JDC v Tasmania
[2025] TASCCA 7
•30 June 2025
[2025] TASCCA 7
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | JDC v Tasmania [2025] TASCCA 7 |
| PARTIES: | JDC |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 845/2023 |
| DELIVERED ON: | 30 June 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 27 May 2024 |
| JUDGMENT OF: | Wood J, Estcourt J, Martin AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Miscarriage of justice – Dismissal of appeal where no substantial miscarriage of justice – Appeal against conviction – Persistent sexual abuse of biological daughter when aged between 10 and 13 years involving indecent assault and vaginal rapes – Indecent assault of niece when aged 15 years – Evidence of complainants and other witness admissible for tendency purposes – Failure of trial counsel to seek severance – Evidence of complainants cross-admissible – Jury no difficulty separating evidence when considering each count.
Aust Dig Criminal Law [3464-3465]
Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Propensity evidence – Evidence of uncharged acts – Admission of evidence of uncharged allegations of violence against daughter and sexual offending against another child, and sexualised communication between the appellant and niece admissible – Relevant to issues at trial bearing on context and familial and other relationships.
Aust Dig Criminal Law [2778]
Criminal Law – Evidence – Character and prior convictions – Evidence of good character – Failure of trial counsel to adduce evidence of good character in a particular respect – Divisibility of character – Failure to adduce appellant's lack of prior convictions for sexual offending and violence – Minimal impact in context of trial – No material before the Court of positive good character evidence either generally or specifically in relation to treatment of children and violence – Legitimate forensic choice not to open question of appellant's character.
Aust Dig Criminal Law [2852]
Criminal Law – Procedure – Powers and duties of prosecution as to calling of witnesses and presenting evidence – Generally – State's failure to call material witnesses – No request at trial for State to call witnesses and lack of information as to any evidence the witnesses might have given.
Aust Dig Criminal Law [3126]
Legislation:
Criminal Code Act 1924 (Tas) ss 125A, 326A, 326(3), 402(4)
Evidence Act 2001 (Tas) ss 110, 112
Cases cited:
D (1996) 86 A Crim R 41
Decision Restricted [2021] NSWCCA 74
Hamilton v The Queen [2021] HCA 33, 274 CLR 531
Hughes v The Queen [2017] HCA 20, 263 CLR 338
JADG v Tasmania [2021] TASCCA 16, 34 Tas R 250
Jones v Dunkel (1959) 101 CLR 248
Kentwell v The Queen [2014] HCA 37, 252 CLR 601
Mraz v The Queen [1955] HCA 59, 93 CLR 493
Nudd v The Queen [2006], 80 ALJR 614
Omot v The Queen [2016] VSCA 24
R v Birks (1990) 19 NSWLR 677
R v Zurita [2002] NSWCCA 22
Saw Wah v The Queen [2014] VSCA 7, 45 VR 440
Sharma v The Queen [2011] VSCA 356
Tasmania v RBAY [2023] TASSC 41
TKWJ v The Queen [2002] HCA 46, 212 CLR 124
Wilde v The Queen [1988] HCA 6, 164 CLR 365
REPRESENTATION:
Counsel:
Appellant: G Barns SC and C Wareham Respondent: D Coates SC and L Pennington
Solicitors:
Appellant: The Men's Legal Centre Pty Ltd Respondent: Director of Public Prosecutions
| Judgment Number: | [2025] TASCCA 7 |
| Number of paragraphs: | 158 |
Serial No 7/2025 File No 845/2023
JDC v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL WOOD J ESTCOURT J MARTIN AJ 30 June 2025 |
| Orders of the Court: |
1 Leave to appeal granted.
2 Appeal dismissed.
2 No 7/2025
File No 845/2023
JDC v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
WOOD J
30 June 2025
1 The appellant seeks leave to appeal against conviction and pursues five grounds of appeal. I have had the advantage of reading the reasons for judgment of Martin AJ and I agree with his Honour's analysis with respect to all grounds of appeal and with his conclusion. I would grant leave but dismiss the appeal.
3 No 7/2025
File No 845/2023
JDC v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
ESTCOURT J
30 June 2025
2 I agree with Martin AJ.
4 No 7/2025
File No 845/2023
JDC v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
MARTIN AJ 30 June 2025
Introduction
3 The appellant was convicted by a jury of Persistent Sexual Abuse of a Child committed between about 1 February 2018 and 20 August 2020. The complainant (A), the appellant's daughter, was born in February 2007.
4 The jury also convicted the appellant of Indecent Assault committed between about 1 June 2020 and 10 August 2020. Count 2 involved a different complainant (B), the appellant's niece. At the relevant time B was aged 15 years.
5 For the crime of Persistent Sexual Abuse, Jago J imposed a sentence of imprisonment of 12 years, with a non-parole period of six years and six months. Her Honour imposed a sentence of eight months' imprisonment for the crime of Indecent Assault and ordered that the sentence be served cumulatively upon the sentence for Persistent Sexual Abuse, with a non-parole period of four months. The end result was a sentence of 12 years and eight months, with a non-parole period of six years and ten months.
6 The appellant appealed against the convictions and sentence. After a discussion with counsel at the hearing of the appeal during which the Court warned the appellant, in accordance with well- established convention, of its power if resentencing to increase the sentence, the appeal against sentence was abandoned (Criminal Code Act 1924, s 402(4), Kentwell v The Queen [2014] HCA 37, 252 CLR 601 at [43]).
7 Five vague grounds relating to conviction were identified in the Notice of Appeal filed on 6 April 2023, but these were replaced by an amended Notice filed in May 2024. Leave was given to amend the grounds to read as follows:
"1
A substantial miscarriage of justice resulted from the failure of the Applicant's counsel at trial to adduce evidence of his good character in a particular respect, specifically in respect of the absence of any prior criminal history for sexual offending.
2
A substantial miscarriage of justice resulted as a consequence of the admission of evidence that was either irrelevant, inadmissible and/ or unfairly prejudicial, including specifically:
(a) uncharged allegations of violence against the complainant [A], (b)
uncharged acts of sexualised communication between the applicant and the complainant [B]
(c) uncharged allegations of sexual offending against [C] 3
A substantial miscarriage of justice resulted as a consequence of the admission of tendency evidence in circumstances where:
(a)
the evidence contained within the tendency notice was incapable of being used for a tendency purpose, and/or
5 No 7/2025
(b) the probative value of the evidence said to found the tendency is substantially outweighed by the danger of its unfair prejudice. 4 A substantial miscarriage of justice occurred as a consequence of the failure of trial counsel to seek severance of the indictment.
5 Substantial miscarriage of jus tice resulted as a consequence of the State's failure to call relevant and material witnesses."
8 For the reasons that follow I would dismiss the appeal.
The charge and particulars
9 Pursuant to s 125A of the Criminal Code, the crime of Persistent Sexual Abuse of a Child required proof that the appellant maintained a sexual relationship with his daughter, who at the relevant time was under the age of 17 years and to whom he was not married. Section 125A(3) provides that an accused is guilty of committing an offence under subs (2) of s 125A if, during the particular period, "the accused committed an unlawful sexual act in relation to the young person on at least three occasions".
10 Although s 125A(2) provides that maintaining a sexual relationship with a young person is a crime, in Tasmania v RBAY [2023] TASSC 41, Pearce J held, correctly in my view, that maintenance of the relationship is established by proof, without more, of three unlawful sexual acts in the relevant period. Unlike other jurisdictions, the crime in Tasmania does not require proof of maintaining the sexual relationship as an additional element.
11 For the purposes of s 125A(3), the Crown filed a Notice of eleven specified occasions of unlawful sexual acts relied upon the by the Crown. These occasions were set out in a memorandum provided to the jury by the learned trial judge as part of her Honour's summing up:
"7 Unlawful sexual acts alleged by the Crown to have been committed by
the Accused7.1 The Crown contends that [the appellant] committed unlawful sexual
acts in relation to [A] on eleven separate occasions as outlined below.
The jury may not rely on any other occasions as constituting the crime:Occasion one - indecent assault
Location - main bedroom at family home.
Particulars/circumstances - after a shower, in the bed in the main bedroom of the house, touching [A] to the vagina/genitalia with his hands, when [A] was aged 11.
Occasion two - rape (vaginal/penile penetration)/incest
Location - main bedroom at family home.
Particulars/circumstances - having vaginal/penile sexual intercourse with [A] in the main bedroom, approximately one week after [A's] 12th birthday.
Occasion three - rape (vaginal/penile penetration)/incest
Location - in a forestry/bush area near Oldina.
Particulars/circumstances - having vaginal/penile sexual intercourse with [A] on the ground, on a date in mid-2020. Other persons,
6 No 7/2025
including the complainant's uncle and a friend, [TD], had been present
before the accused removed [A] from the group.
Occasion four - rape (vaginal/penile penetration)/incest
Location - the Health Glo Pool
Particulars/circumstances - having vaginal/penile sexual intercourse with [A] while swimming at the Health Glo Pool with a friend, after her mother and brothers had left the pool.
Occasion five - rape (vaginal/penile penetration)/incest
Location - the Wynyard boat ramp
Particulars/circumstances - having vaginal/penile sexual intercourse with [A] in a vehicle at the boat ramp at the end of Jenner St, Wynyard.
Occasion six - rape (vaginal/penile penetration and attempted oral
penetration)/incest
Location - [A's] bedroom at the family home
Particulars/circumstances - having vaginal/penile sexual intercourse with [A] in her bedroom in the family home, at a time when [A] was sick with a migraine headache. On this occasion there was also attempted oral penetration.
Occasion seven - rape (vaginal/penile penetration)/incest
Location - main bedroom at the family home
Particulars/circumstances - approximately two weeks prior to the video statement with police in August 2020, having vaginal/penile sexual intercourse with [A] in the main bedroom of the family home.
