Criminal law - Appeal against conviction - Sexual offences - Crofts direction - Character direction - Lies direction - Whether lack of balance in summing up - Whether verdicts unsafe and unsatisfactory

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Ms H E Prince
Respondent: Mr B D Meertens

Solicitors:

Appellant: Dwyer Durack
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Attwood v The Queen (1960) 102 CLR 353
Bellemore v Tasmania (2006) 207 FLR 20
Broadhurst v The Queen [1964] AC 441
Chan v The Queen [2002] WASCA 50
Christophers v The Queen [2003] WASCA 214
Connell v The Queen (No 6) (1994) 12 WAR 133
Cook v The Queen (2000) 22 WAR 67
Crofts v The Queen (1996) 186 CLR 427
Edwards v The Queen (1993) 178 CLR 193
Gurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139
Hiemstra v The State of Western Australia [2006] WASCA 70
Jones v The Queen (1997) 191 CLR 439
Kailis v The Queen (1999) 21 WAR 100
Kilby v The Queen (1973) 129 CLR 460
Libke v The Queen (2007) 81 ALJR 1309
M v The Queen (1994) 181 CLR 487
Melbourne v The Queen (1999) 198 CLR 1
Mercer (1993) 67 A Crim R 91
MFA v The Queen (2002) 213 CLR 606
Nestorov v The Queen (2002) 137 A Crim R 310
Plato Films v Speidel [1961] AC 1090
R v Aziz [1996] AC 41
R v Berrada (1989) 91 Cr App Rep 131
R v Davies (1985) 3 NSWLR 276
R v Falealili [1996] 3 NZLR 664
R v Ravindra [1997] 3 NZLR 242
R v Robinson [2007] QCA 99
R v Rowton (1865) Le & Ca 520; 169 ER 1497
R v Schmahl [1965] VR 745
R v Soloman [2006] QCA 244
R v Trimboli (1979) 21 SASR 577
R v Vye [1993] 1 WLR 471
RBK v The Queen [2004] WASCA 216
Simic v The Queen (1980) 144 CLR 319
Tanner v The Queen [2001] WASCA 60
Truong v The State of Western Australia [2006] WASCA 1
Wedd (2000) 115 A Crim R 205
Zheng (1995) 83 A Crim R 572
Zoneff v The Queen (2000) 200 CLR 234

McLURE JA: I agree with the reasons of Buss JA.
PULLIN JA: I agree with Buss JA.
BUSS JA: The appellant was charged with 18 counts of sexual offending against four complainants, R, K, N and C, who were aged between 9 and 13 years. The offences were alleged to have occurred between 1993 and 1997, while the appellant was their swimming coach. After a trial before Eaton DCJ and a jury, from 19 to 30 June 2006, the appellant was convicted of seven offences against two of the complainants, R and N.
The appellant was convicted on three counts in relation to R (one count of indecently dealing with, and two counts of sexually penetrating, a child under the age of 13 years), but the jury were unable to reach a verdict on the remaining four counts (all of sexually penetrating a child under the age of 13 years).
The appellant was convicted on four counts in relation to N (three counts of indecently dealing, and one count of sexually penetrating, a child between the ages of 13 and 16 years).
The appellant was acquitted of three counts in relation to C (sexual penetration of a child under the age of 13 years; indecently dealing with a child between 13 and 16 years of age; and sexual penetration of a child between 13 and 16 years of age), and of two counts in relation to K (indecently dealing with a child under the age of 13 years). The jury were unable to reach a verdict on the two remaining counts in relation to K (indecently dealing with a child under the age of 13 years).
The appellant was sentenced, on 18 August 2006, to a total effective term of 8 years and 4 months, commencing from 30 June 2006, with eligibility for parole.
The appellant appeals against his convictions.

Overview

The complainants K and R are sisters. The appellant had been in a casual relationship with their mother. The other two complainants, N and C, were friends with K. All the complainants participated in swimming training with the appellant, who was their coach.
The prosecution case was that the appellant committed sexual offences against the complainants. The respondent called, as witnesses, the complainants, the complainants' mothers, and two police officers.

The defence case was that the alleged offences did not occur. The defence witnesses comprised the appellant, his mother, a number of female and male trainees whom the appellant had coached, some of their mothers, and some colleagues of the appellant.

R's evidence

R is the younger sister of K. R did swimming training with the appellant from about 1994 (when she about 8 years old), to 1999 (when she was about 13 years old). From the end of 1996 (when she was about 10 years old) to the end of 1998 (when she was about 12 years old), the appellant would collect R from school about three or four times a week and stay at R's house until K arrived home from school. They would then travel to swimming training together. K arrived home later in the afternoon and, as a result, the appellant was usually alone with R for about an hour or so each time. R gave evidence that the appellant started touching her in about 1996, when they were alone together at R's house, usually on Mondays, Wednesdays or Fridays, before swimming training, but that the touching also occurred on some Tuesdays and Thursdays, when the appellant would visit R after school. The appellant would touch R's vagina, would usually rub baby oil or sorbolene cream on R's vagina and his penis, and would penetrate her digitally or with his penis. These incidents would usually last for about an hour or slightly longer. R said the touching stopped in about 1998 (when she was about 12 years old), and that it gradually occurred less (about twice a week and for about 45 minutes each time) before it ended. (ts 570‑576)
The appellant was charged with seven counts of sexual penetration in relation to R (counts 5 to 11). R gave evidence that the appellant had touched her before the incident the subject of the first count (count 5), and after the incident the subject of the last count (count 11), but she could not remember the specific details of all the offending. (ts 572, 579, 599) The offending that R did remember in detail comprised the circumstances the subjects of the counts:
(a)Count 5: In about October 1996, the appellant was staying for a short period at R's family home, and slept on a sofa bed in the computer room. One night, when R could not sleep, she went to her mother, but her mother was ill and told her to talk to the appellant. The appellant heard this comment and asked R to come and see him. R lay down on the appellant's bed. The appellant then digitally penetrated her. (ts 576 ‑ 579) R said that this was one of the first occasions, but not the first, that the appellant had touched her, because she remembered being frightened to enter his room. (ts 579) The touching occurred for about half an hour, after which R returned to her own room. (ts 579) R said that she went to see the appellant instead of returning to her own room because she was scared and the appellant had heard her mother tell her to talk to him. (ts 627)
(b)Count 6: In 1997, R pretended to be sick in order to avoid swimming training, because she did not want to go to training or see the appellant. R's mother contacted the appellant and told him R was sick and would not be attending training. The appellant went to R's house that day to check on her (which R's mother had asked the appellant to do if he had time) and pressed her stomach because R said she had a stomach ache. Then, after rubbing baby oil on R's vagina and on his penis, he penetrated her with his penis. (ts 579 ‑ 583)
(c)Count 7: After the conduct constituting count 6 occurred, the appellant digitally penetrated R. These acts occurred for about an hour, after which the appellant prepared lunch for R and left. (ts 583 ‑ 584)
(d)Count 8: Also in 1997, R walked home from school one day, as she had told the appellant a few days earlier that she did not want him to collect her or come to her house. This was because she did not want him to touch her. When she arrived home, the appellant was there with a card and gift for her. During this visit, the appellant again applied baby oil, and digitally penetrated R in her bedroom. (ts 584 ‑ 587) R denied that she had asked the appellant to stop collecting her from school because she was embarrassed by the vehicle he drove, and maintained it was because he was touching her. (ts 619)
(e)Count 9: After the conduct constituting count 8 occurred, the appellant penetrated R with his penis. This episode lasted for over half an hour, and ended abruptly when K came home from school early. When the front door slammed, the appellant jumped up quickly and went to greet K. (ts 587 ‑ 588)
(f)Count 10: In November 1997, on the way to swimming training with R, the appellant stopped at his parents' house, where he resided at that time, and told R to go to his bedroom and get changed. The appellant's bedroom was separate from the house, and accessible by stairs from the garage. The appellant's mother was at the house. The appellant followed R to his bedroom and digitally penetrated her. (ts 592 ‑ 596)
(g)Count 11: After the conduct constituting count 10 occurred, the appellant penetrated R with his penis. This occurred for about 15 minutes, and ended when the appellant's mother called to him from downstairs, and the appellant jumped up. The appellant and R then went to training. (ts 596 ‑ 599)
All the counts relating to R were for sexual penetration of a child under the age of 13 years. The appellant was found guilty on counts 6 and 7, and guilty in the alternative for indecent dealing in relation to count 5. The jury were unable to reach a decision on counts 8 to 11.
R continued with swimming training until shortly before the appellant left for Port Hedland in 1999. (ts 618, 621) She did not cease swimming training earlier because she was scared. (ts 620, 630) At one stage, there were rumours about allegations of a sexual nature that N had made against the appellant. R said the appellant told her that N was 'a liar and a slut', which made R feel 'really scared to speak out about what he really did because I was only about 11 or 12'. (ts 651 ‑ 652, 655) R could not remember whether, during arguments that K and R had with their mother while growing up, their mother would threaten to take them out of swimming, and they would beg her not to do so because they wanted to keep training. (ts 619) R's mother could not recall if she had threatened them in that manner, or if they would beg to continue training, but agreed they liked swimming. (ts 688)
R received counselling a few months after the appellant left, but did not make any complaint about the appellant's behaviour because she was still scared. R could not remember if she had also been to counselling with K and their mother while the appellant was still in Perth and they were training with him. (ts 622)
R agreed that she, K, and her mother had been upset when the appellant had left Perth, and that she had cried. (ts 621, 648) After the appellant left, R and her family maintained contact with him. R agreed that the appellant was like a stepfather to her and K, that they had had quite a few 'family times' together, and that they had all exchanged cards and gifts at various times, before and after the appellant went to Port Hedland. (ts 613 ‑ 614, 636 ‑ 642) Photographs of R were also sent to the appellant, by R's mother, or under her mother's instruction, including a photograph of R in her ball gown, and R posing in her bathers at the beach in Broome (which was taken when R visited the appellant in Port Hedland in 2002 and they had gone to Broome). R said the appellant suggested she pose for that photograph. (ts 614, 616, 644 ‑ 646) The appellant regularly sent K and R various amounts of money until about 2002. (ts 600, 614, 624) R said her mother would have bought any cards to send to people outside their family, she did not recall buying a card at that age for anybody, she did not keep track of the appellant's birthday, and her mother always made them write in the cards. (ts 655)
When R visited the appellant in Port Hedland in 2002, she was 15 years old. She said she did so because 'I felt he owed it to me after the abuse he'd done to me for many years' and 'I thought I was old enough to face him about what he'd done.' (ts 631) They went to Broome, where R refused the appellant's invitations to sleep in his bed at the hotel, but instead slept on a couch. R confronted the appellant while they were in Broome, after they had been drinking at a hotel and the appellant had insisted they leave because she was talking to a member of a band playing at the hotel. The appellant said to R, 'you are only meant to be there with me'. (ts 604) The appellant and R fought at the hotel because R wanted the car keys so she could sit in the car, but the appellant refused to give them to her. She struck and scratched his face and kicked him. R then said that he was a 'fucking paedophile' and that he was never going to touch her again. R telephoned her mother, crying, after this incident, but did not tell her what the fight was about, or about the appellant having offended against R in the past. (ts 600 ‑ 604, 630 ‑ 635, 648 ‑ 651)
The last contact R had from the appellant was just before she made a statement to the police in February 2003, when she found a 'missed call' from him on her mobile telephone. R did not return the call. (ts 605)
R did not tell her mother about the offending until late 2002, when she was 15 years old. (ts 656) R's mother confirmed that R first told her about the offending on 29 December 2002, and R's mother made the complaint on her behalf to the police, in January 2003. (ts 710)

