committed the charged offences, and the assessment by the jury of the account given by the applicant in his record of interview with police. In that respect, it was noted that in final address, the credibility of the account given by the applicant to police, and of the denials that he made, in the record of interview, was put in issue. In those circumstances it was submitted that character evidence, and directions in relation to it, may have made a difference to the jury’s assessment of the credibility of the account given by the applicant in the record of interview and also, as such, in the assessment by the jury of the issue of whether he was guilty of the offences charged against him.
In response, counsel for the respondent submitted that, in view of the circumstances, in which the applicant had previously been charged with sexual offending in respect of his sister, trial counsel’s decision not to adduce and rely on evidence of good character on behalf of the applicant was a rational forensic decision. The judge himself had raised with defence counsel the potential risk, which might arise if counsel sought to rely on evidence of good character on behalf of his client. It is clear that counsel for the applicant was aware of the allegations, which the applicant’s sister had made against him, and which had been the subject of charges in the court. In those circumstances, it was submitted, trial counsel was aware that if he proceeded further to adduce evidence of good character on behalf of the applicant, that may well have exposed the applicant to an application, by the prosecutor, for leave to adduce evidence relating to the allegations, which had been made against him by his sister. It was in those circumstances that trial counsel had exercised forensic judgment as to whether to rely on character evidence.
Counsel for the respondent submitted that, in view of the comments made by the trial judge, and the potential that the prosecution might adduce evidence of the previous allegations against the applicant, trial counsel made a decision not to rely on character evidence, which could not be fairly described as lacking a rational forensic basis.

In those circumstances, it was submitted that the ground of appeal, relied on by the applicant, has not been made out.

Legal principles

As discussed by Weinberg JA in Saw Wah v The Queen,[7] evidence of an accused person’s good character has long been admissible at common law. While originally an accused, seeking to rely on such evidence, was confined to adducing evidence as to his or her good reputation, over the course of time, that limitation was discarded, so that evidence as to an accused person’s disposition, as well as reputation, became admissible. In turn, subject to certain statutory constraints, it was open to the prosecution to rebut such evidence, by adducing evidence of the accused’s bad character.[8]
[7](2014) 45 VR 440; [2014] VSCA 7 (‘Saw Wah’).
[8]Ibid 448 [42]–[44].
Section 110 of the Evidence Act provides for the adducing of evidence of good character of an accused person as follows:
Evidence about character of an accused
(1)The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.
(2)If evidence adduced to prove (directly or by implication) that an accused is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that an accused is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not a person of good character in that respect.
Section 112 provides that an accused must not be cross-examined about matters arising from evidence of character unless the court gives leave to the prosecutor to do so.
As a result of s 110(1), it is open to an accused person to adduce evidence of both general good character, and also evidence that the accused was, in a particular respect, a person of good character. In a case in which an accused person adduces character evidence, ordinarily, that evidence has a dual role, bearing both on the improbability of the guilt of the accused on the offences charged, and also on the credibility of an account, given by the accused, as to his or her innocence of the offences charged.[9]
[9]TKWJ v The Queen (2002) 212 CLR 124, 135 [35] (Gaudron J); [2002] HCA 46 (‘TKWJ’); Bishop v The Queen (2013) 39 VR 642, 651 [36] (Priest JA); [2013] VSCA 273 (‘Bishop’); Saw Wah (2014) 45 VR 440, 449 [48]–[50] (Weinberg JA).
In Saw Wah, Weinberg JA explained the probative value of character evidence in the following terms:
It should be said that the importance of evidence of good character is sometimes underrated. In a case such as the present, involving oath against oath, such evidence can be of particular significance. Not only does the jury learn that the accused has no prior convictions, but they are also told that this evidence bears directly upon the likelihood that he committed the offences charged. Moreover, they are also told that the accused’s previous good character is relevant to his credibility. It is obviously a significant disadvantage to the defence if, for whatever reason, the evidence of good character is not led, and the directions to which the accused is entitled are not given.[10]
[10]Ibid 448 [41].
As the decision of this Court in Director of Public Prosecutions v Newman (a pseudonym)[11] makes clear, in the present case, the mere fact that the applicant had previously been charged with sexual offending against his sister, without more, was not admissible against the applicant as evidence of bad character.
[11](2015) 45 VR 302 (Priest and Beach JJA); [2015] VSCA 25 (‘Newman’).
In Newman, the accused was tried in the County Court on 13 charges of indecent act with a child under the age of 16 years. The prosecution and the defence agreed that the accused should be entitled to lead evidence of good character and that, having done so, should be entitled to the benefit of a jury direction in respect of that evidence. However, the trial judge ruled against giving such a direction, on the basis that the accused, at that time, faced four similar charges on a second indictment, which were to be tried following the conclusion of the current trial. In granting an application by the Director for leave to appeal, and allowing the appeal, against that decision, this Court stated the relevant principles as follows:
It is unthinkable that the trial judge could ever, in circumstances such as the present (or, indeed, any circumstances), of her own motion call a witness, or introduce evidence, in defiance of the adversaries’ positions, so as to rebut evidence of the accused’s good character.[12] Thus, as the position stands, there is no evidence before the court rebutting the respondent’s good character, and, given that the prosecution has said repeatedly that it is not intended to lead evidence in rebuttal, there will be none (unless, in unlikely and unforeseen circumstances, that position changes). It is trite that, the mere fact that a person has been charged with an offence cannot be evidence of bad character. The mere fact that a person has been charged is no evidence that he or she has committed the offence. It is thus irrelevant. Moreover, the mere fact that a person has been charged with an offence cannot bear upon his or her credit.[13]
[12]Whitehorn v The Queen (1983) 152 CLR 657, 663 (Deane J), 675 (Dawson J); [1983] HCA 42; R v Apostilides (1984) 154 CLR 563, 575–8 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ); [1984] HCA 38; R v Jones (Court of Criminal Appeal, Supreme Court of Victoria, Murphy, Marks and Gobbo JJ, 28 August 1989) 2–3 (Murphy J, Marks J agreeing at 6 and Gobbo J agreeing at 6); \R v Griffis (1996) 67 SASR 170.
[13]Newman (2015) 45 VR 302, 308 [25] (Priest and Beach JJA); see also Stirland v Director of Public Prosecutions [1944] AC 315, 323 (Viscount Simon LC).
In the case of an appeal concerning the failure of trial counsel to adduce evidence of good character that was available to the accused, two questions necessarily arise. The first question is whether the failure of trial counsel to call that evidence could be characterised as a result of a rational forensic decision made by counsel.[14] If that question is answered in the negative, the second question is whether the failure of trial counsel to adduce the evidence of good character has resulted in a substantial miscarriage of justice to the accused person.[15]
[14]TKWJ (2002) 212 CLR 124, 130–1 [15]–[17] (Gleeson CJ), 134–5 [32]–[33] (Gaudron J), 159 [95] (McHugh J), 158 [107] (Hayne J).
[15]TKWJ (2002) 212 CLR 124, 149 [79] (McHugh J), 158 [108] (Hayne J).

