Pethybridge v R

[2020] NSWCCA 247

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Pethybridge v R [2020] NSWCCA 247

Hearing dates:

3 July 2020

Date of orders:

2 October 2020

Decision date:

02 October 2020

Before:

Payne JA at [1]; Fagan J at [117]; Cavanagh J at [118]

Decision:

(1) Leave to appeal (including leave to appeal under rule 4) granted on all grounds;

(2)   Appeal allowed on grounds 1 and 2 of appeal against conviction;

(3)   Appeal dismissed on ground 3 of appeal against conviction;

(4)    Quash the conviction dated 20 June 2018;

(5)   Aggregate sentence imposed on 21 September 2018 quashed and in lieu thereof the following sentence imposed on counts 1-6 on the indictment presented on the second trial:

(a)   Aggregate sentence of 4 years imprisonment imposed to commence on 2 August 2018;

(b)   Aggregate non-parole period of 2 years and 9 months imposed;

(c)   The applicant will first be eligible for parole on 1 May 2021;

(d)   The following indicative sentences are identified:

(i)   Count 1: 14 months;

(ii)   Count 3: 14 months;

(iii)   Count 4: 22 months;

(iv)   Count 5: 12 months;

(v)   Count 6: 13 months.

(6)   Matters the subject of the indictment presented in the first trial remitted to the arraignment list in the District Court on 9 October 2020.

Catchwords:

CRIMINAL PROCEDURE – lies – directions to jury – consciousness of guilt – where Crown conducted a case in relation to one alleged lie told in consciousness of guilt – whether trial judge erred in directing jury about three alleged lies told in consciousness of guilt

EVIDENCE – character evidence – good character – where applicant sought to lead evidence of lack of prior convictions – where trial judge refused to allow applicant to adduce evidence of prior good character – whether trial judge erred

EVIDENCE – tendency evidence – coincidence evidence – whether direction sought by Crown – whether trial judge permitted to give direction

Legislation Cited:

Crimes Act 1900 (NSW), ss 61E, 65, 66C, 76, 413

Criminal Appeal Act 1912 (NSW), s 6(1)

Criminal Appeal Rules, r 4

Criminal Procedure Act 1986 (NSW), ss 141, 142

Evidence Act 1995 (NSW), ss 55, 110, 135

Cases Cited:

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

Clegg v R [2017] NSWCCA 125

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v R [2018] NSWCCA 2

JV v R [2017] NSWCCA 49

Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

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

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v D (1996) 86 A Crim R 41

R v Hamilton (1993) 68 A Crim R 298

R v Meher [2004] NSWCCA 355

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

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

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category:

Principal judgment

Parties:

Raymond Maurice Pethybridge (Applicant)
Crown (Respondent)

Representation:

Counsel:
C Smith SC with S Howell (Applicant)
B Hatfield (Respondent)

Solicitors:
O’Brien Criminal and Civil Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/83859

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

01 August 2018

Before:

Frearson SC DCJ

File Number(s):

2016/83859

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Raymond Pethybridge, was arraigned on an indictment containing 18 counts relating to historic sexual misconduct against eight different complainants, all of whom came into contact with the applicant during his employment with the Salvation Army. The original indictment was severed into two trials. Following the first trial, the applicant was found guilty of all counts with the exception of one count which was charged as an alternative. Following the second trial, the applicant was found guilty of all counts with the exception of one count which was subject to a verdict of not guilty by direction. The applicant was sentenced to an aggregate sentence of 15 years imprisonment with a non-parole period of 10 years.

The applicant sought leave to appeal against both conviction and sentence. There were three grounds in the conviction appeal.

Ground 1 - In relation to the first trial, the applicant submitted that the trial judge erred in his direction to the jury about consciousness of guilt. The trial judge gave a direction that it was open to the jury to find that the applicant had lied in three respects and, if the jury so concluded, they could further conclude that he did so from a consciousness of guilt. However, the Crown had only put to the jury that it was open to them to find that the applicant had lied from a consciousness of guilt in one respect.

Ground 2 - In relation to the first trial, the applicant submitted that the trial judge erred in refusing to allow the applicant to adduce evidence by consent of his prior good character. The Crown Prosecutor did not oppose the applicant being permitted to adduce evidence that he had no convictions prior to the first trial. However, the trial judge expressed concerns about being aware that there were “allegations outstanding” and rejected the admission of the evidence about the applicant’s lack of prior convictions.