R's mother's evidence

R's mother gave evidence that the appellant was like a father figure to her girls. (ts 664) After the appellant went to Port Hedland, R's family had no contact with him until R's mother wrote a letter asking the appellant to stay in contact with R and to contact R's mother 'regarding [R's] emotional state and wellbeing'. The appellant then resumed contact with R, K and their mother. (ts 701 ‑ 703) As to the cards and gifts sent to the appellant, R's mother said that she usually chose and purchased the cards (the girls were sometimes with her when she did so), that they would all write in them most of the time, but she never told the girls what to write. (ts 681, 694) She said that R and K had received counselling while the appellant was still in Perth (in relation to a death in the family), and also after the appellant left, but she was unable to say whether R ever complained about the appellant because she was not at the sessions. (ts 689) R's mother gave evidence that she had heard about allegations that N had made against the appellant, and that she had asked K and R if the appellant had ever touched them, but they denied he had. She also asked the appellant about N's allegations, but he denied their veracity. (ts 695) R's mother also said that, on one occasion, when they went bowling with the appellant on Boxing Day in 1999, she saw R get really annoyed with the appellant, grab him, pull his hair and slap his face. R's mother did not know what this incident was about, and merely thought R was going through 'one of her moods'. (ts 680)

N's evidence

N attended swimming training with the appellant from the beginning of 1996 (when she was about 12 years old) to about the end of 1997 (when she was about 13 years old). (ts 729 ‑ 730) The appellant would sometimes give N a lift to and from swimming training. (ts 731) Before the occurrence of the offending, the appellant gave N a lift to surf club training on a Sunday morning in September or October 1997, and stopped at his house to collect surf club equipment. When they were at his house, they went to the appellant's bedroom and the appellant showed N a game that used ropes with loops on the ends, which, by the end of the game, entangled them close together. The appellant then put his arms around N's waist, kissed her on the neck a few times and said something to the effect that 'some people could think this is wrong and I could get in trouble for it'. (ts 736) This incident made N feel very awkward and uncomfortable. (ts 737) N denied that she had asked to go to the appellant's house. (ts 774)
The appellant was charged with four counts of sexual offending against N. According to N, the circumstances of the offences were:
(a)Count 12: In about October 1997, a week or two after the incident with the ropes described above, the appellant suggested that he and N have dinner and see a movie the next week to discuss a training and diet plan for N, as she had been ill with glandular fever and colds. (ts 737) The appellant later suggested to N that she wear a dress that night, which was a Saturday. (ts 738) With N's parents' permission, they went to dinner, after which the appellant took N for a drive, and stopped in a carpark near the beach. The carpark was dark and N could only see lights from two or three houses somewhere behind them. She could not remember whether there were any other cars in the carpark. (ts 741, 789) The appellant got into the back seat of the car and asked N to come to the back seat and lie down. The appellant then kissed N. (ts 742 ‑ 745)
(b)Count 13: The appellant proceeded to digitally penetrate N. (ts 745 ‑ 746)
(c)Count 14: The appellant then rubbed his penis against N's stomach. (ts 746)
(d)Count 15: Finally, the appellant put N's hand around his penis, and moved her hand up and down. (ts 746)
Counts 12, 14 and 15 were for indecent dealing with, and count 13 was for sexual penetration of, a child between 13 and 16 years of age. The appellant was found guilty on all counts.
Immediately after the occurrence of the incidents the subject of these counts, the appellant held N and kissed her 'sort of on the neck'. The appellant told N that he liked her, and said something like '[y]ou can't tell anybody about this, I could get in a lot of trouble for it and I could even go to gaol'. The appellant later said that next time they would go back to his house and have sex there. N gave evidence that she did not say anything to the appellant during this ordeal because she 'was just basically scared. When I looked around there was, as I said, maybe one or two houses with lights on. I didn't know where I was so I was just basically scared'. The appellant then dropped N home. N said that she did not tell her mother what had happened because she thought her mother would get very upset. (ts 748-749)
N saw the appellant at training the next week where he again expressed his feelings of affection for her. She stopped training shortly afterwards, although she went to a few more training sessions because she felt it might have seemed strange to her mother if she stopped so soon after having gone out with the appellant. N had made up her mind earlier to stop training but did not want her mother to feel that it was her fault. She stopped by the end of 1997. (ts 751, 791) N's mother confirmed that N continued training for three or four weeks after the Saturday night dinner, and then stopped. (ts 810, 820) N's mother remembered an occasion in 1997 when the appellant came to their house to discuss N's progress and took her out for a milkshake. (ts 809, 820, 822) N did not give any evidence about this outing.

About one or two weeks after the offences were committed, N went to the movies with C and gave C a note which said something about the appellant and what had happened. N did not remember what she had written in the note, but did not think it was detailed. C read the note, but C and N later ripped it up because they were out with their boyfriends, and the boyfriends wanted to see it. (ts 749 ‑ 750, 791 ‑ 794)
After N stopped training, she next saw the appellant in December 1997, when he chaperoned N and C to a concert. This had been arranged with the appellant before the offending against N had occurred. N said she had talked to C about it and they decided to continue with the arrangement because they would be together, and, also, N did not want to cancel because she did not want her mother to find out anything. (ts 751 ‑ 752, 794 ‑ 796)
N saw the appellant again in 1999, when she was 15 years old, and had run into him at Scarborough surf club, where he was training with C. N went to greet C, who she had not seen for a while, and the appellant asked to speak to N privately. The appellant then thanked N for not telling anyone and not going ahead with any allegations that she had raised earlier with the police, which had started rumours in the swimming club about the appellant and N. The appellant also apologised to N for everything that had happened, for N ceasing swimming, and for spreading rumours in the swimming club that N had anorexia and was having 'issues', in effect, to counter the rumours in relation to the appellant and N. After the conversation ended, N accepted a lift with the appellant to her boyfriend's house, because she had missed her bus and was unable to get a lift with C. As N got out of the car, the appellant said 'I wish you had been 18 at the time because we could have had a lot of fun together', and kissed her on the cheek. (ts 752 ‑ 755, 798 ‑ 801)
N denied ever having had an eating disorder. (ts 783) N's mother said she did not think that N had any problem with eating. (ts 815)
N said in her evidence that she had spoken to the police earlier about the offending and that rumours had circulated at the swimming club. N did not, however, take any further action at the time. (ts 753, 755) She denied ever telling any of the girls in the swimming squad at some later stage that she had lied about the allegations in relation to the appellant. (ts 801) R agreed, in cross‑examination, that N had said she had lied, that the appellant told them N had lied, and that R had told the police that N had said she had lied. However, in re‑examination, R said that she had never personally spoken to N about N's allegations against the appellant, but had heard about the allegations from the appellant and other girls in the swimming squad. (ts 651)
As I have mentioned earlier, R and K's mother had also heard about the allegations in relation to N, and gave evidence that she asked the appellant about them. The appellant said the allegations were not true, and the only thing he was guilty of was that he kissed N one time when he took her out for a milkshake because she was upset. (ts 677, 697, 709)

The appellant's case

The appellant's evidence in relation to R was, relevantly, as follows:
(a)He had a fatherly relationship with R and K. (ts 903)
(b)When R and K were still in primary school, before 1995, the appellant would drive them to afternoon training sessions, and would arrive at their house after 3pm, when R and K were usually already at home. The appellant would cut fruit for the girls, the girls would get changed, and they would then attend training. The appellant had a key to the house, and if he arrived there before the girls got home from school, he would work on his swimming programs. (ts 905 ‑ 906)
(c)After K went to high school in 1995, the appellant collected R from primary school on a few occasions in 1996 and 1997, until R wanted to walk home on her own because she was embarrassed to be collected in the appellant's vehicle. (ts 907, 977) The appellant agreed that on the occasions he collected R from school, he would be alone with her for about an hour until K came home. (ts 978)
(d)One night, when the appellant was staying at R's house overnight, R awoke during the night, and was crying or upset, and went to see her mother. However, R's mother was sick and told her to get into bed with the appellant and talk to him. R got into bed with the appellant, they talked, then R went back to her room. The appellant did not touch R in any sexual way. (ts 908, 979 ‑ 980)
(e)If K or R were ever sick, their mother would sometimes ring the appellant and ask him, if he had time, to check on them and give them lunch. The appellant had gone to visit R when she was sick, and may have palpated her stomach if she had a sore stomach, but he never sexually assaulted her. (ts 909, 980 ‑ 982)
(f)After he had gone to Port Hedland, he did not contact anyone for weeks. Around this time, he received a letter from K and R's mother, asking him to contact her 'regarding [R's] emotional state and wellbeing'. The appellant telephoned the mother immediately, and resumed contact with K, R and their mother, which consisted of exchanges of telephone calls, cards, letters and gifts. The appellant would also send the girls money regularly. He also visited K, R and their mother, when he was flying in and out of Perth for work. (ts 921 ‑ 922)
(g)When R and the appellant were in Broome together, R was very angry with him for insisting they leave a hotel where they had gone on a Sunday night. The appellant said he insisted they leave because R was very drunk and wanted to go with a band to a party somewhere. He did not say anything to the effect that she should only be paying attention to him. After they returned to the hotel, R walked off. There was no physical altercation between them that night, R did not grab his car keys, and did not call him a paedophile. They returned to Port Hedland on Tuesday, and R flew home later that day. (ts 933 ‑ 935, 1003 ‑ 1004)
(h)The appellant denied asking R to sleep in his bed when they were in Broome. At the hotel, he bought R only one drink. (ts 1002 ‑ 1003)
(i)He did not find R sexually attractive. The appellant said that R was like his daughter, and that he was in a family situation. (ts 1003)
(j)He did not suggest that R pose (in a manner suggested by prosecution counsel to be 'sexually provocative') for photographs at the beach in Broome. (ts 1003)
(k)R (and K) had been to the appellant's house on more than one occasion. (ts 997)
(l)He denied that the regular sending of money to R and K was an attempt to ingratiate himself with R and K, so they would not make any complaints about the appellant having touched them. (ts 1005 ‑ 1006) The appellant did not send any money to C or N after he went to Port Hedland. (ts 1013)
(m)He said that when he went bowling in December 1999 with R, K and their mother, R did not slap him. (ts 925)
(n)He never sexually touched R. (ts 940)
The appellant's evidence in relation to N was, relevantly, that:
(a)He never went out with N for a milkshake. (ts 874, 962)
(b)R's mother was drunk when she asked him about the allegations in relation to N, and he did not say to her that the only thing he was guilty of was kissing N when he took N out for a milkshake. (ts 962 ‑ 963, ts 1011)
(c)He went out with N for a meal to discuss training and diet one Saturday night, but he did not speak to N about what she should wear that evening, and he had not previously suggested taking her to a movie. (ts 877, 950 ‑ 951)
(d)At dinner, the appellant and N discussed changes to her training program. N did not agree with the proposals, was 'pretty upset' and 'a little bit hostile'. (ts 879 ‑ 880) They drove to the beach to go for a walk at N's suggestion, and parked in a carpark while other vehicles and a boat pulled in. There were fishermen on the beach as it was a popular fishing spot. (ts 880, 952 ‑ 953)
(e)After their walk, they got back into the car, put music on and talked for about five or ten minutes about N's program. He did not get into the back seat of his car, did not ask N to get into the back seat, and did not touch her in the manner alleged. (ts 880, 956)
(f)He then dropped N home and went out with some friends. (ts 881, 952)
(g)N continued to train with the appellant for another six to eight weeks. (ts 881)
(h)After he heard the rumours about him and N from one of his assistant coaches, he had a meeting with the squad to tell them that the allegations were completely unfounded. The appellant said he got a little bit aggressive and told the squad that he believed N had 'a bit of an eating disorder', and may be anorexic. The appellant admitted that revealing such information about N was unprofessional. He revealed it because he was upset. (ts 883)
(i)He admitted that N was the only trainee that the appellant had taken out to dinner, but said it was an unusual situation because he had been asked to do it by N's mother. The appellant said that taking N out for dinner was a joint decision made by him and N's mother, after a discussion they had in relation to N's eating. The appellant was sure that N's mother was also concerned about N's eating, and he denied making up a story about N having anorexia. (ts 946 ‑ 947)
(j)When he was doing some training at the beach one day, C, who was part of the group he was training, said that N (who by this stage was no longer training) wanted to speak to him. He spoke with N who apologised for making the allegations against him, and the appellant forgave her. (ts 884, 959 ‑ 961) The appellant denied that he thanked her for not pursuing her earlier allegations. (ts 961)
(k)After the training session, C asked the appellant if he could give N a lift home. The appellant gave C and N lifts home, dropping N off first. (ts 884, 961 ‑ 962) The appellant denied kissing N on the cheek, or saying that he wished she had been aged 18 when everything happened, because they could have had a lot of fun together. (ts 962)
(l)N had been to the appellant's house on one occasion, during a training session at the beach, when N wanted to use the toilet. The appellant drove her back to his house which was closer than the toilets at the surf club further down the beach. He also picked up some more surf gear at the same time. The appellant went to his room to get something, N followed him, and noticed the coloured ropes. She asked what they were and the appellant quickly showed her the game. He did not hug or kiss her, or tell her that he would get into trouble and that she should not tell anyone anything. (ts 885 ‑ 886)
(m)He did not think N was an attractive girl and was not romantically interested in her. (ts 951, 962)
(n)He never sexually touched N. (ts 940)