Occasion eight - rape (vaginal/penile penetration)/incest
Location - [A's] bedroom at the family home
Particulars/circumstances - having vaginal/penile sexual intercourse with [A] while her brothers were home playing PlayStation, the week prior to the video recorded statement of August 2020.
Occasion nine - rape (vaginal/penile penetration)/incest
Location - in the carport at [Address Stated], Wynyard (the home of the
accused's parents)Particulars/circumstances - having vaginal/penile sexual intercourse with [A] from behind, while other family members were in the main house.
Occasion ten - rape (vaginal/penile penetration)/incest
Location - in the garage at [Address Stated], Wynyard (the home of the
accused's parents)
Particulars/circumstances - having vaginal/penile sexual intercourse
with [A] at a time when she was retrieving the lawnmower.
Occasion eleven - rape (vaginal/penile penetration)/incest
7 No 7/2025
Location- in a caravan parked at [Address Stated], Wynyard (the home
of the accused's parents)Particulars/circumstances - having vaginal/penile sexual intercourse with [A] inside the caravan, before being interrupted by the accused's sister knocking on the caravan door."
12 Before the trial, counsel foreshadowed a severance application and an objection to the tendency evidence. The matter was sent down for legal argument in advance of the trial, but after written submissions were filed by the prosecution, counsel for the appellant abandoned the application and objection.
Evidence
13 The evidence of complainant A was provided to the jury in three parts. First, a video recorded interview conducted by police on 26 August 2020. Secondly, through evidence given in the absence of the jury before the learned trial judge and recorded on 17 and 18 January 2023. A video recording of that evidence was played to the jury. Thirdly, oral evidence in the presence of the jury on 20 February 2023.
14 The evidence of complainant B was contained in a video recorded statement to police on 26 August 2020 and oral evidence in the presence of the jury on 21 February 2023.
Complainant A (the appellant's daughter)
15 A told police that the first time the appellant sexually abused her was in her mother's bed when she was aged 12. It was about a week after her birthday and she slept in her mother's bed because her mother and the appellant were fighting. After her mother went to work, A was asleep and woke to find the appellant having sexual intercourse with her. She cried and froze. When the appellant finished "he just walked out". A said the appellant did not wear a condom and ejaculated on a towel.
16 During A's pre-recorded evidence, in re-examination she amended her evidence as to when the appellant first did sexual things to her. She said it started when she was 11. The complainant described being in the shower, after which she dressed and the appellant entered the bedroom and touched her vagina under her clothes. She was crying. A told police the last occasion of sexual abuse occurred on the Tuesday or Wednesday prior to the police interview.
17 In addition to the 11 specific occasions identified by the trial judge, A gave evidence of sexual abuse on many other occasions; most days. She said she thought it happened over 100 times in her bedroom and her mother's bedroom. The trial judge told the jury that such evidence did not relate to the 11 specific occasions upon which the State relied, and gave directions as to the purpose of the evidence relating to conduct on other occasions ("general evidence"). Those directions included the following:
"The general evidence has relevance, of course, but in a specific way and that's why you've heard it. You can use that evidence to place the alleged conduct into context. So, according to the complainant, according to [A] in particular, the acts that are said to have occurred on each of the specified eleven occasions that are relied upon by the State did not happen out of the blue or in a vacuum or suddenly just occurred without any context or against any background.
So the State really assert that there was a pattern of conduct and the evidence is relevant to your consideration of the context in which this is said to have occurred and to enable you to assess whether the crimes that are specified on those eleven specific occasions have been proven in a realistic, contextualised setting.
8 No 7/2025
So, [A] was allowed to give her evidence about what she says the full extent of the behaviour of her father towards her was. She was entitled to give it in that sort of fulsome way, and not be required to artificially edit parts of her evidence out, because it's the entire narrative that is relevant to your assessment of issues such as her credibility."
18 The trial judge continued with directions, drawing a distinction between hearing about isolated sexual acts without any context or background, and evidence placing these specific occasions within a context of a pattern of conduct. Her Honour added that it was relevant to the overall assessment of what occurred and to the nature of the relationship between father and daughter. The trial judge emphasised that the jury could not, and must not, substitute the general evidence relating to other acts for the evidence of the specific occasions upon which the Crown relied.
19 The trial judge gave additional directions concerning the use of the general evidence of other conduct in relation to tendency reasoning. That topic is discussed later in these reasons.
20 Returning to the evidence of complainant A, additional aspects of her evidence were summarised in the respondent's written submissions as follows:
"During her evidence taken on the special hearing, [A] gave evidence about general events that had occurred towards the end of the offending and in particular, after the accused had been charged and released on bail. She outlined the following generally:
•
During her pre-recorded evidence, the complainant stated there had been two occasions that the accused had been physically violent toward her. One occasion was when [B] was living at the house, and one was after [B] had left. The first occasion occurred the night that [B] was ultimately asked to leave the house. During this argument, the accused grabbed the complainant and slammed her to the ground, near the fireplace. On an occasion after [B] had left the house, the accused was 'being an asshole' so [A] told him she was 'going to the cops, I'm leaving'. She was in her bedroom and he grabbed her to the throat and put her on the ground, and ripped a bag of clothes apart. She grabbed her shoes and ran to [NW'S] house, where [B] was living.
•
After the accused was charged and bailed, there was continued contact between her and the appellant during this period (such contact in the knowledge of at least her mother). After she spoke to police the first time the accused was meant to be living at her Nan's. Nan, Granddad, [AC] and his two children, and her aunt [KC], lived at that house. She would visit the house; mum would take her and her brothers around, at least every day. They would visit after school and sometimes stay for tea, and sometimes they would visit after tea.
•
When she'd go to the house, she'd speak to the accused most times. Sometimes she'd go outside for a smoke and he'd come out. There, he would do sexual things to her. This would happen in the carport usually, and the accused would put his penis into her vagina. When her dad would do things to her at Nan's house, she felt scared and 'like shit, 'cause… he's meant to be there not doing that shit'. She described that sometimes she'd pull away from him when he would assault her, but most of the time she would "just freeze". She tried to tell family and a friend of her mother's what was happening but no one would listen.
•
The sexual abuse stopped when she was taken out of home by Child Safety Services and she started living at a shelter.
•
After she left and was living in the care of CSS, she spoke with the accused via messages on her mum's phone. He spoke about not coming to court, and told her that if she didn't come to court, he would give her $2000 and a motorbike. Her mum showed her the message.
9 No 7/2025
• In this period (prior to the abuse stopping), [A] made a handwritten withdrawal statement, indicating that she had lied to police. • [A] gave the following evidence about that statement:
1 During that time, she understood that the accused was meant to be living at her Nan's, but he would return to the family home and her mum would turn the CCTV cameras off at the house. 2 She understood that the accused wasn't meant to see her or talk to her but he did see her and talk to her. She reported to police that he had been there and showed them CCTV footage of the accused at her house. The accused sent messages to her Mum's account and Mum would show her. 3 The accused would talk to her about what she'd said to police, asking her 'Why' and telling her he would get locked up. He tried to put the blame on her and make her feel bad. 4 She identified the handwritten document as a statement she had written in her handwriting. When she was at her mother's, her mum, her uncle [AC] and her aunt [KC] were standing over her and they were writing it, and she had to do it in her own handwriting. They'd done up a rough copy and she had to copy it onto the statement. This was not long after she'd moved back to her mother's house. She didn't want to write the document and the contents of the document were not true. 5 At around the same time her uncle, [AC], took her to a police station. He told Taneka (Detective Senior Constable Starr) that she wanted to talk to police about withdrawing her statement. Police said they wanted to talk to her on her own and [AC] wouldn't allow that. She didn't want to be there to withdraw her statement."
21 During cross-examination it was put to complainant A that she had colluded with complainant B to make false allegations against the accused. It was put to her that another person and complainant B had planned it all, and told complainant A to lie about it. The motive suggested was a desire to get back at the appellant for kicking complainant B out of the home of the appellant and complainant A. All of these suggestions were denied by complainant A.
22 Complainant B, A's cousin, moved into the appellant's home for a period in mid-2020. During this time complainant A disclosed to complainant B that her father had been sexually abusing her. This disclosure was made after B disclosed to A that she had been indecently assaulted by the appellant.
23 Subsequently, A ran away from home and disclosed the sexual abuse to a number of friends
and adults.
24 In August 2020 complainant A was made subject of a mental health order taken out by her mother. When a police officer attempted to execute the mental health order on 25 August 2020, he was informed by two persons that A had made a complaint of sexual assault. While being transported to hospital, A said to the police officer "does the hospital know what my Dad did to me". At the hospital A made a complaint of sexual abuse to a nurse and a doctor. A medical examination provided no clear indication one way or the other as to whether sexual penetration had occurred. The Crown submissions contend that during the medical examination, A gave a history "generally consistent with her evidence".
25 Arrangements were made for complainant A to speak to the police and she participated in a video recorded interview the following day.
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26 On the Crown case, complainant A's evidence was supported in a number of respects. The Crown's written submissions summarised other evidence in the following terms:
"(g)
The complainant's evidence at trial was further supported by forensic evidence. The evidence of Detective Senior Constable Taneka Starr was that, following her video statement, [A] disclosed to her that on one occasion, the accused had ejaculated onto a rug at the foot of her bed. A search warrant was obtained for the accused's address and this rug was seized and tested, in addition to other items. Ana Flonta and Dr Corey Griffiths of Forensic Science Service Tasmania gave evidence of the results of forensic testing of items seized from [A's] bedroom:
•
Ana Flonta gave evidence that an area of [A's] bedroom rug, which had tested positive with a screening test for semen, was further tested at FSST. The results of the test showed a 4+ result for spermatozoa, the highest level of detection for spermatozoa used.