Ground 3 - In relation to the second trial, the applicant submitted that the trial judge erred in directing the jury about coincidence reasoning. Despite serving both a tendency and coincidence notice prior to the trial, the applicant submitted that the Crown in making its closing address to the jury relied on tendency reasoning but not coincidence reasoning. The issue raised was whether the trial judge erred in instructing the jury about both tendency and coincidence reasoning.

As to the sentence appeal, the applicant submitted that the sentencing judge erred in assessing the objective seriousness of some counts (ground 1) and that the aggregate sentence of imprisonment imposed was manifestly excessive (ground 2).

As to the conviction appeal, the Court held, granting leave to appeal and upholding the appeal in part:

Per Payne JA (Fagan J and Cavanagh J agreeing):

1. As to ground 1, the allegation that the applicant’s evidence about alleged incidents in Holsworthy and Orange were lies told in consciousness of guilt formed no part of the Crown case. It was, in those circumstances, unnecessary and inappropriate for the trial judge to give to the jury an Edwards direction about those matters: [58].

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40; Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, considered and applied.

2. The trial judge erred in giving the jury a direction that they could take the evidence about alleged incidents in Holsworthy and Orange into account as evidence of lies reflecting a consciousness of guilt: [58], [66].

3. As to ground 2, the evidence that the applicant had no prior convictions was relevant to a fact in issue: [73]. Evidence of good character almost always helps an accused person’s defence: [74]. The absence of prior convictions has long been understood as an aspect of good character: [75].

Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15; TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied.

4. The trial judge erred in excluding the evidence of the absence of prior convictions which was to be adduced by consent. The evidence was admissible: [82].

5. The applicant has established that the trial judge made a “wrong decision on any question of law”, being the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW). The rejection of evidence caused a miscarriage of justice: [85].

6. As to ground 3, trial judges should refrain from advancing an argument in support of a Crown case that was not put by the Crown: [97].

R v Meher [2004] NSWCCA 355, applied.

7. However, here there was a tendency and a coincidence notice served prior to the trial. Whilst the Crown Prosecutor did not specifically use the word “coincidence” in his closing address, it was clear that he was raising coincidence reasoning for consideration by the jury: [98].

8. As the issue was sufficiently raised by the Crown and understood to have been so raised by counsel for the applicant, the trial judge’s direction to the jury about coincidence reasoning was not an error: [102].

As to the sentence appeal, the Court held, granting leave to appeal and dismissing the appeal:

9. As ground 1 of the sentence appeal related to counts in the indictment in the first trial, where the Court set aside the convictions and remitted the applicant for a re-trial, it was inappropriate to say anything about that ground: [106].

10. As to ground 2 of the sentence appeal, if it were necessary to decide, the Court would not have concluded that the applicant had established that the aggregate sentence was unreasonable or plainly unjust: [109].

Hughes v R [2018] NSWCCA 2, applied.

Judgment

1. PAYNE JA: The applicant, Raymond Maurice Pethybridge, is a former employee of the Salvation Army who held a number of positions over the years during which he was part of that organisation.

2. On 29 May 2018, the applicant was arraigned on an indictment containing 18 counts. Broadly, the allegations related to historic sexual misconduct against eight different complainants, all of whom came into contact with the applicant through the Salvation Army.

3. Following the severance of some counts on 30 May 2018, the applicant was arraigned before Frearson SC DCJ and a jury of twelve on the following counts (the first trial):

1. Count 1: Between 8 January 1958 and 8 January 1959, at Speers Point in the State of New South Wales, assaulted RJ, a female under the age of sixteen years, namely, 5 or 6 years and, at the time of that assault, committed an act of indecency upon her (pursuant to now-repealed s 76 Crimes Act 1900 (NSW));

2. Count 2: Between 8 January 1958 and 8 January 1959, at Speers Point in the State of New South Wales, assaulted RJ, a female under the age of sixteen years, namely, 5 or 6 years and, at the time of that assault, committed an act of indecency upon her (s 76 Crimes Act 1900 (NSW));