Grounds of appeal

On 20 October 2006, Wheeler JA granted leave to appeal on grounds 1, 2 and 4, refused leave on ground 3, and ordered that the application for leave to appeal on ground 5 be heard with the appeal.
On 3 April 2007, the appellant was granted leave to add ground 3, with reasons for granting leave to be published later.
The question of leave to add proposed ground 3A was deferred until the hearing of the appeal. At the hearing on 12 June 2007, leave was granted to add ground 3A.
The grounds of appeal, omitting particulars, are:
Crofts Direction
1.The learned trial Judge erred in failing to give to the jury a direction of the kind described by the High Court in Crofts v R (1996) 186 CLR 427.
…
Character Direction
2.The learned trial Judge erred in holding that there had been no evidence of good character led at trial on behalf of the appellant and erred in law by failing to give a direction as to the use that the jury might make of such evidence.
…
Lies Direction
3.The learned trial Judge erred in directing the jury regarding the question of lies.
…
Lies Direction
3A.The learned trial Judge erred in leaving to the jury the question of lies on the part of the appellant as being capable of affecting the appellant's credit or bolstering the prosecution case.
…
Lack of Balance in Summing Up
4.The learned trial Judge erred by failing to give adequately balanced directions to the jury and to sufficiently draw to the jury's attention the appellant's case at trial.
…
Unsafe and Unsatisfactory Verdicts
5.The verdicts of the jury were unsafe and unsatisfactory having regard to the following features of the case:
a.the late complaints made by all of the complainants;
b.the numerous opportunities to complain at an earlier juncture;
c.the expression of goodwill and affection towards the appellant as expressed in subsequent communications of the complainants before and after the appellant left Perth;
d.the unlikely locations and times where the alleged offences were said to have occurred;
e.the generally inconsistent nature of the ongoing association between the complainants and the appellant as summarised by defence counsel and the learned trial Judge; and
f.the uncorroborated nature of the allegations.

Ground 1: Crofts direction

The particulars of ground 1 are:
(a)The learned trial Judge was obliged by law to give the jury directions pursuant to the provision of s 36BD of the Evidence Act 1906 (WA) to the effect that the absence of a complaint does not indicate that the allegation in question was false, and that there might be good reason for a complainant to delay making a complaint of the type in question.
(b)In the circumstances of the present case it was appropriate that the direction pursuant to s 36BD of the Evidence Act 1906 (WA) be followed by a direction of the type referred to by the High Court in Crofts, to the effect that the delay in making the complaints was also a matter that the jury might properly take into account in evaluating the testimony of each complainant and in deciding whether to believe them.
(c)The failure to give such direction was particularly significant in relation to the complaints made by [R], which were first made more than 6 years after the alleged offences were allegedly committed.
(d)The failure to give such a direction in the circumstances of the present case was an error of law.
Section 36BD of the Evidence Act 1906 (WA) provides:
Where on the trial of a person for a sexual offence … evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall -
(a)give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b)inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.
The trial judge directed the jury in accordance with s 36BD of the Evidence Act, and said (ts 1218, 1220):
In this case, there's evidence both of complaint in the form of a complaint made by [N], and there's evidence of absence of complaint; so the two matters about which I have spoken, absence of complaint and the fact of complaint, are matters that need to be considered by you in this case.
...
In the case of [N], the penning of the note and giving it to [C] seems to have been sufficiently close to the event complained of to amount to evidence of fresh or early complaint, and that's the reason why you have heard it; in other words, it is accepted I think that when she penned this note it was, having regard to her age, a fresh or early complaint given that she effectively told her best friend, as you might expect a young girl to do in those circumstances.
A little later in his summing-up, the trial judge reiterated to the jury his direction pursuant to s 36BD of the Evidence Act, and said (ts 1228):
You need to bear that in mind of course because in this case there are four complainants and there is really only one; that is, [N], who it is said made a complaint which might be regarded as fresh or early complaint. It is put to you by the prosecution that there are in this case good reasons why the other three complainants did not raise complaint. To counter that argument, Ms Prince has put to you that there were many opportunities when they could have complained and yet they did not.
No issue was raised about these directions when they were given.
The trial judge also made the following comments in relation to the length of time that had passed between the offences and the trial (ts 1231 ‑ 1233):
In each case [the complainants'] evidence effectively is the only evidence offered by the state as to the counts which relate to them. It follows that you must be satisfied beyond reasonable doubt as to the truthfulness and accuracy of their evidence before you could convict [the appellant] on any one count.
...
It follows that you must be satisfied beyond reasonable doubt as to the truthfulness and accuracy of their evidence before you could convict [the appellant] on any count on this indictment. You should scrutinise the evidence of each of the complainants very carefully before doing so. Please bear in mind that the matters complained of in the indictment are said to have occurred many years ago, when the complainants were in their teens or younger - early teens is probably the fairest way of putting it, or younger.
The passage of time since the commission of these alleged offences may have affected their recollection of events, as sometimes happens. An honest witness can be wrong in his or her recollection. In the case of [R] and [K], and [C], for that matter, no complaint was made at the time. There may be, as I have explained, good reasons for that.
Nevertheless, because complaint to police was only made in or about 2003, I think around about July but I stand to be corrected on that, it is likely to be the case that [the appellant] has lost some opportunities for investigating and testing each of these complaints made against him, opportunities which he would perhaps have had available to him had the complaints been made shortly after the alleged events or offences were committed.
...
[A]s I have said, people's recollections of events, which might at the time have been quite unremarkable, do fade with time. When there is no reason to remember an event, the accuracy or reliability of a recollection when asked later to make recollection may well be diminished.
It is for that reason that you should take particular care when considering the evidence of each of the complainants before arriving at a conclusion of guilty, if you do. I'm not suggesting that you cannot convict on the evidence of the complainants alone. Clearly you can, if you are satisfied of their respective truthfulness and reliability to the required standard.
You should, however, when considering their evidence, have regard to the matters which I have just mentioned to you. You should scrutinise the evidence of each complainant with great care. It may, in the circumstances of this case, be dangerous to convict unless you do scrutinise the evidence of each complainant carefully, and I am sure that you will take what I have said very seriously and approach it in that way.
R gave evidence that the offending started in about 1996 and stopped in about 1998. R told her mother about the offending in late 2002 (when she was 15 years old), after which R's mother made a complaint, on R's behalf, to the police in January 2003. (ts 710) There was therefore a delay of about 6 years between the first time R could remember any offending, and when she made a complaint. R said:
(a)She did not stop swimming training because she was scared. (ts 620, 630)
(b)She did not make any complaint about the appellant's behaviour during counselling because she was still scared. (ts 622)
(c)When the appellant denied allegations about N and the appellant, and had called N 'a liar and a slut', it made R 'really scared to speak out about what he really did because I was only about 11 or 12'. (ts 651 ‑ 652, 655)
(d)After the appellant left in 1999 for Port Hedland, she said in effect that she was not scared of him anymore and went to visit him alone because 'I felt he owed it to me after the abuse he'd done to me for many years' and 'I thought I was old enough to face him about what he'd done'. (ts 631)
When R's mother was informed of the allegations in relation to N, she asked K and R if the appellant had touched them, but they denied that he had done so. (ts 695) K said that when R, K and their mother had gone to counselling in relation to issues concerning R and K's father (while the appellant was still in Perth), no allegation had been made by R or K as to any offending. (ts 354)