•
Dr Corey Griffith gave evidence of DNA testing. The semen positive area of the floral rug returned a male DNA profile that was a high grade match to the accused. Only male DNA was located on the rug.
(h)
An explanation for this forensic evidence was put to the complainant under cross-examination. It was suggested to [A] that she retrieved a "sex towel" from her mother and father's bedroom, and rubbed it onto the mat in her bedroom, and that's how the accused's semen came to be on her mat. [A] denied this, saying, 'Why would I want to touch that?' It was suggested to [A] that she had been present when her mother had said to her, 'Don't touch that towel, that's our sex towel'. [A] denied that this conversation had occurred.
(i)
Detective Senior Constable Taneka Starr further gave evidence that when the accused learned of the allegations and that Police were investigating the matter, he told his wife that he could not come back to the house to prove his innocence and subsequently went missing for a period of time. Police were initially concerned for his welfare and a search operation was conducted. After approximately 24 hours he made contact with Police through his brother, [AC], and indicated that he would present himself to Police for interview. This was relied upon by the Crown as post offence conduct indicative of guilt.
(j)
Detective Senior Constable Starr, gave further evidence that during the course of her investigation, she seized and examined some CCTV footage from the family home. Specifically she reviewed footage captured during the period of time the appellant was on bail after being charged. She gave evidence that on her observations, the footage depicted the appellant present and interacting on numerous occasions with [A] at the family home during this period. During these occasions, [A's] mother was also present.
(k)
The appellant's mother gave evidence that during the period after the appellant was charged and on bail, he lived with her. During this time, [A] attended the house with her mother and interacted with the appellant.
(l)
Detective Starr gave evidence that on the 21st of October 2020, the complainant attended the Police station with [AC]. [AC] demanded that the Detective take a withdrawal statement from the complainant and stated that [A] wanted the charges to be dropped. [A] did not speak at all during the interaction. Detective Starr asked to speak to [A] alone but [AC] became agitated and refused to allow this to occur. Detective Starr explained that such a statement would not be taken under these circumstances. After this [AC] and [A] left the station without a statement being taken.
(m) The appellant's wife, [NW] gave evidence. In relation to count 1 she stated: 11 No 7/2025
•
She confirmed that while [B] lived at the family home, [B] and [A] had a very close relationship.
•
She stated that [B] was a bad influence on [A] and was 'sending her down the wrong path'. She was getting [A] into a lot of trouble. As a result, a decision was made that [B] had to move out.
•
She stated that when [B] was kicked out of the house, [A] 'acted up' and didn't want [B] 'to go'.
•
She gave evidence about the day [B] was asked to leave her house. [NW] and the accused asked [B] to leave and an argument occurred. [NW] filmed some of this argument.
•
Under cross-examination by the appellant's trial counsel, she denied that the appellant choked the complainant during this argument. She stated that she had never observed the appellant be physically violent to any of the children.
•
In relation to the incident at the Health Glo pool (Occasion 4), [NW] gave evidence that she got out of the pool first and went to have a shower. At the time she got out, all of the children and the appellant were still in the pool. She stated that [A] came into the change rooms approximately 2 minutes after her and had a shower in the cubicle next to hers. She stated that [EG] then came into the change rooms another few minutes later.
•
She confirmed other surrounding circumstances of the offending, such as the fact the complainant went wood chopping with the accused and the fact that after the accused was charged and bailed to not have contact with the complainant, he returned to the family house during this period. Under cross examination by Crown counsel, she denied that there were times during this period when the accused had contact with [A] at the family home or at his mother's house when he lived there.
•
[NW] stated in her evidence that she and the accused had sex both in their bedroom and at times, in [A's] bedroom. She said this occurred at times when [A] was sick and asleep in their bed.
•
She gave evidence that she kept a towel to use to wipe up ejaculation and other fluids after she and the appellant had sex. She stated that she had told [A] not to touch her 'sex towel' before. All of the children were aware of the existence of the sex towel.
• She gave evidence that [A] was 'always asking for money'. •
She denied being present when [A] wrote her withdrawal statement. She denied the suggestion that she had been part of a group forcing her to do this.
•
During cross examination by Crown counsel, it was suggested that [NW] had reviewed the evidence that had been disclosed to the appellant and had tailored her evidence to be favourable to the appellant. This was denied by [NW], although she admitted to having had access to some of the evidence prior to appearing as a witness.
(n)
The appellant's two sons, [BC] and [DC] gave evidence. In summary they said:
•
Under cross-examination, [BC] gave evidence about a time they went to the Health Glo pool. He said that his mother and [A] got out of the pool first. This was challenged under cross examination by Crown counsel but [BC] maintained that his mother and [A] got out of the pool first. Despite
12 No 7/2025
this, he admitted to not recalling anything else that happened at the pool
that day.
•
Under cross-examination, [BC] also gave evidence that he had heard his mother speak about the 'sex towel' in front of [A]. In cross examination by Crown counsel it was suggested that this conversation never occurred and that the witness was saying it did so his Dad did not get into trouble. [BC] denied this.
•
[DC] gave evidence that at the Health Glo pool, [A] and their mother got out of the pool first. He stated that the appellant and the rest of the children stayed in the pool for another 15 minutes. Under cross examination by Crown counsel it was suggested to the witness that there were lots of times they attended the pool. The witness disagreed with this, saying it was just the one time. It was suggested to him that he actually couldn't recall who got out of the pool first and that he was saying it was his mum and [A] so that his Dad didn't get into trouble. [DC] denied this."
Complainant B
27 Although complainant B is described as the niece of the appellant, that description was used on the basis that the appellant's brother was the former step-father of B. As mentioned, B lived with the appellant and his family for a period in mid-2020 when she was aged 15.
28 The Crown submissions summarised the evidence of complainant B as follows:
"(a)
[B] is the niece by marriage of the accused (her former step-father was the accused's brother, [AC]). She lived with the accused and his family for a period of time in mid-2020 when she was 15 years old.
(b)
[B's] evidence was presented at trial in the form of a video statement with police, in addition to evidence given via video link in Court.
(c)
[B] participated in a video recorded statement with police on 26 August 2020, in which she described the following:
•
Before living with the accused, he had sent her messages asking if she masturbated. These made her feel uncomfortable and she "blocked" him.
•
After she had come to live with the accused, about a month later, she was in [A's] bedroom. The accused came into the bedroom and sat on the bed. He pushed her down onto the bed and grabbed her by the thighs and legs, and put his hand under her top.
•
She was rolling around the bed trying to get away from him. He tried to kiss her neck and was trying to touch her underneath her pants.
•
She heard the accused's youngest son, [BC], come home and yell out to his dad. The accused got up and [B] yelled for [BC] to come into the room, and the accused walked out.
• When the accused got up to leave, he told her not to tell [A]. •
This occurred on a weekday because she was suspended from school, on a Friday. [NW] wasn't present, she was working.
•
That night, [B] told [A], and [A] told her about what the accused had done to her. [A] asked her, 'did Dad do something', and [B] said, 'Why would you think that?'
13 No 7/2025
•
[A] started to cry, and told her that the accused had been touching her, describing some of the incidents.
•
Following this incident, on the following Monday, she left the house. There was a massive argument, some of which she had recorded on her phone.
(d) In her evidence given during the trial, [B] outlined the following:
• [B] confirmed that the allegations she had made in her police interview were true. • The message conversation that included the question the accused asked about masturbation were tendered. • [B] described incidents with the [family] that occurred after she spoke with police, including having been assaulted by [AC] and [KC] outside the accused's home in October 2020. • She described witnessing the accused hug [C] when she would attend the house. She said it would be a longer than normal hug. (e) Under cross-examination of [B], the following occurred:
• It was suggested to [B] that the messages relating to masturbation were part of a mutual 'secret-sharing' exercise that she and the accused were undertaking. [B] denied this was the case. • Further cross-examination focussed on her behavioural issues at her grandparents' house and at school around the time of the alleged offending, which generally [B] accepted had occurred. • It was put to [B] that she was 'not happy' with the appellant when she left the appellant's house as he had ended their confidential relationship. She was 'crabby' with him for kicking her out. [B] agreed that she wasn't happy with the appellant but it was because of what he had done (i.e. the indecent assault). • It was put to her that she had lied about the allegations because she was 'crabby' with him for asking her to leave his house. This was denied by [B]. • It was put to [B] that she and [A] had 'put [their] heads together' to make up the story against the accused, which she denied."
29 Complainant B spoke to a number of people alleging sexual assault by the appellant. One of those witnesses (C) gave evidence that complainant B told her the appellant had kissed her. In cross- examination of a family friend of the witness and the witness's mother, it was put to the family friend that she assisted B in concocting the allegations and in influencing complainant A to adopt the false allegations. The family friend denied the suggestion.
