FB v The Queen

[2020] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

FB v R [2020] NSWCCA 137

Hearing dates:

10 February 2020

Date of orders:

24 June 2020

Decision date:

24 June 2020

Before:

Basten JA at [1];
R A Hulme J at [66];
N Adams J at [243]

Decision:

(1)   To the extent necessary, grant the applicant leave to appeal against his convictions.

(2)   Dismiss the appeal.

(3)   Order that the applicant be returned to custody to serve the balance of the sentence imposed on him in the District Court.

Catchwords:

CRIME – appeal - conviction – miscarriage of justice – prosecutor’s statements in closing address – whether prosecutor’s use of rebuttal evidence impermissible – whether prosecutor mischaracterised or undermined accused’s good character evidence – Evidence Act 1995 (NSW), Pt 3.8

CRIME – appeals – conviction – unreasonable verdict – offences committed by father against son and daughter – prosecution reliance on young child complainants and their mother – defence denials and evidence of good character – rebuttal evidence

EVIDENCE – character evidence – purpose and use of good character evidence – admissibility – rebuttal of good character – whether rebuttal evidence relevant to guilt or only to rebut good character – Evidence Act 1995 (NSW), Pt 3.8

Legislation Cited:

Crimes Act 1900 (NSW), ss 61, 61O, 61M, 412, 413

Crimes Act 1958 (Vic), s 47A, 399

Criminal Appeal Act 1912 (NSW), s 5

Criminal Procedure Act 1986 (NSW), ss 293A, 294; Sch 2, Pt 7

Evidence Act1995 (NSW), ss 9, 38, 55, 59, 76, 94, 95, 97, 98, 101A, 102, 109, 110, 136

Criminal Appeal Rules (NSW), r 4

Cases Cited:

ARS v R [2011] NSWCCA 266

Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15

Bishop v R (2013) 39 VR 642; [2013] VSCA 273

Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14

BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47

CA v R [2017] NSWCCA 324

Cabot (a pseudonym) v R [2018] NSWCCA 265

Clegg v R [2017] NSWCCA 125

D’Agostino v Regina [2019] NSWCCA 259

Donnini v The Queen (1972) 128 CLR 114; [1972] HCA 71

Eastman v The Queen (1997) 76 FCR 9; (1997) 158 ALR 107

GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Hamilton (a pseudonym) v R [2020] NSWCCA 80

Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50

Hogg v R [2019] NSWCCA 323

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

IW v R [2019] NSWCCA 311

James v The Queen (2014) 253 CLR 475; [2014] HCA 6

JV v R [2017] NSWCCA 49

KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11

L'Estrange v R [2011] NSWCCA 89

Li, Wing Cheong v R [2010] NSWCCA 40

Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32

Oliverio v R (1993) 70 A Crim R 5; (1993) 61 SASR 354

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

Pell v The Queen [2020] HCA 12

Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20

R v El-Kheir [2004] NSWCCA 461

R v Falealili [1996] 3 NZLR 664

R v Hamilton (Court of Criminal Appeal, 6 July 1993, unreported)

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

R v Murphy (1985) 4 NSWLR 42

R v Murray (1987) 11 NSWLR 12

R v MWL (2002) 137 A Crim R 282; [2002] VSCA 221

R v Oliverio (1993) 70 A Crim R 5; (1993) 61 SASR 354

R v Rowton (1865) Le & Ca 520; (1865) 169 ER 1479

R v Stalder [1981] 2 NSWLR 9

Re OGD (No 2) 50 NSWLR 433; [2000] NSWCCA 404

Simic v the Queen (1980) 144 CLR 319; [1980] HCA 25

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Vagg v R [2020] NSWCCA 134

Texts Cited:

Criminal Practice and Procedure NSW, (LexisNexis)

Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (2017)

The Law Reform Commission, Report No 26, Interim – Evidence (1985)

Category:

Principal judgment

Parties:

FB (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms G Bashir SC (Applicant)
Mr B Hatfield (Respondent)

Solicitors:
Blair Criminal Lawyers (Applicant)
NSW Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/248329

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

01 April 2019

Before:

Huggett DCJ

File Number(s):

2017/248329

Judgment

1. BASTEN JA: The applicant was put on trial in April 2018 on an indictment containing charges of assault and acts of indecency involving his daughter and son. There were three counts of assault involving the daughter and two of indecency. The applicant was convicted of counts 1 (assault on daughter), and count 3 (act of indecency in circumstances of aggravation involving his daughter). He was acquitted on one count of assault and one count of an act of indecency (counts 4 and 2 respectively). With respect to his son he was convicted of six counts of common assault and two counts involving acts of indecency.

2. Pursuant to a notice of appeal filed on 8 October 2019 he appealed, globally, from his convictions.

3. Ground 1 alleged that the trial miscarried on account of the use by the prosecutor in her closing address to the jury of evidence given in rebuttal of evidence led by him of his good character. For the reasons given by N Adams J, that ground should be rejected.

4. Ground 3 alleged that the convictions on each of the 11 counts was unreasonable. That ground should be rejected for the reasons given by R A Hulme J.

5. Ground 2 alleged that there was a miscarriage on account of the inadequacy of the directions as to:

“(a)   the prohibited use(s) of the evidence called in rebuttal of good character; and/or

(b)   the nature and extent of the evidence of good character called in the trial.”

6. For the reasons set out below, each limb of ground 2 should also be rejected. It follows that the applicant may be given leave to appeal to the extent necessary pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW), but his appeal should be dismissed. As he has been released on bail having served approximately 12 months of his aggregate sentence of 4 years and 6 months, orders will need to be made returning him to custody.

Character evidence

7. The evidence given at the trial has been described by R A Hulme J and N Adams J and need not be repeated. With respect to ground 2, the relevant evidence was (i) that which concerned the good character of the applicant (2(b)), and (ii) evidence of his misconduct or bad behaviour on occasions other than those the subject of the charges in the indictment, which could have reflected adversely on his character (2(a)). The submissions for the applicant described the latter as “rebuttal evidence”, but the circumstances of the trial require closer analysis of how it came to be admitted.

8. First, there was evidence of violence towards the children on occasions not the basis of any charge. That evidence was admitted without objection, as “tendency evidence”. In other words, it was sufficiently closely related to evidence of the assaults to be admissible to demonstrate a tendency to be violent towards his children, pursuant to s 97 of the Evidence Act1995 (NSW). That evidence had the capacity to rebut evidence of good character, but it was admitted for a purpose which permitted it to be taken into account by the jury in considering whether the charges had been proven.

9. Secondly, there was evidence of aggression towards the mother, the applicant’s then wife. That evidence did not demonstrate a tendency to be aggressive towards his children and was not admissible as tendency evidence. Nevertheless, there was no objection taken to the prosecutor leading the evidence. Indeed, counsel for the applicant indicated that if the prosecutor did not lead it, she would. That evidence had the capacity to diminish the effect of the good character evidence. However, the defence sought to use it for a different purpose, namely to establish that the charges were a fabrication, orchestrated by the mother. The parties had been involved in proceedings in the Family Court in which such evidence might have been presented. To the extent that it was not, the applicant relied on it before the jury to demonstrate that both it and the charged events were untrue. For that purpose, the greater the number and seriousness of the allegations against him by the mother, the greater the plausibility of the charge of concoction.

10. The basis on which the evidence was admitted is not determinative of the directions to be given to the jury about it use. At this point, it is sufficient to note that the judge ruled that the prosecutor could only rely upon the mother’s evidence of the applicant’s aggression towards her as available in rebuttal of his good character evidence.

Directing the jury as to character evidence – general law principles

11. As explained by Kirby J in Melbourne v The Queen,[1] long before an accused was allowed to give evidence a practice developed permitting evidence of his or her good character. By 1995 it was well-established that such evidence could be used for one or both of two purposes, namely (i) to demonstrate the “improbability of the accused having committed the instant offence”, and (ii) in “assessing the credibility of the accused”, both in respect of his or her evidence and in respect of statements made out of court which become part of the evidence. [2] With respect to an early statutory recognition of the right to call evidence of good character on the question of the accused’s guilt,[3] this Court held that it was erroneous to direct a jury that it might not be used in assessing the credibility of the accused. [4]

    1. (1999) 198 CLR 1, [1999] HCA 32 at [98] (Kirby J).

    2. Melbourne v The Queen at [16] (McHugh J).

    3. Crimes Act 1900 (NSW), s 412.

    4. R v Murphy (1985) 4 NSWLR 42 at 54F (Street CJ, Hope, Glass, Samuels and Priestley JJA).

12. Beyond that, it is not necessary to explore the history of the general law. It is sufficient to note that the law was not, as it were, even-handed in this regard. Although general good character could be relied upon by an accused to establish the improbability of him or her having committed the offence, the prosecutor could only rely upon evidence of propensity to commit such a crime in limited circumstances. That limitation meant that evidence of rebuttal of good character, which was also permitted under the general law, required the judge to direct the jury not to use the rebuttal evidence as directly relevant, by way of establishing propensity, to the guilt of the accused. [5]

    5. Attwood v The Queen (1960) 102 CLR 353; 359 (Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ); [1960] HCA 15.

13. Questions of admissibility are now dealt with under s 110 of the Evidence Act; the basis of the admissibility of evidence is an important factor in considering, and may determine, the nature of the directions to be given to the jury as to its use. Further, aspects of the Evidence Act and the Criminal Procedure Act 1986 (NSW) address and regulate the content of such directions.