3. Count 3: Between 14 January 1970 and 18 January 1973, at Croydon Park in the State of New South Wales, assaulted LA, a female under the age of sixteen years, namely 4, 5, 6, or 7 years and at the time of that assault, committed an act of indecency upon her (s 76 Crimes Act 1900 (NSW));

4. Count 4: Between 25 April 1973 and 16 January 1975, at Holsworthy in the State of New South Wales, assaulted LA, a female under the age of sixteen years, namely 8 or 9 years and, at the time of that assault, committed an act of indecency upon her (s 76 Crimes Act 1900 (NSW));

5. Count 5: Between 1 January 1977 and 31 January 1977, at Surry Hills in the State of New South Wales, attempted to commit the crime of rape upon LA (pursuant to now-repealed s 65 Crimes Act 1900 (NSW));

6. Count 6: Between 1 January 1977 and 31 January 1977, at Surry Hills in the State of New South Wales, assaulted LA, a female under the age of sixteen years, namely 11 years and, at the time of that assault, committed an act of indecency upon her (s 76 Crimes Act 1900 (NSW));

7. Count 7: Between 13 January 1971 and 26 April 1973 at Wangi Wangi in the State of New South Wales, assaulted EJ, a female under the age of sixteen years, namely 9, 10, or 11 years and, at the time of that assault, committed an act of indecency upon her (s 76 Crimes Act 1900 (NSW));

8. Count 8: Between 13 January 1971 and 26 April 1973 at Wangi Wangi in the State of New South Wales, assaulted EJ, a female under the age of sixteen years, namely 9, 10, or 11 years and, at the time of that assault, committed an act of indecency upon her (s 76 Crimes Act 1900 (NSW));

9. Count 9: Between 1 January 1972 and 31 December 1973 at Campsie in the State of New South Wales, assaulted DB, a female person under the age of 16 years, namely 10 or 11 years and, at the time of the assault, committed an act of indecency upon her (s 76 Crimes Act 1900 (NSW));

10. Count 10: Between 29 April 1986 and 14 January 1987, at Orange in the State of New South Wales, had sexual intercourse with MP, a person of or above the age of 10 years and under the age of 16 years, namely 10 years (s 66C(1) Crimes Act 1900 (NSW));

11. Count 11: Between 29 April 1986 and 14 January 1987, at Orange in the State of New South Wales, assaulted MP, a person under the age of 16 years and under his authority and, at the time of the assault, committed an act of indecency upon her (pursuant to the now-repealed s 61E(1A) Crimes Act 1900 (NSW));

12. Count 12: Between 29 April 1986 and 14 January 1987, at Orange in the State of New South Wales, had sexual intercourse with MP, a person of or above the age of 10 years and under the age of 16 years, namely 10 years, and under his authority (s 66C(2) Crimes Act 1900 (NSW));

13. Count 13: Between 29 April 1986 and 14 January 1987, at Orange in the State of New South Wales, had sexual intercourse with MP, a person of or above the age of 10 years and under the age of 16 years, namely 10 years, and under his authority (s 66C(2) Crimes Act 1900 (NSW)).

4. Following this trial, the applicant was subsequently called to trial on 24 July 2018 and arraigned before Frearson SC DCJ and a jury of twelve on the following counts (the second trial):

1. Count 1: Between 10 January 1982 and 7 October 1983, at St Peters in the State of New South Wales, assaulted KS and, at the time of the assault, committed an act of indecency upon her (s 61E(1) Crimes Act 1900 (NSW));

2. Count 2: Between 10 January 1982 and 7 October 1983, at St Peters in the State of New South Wales, assaulted KS and, at the time of the assault, committed an act of indecency upon her (s 61E(1) Crimes Act 1900 (NSW));

3. Count 3: Between 10 January 1982 and 7 October 1983, at St Peters in the State of New South Wales, assaulted KS and, at the time of the assault, committed an act of indecency upon her (s 61E(1) Crimes Act 1900 (NSW));

4. Count 4: between the 1 August 1980 and 30 September 1980, at Surry Hills in the State of New South Wales, assaulted SC, a female person, and at the time of the assault, committed an act of indecency upon her (s 76 Crimes Act 1900 NSW));

5. Count 5: Between 8 October 1980 and 10 January 1982, at Sydney in the State of New South Wales, assaulted LB, a female person, and at the time of that assault, committed an act of indecency upon her (s 76/s 61E(1) Crimes Act 1900 (NSW));

6. Count 6: Between 8 October 1980 and 10 January 1982, at Sydney in the State of New South Wales, assaulted LB, a female person, and at the time of that assault, committed an act of indecency upon her (s 76/s 61E(1) Crimes Act 1900 (NSW)).