30 In support of the Crown case, the Crown relied upon evidence conveniently described as "tendency evidence". In addition to the evidence of the charged acts, coupled with the Crown case of other sexualised conduct toward both complainants, the Crown relied upon the evidence of C that the appellant committed sexually inappropriate acts upon her. At the relevant time C was of a similar age to complainant A and lived next door to complainant A and the appellant. The Crown submissions summarised the evidence of C:
"[C's] evidence was given in a pre-recorded video statement with police, in addition
to evidence in court by video link.14 No 7/2025
(a) During her statement and evidence generally, [C] said the following:
• She used to go to the accused's house, and when she would go, the accused would 'hug [her] and never let [her] go'. On one occasion, he would only let her into the house if she gave him a cuddle. • On another occasion, she was sitting on the accused's bed with [A] and the accused, and the accused touched them both to the upper thigh, underneath her school shorts. • The accused sent her messages to her mobile phone saying things like, 'I love you little monster'. • There was an occasion when the accused encouraged her to shower in his presence, but she didn't, and he washed her hair. (b) Under cross-examination:
• It was suggested to [C] that none of the acts she had alleged occurred. [C] disagreed with this suggestion. • It was suggested to [C] that she had fabricated her evidence to support [A] and [B], which she denied. • Alternative explanations for some of the accused's behaviors were suggested, including the removal of nits from her hair, which [C] denied. (c) [RZ] (C's mother) gave evidence supportive of [C's] allegation in that she stated that [C] had disclosed to her that the appellant had touched her to the thigh in around late 2018, early 2019. (d) [NW] confirmed in her evidence that [C] was often a visitor at her and the accused's house during the relevant period."
31 On the basis of the evidence given by both complainants and C, it was the Crown case that the accused had demonstrated the following tendencies upon which he acted:
"(a) To have a sexual interest and/or engage in sexual contact with female
children aged between 11 and 16 years;(b) To sexually assault female children to whom he is related, by birth of otherwise; (c) To sexually assault female children in respect of whom he is in a position of parent or guardian, or which children are under his care and supervision; (d) To sexually assault female children in circumstances when those children were removed from the immediate presence of other adults; (e) To sexually assault female children while those children were present in his place of residence and/or in his care; (f) To sexually assault female children at his residence or in other locations, when there was a risk of detection by other persons.
32 The appellant was interviewed by police on three occasions. Those interviews were played to the jury. The Crown submissions summarised features of those interviews as follows:
"36
The first interview was conducted on the 29th of August 2020. This interview concerned the original allegations of [A], the allegations of [B] and the allegations of [C]. Of particular note, during the interview the accused stated:
15 No 7/2025
(a) In relation to [A]:
•
When asked about his relationship with his children he said 'Ah fine. I love my kids'.
•
He has slept in [A]'s room at times when she was sick and slept in with her mother.
•
He has had sex with [NW] in [A]'s bed. It happened on the end of the bed and he didn't wear a condom. He thinks [A] was at a friend's house when this happened. He can't remember how many times this has happened. On one of these times his ejaculate may have dripped on the floor. [A] has never seen him ejaculate in her room.
•
When the allegations of sexual abuse that had been made by [A] were put to him, the appellant denied them and said they were not true.
•
In relation to the allegation concerning conduct that occurred in the bush when they were woodcutting, the accused said that it wasn't true and that Police could ask 'the others, we're always together cutting'.
•
In relation to the allegation concerning the conduct at the Health Glo pool, the appellant said that he had only been to the pool with the family once. He agreed that all of the family along with one of [A]'s friends were there. He said he thinks they all got out of the pool together. He remembered getting out when the boys got out. He denied the alleged conduct occurred.
•
He denied ever being physical with [A] during an argument. He denied ever hitting any of his children.
(b) In relation to [B]:
•
[B] lived with them for a while. She slept in [A]'s room. She and [A] were very close.
•
[B] would come to him for help because of some of the stuff that had happened in her life.
•
Sometimes she would message him about it and sometimes they would sit down and talk.
•
He admitted to deleting some messages [B] had sent him and asking her to delete messages he had sent her. He deleted messages because she asked him to. She didn't want people seeing what she was talking to him about and he did it so she would trust him. He was trying to be a father figure to her.
• He denied ever messaging her anything inappropriate. •
He admitted messaging her about masturbation but said he meant nothing by that. He was trying to build trust with her and asked her to tell him something that no one else knew. He then said 'maybe you masturbate' as a joke. It was only meant as a joke.
•
When the allegation of sexual abuse was put to him he denied it occurring.
• He denied being sexually attracted to [B]. (c) In relation to [C]:
16 No 7/2025
• He and his wife fed and cared for [C] and her brother for the past 12 months • He cared about both [C] and her brother as they always 'got bashed' at their house. • He had communicated with her via text but only when she sent messages asking if [A] was home or awake or if she could come over because she was bored. • He never messaged her saying that he loved her. • He only really used to talk to her when she came over to the house. • He had treated her hair once because she had nits. That is the only time he had ever touched her in any way. She had her clothes on when he did this. • When the allegations concerning [C] were put to him, the appellant denied they occurred. 37 The second interview was conducted on the 3rd of November 2020. This interview concerned allegations that during the period after the accused had been charged, he had breached his bail numerous times by approaching [A]. Of particular note, during the interview the accused stated:
(a) The accused confirmed he had been living at his mother's house while on bail but had returned to the family home from time to time. (b) He stated that when he returned, arrangements were made so that [A] would not be there. She would stay at her grandmother's house. (c) When parts of the CCTV footage from the house were then shown to him, he admitted to at times being in [A]'s presence but denied ever talking to her for extended periods or staying overnight at the house while she was there. 38 The third interview was conducted on the 18th of November 2021. This interview concerned the further allegations made by [A] of continued sexual abuse occurring after the appellant had been charged and bailed initially. Of particular note, during the interview the accused stated:
(a)
Generally speaking, throughout the interview the appellant denied approaching [A] in breach of his bail and denied all of the allegations of continued sexual abuse.
(b)
He asserted that [A] had requested money from him and when he refused, she had threatened to get him charged again.
(c)
At the end of the interview, the appellant urged Police to go and talk to his mother, his wife and to [AC] and [KC]."
Incompetence of counsel
33 A number of the grounds of appeal advanced by the appellant are closely aligned with an assertion that trial counsel failed to object to evidence, or lead evidence, to the point where the conduct of counsel at trial was incompetent and resulted in a substantial miscarriage of justice. For the reasons that follow, I do not agree with that contention. However, it is appropriate to canvass briefly the relevant principles concerning the relevance of the conduct of counsel to the question of a fair trial and miscarriage of justice.
17 No 7/2025
34 The authorities are clear that the ultimate question is whether the conduct of counsel has given rise to a miscarriage of justice. However, as Gleeson CJ pointed out in R v Birks (1990) 19 NSWRL 677, it is difficult to find in the authorities "a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene." After general observations that to a "large extent" the parties are bound by the manner in which counsel conduct a trial, and that counsel possesses a "wide discretion as to the manner in which proceedings are conducted", his Honour summarised relevant principles at 683-685:
"1 A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2 As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3 However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
35 The principles have been discussed in numerous authorities including Hamilton v The Queen [2021] HCA 33 where the majority identified the importance of a rational decision by defence counsel [49]:
"A rational decision by defence counsel as to the conduct of a criminal trial that can be seen to have been a legitimate forensic choice that competent counsel could fairly make will not give rise to a miscarriage of justice within s 6(1) of the Criminal Appeal Act The adversarial system does justice through the diligent exertions of competent counsel in coming to grips with the special circumstances of the particular case." (Footnote omitted.)
36 Other helpful authorities are Nudd v The Queen [2006] HCA 9, 80 ALJR 614; TKWJ v The Queen [2002] HCA 46, 212 CLR 124 and JAGD v Tasmania [2021] TASCCA 16, 34 Tas R 250. In JAGD, Porter AJ helpfully summarised the relevant principles [63] and [64]:
"[63]
The proper approach to cases in which a miscarriage of justice is alleged to have arisen from the incompetence of counsel has been explained by the High Court in TKWJ v The Queen [2002] HCA 46, 212 CLR 124 and in Nudd v The Queen [2006] HCA 9, 80 ALJR 614.
[64] The following propositions emerge:
•
Incompetence of counsel is not of itself a ground of appeal, the relevant ground is whether there was a miscarriage of justice as referred to in s 402(1) of the Criminal Code: Nudd per Gleeson CJ at [2].
•
The concept of a miscarriage of justice has two relevant aspects; outcome and process – different but related in the sense that due process is to secure a just result. A failure of process that departs from the essential requirements of a fair trial is a miscarriage of justice: TKWJ per McHugh J at [76]; Nudd at [3]-[7] per Gleeson CJ.
•
If there has not been a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might
18 No 7/2025
have affected the outcome: TKWJ per McHugh J at [76]; Nudd at [3]-[7]
per Gleeson CJ.
•
In other cases – perhaps the majority – irregular conduct of counsel will not deprive a person of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues; did counsel's conduct result in a material irregularity in the trial, and is there a significant possibility the irregularity affected the outcome?: TKWJ per McHugh J at [79]; Nudd per Gummow and Hayne JJ at [24].
•
In a case of that kind, the enquiry is an objective one; the question is whether so viewed, the course taken by counsel was capable of rational justification or explanation: TKWJ per Gleeson CJ at [16], Gaudron J at [26]-[27], McHugh J at [95], Hayne J at [107]; Nudd per Gleeson CJ at [9], [16], per Callinan and Heydon JJ at [158].
•
Where an applicant contends that the conduct of counsel has caused a criminal trial to miscarry, he or she carries a heavy burden: TKWJ per McHugh J at [74]. As a general rule, counsels' decisions bind the client; the party is held to the way in which counsel presented the case: TKWJ per McHugh J at [79]; Nudd per Gleeson CJ at [9]. This is so even if decisions were made without or contrary to instructions, or involve errors of judgment or even negligence: TKWJ per McHugh J at [79].
•
Describing trial counsel's conduct as 'incompetent' – with or without some emphatic term like 'flagrantly' – must not distract attention from the question of whether there was a miscarriage of justice. That requires a consideration of what did or did not occur at the trial, not why that situation came about. The question does not turn on adjectival classifications of competence. TKWJ per Gaudron J at [31], per McHugh J at [75], per Hayne J (with whom Gummow J agreed) at [103]; Nudd per Gleeson CJ at [8], per Gummow and Hayne JJ at [24]-[27].