N gave evidence that about one or two weeks after the offences against her were allegedly committed, she went to the movies with C and gave C the note about what had happened with the appellant. N said she did not tell her mother immediately about what had happened with the appellant because she thought her mother would be very upset. (ts 749 ‑ 750, 793 ‑ 794) N stopped training shortly afterwards, but went to a few more training sessions because it might have seemed strange to her mother if she stopped so soon after having gone out with the appellant, and because she did not want her mother to feel it was her fault. (ts 751) N had previously made some allegations to the police about the appellant, but this was not relied upon as evidence of complaint.
The appellant submits that the circumstances I have described, together with R's contact with the appellant, by the sending of letters, cards and photographs, after he had left for Port Hedland, and N's contact with the appellant in going to the concert and, much later, accepting a lift to her boyfriend's house from the beach, required a further direction of the kind referred to in Crofts v The Queen (1996) 186 CLR 427.
Crofts concerned an accused charged with thirteen counts of committing sexual offences against a child aged between 10 and 16 years. The complainant had delayed in making complaints about the alleged offending for periods of between six months and six years from the dates on which the acts were alleged to have occurred. Section 61 of the Crimes Act 1958 (Vic) provided, relevantly, that on the trial of a person for certain sexual offences, the judge must not warn or suggest in any way to the jury, that the law regards complainants in sexual cases as an unreliable class of witness. Section 61 also contained provisions substantially similar to s 36BD of the Western Australian Evidence Act. Toohey, Gaudron, Gummow and Kirby JJ referred, at 448, to the statement of Barwick CJ (with whom McTiernan, Stephen and Mason JJ concurred) in Kilby v The Queen (1973) 129 CLR 460 at 472, in relation to the significance of a want of timely complaint, where his Honour said:
In my opinion, quite apart from the fact that there may be many reasons why a complaint is not made, the want of a complaint does not found an inference of consent. It does tell against the consistency of the woman's account and accordingly is clearly relevant to her credibility in that respect.
Their Honours recorded that after the decision in Kilby:
In appropriate cases, juries were told that the absence of timely complaint (if that be their conclusion) was relevant to the credibility of the complainant and a fact to be considered in evaluating the consistency of the complainant's evidence. There might be 'many reasons' to explain why the complaint was not made promptly. It was for the jury to weigh up the significance of the delay in complaining.
In Crofts, Toohey, Gaudron, Gummow and Kirby JJ approved, at 449 ‑ 450, the following observations of Hunt J (with whom Slattery CJ at CL and Carruthers J agreed) in R v Davies (1985) 3 NSWLR 276 at 278, in relation to s 405B of the Crimes Act 1900 (NSW), which is comparable to s 36BD of the Western Australian Evidence Act:
I am unable to see from the statute generally any legislative intention ... To preclude the trial judge – as a matter of common fairness - giving direction on the other side of the coin to those required by that section. Making obligatory the giving of directions that there may be good reasons for the absence of a complaint or for the delay in making it, whether or not such reasons were suggested in the evidence, is certainly to be seen as tilting the balance in favour of the complainant - no doubt because of the difficulty she may often have in articulating those reasons herself - but it should not be seen as standing the law on its head to exclude what in common fairness and common experience should also be taken into account in favour of the accused.
The majority in Crofts added, at 451:
The purpose [of s 61] was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses (Longman v The Queen (1989) 168 CLR 79 at 86 ‑ 87). It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration (Longman at 86, citing R v Pahuja (1987) 49 SASR 191 at 199, per King CJ; R v Miletic (unreported; Supreme Court of Victoria (Court of Appeal); 9 August 1996) at 20). The overriding duty of the trial judge remains to ensure that the accused secures a fair trial (cf M v The Queen (1994) 181 CLR 487 at 515, per Gaudron J). It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts (Longman at 86).
...
Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness (R v Murray (1987) 11 NSWLR 12 at 18; M v The Queen (1994) 181 CLR 487 at 514 ‑ 515). The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false.
In M v The Queen (1994) 181 CLR 487, Gaudron J referred, at 514, to the comments of Hunt J in Davies as to the existence of a 'general rule' to give a direction in accordance with Kilby, and noted:
However, that is not a hard and fast rule and a conviction will not be set aside simply because there has not been a direction of that kind (See Reg v Preval [1984] 3 NSWLR 647; Reg v Murray (1987) 11 NSWLR 12).
Her Honour identified, at 515, a class of case where the 'general rule' might not apply:
In cases [of sexual assault on a child by a person who has the child's trust and confidence], the victim may be reluctant to resist the offender or to protest and, on that account, reluctant also to complain. As well, a child in that situation may be reluctant to complain from fear that he or she will not be believed, from fear of punishment or, even, fear of rejection by the offender. In my view, the present matter should be approached with those considerations in mind. And if approached on that basis, the argument with respect to the absence of complaint and with respect to the complainant's apparently normal conduct on the weekends in question loses all force.
In RBK v The Queen [2004] WASCA 216, a child sexual offence case, the trial judge directed the jury in accordance with s 36BD, set out the complainant's evidence as to why there was a delay of two to three years before her complaint, and then said to the jury:
It's a matter for you to look at all the evidence to consider her explanation and this is a matter for you to consider when you're judging whether you should believe her or not when you're assessing her credit.
The Court of Criminal Appeal dismissed the appellant's ground of appeal which alleged that this direction did not make clear to the jury the use to which they could put the failure to make a timely complaint. See Malcolm CJ at [57] ‑ [58] and Murray J (with whom Wheeler J agreed) at [102] ‑ [104].
In Christophers v The Queen [2003] WASCA 214, also a child sexual offence case, the trial judge said, in summing up:
The complaint in this case was made a considerable time after the events the subject of the charges. That evidence may be taken into account by you in considering the consistency and therefore the credibility of the complainant....[The fact that she has said something to her sister is] simply a matter which you can and you should take into account in considering the consistency and therefore the credibility of what the complainant has said.
The Court of Criminal Appeal rejected the appellant's argument that this direction 'was not balanced by a direction that the jury could nonetheless take the delay into account when assessing the complainant's credibility'. See Hasluck J (with whom Murray J agreed) at [68] ‑ [70]. Also see Tanner v The Queen [2001] WASCA 60 at [31] ‑ [38].
In Cook v The Queen (2000) 22 WAR 67, Anderson J (with whom Pidgeon and Wallwork JJ agreed) held, at 93 [113], that a 'balancing' direction was not necessary, as 'in the context of the trial as a whole, it must have been crystal clear to the jury that they were permitted to use the evidence of delay in complaining as relevant to the complaints' credibility'.
In Kailis v The Queen (1999) 21 WAR 100, Malcolm CJ said, at 135 [125], in relation to the type of direction in question:
[T]here is much to be said for the proposition that the interests of justice are better served if each case is approached in the light of its own facts, with directions to the jury being fashioned to take account of the assumption, if any, to which those facts might give rise, rather than by reference to an assumption expressed in general terms, but which, clearly, cannot hold good in all cases.
In the present case, counsel for the appellant conceded that the absence of a Crofts direction was not relevant in relation N (as N had made an early complaint). (appeal ts 18)
The trial judge directed the jury that:
(a)they had to be satisfied beyond reasonable doubt as to the 'truthfulness and accuracy' of the complainants' evidence;
(b)they should 'scrutinise' the complainants' evidence;
(c)they should bear in mind, in scrutinising the complainants' evidence, that the matters complained of occurred 'many years ago' when the complainants were in 'their early teens … or younger';
(d)the passage of time since the commission of the alleged offences may have affected the complainants' recollection of events: an honest witness can be wrong in his or her recollection and, in the case of R, K and C, no complaint was made at the time;
(e)because of the delay in making complaint to the police, it is likely that the appellant has lost some opportunities for investigating and testing each of the complaints made against him;
(f)because a person's recollection of events does 'fade with time', they should take 'particular care' when considering the evidence of the complainants;
(g)they could convict on the evidence of the complainants if satisfied of their 'respective truthfulness and reliability to the required standard';
(h)they should, in considering the complainants' evidence, have regard to the matters mentioned in (c), (e) and (f) above, and 'scrutinise' the evidence of each complainant with 'great care'; and
(i)it may, in the circumstances of the case, be dangerous to convict the appellant unless they scrutinised the evidence of each complainant carefully.
In my opinion, the trial judge directed the jury in terms that would have left them in no doubt that R's delay in making complaint was a factor to be taken into account in evaluating her evidence and considering her credibility. No further direction or warning was required to ensure the appellant received a fair trial. Also, any further direction or warning may potentially have prejudiced the appellant in relation to N by highlighting the early complaint which she made. His Honour did not make an error of law, and no miscarriage of justice occurred, as alleged in ground 1.
Ground 1 fails.

Ground 2: Character direction

The particulars of ground 2 are:
(a)The learned trial Judge erred in holding that no evidence of good character was given at trial and specifically erred in holding that character evidence is generally given by someone of mature years and needed to be to the effect that the witness knows the appellant's character and qualities and could vouch for the appellant's trustworthiness and honesty.
(b)There was evidence before the jury as to:
(i)the appellant's history of employment and public service as a swimming coach and the high regard in which he was held as such;
(ii)[the] appellant's outstanding reputation as a swimming coach, in particular as a children's swimming coach;
(iii)the appellant's relationship with other young female trainees who each gave evidence that [the] appellant had at all times behaved towards them in an appropriate manner; and
(iv)the appellant's proper conduct towards young female trainees as witnessed by the mothers of some of the trainees.
(c)In all of the circumstances of the case it was an error of law to hold that there had been no evidence of good character led at trial.
(d)The learned trial Judge's consequent failure to give a specific direction to the jury as to the case [sic] to which the evidence of good character might be put was a further error of law.
(e)In all of the circumstances of the case the jury should have been directed that it could use the evidence of good character to support the proposition that the appellant was not the sort of person who was likely to have committed the offences in question.
The appellant's submissions refer to evidence of the appellant's witnesses which he says was admissible as character evidence. The relevant evidence was:
(a)Nicola Greenhalgh trained with the appellant in the 1990s, and gave evidence that she had been at the appellant's house, having arrived there before training, sometimes alone and sometimes with other people. She said the appellant was very concerned with her diet, school work and overall well being. She also said the appellant had never touched her in an improper way, or behaved improperly, or made her feel awkward or uncomfortable, and she had never seen the appellant do anything that made her feel concerned. (ts 1026 ‑ 1028)
(b)Kara Wright trained with the appellant in the 1990s, and said she had been alone with the appellant once, but he had not done anything improper to her, nor touched her in a sexual way. She said she had been to the appellant's house, and in his bedroom, but could not recall ever being alone with the appellant at his house. (ts 1044 ‑ 1045)
(c)Brooke Niven trained with the appellant in the 1990s, and said she would occasionally get a lift home with the appellant, sometimes alone, and sometimes with other people. These lifts were not a regular occurrence.   Ms Niven said the appellant never did anything improper to her. He never sexually touched her, or made her feel uncomfortable. She never saw him behaving inappropriately towards the complainants. (ts 1093, 1095)
(d)Jade Greenland trained with the appellant in the 1990s, and said he was a great coach, who was inspirational and had an ability to boost confidence and self-esteem. She said the appellant had never touched her in an improper or sexual way, and she never saw him behaving in an inappropriate or sexual way towards any of the complainants. (ts 1097, 1102)
(e)Erin Calabrese trained with the appellant in the 1990s, and said that since the appellant left, she had never found a coach who was as involved with his or her athletes. She said the appellant was brilliant with his swimmers, inspirational, and that he believed in them. He tailor‑made a program for her which helped her to elite fitness and success, and he had done the same for a few other athletes. (ts 1122) Ms Calabrese said that she had travelled alone with the appellant, and had also been alone with him on numerous occasions during the years she trained with him. (ts 1124) She said he had never touched her in a sexual way or made her feel uncomfortable or awkward. (ts 1132)
(f)Annette Croft trained with the appellant in the 1990s and later assisted him in coaching other swimmers. She gave evidence that she and the appellant were friends, and she had not hesitated when asked to be a character referee for him. Ms Croft said she would not believe anything bad about the appellant, no matter what anybody else said. (ts 1067 ‑ 1068)
(g)Leanne Greenland, the mother of Jade Greenland, said she enrolled her children (Jade and her son) with the appellant because she liked his coaching methods and he was very good with technique. She said when her children were training with the appellant, she was always very impressed with the appellant's focus on the swimming. She said he was an excellent coach, built the children's self‑confidence, made them believe in themselves, and was very good for their self-esteem. Ms Greenland said her children were very happy, they had formed 'fabulous' social groups within the squad, and that it was the highlight of their life. (ts  1079)
(h)Ian Lowther was a physiotherapist to whom the appellant referred his swimmers in the event of injury. Mr Lowther said, in a statement read in court, that he had had a long association with the appellant, whom he described as a very committed coach, very professional and well organised. He said the appellant paid a lot of attention to detail and he was aware that the appellant had great success as a coach in surf lifesaving. (ts 1135)
(i)Shalyn Jones trained with the appellant in 1997 for about six months, when she was about 17, and commenced a relationship with the appellant in 1998, about two months after she turned 18. The relationship ended in about 2002. Ms Jones said she thought very highly of the appellant and would not believe anybody who made these kinds of allegations against him. (ts 1049 ‑ 1050, 1053 ‑ 1054, 1058)
(j)Julie Greenhalgh (the younger sister of Nicola Greenhalgh) trained with the appellant in the 1990s, and said she had been alone with the appellant, when he would occasionally give her lifts to and from training. (ts 1071) She did not say anything untoward about the appellant.
(k)Ruth Greenhalgh (the mother of Nicola and Julie Greenhalgh), said the appellant would assist with transport of her daughters to and from training. (ts 1039 ‑ 1040) She did not say anything untoward about the appellant.
(l)Tarryn Hearne, a coaching colleague of the appellant, gave evidence that she had assisted him with strength and conditioning training for his swimmers. (ts 1076 ‑ 1077) She did not say anything untoward about the appellant.
(m)Ross Field met the appellant in Port Hedland, commenced swimming training with the appellant, and became friends with him. (ts 1108) He did not say anything untoward about the appellant.
(n)Stephen Toth trained with the appellant from about 1992. (ts 1136 ‑ 1137) He did not say anything untoward about the appellant.
The trial judge directed the jury as to character evidence (ts 1242):
On the subject of character, there was evidence from a number of witnesses that [the appellant] was, during his years as a swimming coach, an excellent coach. Ms Prince, in her closing speech to you, said that he was an inspirational coach and the evidence does tend to support that proposition. Being a good coach doesn't necessarily mean that the person is of good character.
Ordinarily, character evidence comprises the testimony of a witness who is called for that purpose and says, 'Well, I have known this person for a long time and I have formed this view of that person's qualities'. I want to make mention of that to you because you need to know what is and what is not character evidence in the context of this case because, of course, Ms Croft said in her evidence that she had been asked to give character evidence and, as I pointed out to you, really she was a witness of fact rather than a witness as to character. Even though she said she had been asked and had agreed to give character evidence the fact of the matter was that she didn't.
The evidence, as I say, in this case, is that [the appellant] was an excellent coach and I would imagine that you perhaps won't have much difficulty with that proposition. That is clearly a reflection of his abilities in that regard but it doesn't amount to character evidence in the traditional sense. I am not suggesting for one moment that [the appellant] is not a person of good character but rather I am pointing out to you that there isn't any evidence in that regard, notwithstanding that Ms Croft said that she had been asked to give character evidence and had agreed to do so.
Character evidence is evidence having a particular quality, as I have pointed out to you, and being an excellent or inspirational coach isn't the same as necessarily being of good character. It doesn't follow as a matter of logic. I am not suggesting, as I say, that [the appellant] is not a person of good character. I am simply pointing out what I think needs to be pointed out in the context of what you have heard in this case.