Evidence Act 1995

14. In Papakosmas v The Queen,[6] the High Court was concerned with the effect of the Evidence Act on evidence of recent complaint in sexual assault cases. As the Court made clear, although s 9 preserved the operation of the common law except where the Act otherwise provided, the proper focus of attention must be the statute. Gleeson CJ and Hayne J stated:

“[10] It is clear from the language of the Act, and from its legislative history, that it was intended to make, and that it has made, substantial changes to the law of evidence in New South Wales. … Section 9 of the Act provides that it does not affect the operation of the common law except so far as the Act provides otherwise expressly or by necessary intendment. Even so, the sections of the Act relevant to this case undoubtedly make express provision different from the common law. It is the language of the statute which now determines the manner in which evidence of the kind presently in question is to be treated. The appellant argues that the meaning and effect of that language, properly understood, is to be determined in the light of, and in a manner that conforms to, the pre-existing common law. For reasons that will appear, that argument must be rejected. In order to explain it, however, it is necessary to refer to the position at common law.

…

[38] Counsel went so far as to argue that, as a general rule, a court which receives evidence of complaint in any criminal case should limit its use under s 136 so that it is not used for a hearsay purpose.

[39]   The submissions must be rejected. They amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded.”

6. (1999) 196 CLR 297; [1999] HCA 37.

15. Gaudron and Kirby JJ noted that the Act “specifies new rules of evidence in place of those developed by the common law.”[7] McHugh J noted a concession by the appellant that “a court should not approach the admissibility of evidence in a sexual assault trial by examining the preexisting common law and seeing whether the Act conformed to that law.”[8] He turned to the central issue in the following passage:

“[74] The appellant claims that the pre-existing common law establishes that using complaint evidence to prove lack of consent or sexual intercourse is ordinarily unfairly prejudicial to a person accused of sexual assault and was so in the present case. As the judgment of Gleeson CJ and Hayne J demonstrates, it is doubtful whether the common law cases establish the major premise of the appellant's argument. But, whether that be so or not, the scheme of the Act evinces a legislative purpose that evidence of recent complaint in sexual assault cases was henceforth to be admitted as evidence of sexual intercourse and as evidence of lack of consent to that intercourse. Once that is understood, few, if any, cases would require the trial judge to exercise the power conferred by s 136 of the Act and limit the use that the jury may make of the complaint evidence.”

7. Papakosmas at [46].

8. Papakosmas at [66].

16. The provisions of the Evidence Act relating to character evidence both encapsulated and varied pre-existing principles. It is now necessary therefore to focus on the statutory provisions.

17. Part 3.8 of the Evidence Act is headed “Character”; it applies to, and only to, criminal proceedings: s 109. Section 110 identifies two forms of good character of an accused person, namely that the accused may “generally” be a person of good character, or “in a particular respect”, a person of good character. It reads:

110   Evidence about character of accused persons

(1)   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.

(2)   If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.

(3)   If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.

Note. The Commonwealth Act includes an additional subsection relating to unsworn statements.

18. The structure of s 110 is important. Subsection (1) allows an accused to adduce evidence of his or her good character. It does so by removing potential constraints on the admissibility of such evidence. Disapplying the hearsay rule[9] (to allow a witness to report what others have said) and the opinion rule[10] (to allow evidence of reputation) are understandable. The tendency and credibility rules require further exposition. As to the credibility rule, one starts with the identification of relevant evidence in s 55:

55   Relevant evidence

(1)   The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)   In particular, evidence is not taken to be irrelevant only because it relates only to—

(a)   the credibility of a witness, or

(b)   the admissibility of other evidence, or

(c)   a failure to adduce evidence.

9. Evidence Act, s 59.

10. Evidence Act, s 76.

19. Credibility evidence is defined in s 101A:

101A   Credibility evidence

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that—

(a)   is relevant only because it affects the assessment of the credibility of the witness or person, or

(b)   is relevant—

(i)   because it affects the assessment of the credibility of the witness or person, and

(ii)   for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

Notes.

¹ Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.

² Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

Section 102 says that the “[c]redibility evidence about a witness is not admissible.” By disapplying s 102, s 110 suggests that the term “witness” may include the accused when giving evidence. Further, to the extent evidence of good character is directly relevant to the issue of guilt or innocence the credibility rule is not engaged.

20. More importantly for present purposes, s 110(1) disapplies the tendency rule, which directly engages with character evidence:

97   The tendency rule

(1)   Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a)   the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)   the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)   Subsection (1) (a) does not apply if—

(a)   the evidence is adduced in accordance with any directions made by the court under section 100, or

(b)   the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Note. The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

21. There may have been some doubt whether s 97 would have precluded an accused calling evidence of good character without satisfying the conditions in s 97(1)(a) and (b), but s 110(1) removes that issue. A similar disapplication operates with respect to rebuttal evidence, adduced under s 110(2) or (3). The question raised by disapplying the tendency rule is whether rebuttal evidence may be used for a tendency purpose. Section 97 provides that tendency is not admissible, subject to qualifications; the disapplication of that prohibition indicates that evidence adduced pursuant to s 110(2) or (3) may be used for a tendency purpose, although it would not comply with the qualifications to the exclusion under s 97. This construction was adopted by Payne JA in Clegg v R. [11]

    11. [2017] NSWCCA 125 at [69], [83], [92] (Schmidt and Fagan JJ agreeing).

22. That this was the statutory intention obtains some support from the Australian Law Reform Commission proposals which described the confinement of rebuttal evidence to disproving good character, as opposed to permitting relevant to guilt, as “incapable of enforcement”, noting that such a constraint “does not seem to have been adopted in the United States.” [12]

    12. The Law Reform Commission, Report No 26, Interim – Evidence, at par 803 and fn 63.

21. It is convenient at this point to note the terms of s 95 in Pt 3.6 of the Evidence Act:

95   Use of evidence for other purposes

(1)   Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

(2)   Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

Because s 110 disapplies the tendency rule, evidence admissible under s 110 is not inadmissible under Pt 3.6 (ss 94-101). Indeed, Pt 3.6 may not apply to an accused’s character at all if the accused puts it in issue by relying on good character. In particular, s 94 provides:

94   Application

(1)   This Part does not apply to evidence that relates only to the credibility of a witness.

…

(3)   This Part does not apply to evidence of—

(a)   the character, reputation or conduct of a person, or

(b)   a tendency that a person has or had,

if that character, reputation, conduct or tendency is a fact in issue.

24. The possibility that rebuttal evidence could now be used by the prosecutor to support the commission of the offence was noted by the Full Court of the Federal Court in Eastman v The Queen. [13] The Court (von Doussa, O’Loughlin and Cooper JJ) stated: [14]

“At common law, different opinions have been expressed as to the use which can be made of evidence of bad character adduced in response to an assertion of good character by an accused person…. The present case however is governed not by the common law but by the Evidence Act. … If evidence of good character is admitted under s 110(1) it may be used as evidence directly relevant to the issue of guilt, as is the position at common law. The corresponding provisions in s 110(2) and (3) are drawn in terms similar to s 110(1). It may therefore be arguable that, as a matter of consistency, if evidence adduced under s 110(1) is admissible on the issue of guilt, so too would evidence adduced under s 110(2) or (3) be admissible on the issue of guilt, and not merely to rebut the evidence of good character. … As we consider the submission under consideration can be decided on another ground, and as the interpretation of the provisions of s 110 was not argued before us we express no view on the interpretation of that section.”

13. (1997) 76 FCR 9.

14. Eastman at 57G-58C.

25. If it were accepted that s 110 has varied the common law with respect to the use of rebuttal evidence, it would be necessary for an accused to seek a direction under s 136 that rebuttal evidence be used only to challenge the evidence of good character, and not to form the basis for an inference that the accused is a person likely to have committed the offence charged. Whether such a direction would be given might well depend upon the closeness of the particular aspect of character in issue to the charges. If the statute permitted the general use of such evidence it might be rare for a limiting order to be made under s 136, for the reasons noted by McHugh J in Papakosmas. [15]

    15. See [14] above.

26. While the construction of s 110 advanced in Eastman has much to recommend it, it was not argued by either party in this case and must therefore be put to one side. That means that this judgment may be proceeding on a legally false basis. It is, however, necessary to assume, in favour of the applicant, that rebuttal evidence adduced under s 110 cannot be used to demonstrate a tendency to commit offences of the kind charged unless it qualifies as admissible tendency evidence under s 97 (or as coincidence evidence under s 98).

Directions to jury as to good character – ground 2(b)

(a)   principles

27. Before considering the approach to rebuttal evidence, it is appropriate to note the principles applicable with respect to character evidence generally. In Simic v the Queen, [16] the High Court held:

“There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. … No doubt, speaking generally, it is right to add … that if such a direction is asked for it would be wise to give it.

In the present case no direction as to the evidence of the applicant's good character was asked for. There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved. No miscarriage of justice was in our opinion occasioned by the omission to give a direction on this question.”

16. (1980) 144 CLR 319 at 333-334 (Gibbs, Stephen, Mason, Murphy and Wilson JJ); [1980] HCA 25.

28. In Melbourne, the High Court was invited to find that such directions should now be required and that the failure to direct the jury with respect to the appropriate use of good character evidence would generally constitute a miscarriage of justice. That invitation was rejected. The admissibility of good character evidence is anomalous and “must be regarded as an indulgence granted to the accused which continues to be maintained for historical reasons.” [17] There are difficulties in defining in advance what is good character, [18] and in defining precisely how the jury should take the evidence into account. [19]

    17. Melbourne at [47] (McHugh J).

    18. Melbourne at [52] (McHugh J).

    19. Melbourne at [50] (McHugh J) adopting the reasoning of Thomas J, in dissent in R v Falealili [1996] 3 NZLR 664 at 671-672.