•
Sometimes however, a decision about whether a miscarriage of justice has occurred requires an understanding of the circumstances; this may involve an understanding about why something happened: Nudd per Gleeson CJ at [9]."
Ground 1 – Failure to adduce evidence of good character
37 Ground 1 complains that a substantial miscarriage of justice resulted from the failure of the appellant's counsel to adduce evidence of his good character "in a particular respect, specifically in respect of the absence of any prior criminal history for sexual offending". This claim is advanced notwithstanding that the appellant has a significant history of prior offending, particularly in relation to offences of dishonesty, dating from 1991 when the appellant was aged 13 years. His last offence was committed on 9 January 2010 when he was aged 32.
38 In summary, the appellant's written submissions advance the following contentions:
•
"In the circumstances of the instant case, while it is accepted that the Applicant did have a criminal history, it is submitted that the Applicant was entitled to rely on evidence of his good character in a particular respect – namely the absence of any criminal history in respect of sexual offending or violence. That could have been done either through cross-examination of the Informant and/or through the calling of witnesses about the Applicant's general reputation on these issues. Neither of these things were done in this case."
•
"In the circumstances of this case, where the case was almost entirely word against word, evidence led that the accused had no criminal history for sexual or violent offending would have
19 No 7/2025
been powerful factors for the jury's consideration. It had the capacity to impact an assessment by the jury of the denials made by the Applicant in his Record of Interview, as well as an assessment of each of the complainant's credibility and reliability."
• "In the circumstances of this case, it is submitted that there can be no rational justification for failing to either adduce evidence from the Informant about the Applicant's lack of criminal history in those two specific respects, or seek to adduce evidence from witnesses as to the Applicant's general character – and specifically his engagement and treatment of children and their observations of any violence." 39 The ultimate submission advanced by the appellant is that counsel's failure to adduce the evidence amounted to incompetency in the conduct of the trial and produced both an unfair trial and a substantial miscarriage of justice.
40 Section 110 of the Evidence Act provides that the hearsay rule, the opinion rule and credibility rule do not apply to evidence led to prove that an accused is either generally, or in a particular respect, a person of good character. Further, s 112 requires that an accused must not be cross-examined about such matters unless the Court gives leave:
"110 Evidence about character of accused
(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.
111 … 112 Leave required for cross-examination on character of accused or co-
accusedA defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave."
41 In Saw Wah v The Queen [2014] VSCA 7, 45 VR 440, Weinberg JA delivered a judgment with which Priest and Coghlan JJA agreed, in which his Honour helpfully examined the history of character evidence culminating in legislative provisions identical to those found in the Tasmanian Evidence Act. In Saw Wah, the appellant was charged with sexual offences against children and counsel sought a ruling in advance as to whether the Crown would be permitted to lead rebuttal evidence if the accused led evidence of an absence of prior convictions. Although the evidence proposed in rebuttal by the Crown was not admissible, the threat by the prosecutor with respect to rebuttal evidence caused defence counsel to refrain from leading such evidence. In addition, the trial judge erred in ruling that the proposed rebuttal evidence was likely to be admitted.
42 Weinberg JA observed that at common law "there was no such thing as putting one's character partly in issue" [46]. His Honour noted that unlike the position at common law, "character is no longer
20 No 7/2025
treated as 'indivisible'". His Honour pointed out that under s 110, "the accused can lead evidence to show that he or she is a person of good character generally, or a person of good character 'in a particular respect'" [57].
43 After considering the extensive exchanges between counsel and the trial judge, Weinberg JA observed that "in one sense, the decision not to call evidence of good character involved a forensic choice on the part of the applicant's counsel." [92]. His Honour's reasons continued:
"However, it was a choice that was heavily influenced by what seems to have been a misapprehension on the part of the judge as to how the law in this area should be correctly applied. In those circumstances, I would not treat that choice as either having been freely made or as barring this appeal from succeeding."
44 Weinberg JA's ultimate conclusion that the appellant was denied a fair trial was expressed in
the following terms:
"[89] The applicant was entitled to be tried fairly and according to law. He was entitled to have the jury told that he had no prior convictions of any kind provided, of course, that this could be done in a way which was not misleading. Had his counsel simply elicited from the informant the fact that the applicant had no convictions of any kind, save for these particular traffic matters, there was no risk of the jury being, in any relevant sense, misled. [90] As it happened, the applicant was denied both the benefit of good character evidence, and the advantage, to which he was entitled, of the accompanying good character directions. He was entitled as a matter of law, to adduce evidence that would have ensured that the jury was aware that he had no convictions of any kind save for traffic matters. The jury would then have been aware that he was not a known paedophile, and that it was not suggested that he had ever previously committed offences against children."
45 In D (1996) 86 A Crim R 41, the New South Wales Court of Criminal Appeal was concerned with convictions for sexual intercourse with the appellant's daughter when she was under 10 years of age and when between 10 and 16 years. Although counsel for the appellant at trial had elicited from the officer in charge of the investigation that the appellant had no criminal record, and the appellant in evidence had "put himself forward as a person of good character", counsel had failed to call a number of witnesses who were able to give direct evidence as to the appellant's character. Hunt CJ at CL, with whose judgment Grove, JA and Barr AJ agreed, summarised the extensive and powerful character evidence which should have been placed before the jury (42):
"The evidence which these witnesses could have given has been put in affidavit form. For example, his local priest speaks of the appellant's regular attendance at Mass, the help which has given when work was to be done for the church, his honesty and trustworthiness as a man whose word could always be accepted and his good relationship with his children. The priest concludes by saying that, when he found out about the charges against the appellant, he was surprised because he does not believe that he is 'the sort of person' who would cause such harm to a young child. The former sheriff's officer in the district in which the appellant lived speaks of knowing him for over 30 years, the high esteem in which he is held in the community, his good relationship with his children, his Christian beliefs, his trustworthiness and the assistance which he has on numerous occasions voluntarily given to other members of the community. The sheriff's officer says that he is fully aware of the charges against the appellant and does not believe that he is capable of committing the acts alleged. There is evidence of a similar nature from others who have known the appellant for substantial periods both socially and by way of business, and there is evidence from his sister who gives considerable detail of his good relationship with his children."
46 Hunt CJ at CL pointed out that good character evidence can be of "substantial benefit" to an accused. His Honour's reasons continued (42):
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"It may demonstrate that it is unlikely that, as a person of good character, he or she would have done the act charged. It may also support the credibility of the evidence of the accused denying guilt and hence the unlikelihood of his or her guilt. There is a vast difference in the likely effect upon a jury between the basic type of evidence which was in fact elicited at this trial and the further evidence which was available and to which I have referred; the jury is entitled to and may well in fact give greater weight to the evidence of witnesses who are able to speak directly to the good character of the accused than to evidence of the bare nature elicited in this case." (Footnotes omitted.)(My emphasis.)
47 The point of distinction made by Hunt CJ between positive evidence of good character, and the mere absence of convictions, is important. No evidence has been placed before this Court suggesting positive evidence of good character was available to the appellant at trial. In sentencing submissions following the verdicts of guilty trial counsel for the appellant did not make any submissions directly or indirectly implying that positive evidence of good character existed.
48 The critical circumstances in D were similar to those with which the Victorian Court of Appeal was concerned in Sharma v The Queen [2011] VSCA 356. In the context of an existing relationship involving prior acts of consensual sexual intercourse, the appellant was charged with rape and other sexual assaults. Counsel for the appellant had asked an investigating police officer whether he was aware that the appellant had no prior offences. The officer responded by stating he could not comment and did not know. The matter of prior convictions was not clarified and no character evidence was led.
49 In Sharma, extensive character evidence was led following conviction. The judgment summarised that evidence:
"25 At the plea hearing, defence counsel called extensive evidence of the applicant's good character. At the time of offending, the applicant was a medical practitioner in general practice in Bendigo. He was also a Fellow of the Royal Australian College of General Practitioners. He had no prior convictions. 26 Written character references were provided by eight general practitioners or specialists. Other written references were provided by two medical receptionists, a medical practice manager, the Chief Executive Officer of an aged care facility, six of the applicant's patients and his fiancée. Most of the referees said they were aware of the charges against the applicant and that he had fine personal qualities and was a caring doctor. 27 Dr Moore and two of the applicant's patients, Mr Adrian Pilchard and Mrs Lee Pickering, gave evidence at the plea. All of them said that they maintained a high opinion of the applicant despite his conviction. 28 In his sentencing remarks, the learned sentencing judge noted that there was 'powerful evidence' as to the applicant's 'professional standing and reputation' in the Bendigo area."(Footnotes omitted.)
50 The appellate court observed that counsel for the appellant should not have left the matter with the answer given by the investigating police officer that he did not know whether the appellant had prior convictions. The court described the character evidence which could have been led as "powerful", and noted that each of the witnesses called to give good character evidence in relation to sentence continued to hold the appellant in high regard despite knowledge of the offences of which the appellant had been convicted. Although the court regarded the case as "very close to the line", ultimately it reached the conclusion that the failure to remove the negative impression caused by the evidence of the police officer, "coupled with the failure to call good character evidence", deprived the appellant of a chance of acquittal. The court concluded that had the evidence been led, some members of the jury might not have been satisfied that the appellant did not possess an honest and reasonable
22 No 7/2025
belief that the complainant was consenting and, therefore, the failure to lead the evidence resulted in a
substantial miscarriage of justice.51 Again, the positive good character evidence which counsel for the appellant in Sharma failed to lead was "powerful". It would have required a direction not only that the evidence went to the credibility of the appellant's version, but also to the likelihood of him committing the offences charged (a full good character direction).