In the absence of the jury, counsel for the appellant at trial raised with the trial judge concerns as to the direction on character evidence (ts 1275):
My concern now, and I'm not sure what we can do about it, your Honour, is this: we didn't particularly lead character evidence, but your Honour has talked about it and said, 'Well, it's not really character evidence' and then you said, 'I'm not saying he's of bad character'. I'm just wondering if the jury might be concerned, saying, 'Well, what's going on? Is there something else in this man's' – that's my concern about it.
Counsel for the respondent told the trial judge that the prosecution was 'fairly neutral' on this issue and would not attempt to persuade his Honour to change his mind. Counsel for the respondent also noted that the evidence of the other swimming students, called on behalf of the defence, 'might' be categorised as character evidence. The trial judge then said to counsel (ts 1275 ‑ 1276):
[C]haracter evidence is borne out of somebody coming along and saying – generally somebody of mature years...Somebody who is an adult and has some experience in life and who says on oath or affirmation, 'I have known this person for a period of time and over that time I have got to know this person's characteristics and qualities and I can tell you that this person is trustworthy. This person, to my way of thinking, is honest. This person is reliable', and so forth.
...
It flows from that evidence that you would then tell the jury, 'If you find that the person is of good character, having regard to the character evidence, you might conclude that it tended to support his credibility and it tended to suggest that he was not the sort of person who would commit these offences.
...
[W]e don't have evidence of that character here. All we have is a reference to character evidence.
The trial judge ruled that there was no evidence that could be classified as character evidence. (ts 1277)

Ground 2: what is character evidence?

In R v Rowton (1865) Le & Ca 520; 169 ER 1497, it was held that a witness called to give evidence of an accused's character can speak only of the accused's general reputation.
In Attwood v The Queen (1960) 102 CLR 353, Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ said, at 359:
The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg v Rowton (1865) Le & Ca 520 [169 ER 1497]. Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt.
Cross on Evidence (7^th Aust ed, 2004) at [19110] comments, in relation to the rule in Rowton, that '[t]here is much to be said for abandoning a rule which is difficult to apply and widely ignored'. Stephen, Digest of the Law of Evidence (12^th ed, 1936) at 201, criticised the rule because:
A witness may with perfect truth swear that a man who, to his knowledge, has been a receiver of stolen goods for years, has an excellent character for honesty if he has the good luck to conceal his crimes from his neighbours.
In R v Ravindra [1997] 3 NZLR 242, Gendall J referred to Rowton, but held that, in addition to evidence of general reputation, witnesses could give evidence as to good character based on their own personal experiences with the accused. Ravindra concerned a medical practitioner accused of impropriety in the examination of a female patient. The defence sought to call witnesses to give evidence 'as to not only the general reputation of the accused as they knew it to be but also as to their opinion as to his character, reliability, trustworthiness, integrity, care in medical matters, and careful attention to ethical standards when dealing with them, or their family, as medical patients'. The Crown, relying on Rowton, argued against the admissibility of such evidence, submitting that evidence could only be given as to the accused's general reputation as known in the community, and not of particular acts by which the witness' own opinion of the accused's character or disposition was formed. The Crown referred to R v Falealili [1996] 3 NZLR 664, where the Court of Appeal said, at 667, that evidence of character 'must be of a general rather than a particular nature', and where, in particular, Thomas J said, at 674, that 'although the evidence was not strictly evidence of reputation and might have been excluded in any event ... No complaints had been received from women members of the staff whom he supervised'.
In analysing Rowton, Gendall J noted that the issue in that case was whether a witness could give evidence in rebuttal as to the bad character of an accused, by relating personal experiences of the witness. His Honour said, relevantly, at 247 ‑ 250:
'Good character evidence' when given on behalf of an accused can be used so as to suggest improbability of guilt as well as assisting in determining credibility. That is, propensity as well as credibility. The law requires the direction, as set out in R v Falealili, that evidence of good character is capable of being used to assist in the assessing of the credibility of the accused as well as in determining his propensity to not commit an offence such as that which is charged. It is admissible because of its relevance to a fact in issue, namely the improbability of guilt.
The minority judgments of the Court in R v Rowton still provide, in my view, some food for thought. The dissenting judgments of Erle CJ and Willes J said, in essence, that a witness as to character was entitled to give evidence upon his personal experience of the prisoner's character. That was their view in 1865. In making my ruling in this trial I was of the view that in 1997, such a proposition is valid where it relates to defence evidence as to the good character of an accused. How else is a character witness to be expected to express an opinion as to an accused's good character otherwise than based upon their personal experience of the accused? ...
How is it possible for an accused to give evidence as to his general reputation which is something that in truth is known only to others? How is it possible for witnesses to speak of the general good reputation of an accused without simply repeating that which others say but none of whom are allowed to refer to the particular facts upon which the reputation is formed. The danger is that the reputation, in modern terms, is created through the repetition of myths which may have no foundation or basis upon particular facts. Without the witness being able to refer to his or her own experience so as to be able to judge the good character of an accused, the exercise becomes, with respect, illogical.
...
It seems to me that there was a distinction being drawn in R v Rowton between evidence of bad character which shows propensity or disposition to commit a crime on the one hand, and general evidence of good character whether by reputation or whether by propensity to not commit the crime for which the accused is charged.
...
The significant point is that bad character, or 'prior conviction' evidence which obviously relates to particular facts, can only be used in relation to questions of credibility and not propensity. The authorities do not follow the same pattern where there is evidence of good character. (emphasis in original)
Gendall J also referred to Gurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139, which concerned a medical practitioner who wished to adduce good character evidence before the Medical Council of New Zealand in disciplinary proceedings, where it was alleged he had violated some female patients. The proposed evidence concerned the manner in which the medical practitioner treated other female patients, and their assessment of his character. The evidence was not, ultimately, led and the issue before the Full Court of the High Court (Administrative Division) was whether the medical practitioner's counsel should have led it. The Full Court held that the evidence would have been admissible had it been led, but accepted that it was proper, in the circumstances, for counsel to adopt a cautious approach in leading good character evidence for fear of the risk of rebuttal evidence of bad character. The Full Court said, at 188:
[T]he female character witnesses would no doubt have given evidence...to the effect that Dr Gurusinghe had always behaved with complete propriety in his examinations and treatment of them. There could also have been character evidence called from nurses and possibly other persons as well. However, such evidence would need to be contrasted with the evidence of the complainants. The probabilities are that Dr Gurusinghe would have behaved impeccably with the majority of his patients and selected only a few who interested him with whom he committed the alleged offences. The character evidence in favour of Dr Gurusinghe would have had only limited effect and after all there can be a first time of falling from grace for even the most upright and ethical practitioner.
Gendall J noted, at 250, that these observations could be applied in Ravindra, which bore some similarity to Gurusinghe on the facts, and added that '[w]hat is significant is that the Court accepted that character witnesses in the nature of present and former patients giving evidence as to the total propriety of the doctor's treatment of, and behaviour towards, them would have been admissible. There is no suggestion by the Court that such evidence would have been excluded'.
Gendall J held that the character evidence in question was admissible. His Honour said, at 254 - 256:
As the essential matter in issue before the Court was the guilt of the accused, and whether or not he violated patients in clinical situations, I was of the view that evidence of such nature was, if given, relevant as relating to the likelihood or propensity of the accused having committed the offences charged. And, because by its very nature, good character evidence goes to so-called propensity, it was relevant to the ultimate question of proof of guilt. That is why such evidence is admissible. ...[T]he character evidence given was of a general nature from their own knowledge, observations and experiences of the witnesses. It did not seem to me to infringe against the rule in R v Rowton and, even if it did in some respects, I nevertheless would have admitted it as being relevant, probative and in the interests of the accused, depending, of course, on the view the jury took of such evidence.
...
It seemed to me to defy logic and common sense to say that proof or evidence of reliable, trustworthy, morally righteous, proper behaviour and conduct in the practice of medicine, as within the personal knowledge of the witness, had no relevance to the question of whether or not a doctor is likely to have committed the particular acts alleged against him in the context of the management of his clinical practice and dealings with women. I cannot see how it could be held that such evidence was not relevant to an essential fact in issue in the trial, namely whether it was probable or not that the accused had a propensity to commit the crimes charged. The crucial element is relevance.
I ruled that the evidence was admissible because it was:
(a) relevant to the issue of guilt;
(b) evidence of reputation and character based upon the existence and opinions based upon the common knowledge of the witness, as well as upon his or her personal experience;
(c) related to overall behaviour, integrity and trustworthiness of the accused's general conduct, in matters of medicine and trust, as distinct from an individual single act which was irrelevant to the issue before the jury;
(d)of the same nature and content as that said to be admissible in Gurusinghe v Medical Council of New Zealand. (emphasis in original)
In Melbourne v The Queen (1999) 198 CLR 1, the majority judgments recorded the state of the law in relation to the rule in Rowton, having regard to Attwood, Ravindra, and legal commentators, without approving or disapproving the rule. See McHugh J at 15 [33]; Gummow J at 26 ‑ 28 [69] ‑ [72]; and Hayne J at 54-55 [150]. McHugh J said, at 15 [33]:
This is the established rule although, as this Court pointed out in Attwood v The Queen ((1960) 102 CLR 353 at 359), the limitations inherent in the rule are not observed in practice. In New South Wales, the legislature long ago reversed the common law rule (In 1900, s 413 of the Crimes Act 1900 (NSW) relevantly provided: 'Every witness examined as to character ... May give evidence not only as to the general repute of such person, but also as to the witness's own knowledge of his habits, disposition, and conduct.' The matter is now dealt with in s 110(1) of the Evidence Act 1995 (NSW) which allows a witness to give evidence as to his or her own opinion of the accused's character).
Gummow J noted, at 27 [70], that '[t]he nature of the evidence received in the present case appears to illustrate the point [made in Attwood that the limitations imposed by Rowton were probably not observed in practice]. No criticism is made on that count'. Hayne J commented, at 54-55 [150], that 'the restrictions that are imposed in relation to character evidence are imposed because evidence of the character of an accused (good or bad) may distract attention from the central question in the trial: whether the prosecution has established proof of the offence charged. In some cases (perhaps many) debating what the accused has or has not done on other occasions will be of little profit'.
Section 110(1) of the Evidence Act 1995 (NSW) permits a witness to give evidence of his or her own opinion as to the character of the accused. It provides:
The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
The only other Australian states that have enacted legislation to similar effect are the Australian Capital Territory and Tasmania. There is no such legislative provision in New Zealand. Section 110(1) of the Evidence Act 2001 (Tas) is in the same terms as the New South Wales provision set out above. Section 56(1) of the Evidence Act 1971 (ACT) provides:
If evidence with regard to the character of a person is admissible in a proceeding, a witness may, in the proceeding, give evidence of the general reputation of the person and of the witness' own knowledge of the habits, disposition and conduct of the person.
In Melbourne, in discussing the difference between 'character' and 'reputation', McHugh and Gummow JJ, at 15 [33] and 24 [65] respectively, referred to the New Zealand Law Commission's Preliminary Paper 27, Evidence Law: Character and Credibility (February 1997), which says, relevantly, at [99] ‑ [100]:
On the one hand, the law distinguishes between evidence of general reputation and evidence of individual opinion and, in the case of the defendant in criminal proceedings, has historically recognised only the former (R v Rowton (1865) Le & Ca 520 [169 ER 1497]). On the other hand, it is not always clear what is meant by reputation. On occasion, it appears to be used interchangeably with character. It may be important therefore to distinguish between character as public estimation – which is perhaps more correctly referred to as reputation – and character as disposition – which is something more intrinsic to the individual in question (See Plato Films v Speidel [1961] AC 1090, 1128; 1138 (HL)).
In actions for defamation the first meaning is paramount, since it is the public perception of an individual which the law of defamation protects. The second meaning is of primary significance when a party seeks to offer similar fact evidence to show an individual's propensity to commit certain offences...In both cases, the evidence of reputation goes to the issue. But reputation has also traditionally been a factor indicative of a person's truthfulness. Its meaning in this context seems to be an amalgam of public estimation and individual disposition. (emphasis in original)
Also see the observations of Lord Denning in Plato Films v Speidel [1961] AC 1090 at 1137 ‑ 1139 as to the meaning of 'character' and 'reputation'. According to Wigmore on Evidence (Vol 1A, Tillers rev, 1983) at 1157 ‑ 1159 [55]:
A defendant's character...as indicating the probability of his doing or not doing the act charged, is essentially relevant. In point of human nature in daily experience, this is not to be doubted. The character or disposition – i.e. a fixed trait or the sum of traits – of the persons we deal with is in daily life always more or less considered by us in estimating the probability of their future conduct. In point of legal theory and practice, the case is no different.
My review of the authorities indicates that although the rule in Rowton has never been overruled, and the High Court has not directed that the rule is not to be followed in Australia, in practice it is often unobserved, and evidence is frequently given, without objection, as to an accused's character and reputation based upon the witness' personal experience.
In Chan v The Queen [2002] WASCA 50, however, the Court of Criminal Appeal applied Rowton. In that case, the trial judge declined to direct the jury with respect to the relevance of good character evidence to the credibility of the accused. Kennedy J (with whom Owen and Steytler JJ agreed) noted some criticisms of Rowton, and then said, at [84], that '[n]o objection was taken by the Crown prosecutor to the admission of evidence of the appellant's disposition, instead of limiting the evidence on this point to evidence of the appellant's reputation'. His Honour commented, at [85], that '[t]he evidence of the good character of the appellant in the present case came from a number of witnesses, including her children, all of whom gave evidence as to their own opinions of the appellant's good character. This evidence did not relate to her reputation'. Finally, his Honour noted, at [98], that '[t]he evidence as to the appellant's character was not, as it should have been, evidence of her reputation'. Chan did not refer to Ravindra or Gurusinghe.
In Connell v The Queen (No 6) (1994) 12 WAR 133, the Court of Criminal Appeal (Malcolm CJ, Pidgeon and Nicholson JJ) commented, at 246, that the rule in Rowton has 'subsequently been relaxed, but it has been a relaxation in favour of the defendant'. Their Honours did not, however, discuss any issues relating to the rule.