29. These difficulties were elaborated upon by Gummow J in Melbourne, responding to a question as to what is meant by an assertion that an accused is a person of “previous good character”:[20]

“[62]   It is said in Wigmore: [21]

‘A defendant's character, then, 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 — ie, 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.’

[63]   Nevertheless, to those not versed in the ways of the common law, it may appear curious that legal consequences follow from the attachment to a designated individual, and without further analysis, of the description ‘good character’ or ‘bad character’. First, this appears to assume polarities with no space for occupation by those whose frailties place them somewhere towards the centre of a continuum. Secondly, it allows too little scope for the infinite variety of mental processes which lead to action or inaction, and assumes that people act across a range of circumstances in conformity with a measurable trait which can be the subject of testimony. Thirdly, in the development of the English language, and thus of the common law, the term ‘character’ has had various shades of meaning. The Oxford English Dictionary [22] gives eleven uses of the term in a figurative sense in addition to its primary and literal senses of a distinctive mark or symbol. In particular, in its figurative sense, ‘character’ may identify (i) a trait which serves as an index to the essential or intrinsic nature of an individual, (ii) the sum of such traits, or (iii) the estimate put upon an individual as a matter of repute.”

20. Melbourne at [61].

21. Evidence in Trials at Common Law, Tillers rev (1983), vol 1a, §55 (footnote omitted).

22. 2nd ed, (1989), vol 3 at p 31.

30. The other member of the majority in Melbourne, Hayne J, stated:

“[152]   The argument that an accused is of previous good character seeks to attribute a single qualitative description (‘good’) to an indivisible character. But people are not divisible into two classes: those who are good and those who are not. And the use that a jury may make of such evidence as is given about the previous character of an accused will vary greatly according to the circumstances of the case. It will vary according to what is said about the previous character of the accused and what relationship (if any) that has to the case that it is sought to make against the accused. The submissions of trial counsel acknowledged that in this case the evidence of the appellant's good character had little to say about his credibility; in my view it provided no assistance to the jury on any question of the appellant's credibility.”

31. Hayne J concluded:

“[157]   There is no reason to depart from the conclusion stated in Simic, namely, that there is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. Of course, if a direction is given, it must be accurate. Ordinarily, however, unless the evidence that is led about the character of the accused has an immediate and obvious connection with an issue in the case, it is better that the judge say nothing of how the jury may use such evidence in reasoning to its conclusions beyond any restatement of counsel's arguments that may be thought necessary or desirable.”

(b)   application of principles

32. Ground 2(b) alleged that there had been a miscarriage of justice because the trial judge did not adequately summarise the character evidence relied upon for the accused. If this ground had stood alone, it would have been appropriate to refuse leave to appeal with respect to it, for the following reasons.

33. First, the function of the trial judge in summing up to the jury is primarily to give directions as to the law, including such warnings as are necessary and appropriate with respect to particular aspects of the evidence. The extent to which the trial judge seeks to summarise the evidence and the addresses of counsel is very much a matter for the individual judge, in the circumstances of the trial. Some repetition will be necessary to ensure that the jury focus on the relevant issues and understand how particular evidence, obtained from a variety of witnesses, may relate to those issues. Closing addresses of counsel may not achieve the necessary balance and degree of objectivity.

34. Secondly, and consistently with the first matter, it was appropriate and necessary for the judge to give a direction as to how character evidence should be used. The judge addressed this topic methodically. She commenced with the following proposition: [23]

“You also heard evidence from a number of witnesses called by the accused, which I will come to in one moment. You also heard evidence in [the agreed facts] that the accused has never been convicted of a criminal offence and has never been charged with a criminal offence except for the alleged offences … the subject of this trial.”

23. Summing up, p 24.

35. The judge then summarised over two pages of the summing up, the evidence obtained from five witnesses called by the defence. The judge then explained the nature and purpose of that evidence in the following terms: [24]

“Evidence of this type is characterised by the law as evidence of good character. While the Crown accepts the evidence given by each of these witnesses, the Crown contends that in deciding what weight you would give to evidence pertaining to the accused’s character, you would also have regard to the evidence that [the mother] gave, if you accept this evidence about the way the accused behaved towards her in the privacy of the family home.

Now the law requires that you take evidence of good character into account in favour of the accused in two different ways.

Firstly, when you are considering the likelihood that he committed any offence alleged against him. On the basis of this evidence, you are entitled to reason that he is unlikely to have acted in any of the ways alleged by the Crown. Secondly, you can use evidence of good character to assist you when you are determining whether you believe what the accused said in his interview, and in his evidence of what weight you give to the account he offered in his interview and the evidence he gave. In other words, to support his credibility. On the basis of this evidence, you may reason that the accused is less likely to lie or give a false account in speaking to the police and/or in giving evidence before you.

While the evidence of the accused’s good character is evidence you must take into account when you are determining whether the Crown has discharged its onus of proof in relation to each count, understand that evidence of good character does not provide the accused with some sort of defence or shield nor does it mean that you must find him not guilty. What weight you give to evidence of good character in your consideration of the offences alleged against the accused, is completely a matter for you. The mere fact a person is of good character, cannot alter proven facts. It can only help you to determine whether or not those facts have been proven, and of course keep in mind that a person who was once of good character, can commit a criminal offence for the first time.”

24. Summing up, pp 26-27.

36. Thirdly, in circumstances where there is no obligation to given any particular direction with respect to character evidence, as established in Simic, and reaffirmed in Melbourne, there can be very little opportunity to allege a miscarriage of justice where a direction has been given.

37. Fourthly, the directions set out above dealt with the evidence without comment, and then addressed how it could be used, together with the limitations on its use. The allegation that the trial miscarried because the judge failed to give directions with respect to “the nature and extent of the evidence of good character called in the trial” is based on a false premise.

38. Ground 2(b) must be rejected.

Directions to jury as to use of rebuttal evidence – ground 2(a)

(a)   principles

39. Accepting that evidence in rebuttal of good character cannot be used to demonstrate a tendency of the accused to behave consistently with the conduct the subject of the charges, the issue is what the law presently requires the jury to be told.

40. The approach identified in Simic and Melbourne was confirmed in KRM v The Queen,[25] with respect to misconduct of the accused. KRM was not an Evidence Act case; rather, it dealt with an offender convicted of maintaining a sexual relationship with a child under the age of 16. [26] Three acts were required within a particular period to satisfy the definition of the offence. The reasoning as to the admissibility of tendency evidence under the general law is not directly relevant; it concerned multiple charges involving conduct with a single complainant. The essence of the proposed missing direction, was that it would be dangerous to reason that “because you find the accused engaged in sexual conduct the subject of count 18, he was the kind of person to have done so on the other occasions charged. Such a process of reasoning would be quite wrong.” [27]

    25. (2001) 206 CLR 221; [2001] HCA 11.

    26. Crimes Act 1958 (Vic), s 47A.

    27. KRM at [63(v)].

41. The Court held that where a “separate consideration” warning was given with respect to each count, no further warning was required. As explained by McHugh J:

“[36]   It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a "separate consideration warning"). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. …

[37]   Thus, although the evidence on one count may show a propensity to commit crime - even crime of the kind the subject of the other charges - the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain of reasoning.”

42. Kirby J in KRM dismissed the suggestion that a universal propensity warning was required, stating: [28]

“[114]   I am not convinced that this Court should now lay down a universal rule. In Melbourne v The Queen, the Court evidenced a general disinclination to add to the list of universally applicable directions and warnings. Its basic reason was explained by Hayne J. Directing a jury in a criminal case is never easy. It will be more difficult, without commensurate benefit, ‘if trial judges were bound to give more, and more complicated, directions than the particular case requires’. [29]

…

[116]   These circumstances, which will vary from case to case, illustrate the fact that, in some cases, the risks of propensity reasoning may be minimal. The trial judge and the representatives of the parties might even conclude that giving such a warning could, in particular circumstances, be disadvantageous to the accused. Accordingly, the suggested universal rule should be rejected. This conclusion has the added advantage of avoiding risks of immaterial mistakes in obligatory judicial directions and of adding to extraneous directions to juries where they are not needed. It also promotes a trend towards abbreviation of jury directions which I regard as generally desirable.

28. Footnotes omitted.

29. Melbourne v The Queen at [142], per Hayne J.

43. Hayne J broadly agreed with McHugh J, in particular accepting that there was “no absolute rule that the judge must always give a warning against ‘propensity’ reasoning when the presentment contains a count of maintaining a sexual relationship with a young person”. [30] Gummow and Callinan JJ noted that it would “not have been inappropriate” for the trial judge to have given the direction sought, but further stated that “[n]o universal rule should, or indeed, may be laid down in that regard.”[31]

    30. See also at [134].

    31. KRM at [72].

44. Although KRM is dealing with an unusual offence, it is commonly referred to in later cases. It is necessary to refer to one further passage in the judgment of McHugh J which, although following the passages set out above, and expressed in cautious language, has on occasion been read to identify a proposition for which it does not stand:

“[38]   In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment. If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts. … [I]n some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice or, more usually, because a separate trial is not sought. If that occurs, a propensity warning will almost certainly be required.” [32]

32. Emphasis added; citations omitted.

45. It is clear from the opening sentence involving “some cases” having “some feature” which “may” create a particular risk, followed by a proposition which only arises “[i]f that risk exists”, that the passage proposes no universal rule. Further, the example of a joint trial involving several charges, the evidence on which is not cross-admissible, is remote from the present case.