52 The circumstances under consideration are markedly different. The mere absence of prior convictions for sexual offences or violence, without more, would have had minimal impact. Further, the trial judge would have faced a difficult task in fashioning an appropriate direction for the jury. At the time of trial, the appellant possessed an extensive record of prior convictions for substantial dishonesty, coupled with repeated failures to respond to court orders and a failure to rehabilitate. In these circumstances, it would not have been appropriate for the trial judge to give a full character direction.
53 The submissions on the appeal proceeded on the basis that if the appellant led evidence as to the absence of any prior sexual offending or offences of violence, in rebuttal the Crown would have sought to place before the jury the appellant's lengthy record of substantial dishonesty and failure to comply with court orders. The submissions assumed that, almost inevitably, the trial judge would have granted leave to the Crown to lead such evidence. Based as they were on the common law position that character was treated as "indivisible", these assumptions were misplaced.
54 As discussed earlier in these reasons, as a consequence of s 110 of the Evidence Act, an accused is entitled to lead evidence that he is a person of good character "in a particular respect". Persuasive authority establishes that if evidence of good character is limited to a particular respect, such as the absence of prior sexual offending, evidence in rebuttal is limited to such particular respect and the Crown is not entitled to lead evidence of other types of offending of an entirely different character from the particular respect.[1]
55 In principle, I agree that where an accused places before the jury the absence of prior offending in a particular respect, if allowed in the exercise of the discretion, rebuttal evidence would be limited accordingly. It is unnecessary to discuss the parameters of this principle.[2] In the matter under consideration, therefore, if the appellant led evidence as to the absence of prior offending of a sexual nature or involving violence, evidence in rebuttal would necessarily have been limited to those matters and the Crown would not have been entitled to lead evidence of the appellant's prior offences of dishonesty and breaches of court orders.
56 The appellant's written submissions in support of ground 1 assert that the conduct of counsel for the appellant at trial was incompetent because there was "no rational justification for failing to either adduce evidence from the Informant about the Applicant's lack of criminal history in those two specific respects, or seek to adduce evidence from witnesses as to the Applicant's general character – and specifically his engagement and treatment of children and their observations of any violence." These bald assertions concerning evidence of general character and treatment of children were not supported by any material before this Court that such evidence was available at trial. As mentioned, there was no attempt by trial counsel to place such material before the trial judge for the purposes of sentencing.
57 No evidence was provided as to whether counsel did, or did not, consider calling character evidence to the limited extent of establishing that the appellant did not have any prior convictions for
23 No 7/2025
offences of a sexual nature or involving violence. No evidence has been provided as to whether any
instructions were sought or given in this regard.58 It is readily apparent that counsel at trial could reasonably have made a legitimate forensic choice not to open up the question of the appellant's character, even to the limited extent concerning the absence of prior sexual offending or any offences of violence. In the circumstances under consideration, the absence of prior offending of a sexual nature, or involving violence, was likely to be regarded by the jury as neutral in its effect. Counsel might have held a legitimate concern that leading such limited evidence might have tempted a jury to speculate as to why the evidence was limited to the absence of prior sexual offending and violence.
59 The danger of speculation should such limited evidence have been led was real. Counsel for the Crown would have been entitled to comment that the absence of prior sexual offending meant little in the particular circumstances where the offending occurred in the domestic setting. Counsel for the appellant would have been obliged to choose words very carefully in addressing the jury, necessarily avoiding an implication that the appellant was a person of "good character". Depending on how the issue was approached by both counsel, the trial judge might have chosen to say nothing about the topic or to have given some form of direction appropriate to the circumstances. Such a direction might have included reference to the domestic setting. For this Court, it is matter of conjecture because of the variety of circumstances that might have faced the trial judge.
60 As to the contention, unsupported by identification of the proposed evidence, that evidence concerning "general character" could have been led, trial counsel would have been most unwise to embark upon such a dangerous path. Inevitably, the trial judge would have permitted the Crown to lead evidence of the appellant's prior record of offending because such record would have been directly relevant to a suggestion that the appellant was of good general character. If evidence of the appellant's prior record of offending had been placed before the jury, it would have significantly damaged the credibility of the appellant's denials during a police interview and his explanations for both the DNA evidence and his breach of bail.
61 For these reasons, in my view the appellant has failed to make out the underlying contention that the failure of trial counsel to adduce the evidence in question amounted to incompetency in the conduct of the trial. Put another way, a legitimate choice having been made, there was no blemish in the trial, particularly no blemish resulting in a miscarriage of justice. Further, even it be regarded as an error not to lead the evidence, for the reasons discussed, in my view the appellant did not lose a chance fairly open to him of being acquitted.[3]
62 For these reasons, ground 1 is not made out.
Ground 3 – tendency evidence
63 It is convenient to deal with ground 3 concerning the admission of tendency evidence before discussing the complaints in ground 2. The appellant asserts that the admission of the tendency evidence caused a substantial miscarriage of justice as:
"(a) the evidence contained within the Tendency Notice was incapable of being
used for a tendency purpose, and/or(b)
the probative value of the evidence said to found the tendency is substantially outweighed by the danger of its unfair prejudice."
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64 The appellant's written submission advanced the proposition that the tendency evidence upon which the prosecution sought to rely "was not relevantly tendency evidence". The submission drew attention to specific particulars in the Tendency Notice, describing the particulars as "merely recitation of complaint by the complainants." The written submission continued:
"Put simply, the complaints made (for example) by [complainant A] to other people about the allegations do not disclose a tendency in the Applicant to offend in the way asserted. The evidence of those witnesses is relevant for the jury's assessment of the consistency (or otherwise) of her complaint. It is relevant for an assessment of the complainant of her credibility and reliability. But her repeated complaints do not impact upon whether (or not) the Accused had the asserted tendency. Put another way, evidence by several witnesses of what the complainant told them does not demonstrate a tendency. It does not render it more likely than not that the act occurred and that the Applicant had offended against her."
65 This ground of appeal is misconceived. It is correct that the Tendency Notice contained reference to the complaints made by the complainants and C, but it also contained reference to the evidence to be given by the complainants and C, which evidence the Crown relied upon to establish both the tendency and the willingness to act on the tendency. In addition, the complaints were admissible as evidence of the truth of the conduct about which the complainants spoke (s 66 Evidence Act).
66 The Tendency Notice contained appropriate details of the evidence upon which the Crown intended to rely to establish the tendency and a willingness to act upon it. The Notice appropriately identified other evidence, in the form of complaints, upon which the Crown relied as evidence supporting the witnesses who were to give evidence of the sexual conduct of the appellant from which the jury would be invited to infer the existence of the tendency and a willingness to act upon it.
67 In any event, it is not the terms of the Notice which are relevant to an assessment of the probative value of the tendency evidence. It is the evidence itself and the directions of the trial judge as to the use of the evidence.
68 In addition to the directions earlier cited with respect to the use of "general evidence" of sexual assaults in addition to the specific occasions relied upon, in the context of specifically discussing tendency evidence, the trial judge gave comprehensive and appropriate directions as to the use of the "general evidence" in support of the prosecution case that the appellant possessed particular tendencies and acted on them:
69 Her Honour's directions were as follows:
"Having said that, there is another way in which you can also use this general evidence, and it's relevant to this tendency reasoning that Ms Pennington spoke to you about, so I'm going to go there now. Now, the Crown – the State say the accused had a particular tendency. Now, what's a tendency? A tendency is simply a propensity or a habit to act or think in particular ways. It's nothing more than that. We all have tendencies. I have no doubt you can recognise them in yourself.
But here, the prosecution say that the accused has particular tendencies and they are relevant to your assessment of events in a specific way. So, the tendencies which are asserted by the prosecution to be established by the evidence is for the accused to have a sexual interest and/or engage in sexual contact with female children aged between 11 and 16 years.
They say that tendency displays itself because he sexually assaults female children to whom he is related, by birth or otherwise; he sexually assaults female children in respect of whom he is in a position of being a parent or guardian, or which children are under his care or supervision; he sexually assaults female children in circumstances where those children are removed from the immediate presence of
25 No 7/2025
other adults; he sexually assaults female children whilst those children were present in his place of residence and/or in his care; or he sexually assaults female children at his residence, or other locations when there was a risk of detection by other persons.
So, as a general rule – and I've set this out at paragraph 8 – as a general rule, evidence of general conduct can't be used to find specific occasions, and it can only be used in that context sort of setting, and evidence of one crime must be ignored when considering whether the person has committed another crime. But here, some slightly different rules apply.
You can use the evidence that [A] gave about the general sexual assaults that she alleges the accused perpetrated upon her. You can use the evidence [A] gave about the specific occasions she says the accused perpetrated upon her.
You can use the evidence [TR] gave about the incidents that occurred to her, and you can use the evidence that [C] gave about what [C] said occurred to her in making your assessment as to whether or not you're satisfied the accused had a particular tendency. That is, the accused had a sexual interest in female children and a tendency to act upon that sexual interest in one of the ways I've set out at paragraph 8.3.
So, that's what the State say was occurring here. The State say the accused had this tendency and that tendency perpetuated itself, showed itself by him doing those behaviours. So, the prosecution rely upon the evidence given by [A], by [B] and as I say, by [C], together with the evidence you've hear about what each of those persons said to other persons at various times to establish that the accused does, in fact, possess that tendency or those tendencies.
Now, if you accept the evidence about that conduct – so, the first point is you have to accept that something actually happened, of course. The next question you must consider is whether the evidence that you have heard establishes some or all of the alleged tendencies. So that's the first question. Does the evidence establish that the accused has those tendencies? Are you satisfied he has those tendencies?