Ground 2: when are directions necessary in relation to character evidence?

In Melbourne, the appellant was convicted of murder. He did not deny that he had killed the deceased, but pleaded diminished responsibility. The appellant's credibility was relevant to that issue, as the diagnoses of the expert witnesses called by the defence were based substantially upon out‑of‑court statements which the appellant had made to them, and the appellant did not give evidence at trial. The good character evidence was that the appellant had no previous convictions, other than a conviction for drink-driving in 1975, and was not adversely known to the police. There was also evidence, given by persons who knew the appellant, to the effect that he was quiet, always gentle, never aggressive, very amiable, and a well-behaved gentleman. The trial judge gave a direction as to how the jury might use the character evidence in considering the guilt of the appellant, but not as to how the jury might use that evidence in assessing his credibility. The issue on appeal was whether the trial judge erred in failing to give a 'credibility' direction.

C gave evidence that she and N went to the movies with their boyfriends in about October or November 1997. At that time, N gave C a note comprising one sheet of paper with writing on both sides. After C read the note, they ripped it up and disposed of it because their boyfriends wanted to read it. C said the note was about something the appellant had done to N and that N wanted to talk to C about it, but the note did not contain any details. C gave evidence that she spoke to N the next day, and N told C what the appellant had done to her in his car. (ts 493 ‑ 494) C's evidence in relation to this incident differs from N's evidence.
About a month later, not long after the rumours about N and the appellant had commenced, the appellant said to C, at training, that 'he was really sorry about what was happening with [N] and that he wanted me to organise to talk to her because he wanted to apologise to her for what was happening and asked if I would arrange that for him'. The appellant also said that, 'he couldn't be honest about what had happened because he would lose his job, and also with his dad being in parliament..., that he couldn't talk about it and so he had to lie and say that nothing happened and that he was sorry and he knew that she was my best friend'. C arranged the meeting between the appellant and N at the Scarborough surf club. After N and the appellant talked, privately, the appellant left on his own, and N went back to C, who was waiting for her. (ts 495 ‑ 496, 522 ‑ 523) C's evidence in relation to the meeting between the appellant and N at the surf club differs from the evidence of N and the appellant. C admitted that the evidence she gave about the appellant saying that his father was in Parliament and that he had lied etc was not in her original statement, but that she had added it when she spoke to the prosecutor, because 'that was what [the appellant] said'. (ts 521 ‑ 522, 546)
C confirmed that the appellant chaperoned her and N to a concert in 1997, despite the appellant having abused her since 1995. (ts 509) After the appellant left for Port Hedland, C agreed (on being shown the letters) that she wrote him two letters which she sent 'care of' his parents' address (although she did not remember writing them), and that she and Erin Calabrese had sent him a photograph of herself, Erin and Jade Greenland. (ts 511 ‑ 514, 528 ‑ 530) C agreed that she had sent Christmas and birthday cards on her own or with Erin Calabrese, to the appellant, during the time that he was training C, and after he went to Port Hedland. (ts 518, 531 ‑ 533) C said that, sometime after the appellant had gone to Port Hedland, the appellant had given her a bicycle, but she could not remember if the appellant had visited her and her mother at home. (ts 523)
Annette Croft gave evidence that she had a 'sisterly role' with C, and spoke to C about her allegations against the appellant, after the allegations had become public. She said that C did not want to talk about it, beyond saying that the allegations were true, and she did not tell her any details of the offending. Further, C told her that 'she had two marks that she needed from the police statement and she needed a third'. Ms Croft said she was shocked and could not understand why C did not speak to her about the offending. (ts 1061 ‑ 1063) C said, in her evidence, that she did not remember saying anything about 'marks' to Ms Croft because the police had not said anything like that to her. The police had said to C that if she had three allegations, there would be a more serious charge, but she did not think she said that to Ms Croft. C said that Ms Croft wanted to know what had happened before deciding to be a witness for the appellant, and, when C confirmed the truth of her allegations, Ms Croft said that she was not going to make a statement for the appellant, and that she was upset that C had not previously confided in her. (ts 531) Ms Croft denied saying that she would not make a statement for the appellant. (ts 1065 ‑ 1066)

Appellant's evidence in relation to K and C

As to K, the appellant agreed that he had transported her to and from swimming training. (ts 897) He denied ever touching K in a sexual way. (ts 900, 903, 973 ‑ 974) The appellant said he had never walked about K's house naked and he always got changed in the bathroom when he had a shower there. (ts 906, 975) The appellant's evidence about the contact he had with K and her family, before and after he went to Port Hedland, is set out above in relation to R.
As to C, the appellant agreed that he used to give C lifts to training, sometimes alone, in the early years of her training. He said C had come to his house on one occasion, as the appellant had stopped to pick up some equipment on their way to training, but his mother was there, C did not go into his bedroom, and he did not ask her to try on bathers in his bedroom. The appellant said he had given bathers to many different athletes while he was a coach. He never asked C to undress in his bedroom so he could look at her muscle strain and he never sexually touched her. (ts 868 ‑ 871, 964 ‑ 966, 969) The appellant did not have a conversation with C about N. (ts 969) He had received cards from C alone or jointly with other swimmers, on various occasions, before and after leaving Perth. The appellant received a couple of letters from C in 1999, after he had left for Port Hedland, about her injuries from training, her social life, and wishing the appellant a happy birthday. He saw C when he was in Perth in 2000, at her home, to talk about her injuries, and later lent C his old bicycle to help with her transportation. (ts 888 ‑ 891)

Appellant's submissions

The appellant, in his submissions, cites the following evidence in relation to each particular of ground 5:
(a) the late complaints made by all of the complainants:
(i) [R] complained in February 2003 [ts 647];
(ii) [N] allegedly complained to [C] '1 to 2 weeks' after the alleged offence was allegedly committed [ts 493-494] however [C's] evidence of [N's] alleged complaint differed from that of [N] [ts 759, 793, 795];
(iii) [C] allegedly complained in 2003 [ts 506];
(iv) [K] allegedly complained in February 2003 [ts 349].
(b)the numerous opportunities to complain at an earlier juncture:
(i) [R] had the opportunity to complain during counselling [ts 354], to her mother when the appellant's relationship with [R's] and [K's] mother was over and the appellant was in Port Hedland [ts 622, 689], to her sister, [K] [ts 633], and to her mother when questioned by her [ts 695];
(ii) [C] had the opportunity to complain to her mother [ts 488];
(iii) [N] had the opportunity to complain to her mother [ts 749];
(iv) [K] had the opportunity to complain, to her mother [ts 342], when questioned by her mother [ts 315, 354], and during counselling [ts 354].
(c) the expression of goodwill and affection towards the appellant as expressed in subsequent communications of the complainants before and after the appellant left Perth:
(i)[R] sent warm and affectionate cards and photographs of herself and her family to the appellant during the whole time until she made the allegations in February 2003 [ts 616-617, 636-646]; [R] went to Port Hedland and Broome to visit the appellant in 2002 [ts 601];
(ii) [N] and [C] went with the appellant to the 'Silverchair Rock Concert' towards the end of 1997 [ts 752, 508];
(iii)[N] saw the appellant in 1999 and accepted a lift home with the appellant alone [ts 752, 754];
(iv)[K] holidayed with the appellant in 1997 and 1998 [ts 336]; [K] sent warm and affectionate cards and photographs of herself and her family to the appellant [ts 336-339];
(d) the unlikely locations and times where the alleged offences were said to have occurred:
(i) With regard to the evidence of [R]:
a. the first location was alleged to have occurred, in the computer room in [R's] family home, when [R's] mother was home during the night [ts 577];
b. the second location was alleged to have occurred, in 1997, in [R's] bedroom at 11.30am [ts 579, 581]
c. the third location was alleged to have occurred, in 1997, in the appellant's bedroom at the appellant's parents' home, when the appellant's mother was at home [ts 594];
(ii)With regard to the evidence of [N]:
a.the first location was alleged to have occurred, in October 1997, in the appellant's bedroom, at the appellant's parents' home [ts 735];
b. the second location was alleged to have occurred, in 1997, in a beach car park, in the appellant's car [ts 737, 739];
(iii)With regard to the evidence of [C]:
a. the first location was alleged to have occurred, in 1996, in the appellant's bedroom, in his parents' home [ts 484, 489];
b. the second location was alleged to have occurred, in 1997, in a red ute [ts 489, 490];
(iv)With regard to the evidence of [K]:
a. the first location was alleged to have occurred, before 1993, in a green Camira, on the way to training [ts 308, 309];
b. the second location was alleged to have occurred, before 1993, in a pearly coloured ute, on the way to training [ts 310];
c. the third location was alleged to have occurred sometime in 1993-1994, in a car, on the way to training [ts 311, 312];
d. the fourth location was alleged to have occurred, in [K's] family home [ts 313];
e. the fifth location was alleged to have occurred, in 1995, in the appellant's car [ts 313];
(e)the generally inconsistent nature of the ongoing association between the complainants and the appellant as summarised by defence counsel and the learned trial Judge [ts 1287, 1290-1294];
(f) the uncorroborated nature of the allegations.
By s 30(3) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if in its opinion:
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
In M, Mason CJ, Deane, Dawson and Toohey JJ said, at 492, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. Also see Jones vThe Queen (1997) 191 CLR 439 at 450.
In M, McHugh J said, at 523, that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. In Jones, Gaudron, McHugh and Gummow JJ said, at 450, that having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just.
In M, Mason CJ, Deane, Dawson and Toohey JJ said, at 493, that the test for an unsafe or unsatisfactory verdict was whether the court thought that:
upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
In answering that question, their Honours said:
the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
Their Honours explained, at 494 ‑ 495, the application of the test:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
Also see Jones at 450 ‑ 451. The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones at 452; MFA v The Queen (2002) 213 CLR 606 at 614 [25].
In Libke v The Queen (2007) 81 ALJR 1309, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) said, at 1331 ‑ 1332 [113], that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
Whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 ‑ 493, 69 ALJR 83). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt. (emphasis in original)
The appellant complains, under six heads, that the verdict was unsafe and unsatisfactory.