46. It is readily apparent that circumstances will differ greatly. The conduct revealed by the rebuttal evidence may be remote from the conduct the subject of the charges. For example, a jury told that the accused had been convicted of social security fraud is most unlikely to find a tendency to sexually assault children. On the other hand, evidence that the accused and a friend regularly watched pornographic film involving children might lead the jury to a different opinion. One would expect the law in this respect to require flexibility and careful attention to the particular case. Unsurprisingly, that is so.

47. The cases with respect to a tendency warning were recently addressed in Hamilton (a pseudonym) v R. [33] In that case, after reviewing earlier authorities, Beech-Jones J (Adamson J agreeing), stated:

“[113]   It follows that, notwithstanding the statements of McHugh J in KRM, there is neither a requirement or even a presumption that in all cases in which multiple counts of sexual assault involving different victims are tried together then, unless the evidence in respect of the counts is admissible as tendency evidence on the other counts, an anti‑tendency direction must be given such that a failure to do so will amount to a miscarriage of justice for the purposes of applying rule 4 or satisfying the third limb of s 6(1) of the Criminal Appeal Act. Instead, whether such a direction is required and whether a miscarriage of justice is occasioned by reason of the failure to give such a direction requires an assessment of the likelihood or risk of the jury having engaged in tendency reasoning (Toalepai; Jiang; Lyndon). Ultimately, whether a miscarriage of justice has occurred will depend on whether there was a ‘real chance’ (BRS at 306), ‘it was likely that’ (Lyndon at [65]) or there was a ‘significant risk’ (Toalepai at [49]) that ‘forbidden reasoning’ would be or was employed (BRS at 306). The assessment of that risk will be undertaken by reference to, inter alia, an analysis of how the respective cases were conducted and the effect of other directions given by the trial judge such as the separate consideration direction referred to in the above passage from Lyndon (at [66]) and by Hayne J in KRM (at [133]) (Lyndon; Toalepai). Further, in making an assessment of the risk that the jury might engage in tendency reasoning in the absence of an anti-tendency direction, the failure of counsel for the applicant at the trial to seek such a direction can affect an assessment of the likelihood that the jury would reason impermissibly in the absence of an anti‑tendency direction (Lyndon at [66]; Erohin at [68]; and see generally ARS v R [2011] NSWCCA 266 at [148]).”

33. [2020] NSWCCA 80.

48. With one qualification, that reasoning should be accepted. The qualification relates to the assumption that McHugh J in the passage in KRM at [38] (set out at [44] above) and in particular the “example” at the end of that passage, was setting down a general rule. If that were so, it would contradict the careful language with which [38] began. Otherwise the Court should apply the approach adopted by Beech-Jones J.

49. It follows that reference to cases where anti-tendency directions have or have not been given is useful only to the extent that assistance may be obtained in identifying the factors which should be considered. Beyond that, recitation of “authority” is not only unhelpful, but is a distraction from the central task of focusing on the circumstances of the case before the court.

(b)   application of principles

50. The evidence of misconduct of the accused, not the subject of the charges, was as follows:

1. evidence of the mother as to aggression towards the children;

2. evidence, elicited in cross-examination of the mother, that the accused had said he couldn’t wait until the children took their first “pill”, referring to illicit drug use;

3. evidence from the mother that the accused had tried to strangle her twice;

4. evidence of the children admitted as to the context in which the charged events took place, and

5. the mother’s evidence of an incident in the kitchen when he pushed her into the fridge and punched her.

51. In the absence of the jury, the trial judge discussed with counsel the basis on which she would permit evidence to be relied on by the prosecution in rebuttal of good character. The judge rejected the proposal by the prosecutor that context evidence given by the children and other evidence admissible as tendency evidence could be relied upon in rebuttal of good character. She did not accept that the prosecution could seek to use its case against the accused to rebut character evidence. [34] Having reached that view, the judge put to counsel for the accused: [35]

“HER HONOUR: Ms Moen, do you say [the mother’s] evidence about the accused's conduct towards her, generally stated, which I won't go into in front of the jury because it just reminds them of it, but generally she gave evidence about acts of hostility or physical violence, demeaning comments and that kind of thing, by the accused towards her, the Crown asks you to take that evidence into account when you are assessing whether he is a person of good character and what weight you give to that evidence if you accept it in meeting that claim to good character, is a matter for the jury.

MOEN: Yes your Honour, although I'd urge your Honour to leave out any reference to anything beyond physical violence, derogatory language; … She's certainly alleged violence and I focussed on that, so.

HER HONOUR: Yes, there is more physical violence I think, yes okay. Then going back to how other acts can't be used, that's what we're at, in my view, well you can't use other acts … that the children have referred to when they're considering whether the accused is a person of good character, but they could use what [the mother] has said when they are assessing the claim to good character and what weight they might give to the evidence pertaining to good character.”

34. Tcpt, 12/12/18, pp 497(3)-498(35).

35. Tcpt, p 499(28).

52. In the result, the evidence permitted to be relied on as rebuttal evidence was only that identified in (v) above, namely the mother’s evidence of aggression towards her, including being pushed into the fridge and punched.

53. There are five factors which are significant in the present case.

1. the probative value of the rebuttal evidence

54. The first, and most obvious, factor is the possible probative value of the evidence. That is, was there a logical connection between the rebuttal evidence and the charged conduct? The evidence permitted to go to the jury as rebuttal of good character (the aggression towards the mother) patently had no connection with the charges of acts of indecency with the children. Its connection with the assaults committed on the children was, at best, fragile. Taken by itself, there is a possibility that the jury could have reasoned that a man who was aggressive towards his wife might be aggressive towards his children. That reasoning would have depended upon the jury accepting the mother’s account of that event. However, this factor cannot, taken in isolation, determine the need for, and nature of, any proposed direction.

1. provenance of rebuttal evidence

55. The evidence of the mother with respect to the aggression directed to her was not elicited by the prosecutor following the character evidence, but rather as part of the prosecution case, at the behest of counsel for the accused. It was built upon in cross-examination of the mother. The purpose of reliance on this evidence by the defence was to form a basis for an allegation of fabrication of the conduct the subject of the charges. The wider the scope of the allegations made by the mother, the better for the defence in seeking to raise a doubt that the charges were malicious falsehoods orchestrated by the mother. No doubt the evidence of good character bolstered the concoction defence, but they stood or fell together.

1. scope and effect of directions

56. As noted above, the trial judge dealt with the character evidence called for the accused over some three and a half pages of the summing up. The judge also gave careful directions as to the manner in which the jury should address the separate counts. [36] That discussion led into the directions as to “tendency reasoning”. [37] Those directions were clear, detailed and dealt with the evidence relied upon. They included “the body of evidence given by [the mother] regarding aggressive and/or violent conduct by the accused that she alleged she witnessed him commit towards one or both of the children.” [38] The judge further said:

“Now before I give you some important directions regarding this method of reasoning called tendency reasoning, it is most important that I identify the evidence that the Crown argues, reveals or demonstrates these two separate tendencies, because it is only these bodies of evidence that you can have regard to when you are considering whether the Crown has proved that the accused did in fact have one or other or both of these asserted tendencies.” [39]

36. Summing up, pp 33-34.

37. Summing up, p 34.

38. Summing up, p 36.

39. Emphasis added.

57. Notably, there was no reference to the mother’s evidence of aggression towards her.

58. The judge further gave clear and careful directions as to “how you cannot use tendency reasoning.” [40] The judge also gave directions with respect to context evidence. Those directions were somewhat more broadly stated, no doubt because the judge was seeking to play down the significance of that evidence, rather than remind the jury of the detail. In the course of giving directions, she stated: [41]

“In addition to the evidence of each complainant relied upon to prove each count in the indictment, evidence is before you regarding other acts of alleged misconduct and/or mistreatment by the accused. I have referred to some of them a moment ago – something happening in relation to a lamp, something happening at the time the fridge was being moved and [the daughter] said – I think she got pushed or found herself on the floor. There is other evidence before you, which I will call evidence of other alleged acts by the accused. I do not propose identifying the nature and content of this body of evidence, beyond observing in a more general way that it relates to evidence before you that alleges the accused behaved violently and/or aggressively on other occasions, towards the children and it alleged that the accused indecently touched [the daughter] and [the son] on other occasions.”

The judge continued: [42]

“Having identified the possible ways evidence of other alleged acts might properly be used by you, it is most important you understand how you are not permitted to use such evidence. You cannot use evidence of other alleged acts or other alleged conduct in any of the following ways.

…

Of course, you must not adopt a chain of reasoning from other alleged conduct or activity said to be part of the context or background that say, the accused is a bad person, he acted improperly, or he assaulted a child on that occasion, therefore we will just punish him by finding him guilty of a count on the indictment. Evidence is led for the purpose of assisting you.”

40. Summing up, pp 39-41

41. Summing up, p 43.

42. Summing up, p 46.

59. It is, perhaps, possible that the jury may have thought that the general description of the background or contextual evidence included the claims by the mother of aggression towards herself. No complaint was made about how the jury were directed in that respect.

60. There was specific reference in the summing up to the mother’s evidence, as being evidence relied upon the prosecutor. The judge stated: [43]

“Ms Crown reminded you that in so far as [the mother] gave evidence about the accused being violent towards [her], that evidence is relevant when you are considering whether the accused is a person of good character and what weight you would give to the evidence of good character. The Crown submission being well, he acts differently in private than he does in public with colleagues or acquaintances.”