So, the question for you is whether on the whole of the evidence you are satisfied that the accused has one or all of the asserted tendencies and that he had the tendency at the time the commission of the crime is said to have occurred. So, you don't have to be satisfied, you do not have to be satisfied that every act, that every piece of conduct is an example of this tendency, but you do have to be satisfied after examining all of the relevant evidence that the tendency existed at the time in question, and you make this decision as an inference drawn from the accused's conduct.
So, this comes back to this inferential reasoning that I was telling you about. So, the accused doesn't ever say, I've got this tendency and this is how it displays itself. You're being asked to infer that he possesses this tendency from all of the evidence that the State's put before you. So, the evidence of [A], [B] and [C], because you'll recall [C] gave evidence of the accused having allegedly behaved towards her in a way that the State say is consistent with him having this tendency.
So, I remind you, you should examine the asserted inference to ensure it's a rational and justified inference. You should consider other possible explanations. The accused, of course says look, none of this ever happened; this is, in effect, all a conspiracy that [A] and [B] have got together, have made this up and by inference, [C] joined in to support them.
So if, of course, you are not satisfied that the conduct actually occurred, you could not possibly find that the accused had one or all of the asserted tendency and all of that is a matter for you to determine. You should exercise care when determining whether you can infer the existence of the tendencies from the evidence but if you are satisfied that the tendency existed, you are entitled to proceed on that basis.
If you are not satisfied of the existence of the particular tendency , or any of the tendencies, then you must ignore the general evidence of the acts and the background
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evidence, the context evidence, and use it only in the sense that I've referred to,
putting things into context, making it part of the narrative.If you are not satisfied of the existence of this tendency, of this particular tendency, you also must ignore the evidence of what [A] said occurred to her when considering the count in respect to [B] and vice versa, you must ignore what [B] said happened to her when considering the case in respect to [A].
So, if you're satisfied the tendency occurred, you can use it as evidence that he had the tendency, and that it's more likely, you might consider, that he committed the crimes in question. So, if you're satisfied he had the tendency, you can use the existence of the tendency to consider whether it's more likely that he committed the crimes in question, but if you're not satisfied he had the tendency, you've got to separate it all out and consider [A] completely separately from [B].
All right. The crossover occurs in your consideration of whether or not he had the tendency. If you're not satisfied he did, separate it out.
If you are satisfied he possessed the tendency, then you can use it to consider whether it's more likely he committed the crime under consideration. It is important to remember, however , that the existence of a tendency cannot, as and by itself, prove the crime or prove the specified occasion. Just because someone has a particular tendency to act in a particular way does not automatically or inevitably mean that they have acted in that way or committed the crime on the occasion in question. All right.
The prosecution obviously argues that if he had this tendency, it makes it more likely that he did what [A] alleges he did, that he did what [B] alleges he did. But the defence, of course, say to you, 'Look, at the end of the day, all of this tendency reasoning process still comes down to the fact you would have to be in a position whereby you could accept the evidence of [A] and [B].' And, of course, for reasons that have been advanced by Mr Wright and that I'll touch on shortly, they say to you, you ought not accept them as being reliable and believable witnesses, and they join that critique in with [C] as well. All right.
128 Immediately following the evidence under cross-examination by Crown counsel, the older brother was cross-examined by counsel for the appellant. He was asked a number of questions about making a statement to police in September 2020 and answered positively about his statement to police that his mother and A got out of the pool first. He agreed he remembered the events in that way back in September and said he had not been told about the pool allegation before September 2020. It might reasonably be said that there was a significant improvement in the older brother's memory when cross- examination was undertaken by counsel for the appellant.
129 The jury was aware that A's evidence that EG was out of the pool before the sexual assault occurred was in conflict with her statement to police. In addition, the jury had the evidence of A's brothers that she and her mother were the first to exit the pool, evidence which was supported by the evidence of A's mother concerning the timing of A entering the changerooms. The issue as to who left the pool first was relevant to A's credit, but it also bore upon the likelihood of the appellant committing a sexual act as described by A if EG and others were still in the pool.
130 The difficulty with the complaint that the Crown failed to call EG is the fact that, at trial, no request was made for the Crown to call EG. It is not known whether the appellant, through his legal advisors, possessed any information as to what EG might say if EG was called to give evidence. The police investigation did not produce a statement from EG.
131 Significantly, there is no evidence before this Court as to what EG might have said if she was called to give evidence at trial. On the appeal, no explanation was provided for not requesting that EG be called, and no indication was given as to whether the appellant possessed any information as to what EG might have said.
132 In these circumstances, in the absence of a request that the Crown call the witness, there is no basis for a finding that the failure to call EG resulted in a substantial miscarriage of justice.
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TD, BW and AC
133 As to three witnesses identified as TD, BW and AC, the appellant advanced the following
submissions:
"3.6.8 In respect of [TD], [BW] and [AC], each of these people were present at Olinda when [A] contends that the Applicant sexually penetrated her. This incident was referred to as occasion two. In respect to this occasion, [A] said in her Video Recorded Interview with police:
'I was with my uncle, my uncle's mate, my friend and dad and we were cutting wood, and um, he wanted to show me a tree, like a big round tree and I had to walk down a big bank and I like walk into the bush and then um and then he raped me down there and then [TD], my friend cam (sic. [came]) running down to see the tree and he finished by then, and I was hoping by then he had came (sic.) down earlier to that he would stop.'
3.6.9 By any objective assessment, each of TD, [BW] and [AC] were relevant witnesses and ought to have been called by the prosecution. On [A's] version of events, TD sees the Applicant and [A] almost immediately after the offending is said to have occurred and almost witnesses the Applicant offending against [A]. TD was capable of giving evidence of his memory of that trip, and whether the version of [A] that he almost interrupted the offending was accurate or occurred at all. 3.6.10 Further, [BW] and [AC's] evidence was capable of either supporting (or contradicting) that the Applicant had taken [A] away from the group and whether (or not) it was possible for the Applicant to have an opportunity to offend against [A] as she claimed."
134 No statements were taken from TD or BW. AC provided a handwritten statement during police investigations, but it was not until the trial was underway that a police statement was taken from AC.
135 At trial, no request was made of the Crown to call TD or BW. There is no evidence before this Court as to what TD or BW might have said if they had given evidence. The Crown again relied upon the evidence of the complainant that the sexual assault occurred when she and the appellant were out of sight of other persons at the locality.
136 As to AC, although the appellant sought that AC be called in respect of a statement made by complainant A effectively withdrawing her complaint to police, a topic which is dealt with shortly, at no time did counsel for the appellant suggest that AC should be called because he could give relevant evidence concerning occasion three which was alleged to have occurred in the bush near Oldina. No material has been placed before this Court as to evidence AC might have given concerning the occasion at Oldina if he had been called at trial. There is no basis for assuming, as contended in submissions, that AC could have given relevant evidence.
137 Significantly, the Crown was of the view that AC was not a witness of truth. This issue is discussed later in these reasons.
138 In respect of TD, BW and AC and occasion three at Oldina, there is no basis in the material before this Court for a finding that an unfair trial occurred because the Crown did not call these witnesses. Similarly, there is no basis for a conclusion that a miscarriage of justice has occurred in this respect.
AC, KC and NL
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139 The proposed evidence from AC, KC and NL related to the circumstances in which, following a statement to police, complainant A made a further statement in which she swore that the contents of her original video statement were untrue ("withdrawal statement"). The withdrawal statement was before the jury.
140 The written submissions of the appellant provided the following summary of the basis upon which it was submitted the Crown should have called these three witnesses, and why the failure to do so was productive of a substantial miscarriage of justice:
"3.6.11 On 23 October 2020, [A] made a statutory declaration which she said
that:
1 her previous statement 'was not true' and that at the time she made it was using drugs; 2 TD had made her lie to get back at the family; and 3 she wanted to withdraw her original statement to police. This statutory declaration was signed by [A], before a Justice of the Peace – [NL] – and [A's] aunt [KC]. That document was tendered in the trial and became 'Exhibit P6'. 3.6.12 In examination-in-chief, [A] was asked if she remembered making the statement and if it really was her wish to withdraw her statement, to which she replied that it was not. [A] said she didn't want to write the statement, the implication being that she was compelled to do so. Issue is taken by defence counsel about the State's failure to call either [AC] or [KC]. The prosecutor explains that the State has concluded that neither are witnesses of truth and that: In any event, the evidence to be given, in my submission, with respect to the withdrawal of the statement goes to credit rather than any material facts of the allegation. 3.6.13 Later, an issue of CCTV cameras being turned off was raised in the context of breaches by the Applicant of his bail conditions, and his proximity to the [A]. In response to a question from her Honour the prosecutor said: 'Your Honour, the jury have heard the evidence relating to the withdrawal statement. They have heard the evidence with respect to the environment in which that was made. In my submission that they're entitles to assess the family environment. They're entitled to assess what pressure [A] Was to have felt in relation to making that statement…'
3.6.14
Ultimately, her Honour acknowledges that there is some unfairness to the Applicant but permits the prosecution to adduce evidence with some limitations.
3.6.15
In this case, the prosecution was permitted to put before the jury evidence from [A] that she had been compelled to provide a statutory declaration withdrawing her complaint to police, and using the family dynamics as context evidence to bolster her credibility, without ever calling the witnesses who might contradict her version of events. They both want the context evidence before the jury because it assists the prosecution case and it bolsters the complainant's credit but downplay the importance of the evidence of [AC] and [KC] because it only goes to credit.