(a) the late complaints made by all of the complainants; and (b) the numerous opportunities to complain at an earlier juncture

The first and second heads can be considered together. I note, at the outset, that counsel for the appellant accepted that N's complaint was an early complaint. (appeal ts 18) Therefore, these heads relate to the late complaints made by K, R and C, which did not occur until 2003.
The fact that K, R and C did not complain at the earliest opportunity, and made late complaints, does not establish that a verdict is unsafe and unsatisfactory. There are many reasons why a child sexual assault victim may not complain, especially where the offender is a person who has the child's trust and confidence. As Gaudron J observed in M, at 515, in cases of sexual assault on a child by a person who has the child's trust and confidence, the victim may be reluctant to resist the offender or to protest and, on that account, reluctant also to complain. Her Honour said that a child in that situation may be reluctant to complain from fear that he or she will not be believed, from fear of punishment or, even, fear of rejection by the offender.
C did not give any evidence as to the reasons for her delay in making complaint. K said that when her mother asked her if the appellant had touched them, K always responded in the negative because she was embarrassed about what the appellant had done to her. (ts 354) R said she did not make any complaint because she was scared to do so. (ts 622, 652, 655) The jury were directed in relation to the complainants' delay in making complaint.
The jury were aware of the delay and of the circumstances in which the complainants made their complaints, and it was open to them, despite this evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of the counts on which he was convicted.

(c) the expression of goodwill and affection towards the appellant as expressed in subsequent communications of the complainants before and after the appellant left Perth

The conduct of K and R towards the appellant is not necessarily inconsistent with a verdict of guilty. Their mother was in a casual relationship with the appellant, he was their swimming coach, they had a close bond with him, and spent a lot of time with him. There is evidence to the effect that K and R's mother sent the photographs and asked them to write in the cards she bought for the appellant. It could not be said, however, that K and R were unwilling participants in the communications.
When R visited the appellant in Port Hedland, and when they went to Broome together in 2002, R was 15 years old. According to R, she went to see the appellant because she felt he owed it to her after the years of abuse, and that she felt old enough to face him about what he had done.
As to N and C attending a concert with the appellant, N explained that it had been agreed the appellant would chaperone them to the concert before the offending against her occurred (but after the offending had occurred against C), she had agreed with C that they would be safe together, and she did not want to cancel the arrangement because she did not want her mother to find out anything.
N said that when she saw the appellant in 1999 at the beach, she accepted a lift, alone, with the appellant, to her boyfriend's house, because she had missed her bus and was unable to get a lift with C. This incident occurred a couple of years after the alleged offending, when N was about 15 years old.
In my opinion, the expressions of goodwill and affection towards the appellant, before and after he left Perth, did not preclude the jury from finding the appellant guilty on the counts in respect of which he was convicted.

(d) the unlikely locations and times where the alleged offences were said to have occurred

In my opinion, there is no reason why the locations and times of the alleged offences were 'unlikely'.
As to R, the appellant admitted that R got into bed with him when one of the offences allegedly occurred. The appellant also admitted to being alone with R on another day when she had been sick and was absent from school. There is nothing inherently unlikely about any of the alleged offences occurring, as alleged. It is also not unlikely that the appellant touched R at his house, when his mother was home. His bedroom was up a flight of stairs, and the nature of the offending was such that its commission could be discontinued promptly, if necessary.
As to N, the appellant admitted being alone at his house with her on the occasion when an alleged offence occurred. Further, the appellant admitted taking N out for dinner and that they were alone in his car in a carpark before going home. There is nothing inherently unlikely about any of the alleged offences occurring, as alleged.
As to C, the appellant admitted that C had been to his house on one occasion, and that he had given her lifts to and from swimming training, on some occasions, alone. It is not unlikely that the alleged offences could have occurred on the occasions in question.

As to K, the appellant admitted driving K to and from swimming training. It is not unlikely that the alleged offences could have occurred while K was driving alone with the appellant. As to the alleged offence when R was also in the car, it was night‑time, K was sitting in the front seat while R was sitting in the back, and R was quite young at the time.
It was open to the jury to accept that the offences could have occurred at the places and times alleged. There is nothing incredulous or inherently unlikely about the times or places of the offences.

(e) the generally inconsistent nature of the ongoing association between the complainants and the appellant as summarised by defence counsel and the learned trial judge [ts 1287, 1290-1294]

The appellant did not elaborate in detail upon the matters relied on under this particular, beyond citing transcript pages. The 'inconsistent nature of the ongoing association between the complainants and the appellant', referred to by the trial judge in his summing up at those pages, include references to issues already canvassed under particular (a) in relation to the delay in complaining, and under particular (c) in relation to K and R sending cards, letters and photographs to the appellant, R going to Port Hedland and Broome with the appellant, N and C going with the appellant to a concert, and N accepting a lift alone with the appellant when she was a little older. Other matters referred to include the complainants continuing to train with the appellant despite the offending, C staying in touch with the appellant after he left Perth, K not protecting R by attempting to prevent R from going to Port Hedland and Broome to see the appellant, the appellant sending K and R money, and the complainants being upset when the appellant went away.
The jury were aware of all of these matters and, in my opinion, none of them (either alone or in combination) precluded the jury from being satisfied beyond reasonable doubt as to the appellant's guilt on the counts in respect of which he was convicted.

(f) the uncorroborated nature of the allegations

The fact that the allegations made by the complainants were uncorroborated does not render the verdicts unsafe and unsatisfactory. By their very nature, sexual assaults often occur in circumstances where the only people present are the offender and the victim. The trial judge directed the jury in relation to the uncorroborated nature of the complainants' evidence. (ts 1220)

Ground 5: conclusion

The convictions were not unsafe or unsatisfactory as a result of the issues raised by the appellant. None of the issues, alone, or in combination, precluded a finding by the jury that the appellant was guilty beyond reasonable doubt of the counts on which he was convicted. My examination of the record does not require the conclusion that the jury must have entertained a doubt about the appellant's guilt on those counts. In my opinion, the verdict of the jury was not unreasonable, and it is a verdict which is supported by the evidence. I would allow the application for leave to appeal on ground 5, but dismiss this ground.

Result of the appeal

I would grant leave to appeal on grounds 3A and 5. However, all of the grounds of appeal fail.
The appeal should be dismissed.

Details

AGLC: Donaldson v The State of Western Australia [2007] WASCA 216
Case: [2007] WASCA 216
Decision Date: 16 OCTOBER 2007

CaseChat Overview and Summary

The appeal heard by the court involved a respondent who sought to overturn their convictions for sexual offences against a child under the age of sixteen. The respondent contested the balance of directions provided to the jury during the summing up of the trial. The appeal was lodged against the State of Western Australia, with the appeal being heard in the Supreme Court. The respondent argued that the trial judge's summing up failed to adequately balance the Crofts, character, and lies directions, which led to unsafe and unsatisfactory verdicts.

The central legal issues before the court were whether the summing up of the trial was adequately balanced, and if the lack of balance in the summing up resulted in unsafe and unsatisfactory verdicts. The respondent contended that the trial judge's summing up had failed to provide a fair and balanced direction to the jury, resulting in an unsafe and unsatisfactory verdict. The court was required to consider the principles of judicial impartiality and whether the summing up complied with the principles of a fair trial.

The court held that the summing up provided to the jury was adequately balanced and did not result in unsafe and unsatisfactory verdicts. The court found that the trial judge had provided a fair and balanced direction to the jury, taking into account the Crofts, character, and lies directions. The court held that the respondent's argument that the lack of balance in the summing up resulted in unsafe and unsatisfactory verdicts was not supported by the evidence. The court found that the verdicts were safe and satisfactory, and the appeal was dismissed. The court held that the trial judge had properly directed the jury on the principles of a fair trial and had not failed to provide a fair and balanced summing up.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Donaldson v The State of Western Australia [2007] WASCA 216

Most Recent Citation

Bishop v The Queen [2013] VSCA 273

Cases Citing This Decision

ZHA v The State of Western Australia [2020] WASCA 101
Citation 1

…sich v The Queen [2011] HCA 14; (2011) 243 CLR 434 Colley v The State of Western Australia [2015] WASCA 79 Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488 Durani v The State of Western Australia [2012] WASCA 172 Jeffery v The State of Western Australia [2018] WASCA 219 McMahon v…
SAM v The State of Western Australia [No 2] [2016] WASCA 64
Citation 2

…Browne v Dunn (1893) 6 R 67 HL Donaldson v The State of Western Australia [2007] WASCA 216 Durani v The State of Western Australia [2012] WASCA 172 Lazarevic v The State of Western Australia [2007] WASCA 156 McMahon v The State of Western Australia [2010] WASCA 143 Melbourne v The Queen [1999] HCA 32; (1999) 198 CL…
Rodrigues v Ainsworth [2014] WASC 101
Citation 3 (Para 1)

…it the crime charged and the accused's credibility generally: Melbourne v The Queen (1999) 198 CLR 1 [30]; Donaldson v The State of Western Australia [2007] WASCA 216 [76] ‑ [79]. Each of the character witnesses knew the appellant through his employment in the security industry. The evidence could be probative both…
DPB v The State of Western Australia [2014] WASCA 17
Citation 4

…Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353 Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488 DPJB v The State of Western Australia [2010] WASCA 12 Durani v The State of Western Australia [2012] WASCA 172 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 KLM v The…
Bishop v The Queen [2013] VSCA 273
Citation 5

…[4]See Donaldson v the State of Western Australia (2007) 176 A Crim R 488, 510 [65]; [2007] WASCA 216, [65], (Buss JA). See also Anthony Howard QC (now Judge Howard), ‘Evidence of Good Character and Bad Character in Criminal Cases’, (Leo Cussen Institute, October 1995) 4 [6].…
Durani v The State of Western Australia [2012] WASCA 172
Citation 6 (Para 3)

…In Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488, Buss JA examined the question of what is admissible character evidence. He noted that the rule in R v Rowton (1865) 169 ER 1497; Le & Ca 520, which restricts the scope of character evidence to evidence only of an accused's gene…
R v TZ [2011] QCA 305
Citation 7 (Para 1)

…tice. [31] Simic v The Queen (1980) 144 CLR 319. [32] Donaldson v The State of Western Australia (2007) 176 A Crim R 488; per Buss JA at [84], 517; [2007] WASCA 216.…
DGS v Douglas [2009] WASC 12
Citation 8 (Para 4)

…r and its relevance to the assessment of the evidence of an accused's evidence and his or her guilt was recently considered by the court of appeal in Donaldson v The State of Western Australia (2007) 176 A Crim R 488 [57] ‑ [85]. The leading judgment was given by Buss JA with whom McClure and Pullin JA agreed.…
Moores v Renting [2007] WASC 256
Citation 9