1. approach of defence

   43. Summing up, p 71.

61. The trial judge was alert to the need to address the mother’s evidence with care. The accused’s counsel accepted a muted approach which did not recount the mother’s evidence in detail, but characterised it as evidence of physical violence. [44] It followed that if the judge had directed the jury to the effect that they could not use the mother’s evidence of violence towards her as a basis for accepting that the accused was aggressive towards the children, that might have been interpreted by the jury as undermining the defence case that they could rely on that evidence to support the concoction defence. Whether to seek a further direction in the unusual circumstances presented by the defence case was quintessentially a forensic decision to be made by counsel at the trial.

1. absence of request for further direction

   44. See at [51] above.

62. While it is true that the trial judge did not expressly direct the jury that they could use the mother’s evidence of violence towards her only to rebut evidence of good character of the accused, and not to reason that the accused was the sort of person who might be violent towards his children, the defence sought no further ruling. In the context set out above, that omission was understandable; it was no part of the defence case that this was the only use the jury could make of that evidence. The defence sought to have it available as a basis for inviting the jury to disbelieve the whole of the evidence of the mother and the children. An additional warning would not only have been of little importance to the accused, it would have been apt to lead to confusion, and possibly to weaken the focus of the defence.

(c)   conclusions

63. Bearing in mind that there is no general obligation on the trial judge to give a warning with respect to how rebuttal evidence should not be used, regardless of the particular circumstances of the case, the factors set out above, in combination, lead to the conclusion that there was no miscarriage of justice. Taken in combination, and having regard to the careful, clear and extensive directions which were given, there is no real possibility that the omission of a general warning that the evidence of the mother regarding aggression towards her could not be taken into account as demonstrating a tendency towards violence towards his children, caused the jury to misuse that evidence. There was no real risk of the accused having lost an opportunity of acquittal on this account; there was therefore no miscarriage of justice.

64. Ground 2(a) must be rejected.

Orders

65. Each ground of appeal being rejected, the appeal must be dismissed. The Court should make the following orders:

1. To the extent necessary, grant the applicant leave to appeal against his convictions.

2. Dismiss the appeal.

3. Order that the applicant be returned to custody to serve the balance of the sentence imposed on him in the District Court.

66. R A HULME J: I have read the judgments of Basten JA and N Adams J in draft. I agree that Grounds 1 and 2 should be rejected for the reasons provided.

67. Ground 3 contends that the verdicts of guilty on each of Counts 1, 3, and 5 to 13 are unreasonable.

68. The offences were alleged to have occurred within the period 1 January 2015 and 31 October 2016. The victims were the applicant's daughter and his son. The Crown contended there was a long history of the applicant physically and sexually abusing the children. The charged offences were incidents that the children were able to particularise. The physical abuse occurred on occasions when the applicant lost his temper because of something done, or not done, by the children. The sexual abuse occurred when the applicant rubbed oil into the children, often after they had bathed.

Background

69. The applicant met the children's mother in the late 1990s. They commenced living together in 2002 at Bronte. Their daughter was born in early 2005 and their son was born in 2006.

70. The family moved into an apartment next door at the end of 2009 and then to a home in Randwick about a year later. In September 2013, they moved to Saratoga on the Central Coast. The applicant and the mother were still in a relationship but the applicant remained working in Sydney and he lived in an apartment at Paddington. He came up to Saratoga from time to time to stay with the family.

71. The applicant and the mother separated in around autumn 2014. The applicant continued living at Paddington while the family lived at Saratoga. He came to see the children at Saratoga, but he sometimes took them to Sydney.

72. The applicant moved from Paddington to a two-bedroom home in Bronte in March 2015. Both children slept in the applicant's bedroom at Bronte until around mid-2016 when a sofa bed in a back room was made available for the daughter.

73. A friend, David Walker, lived with the applicant at Bronte from that time until May 2016.

74. The applicant commenced a relationship with Lorna Hankin in October 2014. She stayed at his home on weekends on an increasingly frequent basis from March 2015. She moved in to live with him in September 2016.

75. The applicant and the mother agreed to financial and parenting orders made by the Family Court in August 2016 and they became divorced in September 2016.

76. The Family Court orders included that the mother would have the children three out of every four weekends and half of each school holidays. Those orders reflected the reality of what had been occurring since around the time of the separation. The mother said that it was from about the middle of 2015 that the applicant no longer had access to the children at Saratoga but they would travel to Sydney and see him there. The last weekend that the children visited the applicant in Sydney was 29-30 October 2016.

The charged offences

Count 1

Assault the daughter at Dubbo between 12 and 17 July 2016.

The Crown alleged that this assault of the daughter (and the son – see Count 5) occurred in a motel room at Dubbo during a trip to visit the zoo.

Count 2

Indecent assault upon the daughter, a person under 16, at Bronte between 1 January 2015 and 31 October 2016

This was alleged to have been the last of the occasions on which the applicant rubbed oil on the daughter and touched her bottom and breasts.

Count 3

Act of indecency towards the daughter, a person under 16 by a person in authority at Bronte between 1 January 2015 and 31 October 2016

This was alleged to have been the last of the occasions on which the applicant had masturbated his penis in the presence of his daughter.

Count 4

Assault the daughter occasioning actual bodily harm at Bronte on or about 30 October 2016

It was alleged that the applicant grabbed the daughter’s arm, causing bruising, and forcibly hugged and dragged her, following her spilling soil from a pot plant in the Bronte home.

Count 5

Assault the son at Dubbo between 12 and 17 July 2016

This was alleged to be the assault of the son at Dubbo (see Count 1 above).

Count 6

Indecent assault upon the son, a person under 16, at Bronte between 1 January 2015 and 31 July 2016

It was alleged that on an occasion when David Walker was using the bathroom to have a shower, the applicant fondled the son’s penis in the bedroom.

The applicant also masturbated his penis in the presence of his son.

The applicant then put the son’s hand on the applicant's penis, forcing him to masturbate it.

Count 7

Act of indecency towards the son, a person under 16 by a person in authority at Bronte between 1 January 2015 and 31 July 2016

Count 8

Indecent assault upon the son, a person under 16, at Bronte between 1 January 2015 and 31 July 2016

Count 9

Indecent assault upon the son, a person under 16, at Bronte between 1 January 2015 and 31 July 2016

It was alleged that on an occasion when Lorna Hankin was using the bathroom to have a shower, the applicant fondled the son’s penis in the bedroom.

Count 10

Assault the son at Sydney

It was alleged that on an occasion when the applicant, Ms Hankin, and the two children were having dinner at a restaurant, the applicant grabbed his son’s arm, digging his nails in and causing redness as he took him outside and remonstrated with him for not eating his food.

Count 11

Indecent assault upon the son, a person under 16, at Bronte on or about 30 October 2016

On the last weekend that the children stayed at the applicant's home, in the bathroom, the applicant put oil on his son’s penis and fondled it.

The applicant also masturbated his penis in the presence of his son.

The applicant then put his son’s hand on the applicant's penis, forcing him to masturbate it.

Count 12

Act of indecency towards the son, a person under 16, by a person in authority, at Bronte on or about 30 October 2016

Count 13

Indecent assault upon the son, a person under 16, at Bronte on or about 30 October 2016

Overview of the Crown case

77. The trial commenced on 27 November 2018 and concluded with the jury's verdicts being delivered on 20 December 2018. The principal witnesses relied upon by the Crown were the two complainants and their mother.

78. The children were interviewed by a police officer working with the Joint Investigation Response Taskforce (JIRT) and the interview recordings were played to the jury as the children's evidence in chief. The daughter was interviewed on 3 August 2017, 15 November 2017 and 10 January 2018. The son was interviewed on 3 August 2017 and 10 January 2018.

79. The children were cross-examined in advance of the trial at a hearing before Girdham SC DCJ over four days in July 2018. The recording of their evidence was played to the jury following the playing of the JIRT interview recordings.

80. The Crown called four other witnesses:

Dr Meers was a general practitioner who treated the son at his local medical practice on a number of occasions.

David Walker, a friend of the applicant, and Lorna Hankin, the applicant's partner, gave evidence about events that occurred when they lived in the applicant's home at relevant times.

Senior Constable Tunningley was an officer who received a complaint on 5 November 2016 when the mother and her children attended the Gosford police station.

81. The police officer in charge of the investigation, Detective Senior Constable Amanda Etheridge, was unavailable to give evidence but her statement was read by consent.

82. The Crown relied upon the complaints made by the children to their mother as evidence that enhanced their credibility as to what was complained about.

83. The Crown relied upon tendency reasoning. It contended that the applicant had a sexual or indecent interest in his two children which he acted upon by touching and/or rubbing parts of their bodies, breasts and bottom in the case of his daughter and penis in the case of his son and that he did that under the guise of needing to rub oil onto those parts of their bodies for a therapeutic purpose. Further, that he acted upon that sexual or indecent interest by masturbating his own penis in the presence of one or both of his children. The Crown relied upon this reasoning in relation to the counts in the indictment alleging an act of a sexualised type (Counts 2-3, 6-9 and 11-13). To establish this tendency the Crown relied upon the evidence of the children.

84. The Crown also contended that the applicant had a tendency to behave aggressively and/or violently towards one or both of his children on some occasions when he was with them on his own. This was relied upon in relation to Counts 1, 4-5 and 10. To establish this tendency, the Crown relied upon the evidence of the children. It also relied upon the evidence of the mother insofar as her evidence related to aggressive and/or violent conduct by the applicant towards the children; that is, not the evidence of such conduct by the applicant towards herself.