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3.6.16 The credibility and reliability of [A's] account was central to the trial. Her initial complaints to police were nebulous and her version of events changed. The Applicant ought to have had every opportunity to expose those issues that went to the reliability of her account. 3.6.17 While the prosecution advanced a reason for not calling [A's] aunt and uncle, no reason appears to be proffered for not calling the Justice of the Peace who witnessed [A] statement. Her evidence was relevant to the issue of whether [A] was pressured to make her withdrawal statement – thus further impacting upon the overall tenor of [A's] evidence about the family dynamic. Had she been called, the Justice of the Peace could have given evidence about the interaction with [A] on that day, and whether she observed anything that would support [A's] contention. This would have been directly relevant to an assessment of [A] credibility and reliability. 3.6.18 In the circumstances of this case, and especially in respect of charge one, the evidence given by these witnesses was critical. Because the jury need not be unanimous about the same three instances of unlawful sexual activity, the capacity of these witnesses to either undermine, contradict, or challenge the version of events given by [A] was of significance. There is no way to know which of the pleaded instance of unlawful sexual offending any of the members of the jury relied on. If one of those instances can be impacted the safety of the conviction on count 1 is fundamentally undermined."
141 NL was the Justice of the Peace who witnessed the signature of A on the withdrawal statement. No statement was taken from NL and the possibility of calling NL was not raised prior to or during the trial. It is not known what NL might have said, and there is no basis in any of the material to suggest that NL might have been able to give relevant evidence. There is no basis for a conclusion that the failure to call NL might have been productive of a miscarriage of justice.
142 AC is the appellant's brother and KC is the appellant's sister. Both provided handwritten statements to police during the investigations. After the trial commenced, police statements were obtained from both persons. Broadly speaking, both statements related to the circumstances in which complainant A made her withdrawal statement.
143 When the question of calling these witnesses was first raised with the trial judge, neither person had provided a statutory declaration to police. The issue was first raised on 21 February 2023. Counsel for the appellant informed the trial judge that KC was one of the persons alleged by complainant A to have forced her into making the withdrawal statement and that AC was involved in taking A to the police to provide the withdrawal statement. Counsel advised the trial judge that the Crown had informed him that the prosecutor was of the view that these persons were not witnesses of truth.
144 In addition, the trial judge was informed that AC and KC had previously pleaded guilty to assaulting complainant B. It was an assault caught on CCTV.[4]
145 The prosecutor confirmed with the trial judge that the Crown did not intend to call AC or KC. The prosecutor said the view that these persons were not witnesses of truth was formed as a consequence of dealings police had with those persons. She added that in any event, the withdrawal of the statement was a matter of credit and KC did not purport to be a witness to any of the material facts.
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146 Ultimately the trial judge informed counsel for the appellant that if he wished to formulate an application and seek a ruling, her Honour would provide such a ruling. At that time her Honour noted the information from the prosecution that both persons had declined to speak with police. Counsel for the appellant indicated his instructions that AC and KC were willing to speak with police.
147 The issue was again raised with the trial judge on 28 February 2023. In the interim, police had taken statements from AC and KC. Counsel for the Crown informed the trial judge that she had formed the view that neither AC nor KC was a witness of truth, and that in the view of the Crown, any potential evidence from AC was relevant only to the credibility of A. With respect to KC, the Crown advised the trial judge that the only potential evidence of relevance concerned allegations relating to the caravan incident and KC purported to see nothing.
148 The prosecutor provided a brief explanation as to the basis upon which she was of the view that these persons were not witnesses of truth. In addition, the prosecutor confirmed that if the appellant called either of the witnesses, the prosecutor would waive her right to address the jury last.
149 In this Court, the Crown submissions relating to AC and KC (and NL) were as follows:
"[153] In considering the factors raised by Apostolides (as above), the following is
noted with respect to [AC] and [KC], and [NL]:
(a)
The importance of the witness: The witnesses' evidence did not bear directly on the likelihood or otherwise of the allegations made by either complainant. There was no suggestion on either the Crown or defence case that the witnesses were direct witnesses to anything which would contradict the complainant's version of events. [AC's] evidence could only relate to the credibility of [A] as it related to the making of the withdrawal statement and did not bear upon the events the subject of the charges. [KC's] evidence related to the charges was that she did not see anything consistent with [A]'s evidence when present at the address at which those events were said to have occurred. Other witnesses had given similar evidence (including [NW] and [RC]). [KC's] evidence was otherwise was relevant only to [A]'s credibility as to the making of the withdrawal statement. Arguably, much of the evidence of both witnesses would ordinarily have been excluded pursuant to s 102 of the Evidence Act. [NL] was unlikely to be capable of assisting the jury aside from recalling that [A] had sworn a document before her, a matter which was clear on the evidence.
(b)
The absence of a satisfactory explanation: The following matters were explained to the Court (or disclosed to counsel for the appellant) in respect of the evidence of [AC] and [KC]:
•
The witnesses had a history of unsatisfactory interactions with Tasmania Police, including when attempts were made to obtain a statement from them. One of those interactions included, as the subject of sworn evidence, intimidating conduct by [AC] when accompanying the complainant [A] to a police officer to withdraw her statement. They had otherwise avoided attempts to participate in a statutory declaration prior to the commencement of the trial.
•
Both [AC] and [KC] had a prior conviction for an assault committed upon the complainant [B], in the aftermath of her complaint to police in 2020.
•
[AC] had a recent prior conviction which bore upon his status as a witness of the truth (a prior conviction for perverting justice, as disclosed to counsel for the appellant). The circumstances of that
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offending, as provided by the comments on passing sentence, demonstrated that [AC] had engaged complainant [B] to be complicit in his lies to police.
•
The view reach by the State as to lack of materiality of each witness was outlined to the Court.
(c) Was there unfairness in the context of how the state ran its case: It is noted that the appellant, while having the opportunity to call [AC] and [KC] on his own case, did not do so. It was explicitly offered that, if the appellant were to call the witnesses on his own case, the State would maintain the order of addresses and address first, thus reducing any forensic disadvantage occasioned. 154 It is contended that, when viewed against the running of the trial as a whole, the failure of the State to call [AC]and [KC], and [NL], did not amount to a miscarriage of justice. They were not witnesses to the events giving rise to the crimes alleged by the appellant and were thus not material witnesses. The jury were not deprived of assessing the case before them, in a material sense, due to their absence. The State's offer to retain the order of addresses, even if the evidence of [AC] and [KC] was to be adduced by the accused, addressed any forensic disadvantaged occasioned by a failure to call them on the Crown case."
150 Across numerous witnesses the appellant contended should have been called by the Crown, the ground of appeal is noteworthy for its lack of a request of the crown during the trial for the witnesses to be called, and across all witnesses for its lack of information as to evidence that any of the witnesses might have been able to give. The exception to that general observation is found in the Crown submissions before this Court to which I have referred. In the particular circumstances under consideration, it is impossible for this Court to assess whether proposed evidence would be relevant to the critical issues, or would bear upon credit only. It is impossible for this Court to make any assessment as to the potential reliability or otherwise of proposed evidence.
151 The circumstances under consideration did not justify a Jones v Dunkel direction.[5] Counsel for the appellant at trial did not seek such a direction and in submissions to the jury did not mention the absence of any of those witnesses. The trial judge correctly directed the jury not to speculate about what any of these witnesses might have said had they given evidence.
152 In some circumstances, the absence of a witness might, in itself, justify a court concluding that a fair trial had not taken place and a miscarriage of justice had occurred. Those circumstances do not exist in the matter under consideration. As far as this Court is aware there has been no impediment to the appellant placing before this Court information as to the evidence that might have been given had the witness or witnesses been called.
153 As to AC and KC, the Crown was not obliged to explain why the Crown was of the view that AC and KC were not witnesses of truth. However, such explanation as was provided, was adequate. Further, as the Crown's submissions demonstrate, AC and KC can reasonably be described as "in the appellant's camp" and no doubt the appellant was in a position to ascertain details of the evidence they might have given. Further, although the Crown would have been able to cross-examine the witnesses had they been called by the appellant, there would not have been any other forensic disadvantage. The Crown agreed at trial that if the appellant called AC and KC, the Crown would not insist on a right of reply and would address the jury first.
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154 Finally as to KC, although not mentioned by counsel for the appellant in the appeal, on 22 November 2022 the appellant applied in the Supreme Court for an order that preliminary proceedings be conducted for the purpose of cross-examining witnesses, including KC. That application was withdrawn before the trial judge on 25 November 2022.
155 In addition, it appears that KC was made available by the Crown on 25 November 2022 in anticipation of counsel for the appellant seeking to question KC in a process known as a Basha inquiry. Counsel for the Crown indicated the purpose of KC's presence was to facilitate the Basha inquiry only, and was not an indication that "necessarily" KC would be a witness at trial.
156 Counsel for the appellant did not pursue the Basha inquiry, and advised the trial judge as
follows:
"HER HONOUR: All right, Thank you very much. Mr Wright, you don't require
the witness at any date forthcoming?MR WRIGHT: Not forthcoming, your Honour. When the trial is scheduled, if
the State's not call them, I anticipate that I will be."
157 This course of events and the exchanges with the trial judge demonstrate that counsel at trial had access to KC and was alert to the possibility of calling KC. Counsel did not suggest that the Crown should call KC and it seems tolerably clear that counsel made a forensic decision not to call KC.
Conclusion
158 None of the grounds of appeal have been made out. For these reasons I would dismiss the appeal against conviction.
[1] R v Zurita [2002] NSWCCA 22; Decision Restricted [2021] NSWCCA 74.
[2] See for example: Omot v The Queen [2016] VSCA 24.
[3] Mraz v The Queen [1955] HCA 59, 93 CLR 493; Wilde v The Queen [1988] HCA 6, 164 CLR 365.
[4] Complainant B gave evidence about the assault (T188-189, 206-207).
[5] Jones v Dunkel (1959) 101 CLR 248.
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