5. Following the first trial, which ran between 29 May 2018 and 20 June 2018, the applicant was found guilty of all counts (with the exception of count 6, which was charged as an alternative to count 5). Following the second trial, which ran between 24 July 2018 and 2 August 2018, the applicant was found guilty of all counts, except for count 2, which was subject to a verdict of not guilty by direction.

6. The applicant was sentenced to an aggregate sentence of 15 years imprisonment with a non-parole period of 10 years. In relation to the convictions arising from the first trial the following indicative sentences were given:

1. Count 1: 18 months;

2. Count 2: 2 years 8 months;

3. Count 3: 2 years 5 months;

4. Count 4: 20 months;

5. Count 5: 5 years 2 months;

6. Count 7: 2 years 6 months;

7. Count 8: 2 years 6 months;

8. Count 9: 23 months;

9. Count 10: 4 years 6 months;

10. Count 11: 2 years 3 months;

11. Count 12: 4 years 4 months;

12. Count 13: 4 years 6 months.

7. In relation to the convictions arising from the second trial, the following indicative sentences were given:

1. Count 1: 14 months;

2. Count 3: 14 months;

3. Count 4: 22 months;

4. Count 5: 12 months;

5. Count 6: 13 months.

Relevant facts

The first trial

8. The charges in this matter arose out of allegations of indecent assault made by five complainants, RJ (born 3 August 1952), EJ (born 28 June 1961), LA (born 18 April 1965), MP (born 3 February 1976) and DB (born 22 February 1962). At all relevant times, the applicant was employed by the Salvation Army.

Allegations in relation to RJ (counts 1 and 2)

9. RJ came to know the applicant at West Wallsend, when he held the position of Corps Officer in the Salvation Army with the rank of Lieutenant. The allegations relating to RJ occurred when she was between 6 and 8 years old at a Sunday school picnic run by the Salvation Army at Speers Point Park on the edge of Lake Macquarie.

10. Because RJ could not swim, RJ was jumping into the water, into the applicant’s arms. When RJ jumped into the water, the applicant put his hand inside her swimming costume and felt her vagina. The second time she jumped in, he did it again and his finger penetrated her further. After the second time, RJ got out of the water.

Allegations in relation to EJ (counts 7 and 8)

11. EJ is the younger sister of RJ and came to know the applicant as a friend of the family because he was the minister at West Wallsend. The alleged conduct relating to EJ occurred when she was about 10 or 11 years old in a car when the applicant and his wife came to visit EJ’s family during a camping trip to Wangi Wangi. EJ’s father decided to take them prawning or to look at the bay.

12. The applicant sat in the front passenger seat and EJ sat on his lap. The applicant touched EJ’s underpants and tried to put his fingers inside her underpants. Then, he put a finger inside her vagina. EJ jumped and her father hit her and told her to sit still. The applicant then put his finger inside EJ’s vagina. This lasted for a few minutes.

Allegations in relation to LA (counts 3, 4, 5 and 6)

13. LA met the applicant at a very young age when her family was residing in a Salvation Army residence. LA’s family had a close relationship with the applicant’s family. The first two allegations relating to LA occurred on a trip to stay in a Salvation Army holiday house in Healesville in Victoria when LA was five and a half or six and a half years old. These allegations were relied upon for context and as tendency evidence.

14. The first incident (relied on as tendency evidence) involved an allegation that, when alone in a bedroom upstairs, the applicant picked LA up and put her into the bed, pulled down the clothing on the lower half of LA’s body and stroked the outside of her vagina.

15. The second incident (also relied on as tendency evidence) involved an allegation that, when sitting on the applicant’s lap during the course of a board game, the applicant cupped LA’s vagina and inserted his fingertips into her vagina.

16. The third incident, charged as count 3, involved an allegation that occurred when the Pethybridge family came to visit LA’s family at Croydon Park. LA was sitting on the applicant’s lap during the course of a game or discussion at the table. The applicant pushed LA’s underwear to one side and inserted his fingertips into her vagina.