Analysis and conclusion

As we have noted, the applicant, at the time of the trial, did not have any previous convictions. On his plea, six character references were tendered on his behalf, which spoke positively as to his character, both generally, and also specifically in respect of his conduct as a family man and father. Clearly, evidence to that effect would have been admissible in the trial on behalf of the applicant, and, for the reasons explained by Weinberg JA in Saw Wah, would have been of positive value to the defence of the charges against the applicant.
The transcript of the trial does not contain any express, or specific, explanation, either by counsel for the applicant or, indeed, by the prosecution, as to why, in those circumstances, counsel for the applicant did not seek to call evidence as to the applicant’s good character, and as to the fact that he did not have any previous convictions. Nor, indeed, did the trial defence counsel respond to an invitation from this Court to make any submission or give evidence on the matter.[16] However, from a review of the transcript, two points are quite clear. First, it would seem that counsel for the applicant had, at least to some extent, turned their minds to the issue of the applicant’s good character. Secondly, it is apparent that, at particular stages in the trial in which evidence might have become available, or had been adverted to, as to the applicant’s good character, the judge, in discussion with counsel, appeared to raise the question of the potential implications of that evidence, in view of the previous charges, which had been brought against the applicant, which had alleged sexual offending by him against his sister.
[16]See Knowles v The Queen [2015] VSCA 141 [125]–[127]. In the present application, leading defence counsel responded that he did not wish to say anything in response to the Court’s invitation.
The issue of the previous charges against the applicant was first discussed at a pre-trial hearing before the trial judge in which counsel for the applicant sought leave to cross-examine the complainant at a second special hearing. At the mention hearing in respect of that issue, counsel explained that he wished to put to the complainant that the allegations which she made against him arose from the failure of the applicant to support her when she had complained that her grandfather had sexually abused her. In the course of discussion concerning that application, the judge noted that there was an ‘… added complication that there were allegations made by [the applicant’s] sister’. The judge noted that he could not remember whether the prosecution had decided ‘... not to head in that direction’. In response, the prosecutor advised the judge that the prosecution had withdrawn the charges against the applicant in the Magistrates’ Court before the committal hearing. The judge noted that, while those charges were ‘put to one side’, the matter might be revived on analysis of the tendency and coincidence evidence that might be adduced on behalf of the applicant.
The topic of the previous charges relating to the sister again arose on the third day of the trial in the course of cross-examination by defence counsel of the complainant’s mother MC. Counsel put to MC that the applicant and his Italian family were disposed to being physically affectionate with other members of the family, including the children. At that point, the judge intervened. In the absence of the jury, the judge stated that he was ‘a little bit worried’ that the questioning by defence counsel of MC might provoke an answer, from MC, that the applicant was very affectionate and, as such, sexually assaulted his sister. The judge said that the witness was answering truthfully, but that she was ‘on eggshells’. In response, counsel expressed gratitude to the judge for his intervention.
At the conclusion of the third day of the trial, the prosecutor, in the absence of the jury, noted that there might need to be some argument as to tendency evidence which, it was anticipated, the defence would adduce from the applicant’s son, MA. In the course of that discussion, the judge asked counsel for the applicant whether the applicant was going to give evidence, to which counsel responded that a firm decision had not been made in that respect, but that it was probable that he would not do so. The judge also asked whether counsel would call any other evidence, to which counsel responded ‘unlikely’. The judge then said:
Yes, okay. Because there’s always – yes, it’s a matter for you, about character but there is the other allegations that were floating around and that’s always difficult to deal with.
Subsequently, on the fourth day of the trial, MA was called to give evidence on behalf of the prosecution. As we have noted, in cross-examination by counsel for the applicant, he gave evidence as to the applicant’s general conduct as a parent, which evidence could fairly be described as evidence of good character. After counsel for the applicant had completed cross-examination of MA, the prosecutor made an application to the judge to further cross-examine MA pursuant to s 38 of the Evidence Act. In doing so, the prosecutor outlined three matters about which he wished to ask questions by way of cross-examination. Those questions did not relate to the evidence that had been adduced from MA by counsel for the applicant concerning the applicant’s behaviour, and good character, as a parent. The application by the prosecutor was not opposed. The judge, in granting leave, noted that, in the absence of being given leave to cross-examine the witness, the prosecutor would not be able to contend to the jury that MA was fabricating his evidence because he supported his father. The judge then added:
... [MA] has given character evidence, effectively, for his father. He said he’s the most supportive, hard-working man. Well, I don’t hear an application to recast the prosecution case about other aspects of his character, so we won’t go there. But it’s a knife edge, you might think. So he is very much someone who is providing not just evidence of observations, but character evidence.
In that context, four relevant points are clear. First, in his cross-examination of the witness MA, counsel made a conscious decision to adduce, and did adduce, evidence of the applicant’s good character. That evidence was contained in a response, by MA, to a non-leading question. MA was a clearly favourable witness for the applicant. It may be fairly assumed that counsel, in asking the non-leading question, expected the kind of response which was given to it by MA.