…Donaldson v The State of Western Australia [2007] WASCA 216 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Harrison (1987) 29 A Crim R 213 Nevermann (1989) 43 A Crim R 347…
MSK v The State of Western Australia [2022] WASCA 55
Citation 10 (Para 6)

…v The State of Western Australia [195]; WMT v The State of Western Australia [86]. [45] Appeal ts 22. [46] Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488 [80].…
WMT v The State of Western Australia [2021] WASCA 104
Citation 11

…on law continues to recognise the right of an accused to adduce evidence of his or her good character. In Donaldson v The State of Western Australia ([2007] WASCA 216; (2007) 176 A Crim R 488), it was noted that the rule in Rowton , which restricts the scope of character evidence to evidence of an accused's general…

Cases Cited

Statutory Material Cited

R v Davies [2024] NSWSC 786
Citation 1 (Para 4)

…ummow and Kirby JJ approved, at 449 ‑ 450, the following observations of Hunt J (with whom Slattery CJ at CL and Carruthers J agreed) in R v Davies (1985) 3 NSWLR 276 at 278, in relation to s 405B of the Crimes Act 1900 (NSW), which is comparable to s 36BD of the Western Australian Evidence Act : I am unable to see f…
Trimboli v The Queen [2021] SASCA 120
Citation 2

…7] 3 NZLR 242 R v Robinson [2007] QCA 99 R v Rowton (1865) Le & Ca 520; 169 ER 1497 R v Schmahl [1965] VR 745 R v Soloman [2006] QCA 244 R v Trimboli (1979) 21 SASR 577 R v Vye [1993] 1 WLR 471 RBK v The Queen [2004] WASCA 216 Simic v The Queen (1980) 144 CLR 319 Tanner v The Queen [2001] WASCA 60 Truong v The State…
R v Murray [2011] QSC 170
Citation 3 (Para 4)

…the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness ( R v Murray (1987) 11 NSWLR 12 at 18; M v The Queen (1994) 181 CLR 487 at 514 ‑ 515). The second is that the warning should not be expressed in such terms as to undermine the purpose of…
Cook v R [2010] NZCA 87
Citation 4 (Para 8)

…In Cook v The Queen (2000) 22 WAR 67, Anderson J (with whom Pidgeon and Wallwork JJ agreed) held, at 93 [113], that a 'balancing' direction was not necessary, as 'in the context of the trial as a whole, it must have been crystal clear to the jury that they were permitted to use the evidence of delay in complaining…
Libke v The Queen [2007] HCA 30
Citation 5 (Para 6)

…In Libke v The Queen (2007) 81 ALJR 1309, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) said, at 1331 ‑ 1332 [113], that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is: Whether it was open to the jury to be satisfied of guilt beyond reasonable…
R v Robinson [2007] QCA 99
Citation 6

…AC 41 R v Berrada (1989) 91 Cr App Rep 131 R v Davies (1985) 3 NSWLR 276 R v Falealili [1996] 3 NZLR 664 R v Ravindra [1997] 3 NZLR 242 R v Robinson [2007] QCA 99 R v Rowton (1865) Le & Ca 520; 169 ER 1497 R v Schmahl [1965] VR 745 R v Soloman [2006] QCA 244 R v Trimboli (1979) 21 SASR 577 R v Vye [1993] 1 WLR…
Bellemore v Tasmania [2006] TASSC 111
Citation 7

…Attwood v The Queen (1960) 102 CLR 353 Bellemore v Tasmania (2006) 207 FLR 20 Broadhurst v The Queen [1964] AC 441 Chan v The Queen [2002] WASCA 50 Christophers v The Queen [2003] WASCA 214 Connell v The Queen (No 6) (1994) 12 WAR 133 Cook v The Queen (2000) 22 WAR 67 Crofts v The Queen (1996) 186 CLR 427 Edwards v The Queen…
R v Soloman [2006] QCA 244
Citation 8

…3 NZLR 664 R v Ravindra [1997] 3 NZLR 242 R v Robinson [2007] QCA 99 R v Rowton (1865) Le & Ca 520; 169 ER 1497 R v Schmahl [1965] VR 745 R v Soloman [2006] QCA 244 R v Trimboli (1979) 21 SASR 577 R v Vye [1993] 1 WLR 471 RBK v The Queen [2004] WASCA 216 Simic v The Queen (1980) 144 CLR 319 Tanner v The Queen [20…
Hiemstra v The State of Western Australia [2006] WASCA 70
Citation 9

…LR 427 Edwards v The Queen (1993) 178 CLR 193 Gurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139 Hiemstra v The State of Western Australia [2006] WASCA 70 Jones v The Queen (1997) 191 CLR 439 Kailis v The Queen (1999) 21 WAR 100 Kilby v The Queen (1973) 129 CLR 460 Libke v The Queen (2007) 81 ALJR 1309…
Truong v The State of Western Australia [2006] WASCA 1
Citation 10

…471 RBK v The Queen [2004] WASCA 216 Simic v The Queen (1980) 144 CLR 319 Tanner v The Queen [2001] WASCA 60 Truong v The State of Western Australia [2006] WASCA 1 Wedd (2000) 115 A Crim R 205 Zheng (1995) 83 A Crim R 572 Zoneff v The Queen (2000) 200 CLR 234…
RBK v The Queen [2004] WASCA 216
Citation 11 (Para 6)

…In RBK v The Queen [2004] WASCA 216, a child sexual offence case, the trial judge directed the jury in accordance with s 36BD, set out the complainant's evidence as to why there was a delay of two to three years before her complaint, and then said to the jury: It's a matter for you to look at all the evidence to co…
Christophers v The Queen [2003] WASCA 214
Citation 12 (Para 7)

…In Christophers v The Queen [2003] WASCA 214, also a child sexual offence case, the trial judge said, in summing up: The complaint in this case was made a considerable time after the events the subject of the charges. That evidence may be taken into account by you in considering the consistency and therefore the cr…
Nestorov v The Queen [2002] WASCA 356
Citation 13

…81 ALJR 1309 M v The Queen (1994) 181 CLR 487 Melbourne v The Queen (1999) 198 CLR 1 Mercer (1993) 67 A Crim R 91 MFA v The Queen (2002) 213 CLR 606 Nestorov v The Queen (2002) 137 A Crim R 310 Plato Films v Speidel [1961] AC 1090 R v Aziz [1996] AC 41 R v Berrada (1989) 91 Cr App Rep 131 R v Davies (1985) 3 NSWLR 276 R v Fa…
MFA v The Queen [2002] HCA 53
Citation 14 (Para 5)

…mulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones at 452; MFA v The Queen (2002) 213 CLR 606 at 614 [25].…
Chan v The Queen [2002] WASCA 50
Citation 15 (Para 12)

…In Chan v The Queen [2002] WASCA 50, however, the Court of Criminal Appeal applied Rowton . In that case, the trial judge declined to direct the jury with respect to the relevance of good character evidence to the credibility of the accused. Kennedy J (with whom Owen and Steytler JJ agreed) noted some criticisms o…
Tanner v The Queen [2001] WASCA 60
Citation 16 (Para 7)

…y into account when assessing the complainant's credibility'. See Hasluck J (with whom Murray J agreed) at [68] ‑ [70]. Also see Tanner v The Queen [2001] WASCA 60 at [31] ‑ [38].…
Zoneff v The Queen [2000] HCA 28
Citation 17

…n [2001] WASCA 60 Truong v The State of Western Australia [2006] WASCA 1 Wedd (2000) 115 A Crim R 205 Zheng (1995) 83 A Crim R 572 Zoneff v The Queen (2000) 200 CLR 234…
Cook v The Queen [2000] WASCA 78
Citation 18 (Para 8)

…In Cook v The Queen (2000) 22 WAR 67, Anderson J (with whom Pidgeon and Wallwork JJ agreed) held, at 93 [113], that a 'balancing' direction was not necessary, as 'in the context of the trial as a whole, it must have been crystal clear to the jury that they were permitted to use the evidence of delay in complaining as rele…
Melbourne v The Queen [1999] HCA 32
Citation 19 (Para 8)

…In Melbourne v The Queen (1999) 198 CLR 1, the majority judgments recorded the state of the law in relation to the rule in Rowton, having regard to Attwood, Ravindra , and legal commentators, without approving or disapproving the rule. See McHugh J at 15 [33]; Gummow J at 26 ‑ 28 [69] ‑ [72]; and Hayne J at 54-55 […
Vincent Raymond Jones v The Queen [1997] HCA 56
Citation 20 (Para 3)

…tutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. Also see Jones v The Queen (1997) 191 CLR 439 at 450.…
Jones v The Queen [1997] HCA 12
Citation 21 (Para 3)

…appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. Also see Jones v The Queen (1997) 191 CLR 439 at 450.…
Crofts v The Queen [1996] HCA 22
Citation 22 (Para 2)

…ing to the concert and, much later, accepting a lift to her boyfriend's house from the beach, required a further direction of the kind referred to in Crofts v The Queen (1996) 186 CLR 427.…
M v the Queen [1994] HCA 63
Citation 23 (Para 4)

…ppeal); 9 August 1996) at 20). The overriding duty of the trial judge remains to ensure that the accused secures a fair trial (cf M v The Queen (1994) 181 CLR 487 at 515, per Gaudron J). It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment,…
Edwards v The Queen [1993] HCA 63
Citation 24

…3] WASCA 214 Connell v The Queen (No 6) (1994) 12 WAR 133 Cook v The Queen (2000) 22 WAR 67 Crofts v The Queen (1996) 186 CLR 427 Edwards v The Queen (1993) 178 CLR 193 Gurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139 Hiemstra v The State of Western Australia [2006] WASCA 70 Jones v The Queen (1997) 191…
Longman v The Queen [1989] HCA 60
Citation 25 (Para 4)

…pose [of s 61] was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses ( Longman v The Queen (1989) 168 CLR 79 at 86 ‑ 87). It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of co…
Simic v The Queen [1980] HCA 25
Citation 26

…[1965] VR 745 R v Soloman [2006] QCA 244 R v Trimboli (1979) 21 SASR 577 R v Vye [1993] 1 WLR 471 RBK v The Queen [2004] WASCA 216 Simic v The Queen (1980) 144 CLR 319 Tanner v The Queen [2001] WASCA 60 Truong v The State of Western Australia [2006] WASCA 1 Wedd (2000) 115 A Crim R 205 Zheng (1995) 83 A Crim R 572 Z…
Kilby v The Queen [1973] HCA 30
Citation 27 (Para 3)

…dron, Gummow and Kirby JJ referred, at 448, to the statement of Barwick CJ (with whom McTiernan, Stephen and Mason JJ concurred) in Kilby v The Queen (1973) 129 CLR 460 at 472, in relation to the significance of a want of timely complaint, where his Honour said: In my opinion, quite apart from the fact that there may…
Attwood v The Queen [1960] HCA 15
Citation 28 (Para 2)

…In Attwood v The Queen (1960) 102 CLR 353, Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ said, at 359: The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduc…
Connell v The Queen [1995] HCATrans 54
Citation 29 (Para 13)

…In Connell v The Queen (No 6) (1994) 12 WAR 133, the Court of Criminal Appeal (Malcolm CJ, Pidgeon and Nicholson JJ) commented, at 246, that the rule in Rowton has 'subsequently been relaxed, but it has been a relaxation in favour of the defendant'. Their Honours did not, however, discuss any issues relating to the…
Pahuja v The Queen [1990] HCATrans 177
Citation 30 (Para 4)

…the circumstances, suggested that the judge should put such comments before the jury for their consideration ( Longman at 86, citing R v Pahuja (1987) 49 SASR 191 at 199, per King CJ; R v Miletic (unreported; Supreme Court of Victoria (Court of Appeal); 9 August 1996) at 20). The overriding duty of the trial judge re…

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