17. The fourth allegation, charged as count 4, occurred when LA was about eight years old in a bedroom in the applicant’s Salvation Army residence in Holsworthy. The applicant, lying on a bed, put LA astride him, held her hands around his exposed penis and bounced her up and down while his penis was erect.

18. The fifth allegation, charged as attempted rape under count 5, occurred at the applicant’s office at Foster House, a Salvation Army homelessness service at Surry Hills, where the applicant attempted penile/vaginal intercourse with LA. This incident was charged in the alternative as indecent assault under count 6.

Allegations in relation to DB (count 9)

19. DB’s parents held a Friday night bible study meeting at their home which was attended by the applicant. The allegation relating to DB occurred one night when DB was home sick. DB alleged that the applicant entered her bedroom, closed the door, put his hand down her top and squeezed her breasts.

Allegations in relation to MP (counts 10-13)

20. MP met the applicant when attending Sunday School after the applicant’s family came to join her church. The applicant babysat MP and her brother on Friday evenings when MP’s mother was out collecting money for the Red Shield. The incidents were alleged to have occurred when MP was ten years old at the applicant’s house when the applicant was babysitting MP and her brother.

21. The first allegation occurred when MP’s mother took MP and her brother to the Pethybridge residence. When they arrived, MP went to the back office, also referred to as the granny flat, where the applicant was and hugged him. MP alleged that the applicant started touching MP’s breasts. He then rubbed her vagina and inserted his finger into her vagina. The applicant was rubbing his penis.

22. The second allegation occurred when MP and her brother were helping the applicant count collection money. The applicant rubbed his hands over MP’s chest on top of her clothes. MP alleged that the applicant then moved his hands down, under her underpants, and started touching her vagina.

23. The third allegation occurred when the applicant, MP and her brother were at the kitchen table counting collection money. The applicant, who was sitting on a chair beside MP, started touching her vagina under her clothes under the table and then inserted his fingers into her vagina.

24. The fourth incident involved an allegation that MP got up to go to the toilet when the applicant started putting his hands down her pants and touching her vagina. When MP came out of the toilet, the applicant was standing at the doorway. The applicant started touching her on her vagina underneath her underwear and inserted his fingers.

The second trial

25. The charges in this matter arise out of allegations of indecent assault made by three complainants, KS (born January 1959), SC (born November 1961) and LB (born September 1962). At all relevant times, the applicant was employed by the Salvation Army.

Allegations in relation to KS (counts 1-3)

26. The allegations relating to KS occurred whilst she was working at St Peters Mancare, where she would sort out clothes in the thrift shop. At that time, the applicant was employed as the manager of that facility. These allegations were the subject of counts 1-2 in the indictment in the second trial (count 2 resulted in a verdict of not guilty by direction).

27. The first incident involved an allegation that KS went to the applicant’s office at his invitation. The applicant closed the door. KS said that the applicant touched her on her breast. The applicant touched her using his right hand and did not say anything to her.

28. The second incident involved an allegation that the applicant did exactly the same thing on a second occasion.

Allegations in relation to SC (count 4)

29. The allegations relating to SC occurred whilst she was employed as a receptionist at Foster House. At that time, the applicant was employed as the manager of that facility. These allegations were the subject of count 4 in the indictment in the second trial.

30. SC went to the applicant’s office at his invitation. The applicant closed the door. He went over to the window and closed the blind. He turned around to SC and said, “You don’t look very well. I have medical knowledge”. SC replied, “I feel okay”. The applicant moved towards her and came close to her. He pushed his body against hers. She could feel the applicant’s semi-erect penis pressed against her. The applicant put his hand down the front of her top, into her bra, and felt each breast. SC left the office and returned to her desk.

Allegations in relation to LB (counts 5-6)

31. The allegations relating to LB occurred whilst she was employed as a receptionist at People’s Palace. At that time, the applicant was employed as the manager of that facility. These allegations were the subject of counts 5-6 in the indictment in the second trial.

32. LB went into the applicant’s office to use the photocopier. The applicant was at his desk. He pulled out some A4 sheets of paper and drew penises on the paper. The applicant approached LB and touched her over her clothes while talking about how he helped other women. The applicant first touched her on her breasts, outside of her clothing. The applicant then touched her vagina, on the outside of her clothing, while continuing to talk about how he helped these other women. LB was in shock and froze. They were interrupted and LB left.