85. The Crown relied upon the evidence of the complainants as to uncharged (other) acts of alleged misconduct and/or mistreatment by the applicant as establishing a context or background in which the charged acts occurred. The Crown contended that this body of evidence was relevant in a number of ways. It enabled the jury to understand a complainant's reaction to specific charged acts; there was no surprise or protest because they had become habituated to such conduct. It enabled the jury to understand why there was no timely and/or thorough complaint; a complainant had come to expect that kind of conduct because it was routine. It made the complainants more believable than would be the case if the jury only heard of conduct on isolated occasions. It explained why the complainants may have found it difficult to isolate specific occasions and describe them in detail because such conduct occurred a lot in similar circumstances.

86. In relation to the evidence of the mother concerning physical violence by the applicant towards herself, the Crown relied upon this in rebuttal of the applicant's good character evidence.

Overview of the defence case

87. The applicant contested the veracity, credibility and reliability of the evidence of the complainants and their mother. It was contended that there were discrepancies and inconsistencies and there was evidence that contradicted the allegations and the complaint evidence. The applicant asserted that the acts complained of did not occur and the Crown could not prove beyond reasonable doubt that they did.

88. A principal thrust of the defence case was that the evidence of the complainants and their mother was comprised of "fabrication, fantasy, concoction, coaching and bears no truth". The allegations were raised against a background of Family Court disputes including as to the custody of the children, and defamation proceedings brought by the applicant against the mother.

89. There was also a positive defence case in which the applicant gave evidence and called a number of witnesses:

Edwin Fenton, Neal Da Costa, Jonathan Rubinsztein and Nicki Leap gave evidence as to the applicant's good character.

Jocelyn Brewer gave good character evidence as well as evidence relevant to a particular incident that was alleged to have occurred whilst she was living with the applicant, the children and the mother in 2007-2008.

90. The applicant also relied upon the evidence given in the Crown case by David Walker, Lorna Hankin and Senior Constable Tunningley as well as the police interview of the applicant.

Principles

91. The applicable principles in relation to this Ground were conveniently summarised by Leeming JA in Cabot (a pseudonym) v R [2018] NSWCCA 265 at [54]-[55], [57]-[58]:

"The importance of the jury in determining guilt has been consistently emphasised and recently confirmed in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 53. The High Court said at [65]:

'It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. ... Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] 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".' (Footnotes omitted)

It is uncontroversial that an appellate court in determining whether a verdict is unreasonable must first give due weight to the advantage of the jury before independently assessing the sufficiency and quality of the evidence: M v The Queen (1994) 181 CLR 487 at 493, 494–5; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]. That said, the court must carry out its own independent assessment of the evidence, as the High Court said in M v The Queen at 492.

…

It has been said that an appellate court will not readily set aside a guilty verdict on account of inconsistent verdicts: R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [65], [73] and [99] (Spigelman CJ, with whom Carruthers AJ agreed), [217]–[219] and [224] (Wood CJ at CL); R v NEK [2001] NSWCCA 392 at [24]; R v Bonat [2004] NSWCCA 240 at [106]; McCann v R [2014] NSWCCA 79 at [19], and that it should not immediately be assumed that a difference in verdicts [inevitably] demonstrates a want of credibility in the complainant’s evidence: Allan v R [2017] NSWCCA 6 at [84].

An appellate court faced with inconsistent verdicts must attempt to reconcile the verdicts, allowing it to conclude that the jury had adequately performed its functions: Mackenzie at 367. In this exercise, “the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals”: R v TK (2009) 74 NSWLR 299 at [128] per Simpson J (McClellan CJ at CL and Latham J agreeing). If a rational explanation for the acquittals can be found, without casting doubt over the complainant’s credibility, then the verdicts are not unreasonable: R v TK at [128], [130].”

92. Added to that summary should also be reference to some principles set out in the applicant's written submissions:

“The test of whether a not guilty verdict is inconsistent with one or more guilty verdicts is a question of whether the verdicts are reconcilable and is one of ‘logic and reasonableness’: Jones v The Queen (1997) 191 CLR 439; MacKenzie v The Queen (1996) 190 CLR 348 at 368; Jafary v R [2018] NSWCCA 243 at [30]. An assumption that acquittals on some counts and conviction on others necessarily denotes rejection of the complainant’s credibility or reliability was rejected in MFA v The Queen (2002) 213 CLR 606 (MFA) at 617. Differing verdicts may provide a basis for confidence that the jury has considered each count separately and reached a verdict on that count on the evidence relevant to that count: AH v R [2019] NSWCCA 152 at [62].”

93. In IW v R [2019] NSWCCA 311 at [268], Bellew J observed that the question is not whether a complainant's evidence, taken in isolation, might be viewed as cogent; an assessment is required of the entirety of the evidence.

Submissions

94. The applicant submitted that for each of Counts 1, 3, and 5 to 13 it was not open for the jury to be satisfied of guilt beyond reasonable doubt. That was said to be because the Crown did not eliminate the reasonable possibility that each complainant was making up their evidence, or gave evidence that was not a genuine memory, or simply that the acts alleged in relation to each count did not happen.

Witnesses said to be present do not give evidence of the act or occurrence or surrounding circumstances

95. The evidence the Crown relied upon in respect of Counts 1, 3, 5 and 10 included that both complainants were present when the charged act occurred. However, only one of them gave evidence about it and the absence of corroboration by the other complainant was submitted to be significant.

96. Counts 1 and 5 involved allegations that the applicant assaulted his daughter and his son respectively. His daughter gave evidence of these assaults having occurred in the context of the children having spilt rice at dinnertime in the Dubbo motel room in which they were staying. His son gave no evidence about such an event. He recalled assaults by the applicant on a morning in the context of the applicant being concerned about his daughter wanting to wear shorts. Accordingly, the Crown was reliant upon the evidence of the daughter alone in respect of each of these counts. (More detail about the evidence concerning these counts appears later (at [178]-[180]).)

97. Count 3 was concerned with the last of numerous occasions when the applicant committed an act of indecency by masturbating his penis in the presence of his daughter. She said, in her third and final JIRT interview on 10 January 2018, that the applicant came out of the shower wearing a towel, took it off and started playing with himself. He was standing “near the door” so that the children could not leave. She said that she was “pretty sure” that her brother was present when this occurred: "I think he was on the bed, or somewhere like that."

98. The son’s evidence did not include that his sister was present on the occasions he said the applicant behaved indecently. He said that this behaviour usually occurred in the bathroom but it occurred on two occasions in the bedroom and that was because an adult was using the bathroom (David Walker or Lorna Hankin). His evidence was that it was just the applicant and himself present on those occasions.

99. Count 10 involved an alleged assault at a restaurant during a meal in which his sister and Lorna Hankin were present. At this dinner, the children were told that the applicant and Ms Hankin were in a relationship. The son said, in his first JIRT interview on 3 August 2017, that he did not eat all of his meal because he was not hungry, so the applicant took him outside for a “dad talk”. The applicant wanted everything to be “perfect”, and told his son he was ruining dinner. The son reported that the applicant, yelling and swearing, grabbed him by the arm and dug his nails into his skin, leaving marks that lasted for “about probably like three to four days”. The son’s evidence in cross-examination was consistent with the JIRT interview.

100. The applicant agreed that his son ate slowly, and agreed with the concept of “daddy talks”. He said he might grab the children and raise his voice to get their attention, but denied ever leaving marks or bruising. In his ERISP, he had no recollection of this incident. In cross-examination, he recalled the dinner but denied having a “dad talk”.

101. There was no evidence of the daughter concerning this incident at all and Lorna Hankin's evidence accorded with that of the applicant and was directly contradictory. The son’s evidence stood alone in supporting the Crown's allegation.

102. The applicant submitted that the Court would find that the verdicts of guilty in respect of these counts are unreasonable because there was no confirmatory evidence such as would be expected, given there were said to be witnesses to the events.

Consideration

103. The absence of supporting evidence from witnesses said to be present by a complainant does not necessarily give rise to a reasonable doubt. The evidence was to the effect that the applicant conducted himself in a manner as described in respect of Counts 1, 3, 5 and 10 on a multitude of occasions. In addition, the events about which the complainants gave evidence occurred nine months or more before they were first interviewed about them. At that time, the daughter was aged 12 and the son was aged 11.

104. The trial judge directed the jury that context evidence was relevant in a number of ways including that it may explain "why a complainant may have found it difficult to isolate specific occasions and describe the detail of specific occasions". In other words: "If it happened a lot in similar circumstances, it might be difficult for a complainant to isolate and describe specific particular occasions".

105. The fact that the children had been habituated to the applicant's mistreatment of them (on the Crown case) provides a ready and credible explanation for the fact that one child may have recalled something that occurred when they were both present while the other child did not. Moreover, insofar as the defence case contended that the allegations had been concocted, the differences in the events recalled by the complainants were an indication to the contrary.

106. In relation to Count 10, the assault upon the son at the restaurant, Ms Hankin was unequivocal in her evidence in chief that no one left the table during the meal. When cross-examined by the Crown Prosecutor, she was asked if it was possible that the son did leave the table with the applicant. She claimed to have a "vivid memory" of the occasion and did not have any recollection of the son leaving the table. However, she also agreed that he could be difficult about finishing his food at meals and she remembered he was taking a long time to eat his food on this occasion. In this respect, her evidence supported that of the son. When asked again whether it was possible that the applicant did take his son from the table to speak to him about that, she replied, "of course it's possible, but I have no recollection of it".