Secondly, in that context, the judge quite clearly identified that evidence given by MA as evidence of character. In doing so, the judge adverted to the possibility that the prosecution might seek to recast its case about ‘other aspects’ of the applicant’s character, and his Honour described that aspect of the trial as being on a ‘knife edge’.
Thirdly, subsequent to that aspect of MA’s evidence, counsel for the applicant did not, in any respect, venture into the topic of the applicant’s good character, even to the extent of refraining from eliciting evidence that the applicant did not have any previous convictions.
A further point, which is relevant to the proposed grounds of appeal, is that the applicant had no previous convictions, and, on his plea, he was able to adduce character evidence that was favourable to him in a number of respects, which were specifically pertinent to his character as a family man and as a father.
The critical question, then, is whether the failure of trial counsel, to call character evidence on behalf of the applicant, could be attributed to a rational forensic decision, made by his trial counsel.
There are two possible explanations for the failure of trial counsel to call that evidence.
The first explanation is that trial counsel simply did not properly advert to the possibility that his client would be entitled to rely on evidence of that kind. In the circumstances of this case, the fact that counsel did not call the evidence could not be attributed to such an oversight by counsel. First, as we have discussed, it seems sufficiently clear that counsel did venture into the topic of character evidence in the course of cross-examination of the witness, MA. Secondly, the applicant did not have any previous convictions. In such a case, it would be unthinkable that counsel, before trial, had not sought to have available, on the trial, good character evidence for his client.
The most probable explanation, for the failure of counsel to adduce the evidence in the case, is that, by reason of something that occurred after the evidence of MA, counsel, having ventured along that path in cross-examination of MA, subsequently considered that it would not be in the best interests of the applicant to proceed further on that topic of evidence. There is no indication in the transcript, or otherwise, that counsel for the applicant was dissuaded from adducing that line of evidence by the prosecutor cautioning counsel that, in such an event, the prosecution would seek leave, pursuant to s 112 of the Evidence Act, to call evidence from the applicant’s sister in rebuttal of any good character evidence, sought to be adduced on behalf of the applicant.
Indeed, if the prosecutor had raised that matter with counsel for the applicant, it would have been open to counsel for the applicant to have sought a ruling from the judge as to whether such evidence would be admissible under s 112 of the Evidence Act. In the circumstances of the present case, counsel would have had available quite cogent arguments against the grant of such leave to the prosecution, in view of the fact that the offending against the sister was alleged to have occurred at a time when the applicant was not of adult age, and in which that offending was alleged to have occurred some thirty years before the alleged offending that was the subject of the charges in the trial.
In those circumstances, it may be safely concluded that counsel was deterred from adducing good character evidence on behalf of the applicant, as a result of the remarks, made by the judge in the course of the trial, to which we have referred.
In considering whether the judge’s remarks were a sufficient rational basis to desist from relying on character evidence, it is significant that, when the judge raised the topic of character evidence on the third day and again on the fourth day of the trial, the prosecutor did not join the discussion and, in any form, caution counsel for the applicant that the prosecution might seek leave to adduce evidence from the applicant’s sister as to the events that were the subject of the earlier charges against the applicant, if the applicant proceeded to put his character in issue in the trial. The silence of the prosecutor, on those occasions, could only mean that she did not intend to pursue that approach, if the applicant sought to lead evidence of good character.
Indeed, on the present application the respondent did not adduce any evidence as to the material that was available to the prosecutor concerning the sister’s allegations, and in submissions he went no further than saying that such material was ‘potentially available’. There is no basis for this Court to conclude that such evidence was available to the prosecutor, which reinforces our conclusion that the prosecutor did not caution the applicant’s trial counsel about any risk to the defence should evidence of good character be adduced on behalf of the applicant.
In those circumstances, the remarks, made by the judge in discussion with counsel in the course of the trial, could not be characterised as a rational explanation for the failure of trial counsel to adduce evidence of good character on behalf of his client, which he had available to him.
As we have discussed, in a case such as the present, the evidence of the applicant’s good character, which was otherwise available to him, had the potential to buttress the credibility of the account given by the him in his interview with police, and also to bear on the improbability of his guilt of the offences with which he was charged.
In circumstances, in which the applicant had available, but did not call, positive good character evidence, which would have been of positive value to his defence in the trial, it must be concluded that the failure of trial counsel to call that evidence could not be fairly characterised as a result of a rational forensic decision, made by counsel on behalf of the applicant.
The second question, then, is whether the failure of counsel to adduce the evidence of good character on behalf of the applicant occasioned a substantial miscarriage of justice in the trial.[17]
[17]Criminal Procedure Act 2009, s 276(1)(c).