Ground 1: in the first trial, his Honour erred in his directions to the jury concerning consciousness of guilt

33. In the first trial, the trial judge gave a direction based on Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 that it was open to the jury to find that the applicant had lied in three respects, and if the jury so concluded they could further conclude that he did so from a consciousness of guilt. The three “lies” were referred to as:

1. the “Healsville lie”;

2. the “Holsworthy lie”; and

3. the “Babysitting lie” or the “Orange lie”.

34. The events at Healesville were uncharged acts relied upon as tendency evidence. LA gave evidence about a trip where her family went and stayed in a Salvation Army holiday house in Healesville in Victoria with the applicant and his family. LA was between four and a half and five and a half years old. This would mean that the trip took place approximately in 1970. LA gave evidence about two incidents which occurred at Healesville amounting to sexual assault of a kind similar to counts in the indictment.

35. LA’s father also gave evidence about a family trip in 1970 to the Salvation Army holiday lodge in Healesville. LA’s father was able to recall that it was 1970 as he had tried to commit suicide or, as he said, “took very sick” and was hospitalised. A Mrs Clanfield also gave evidence of being at Healesville in about 1970 with LA’s family and the applicant’s family. She recalled that LA’s father had gone missing and that the applicant and her husband went out looking for him. The next morning LA’s father had been found and was in hospital.

36. Mr Greville from the Salvation Army’s Professional Standards Group had been approached by LA to speak to him about allegations against the applicant. Mr Greville took a statement from LA. On 19 February 2014, Mr Greville sent a letter to the applicant, inviting him to take part in an interview about the allegations. The letter indicated the allegations of sexual or indecent assault made against the applicant by LA, at locations including Healesville, Holsworthy, Ashfield and at Foster House.

37. The applicant took part in a recorded interview with Mr Greville on 11 March 2014. The recording of that interview became exhibit F in the trial. In that interview, the applicant said that he had only visited Healesville once, in 1964. He maintained during the Greville interview that LA was too young in 1964 for her allegations to possibly be true.

38. The applicant gave evidence at the first trial and was cross-examined. When asked if he said that the only trip to Healesville was in 1965, the applicant said, “I thought it was. I thought it was”. When asked if he now accepted that the trip to Healesville where LA’s father attempted suicide was in 1970, he responded, “Could have been. Could have been.” This evidence was referred to by the parties as the “Healesville lie”.

39. In his closing address to the jury the Crown Prosecutor said about the evidence concerning Healesville:

“Moving on to [LA] and there’s quite a bit of evidence to get through here. So, the accused was interviewed by Mr Greville and he knew - the Crown says, the accused knew, in that interview, by denying that he went to Healesville in 1970, that he was seeking to cover up any possibility that he was with [LA] when she was aged 5. It’s a matter for you but the Crown says you can sense the dismissiveness of his answers in that record of interview. How would she know what happened? She was six months old when they went there, he said 1964, 65, I think it was, 65 and he said [LA] was born in 64. He was saying that, confident in knowing that a six-month old would not possibly be able to recall that particular detail. But, members of the jury, you now know that it’s untrue that he never went to Healesville in 1970. It’s an agreed fact now, it would seem. No-one disputes that Healesville occurred in 1970.

…

On p 53 of the transcript - when I say, ‘p 53,’ on 4 June. He was asked about the phone call - this is [LA’s father]. ‘He asked me straight out over the phone, “What is [LA]’s date of birth?” I couldn’t understand why he would be asking me that.’ Before that question was asked, ‘Were there any greetings or anything like that? No, no, because he - he would have known the investigation was underway’ and he was asked to direct himself to the question.

…

What the Crown says is that he manufactured this lie to Greville, manufactured this lie about [LA] only being six months old then, because the Crown says he knew, by admitting that he was there in 1970 when [LA] was five years old, or thereabouts, that would expose him. That would expose him, members of the jury, hence him saying, ‘1970. No, that didn’t happen.’ The lie that he didn’t go to Healesville in 1970 because [LA] was six months old at the time that he said he did go. What would she remember at that age, because she was very young, six months old. The Crown says that he lied because knowing the truth would expose him.”