107. The applicant in his police interview denied that this event occurred. He accepted that there might have been occasions when he would take a child outside a restaurant but claimed that would have been when they were "really playing up" and it would not have been just to get them to eat their food.

108. Where the evidence of Ms Hankin and the appellant contradicts the son’s account, that evidence was disputed. This was not a case where the inconsistent evidence was left to the jury unchallenged: Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [119], [127]. The evidence was not of a quality that required the jury to accept it, and therefore it did not require the jury to hold a reasonable doubt. In relation to Ms Hankin, the jury could well have taken the view that she was overstating her confidence in claiming to have a "vivid memory" of the occasion.

The evidence supporting the asserted tendency to behave aggressively or violently

109. One of the two tendencies the Crown sought to establish was that the applicant tended "to behave aggressively and/or violently towards one or both of his children on some occasions when he was with them on his own" (the aggressive or violent tendency). The applicant submitted that the evidence of this tendency was of limited or no weight in relation to his daughter (Count 1) and of no weight in relation to his son (Counts 5 and 10).

110. The applicant's written submissions included a detailed analysis of instances where the complainants and their mother gave evidence of acts of violence of the applicant that occurred in the presence of someone else but the other person did not give evidence about it. For example, the daughter and the mother gave evidence of violence towards the daughter but the son did not give any evidence of having witnessed the same. One example of that was the daughter’s account of what occurred at Dubbo (Counts 1 and 5).

111. Another example was an occasion when Lorna Hankin was said to have been present when, according to the daughter, the applicant angrily shook his son by the shoulders. The son gave evidence of the occasion but did not give evidence of the applicant being violent. Lorna Hankin's evidence involved a denial that the applicant had been violent.

112. David Walker and Lorna Hankin gave evidence that during the times they lived in the applicant's home they did not see any marks or bruises on the children. The mother said that she did not see any marks or bruises in the period between the separation and 30 October 2016. That meant that all of the adults who had lived with the children gave positive evidence that they never saw bruising or marks. The character witnesses did not see anything of that nature either.

113. For these reasons, it was submitted that the evidence of the aggressive or violent tendency was extremely weak. The evidence was unreliable and was unsubstantiated or contradicted by others who were said to have been present when violent acts occurred.

Consideration

114. The answer to these submissions is much the same as for the previous issue. Many of the asserted inconsistencies and the lack of corroboration are unsurprising given that the violent conduct described by the complainants was of frequent occurrence. Importantly, however, there was consistency in the theme that they each described: a sudden angry outburst accompanied by physical violence of the same type involving grabbing, pushing and/or slapping.

115. The failure of a complainant to have mentioned something in their police interviews is not something that raised questions about veracity or reliability. Expecting children of their age to have remembered every single instance of violent conduct by the applicant that occurred over a considerable period is quite unrealistic. It would also have been inappropriate for the interviewing officer to prolong the interviews beyond a reasonable period. The longest of the daughter’s three interviews was 57 minutes (the first) and the others were 32 minutes and 22 minutes. The son’s two interviews went for 92 and 26 minutes respectively.

116. One of the applicant's criticisms is that matters were recalled by the mother but not mentioned by the complainants. However, it was generally the case that where the children did not volunteer information on a subject they were not prompted to do so, either in the JIRT interviews or in cross-examination.

373. A number of criticisms were levelled at the Crown Prosecutor at trial for “undermining” the applicant’s “good character”. There is nothing impermissible about challenging the basis for a witness’s good character evidence. As for the complaint that the Crown Prosecutor had cross-examined the character witnesses about not having seen the applicant give evidence, no complaint was made about this by defence counsel. In fact, defence counsel accepted that it was an appropriate form of cross-examination; she simply sought a direction explaining why the witnesses had not been present in court. As soon as this request was made, her Honour complied and gave the direction I have extracted above at [283]. I am satisfied that that direction cured any perceived unfairness on this discrete issue.

374. As for the questions themselves, there is nothing improper in suggesting to a character witness that an accused person might have acted in a certain way when the character witness was not present. Nor is it improper to point out to the jury in a closing address that those witnesses did not see the accused give his evidence. It is to be inferred from the transcript and the closing address of defence counsel that, consistent with the evidence of the son, the daughter and the mother, and contrary to the evidence of the character witnesses, the applicant was quick to anger in his cross-examination. It was permissible for the Crown Prosecutor to point this out.

375. Similarly, when the Crown Prosecutor suggested to the jury that the character witnesses were not in a position to provide the jury with a complete understanding of his character, this went no further than challenging the picture of the applicant painted by those character witnesses when compared with the evidence of the mother. In circumstances where the Crown Prosecutor challenged the character witnesses in cross-examination on this issue, it was open to her to address the jury in a similar fashion.

376. Nor do I accept the applicant’s submission that the Crown sought to undermine the good character direction in the same manner as occurred in R v Bishop. The trial judge had limited the character evidence in that matter to evidence of reputation. It was in that context that the jury in R v Bishop was directed that the accused’s “reputation” for dealing appropriately with children could only have come from observations of him dealing publicly with children. What the Crown Prosecutor suggested to the jury in the present matter was that the character witnesses had only had limited opportunity to observe the applicant with his children and that he may have been on his best behaviour when in public, as opposed to when he was in private. In any event, in R v Bishop the character evidence was accepted whereas in the applicant’s trial it was disputed.

377. The remaining complaints about the Crown closing address were that the Crown Prosecutor went beyond what the trial judge permitted her to say regarding the mother’s evidence, drew upon the daughter’s and the son’s evidence to rebut good character, used tendency and context evidence to rebut good character and drew upon the mother's evidence as tendency evidence. These four complaints all arise from the final part of the closing address when it was suggested to the jury that the applicant had “two faces”. I have extracted this portion of the closing above at [299].

378. The “two faces” the Crown Prosecutor referred to were, on the one hand, the face the applicant presented to the world (the good character evidence) and on the other hand, the one he showed at home to “the son, the daughter and the mother”. With the benefit of hindsight, it can be seen that by referring to the evidence of all three of these witnesses collectively in that one sentence four separate bodies of evidence were conflated and there was a possibility that this one sentence of the closing address could be construed as meaning that all of that evidence could rebut the evidence of good character. Those four areas were the evidence of the charged offences (the evidence of the daughter and the son), the tendency evidence (the evidence of the daughter and the son and the mother’s evidence of the tendency to violence to the children), the context evidence (the evidence of the daughter and the son) and the mother’s evidence rebutting character. The Crown Prosecutor immediately went on to refer to the evidence of the daughter and the son in support of the charges.

379. In this court, the Crown submitted that the “two faces" analogy was simply a way of emphasising that the case turned on the truthfulness of the complainants’ evidence at the end of the closing address. The Crown had earlier suggested that when they came to consider character they should consider the evidence of the mother that he was someone that over the course of their marriage was physically violent towards her. That is, the evidence to rebut character was confined to the mother’s evidence of him having been violent to her during the marriage.

380. The fact that the Crown had previously limited the evidence to rebut good character to the mother’s evidence of violence to her suggests that she did not intend to suggest that the evidence of the son and the daughter could also be relied upon to rebut the good character evidence. If it had been apparent at the time that she was doing so, no doubt objection would have been taken by defence counsel and/or or the trial judge would have corrected it, having already ruled that such rebuttal evidence was confined to the mother’s evidence of violence to her.

381. Not only was there no complaint made about this aspect of the Crown closing at trial, as the extract from the defence closing address at [301] above records, defence counsel responded to it directly. As the High Court held in TKWJ v The Queen, an appellate court will not ordinarily conclude that an accused’s trial has been unfair when defence counsel makes a rational tactical decision to avoid a forensic risk. It is possible that no objection was made to this aspect of the closing because it was not considered at the time as being objectionable or, even if it was, a decision was made that correcting it might lead to a re-direction which drew more attention to the mother’s “bad” character evidence. Defence counsel had already agreed with the trial judge that it was preferable that the details of the mother’s evidence in that regard not be highlighted.

382. I would not uphold Ground 1.

Ground 2:   The trial miscarried on account of the lack of necessary and/or adequate directions as to: (a) the prohibited use(s) of the evidence called in rebuttal of good character; and/or (b) the nature and extent of the evidence of good character called in the trial

385. I shall consider Ground 2(b) first. It was contended under this sub ground that the jury directions on the nature and extent of the good character evidence were inadequate. As the High Court held in Melbourne v The Queen, there is no requirement to give a good character direction in every trial when requested to do so, let alone to do so in particular terms. Despite this, her Honour gave a “standard” character direction explaining the two ways in which the jury could have regard to the applicant’s good character.

386. Complaint was also made under Ground 2(b) that when her Honour summarised the character evidence she did not expressly refer to the good character evidence given by the Crown witnesses, Mr Walker and Ms Hankin. Nor, it was contended, did her Honour point out to the jury that Mr Walker and Ms Hankin, as well as Nicki Leap, had had the opportunity to observe the applicant in his home environment with the children, as each of them had resided with him.

387. The trial judge summarised the evidence of the applicant and then summarised the evidence of all of the defence witnesses: Edwin Fenton, Neal Peres Da Costa, Jonathan Rubinsztein, Nicki Leap and Jocelyn Brewer. It was after summarising this evidence that her Honour gave the character direction. There is no requirement for a trial judge to refer to or summarise the evidence of every witness in a summing up. The trial was not a particularly long one and the jury had the benefit of the closing addresses. It could not be the case that the jury was unaware of the fact that these witnesses had resided with the applicant at various times. No request was made by defence counsel at trial for her Honour to include the evidence of Mr Walker and Mr Hankin in the summary of the character witnesses. Nor was any request made for any further summary or explanation of the character evidence at all.