As we earlier noted, evidence of good character is capable of being of a substantial benefit to an accused person in a criminal trial, including in a trial in which the accused is charged with sexual offending.[18] There are a number of cases involving such offending in which the failure of counsel to adduce and rely on such evidence has been held to amount to a substantial miscarriage of justice.[19]
[18]TKWJ (2002) 212 CLR 124, 155 [94] (McHugh J); D v The Queen (1996) 86 A Crim R 41, 42–3 (Hunt CJ at CL).
[19]See, for example, Bishop (2013) 39 VR 642, 654 [44] (Priest JA); De Silva v The Queen (2013) 236 A Crim R 214, 219 [21]–[23] (Priest and Coghlan JJA and Lasry AJA); [2013] VSCA 339; Sharma v The Queen [2011] VSCA 356, [26]–[28], [42], [51] (Neave, Hansen and Beach JJA); Saw Wah (2014) 45 VR 440, 454–5 [89]–[93] (Weinberg JA).
In the present case, counsel for the respondent, quite properly, did not seek to submit that if the Court were to conclude that there were no rational justification for the omission of trial counsel to call character evidence on behalf of the applicant, nevertheless, that omission did not result in a substantial miscarriage of justice. On a review of the evidence in the trial, it could not be concluded that, regardless of whether such character evidence was called on behalf of the applicant, nevertheless, the conviction of the applicant on the charges against him was, in any event, inevitable.[20] Accordingly, it must be concluded that the failure of trial counsel, to adduce the evidence of good character on behalf of the applicant, resulted in a substantial miscarriage of justice.
[20]Baini v The Queen (2012) 246 CLR 469, 479–482 [26]–[83] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59; Awad v The Queen (2022) 275 CLR 421, 431–2 [26]–[28], 434 [34], 435 [39] (Kiefel CJ and Gleeson J), 444–5 [76]–[78] (Gordon and Edelman JJ); [2022] HCA 36.
For those reasons, the ground of the application for leave to appeal against conviction, relied on by the applicant, must succeed.
It follows that the applicant must be granted leave to appeal against his conviction, the appeal allowed, the applicant’s convictions on the charges on the indictment be set aside, and it be ordered that the applicant be retried on those charges.

[2024] VSCA 87

7 May 2024