388. I am not satisfied that the trial miscarried because her Honour did not include the evidence of these two Crown witnesses in the summary of the good character evidence nor because of any lack of elaboration of the “nature and extent” of this character evidence.

389. As for Ground 2(a), a number of separate complaints were made concerning the character direction given by the trial judge. These complaints were directed at the lack of any anti-tendency direction, the failure to specify which parts of the mother’s evidence could be used as rebuttal evidence, the direction that the Crown did not challenge the character witnesses and the fact that the trial judge repeated portions of the Crown's closing address in respect of the applicant behaving differently in public and in private.

390. This last complaint can be dealt with briefly. I have already held under Ground 1 that there was no error disclosed in the manner in which the Crown addressed the jury on the issue of the applicant’s character. It follows that I am also satisfied that there was no error in the trial judge repeating that portion of the Crown closing in her Honour’s summing up.

391. As for the complaint that the trial judge failed to specify which particular parts of the mother’s evidence could be used as rebuttal evidence, defence counsel had requested that her Honour take this approach (see above at [294]-[295]). It is not surprising that defence counsel was content for her Honour not to dwell in her summing up on the details of the “bad” character adduced in cross-examination.

392. The nub of Ground 2(a) is the complaint that the trial miscarried because, instead of directing the jury that the good character evidence was in dispute (which, it was contended, would have required, inter alia, an anti-tendency direction such as was suggested in BRS v The Queen), her Honour directed the jury that the character evidence was not in dispute.

393. The applicant’s “good character” was a live issue at trial. The mother’s evidence of the applicant’s violence to her was only relevant and admissible to rebut good character evidence. It was not admissible on any other basis. The first question put to a number of the character witnesses in cross-examination sought to challenge their evidence by suggesting that the witnesses had not seen the applicant when he was angry and aggressive (as he was in Court). As the extracts of the Crown closing address above indicate, the Crown clearly invited the jury to consider whether the accused was of good character. Nowhere in the Crown closing address was there any suggestion that the Crown accepted that the applicant was a person of good character.

394. The Crown had only led evidence (by consent) of one discrete incident of violence by the applicant to the mother (the fridge incident), although the mother’s answers regarding the Family Court document suggested it was not an isolated event. Most of the evidence of the applicant’s “bad” character was adduced by defence counsel in cross-examination for a forensic purpose other than suggesting he was of bad character. The defence case was that the mother was lying and her allegations were fabricated. She was cross-examined about these false claims of domestic violence in an attempt to attack her credibility. Thus, there would only be this “bad” character evidence before the jury (that the mother had been the victim of domestic violence at the hands of the applicant) if the jury rejected the defence case that the mother was a fabricator. As extracts of the transcript show, defence counsel accepted that this was a potential prejudice that the applicant was prepared to accept as part of its case.

395. It is to be inferred that the applicant anticipated that the mother’s credibility would be adversely affected when she was confronted with the prior inconsistent statements in the Family Court document. As events unfolded, the mother was able to give a cogent explanation for filling out the Family Court document in the manner she did. Furthermore, the attack on the mother’s credibility in cross-examination resulted in the following additional evidence being before the jury.

396. First, defence counsel introduced the evidence about the applicant looking forward to taking “pills” with his children. The Crown did not propose to lead that evidence. It would not have been admissible in the Crown case. It was adduced so that the jury could see the applicant’s demeanour when the allegation was put to him in his ERISP. It was conduct denied by the applicant.

397. Secondly, defence counsel introduced the evidence from the mother in cross-examination that the applicant had commenced defamation proceedings against her after she had posted an article on Facebook alleging that she had been the victim of domestic violence at the hands of her former husband. This material was not otherwise admissible. The mother explained that she had published the article on White Ribbon day, had not named the applicant by name, and that it was all completely true. This was cogent evidence that the applicant’s alleged violence towards the mother was not isolated.

398. Thirdly, when it was put to the mother in cross-examination that the applicant had not assaulted her during the fridge incident, she responded that he had also inflicted additional violence on her when he attempted to strangle her, twice, once whilst pregnant.

399. As a result of this additional “bad” character evidence adduced in cross-examination being before the jury, the trial judge was left to determine how to direct the jury in a manner least likely to prejudice the applicant’s trial. Her Honour did not permit the evidence of the pills to be used to rebut good character. Rather, her Honour limited the evidence to rebut good character to violence only and, at the request of defence counsel, did not go through and repeat the incidents of violence that had emerged in the evidence, confining the direction to one of generality to avoid highlighting the prejudicial nature of the material.

400. When her Honour summed up the trial for the jury, she was required to provide a number of directions as to how certain evidence could be used in deliberations. Her Honour directed the jury that they could only use certain evidence as tendency evidence and only if preconditions were met. She instructed the jury that they could only use certain evidence as context evidence, for that specified purpose and not for other purposes. An anti-tendency direction was given in relation to the context evidence. The jury was told to consider each count separately. Despite all of these careful directions, in relation to which no complaint is made, it was contended that the absence of a specific direction as to how the mother’s evidence of violence to her by the applicant could be used led the trial to miscarry.

401. In one sense, the trial judge’s suggestion to the jury that the Crown did not dispute the evidence of the good character witnesses benefited the applicant. Given the challenge to the character evidence, the jury would usually have been directed that they could only have regard to the applicant’s good character (both on issues of credibility and the likelihood of having committed the offences) if they were first satisfied that he was in fact of good character. In the present case the jury was not directed in this way. That is, the good character direction was not said to be conditional on any finding of good character. The jury was told they must have regard to it. This benefited the applicant.

402. The applicant contended in this Court that the trial miscarried because it is mandatory in all cases where good character rebuttal evidence is adduced for the jury to be given an anti-tendency direction. Examples of this direction in the context of rebuttal evidence can be found in the portions of Hamilton v R and Re OGD (No 2) that I have extracted above. It is also to be found in the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales.

403. Consistent with the authorities I have considered above, an “anti-tendency” direction would usually be required in relation to evidence of “bad character” adduced by the Crown to rebut evidence of an accused’s good character. But contrary to the submissions of senior counsel on this appeal, I am not satisfied that a failure to do so inevitably leads to a miscarriage of justice for the purposes of applying Rule 4 or satisfying the third limb of s 6(1) of the Criminal Appeal Act. It did not do so in Li, Wing Cheong vR [2010] NSWCCA 40, for example. I do not consider BRS v The Queen to be authority for such a proposition. Each trial is to be determined on its own facts.

404. One of the two tendencies the Crown relied upon at trial was a tendency to be violent to his children. The mother’s evidence of being the victim of domestic violence when the applicant was on trial for, inter alia, violence to his children, means that there was some risk of the jury using tendency reasoning in relation to the mother’s evidence on this issue. But that risk must be considered in the context of the directions provided by the trial judge. As stated above, the jury was told that it was only the evidence of the counts on the indictment and the mother’s evidence of violence to the children which could be used as tendency evidence. As the Crown submitted in this Court, that direction in its terms excluded the rebuttal evidence provided by the mother from being considered as tendency

405. A trial judge is obliged to ensure a trial’s fairness even if defence counsel does not seek a particular direction: Pemble v The Queen (1971) 124 CLR 107 at 117-118; [1971] HCA 20; James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [24], [38]. The summing up reflects that her Honour sought to ensure the trial’s fairness in circumstances where a number of complex directions were required.

406. Criminal trials are adversarial in nature. An accused person is bound by the tactical decisions made by his or her counsel. One of the tactical decisions made in this trial was to introduce additional evidence of the applicant’s “bad” character during cross-examination of the mother in order to establish that she was a fabricator. It may well have been the case that defence counsel considered that a further direction as to how the jury should use that “bad” character evidence would only draw attention to the nature and extent of it. It is not difficult to see why no re-direction was sought in those circumstances. It was not contended on this appeal that the trial miscarried because of the incompetence of counsel, as occurred in TKWJ v The Queen.

407. The Crown relied upon Rule 4 of the Criminal Appeal Rules in relation to this ground. Rule 4 is in these terms:

"No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."

408. In ARS v R [2011] NSWCCA 266, Bathurst CJ summarised some of the relevant decisions of this Court regarding the effect of Rule 4 and observed the following at [148]:

“The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].

The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].

A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].

An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].”

409. In JV v R [2017] NSWCCA 49 this Court (Leeming JA, Fagan J and N Adams J) considered an appeal in which the sole ground of appeal was that the trial miscarried as a result of the failure of the applicant to lead evidence of good character. As I observed in that decision at [140]:

“Trial counsel did not call evidence of good character at trial. There was a rational basis for that decision. The position advanced by counsel for the applicant on this appeal differed from that taken by trial counsel. It is not uncommon for a different view to be taken after a trial regarding tactical decisions made during a trial. That is an insufficient basis to establish that a trial has been unfair. In circumstances where the decision not to adduce evidence of good character at the applicant’s trial was a rational one, no miscarriage of justice has been established.”

410. Similarly, having regard to the conduct of the applicant’s defence at trial, I am not satisfied that the applicant has lost either a real chance or a chance fairly open of being acquitted at trial in not seeking further directions from the trial judge as to the proper use of the evidence of “bad” character.

411. Accordingly, although I would grant leave to argue Ground 2, I would dismiss that ground and the appeal.

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Endnotes

Decision last updated: 24 June 2020