40. It is clear that the Crown case was that it was open to the jury to find that the “Healesville lie” was a lie told by the applicant in consciousness of guilt. The applicant accepted that an Edwards direction was consistent with the Crown case in relation to the “Healesville lie”.

41. The trial judge gave the following Edwards direction in respect of consciousness of guilt reasoning in relation to the Healesville lie:

“I do need to say something to you about lies. The first thing I say about lies is that not every statement that is not correct is a deliberate lie, clearly. You need to consider whether something is a deliberate lie or is a product of the passage of time or it is the product of a failing memory or it is a product of confusion. You need to take all those matters into account, because not everything is a lie. People are inaccurate and imprecise and get things wrong all the time and people can be mistaken; they can be genuinely mistaken. But there are a number of matters here that the Crown submits are significant lies.

For example, re [LA], the Crown points to the accused’s interview with Mr Greville. This relates to the incident or incidents said to have taken place at Healesville. You will appreciate that that is not a matter on the indictment. What the Crown submits is that when you read it, and you have the transcript and you have heard it, and you look at the particular questions and answers, and he referred to 28 and 29 in particular, what the accused was saying there was that he was at Healesville once and once only and it was at a time when the complainant was a baby. The Crown submits it is clear. As it transpires, there was much evidence from, for example, [LA’s father] and Mrs Clanfield and plus eventually the evidence of the accused and his wife, that there was a visit there to Healesville in 1970 as the complainant alleges. This is a visit that is associated with the attempted suicide of [LA’s father], when he did not go back with them.

This is a context matter, but you appreciate that this context matter for [LA] is also used as part of the pool of tendency evidence relied upon. It is a question of what you do with that and what you make of that alleged lie. You can use any type of lie on the question of credibility, on the question of whether you believe what the accused says to you or the weight you give to the accused’s evidence. You can use any type of deliberate lie on the question of credibility. But to go further than that, for more than credibility, you need to be careful about what it is you make of the lie. In relation to the Healesville episode, which is not a count on the indictment, you could use for more than credibility, if you find that the accused deliberately lied when he gave his account to Mr Greville and that the lie related to something significant and he deliberately lied to distance himself from Healesville fearing that the truth would implicate him in some type of sexual impropriety with the complainant; if you concluded all that and concluded all that beyond reasonable doubt, then you could take that lie into account in supporting what the complainant says about Healesville.”

42. The applicant’s complaint in ground 1 is that in relation to two further issues, referred to by the parties as the “Holsworthy lie” and the “Orange” or “babysitting lie”, the Crown did not suggest that the applicant had lied out of consciousness of guilt. However, the trial judge gave further directions, which went much further than the Crown case, that both lies could be used by the jury as evidence of consciousness of guilt.

43. To examine the applicant’s complaint, the evidence about Holsworthy and Orange at the trial needs to be sketched in a little detail.

44. In relation to Holsworthy, LA gave evidence about an incident with the applicant at his residence at Holsworthy which was count 4 on the indictment. This was a residence that was part of the applicant’s position with the Salvation Army. LA recalled an incident in what she believed was the applicant’s daughters’ bedroom, when she was about seven or eight years old. The applicant, lying on a bed, first indecently assaulted his daughter Sandra, and then put LA astride him, held her hands around his exposed penis and bounced her up and down while his penis was erect. The incident came to an end when the applicant’s second daughter, Desley, came into the room.

45. In his interview with Mr Greville, the applicant agreed that he was a Military Chaplain at Holsworthy and lived with his family off the base in Holsworthy village in a number of different houses. The applicant said that LA was never in any of those houses in Holsworthy. The applicant further said that LA’s family never came to his house at Holsworthy.

46. At the trial, the applicant maintained that LA and her family had not visited his home in Holsworthy. That evidence was supported by evidence given by the applicant’s family:

1. the applicant’s daughter Sandra gave evidence at the trial that LA and her family never came to visit them at Holsworthy. Sandra denied that [LA’s family] visited them in Holsworthy because she “knew who they had at their houses and who they didn’t”. Sandra also denied that the indecent assault upon her described by LA ever occurred;

2. Desley, the older daughter of the applicant, also denied that LA and her family visited any of their family homes in Holsworthy;

3. the applicant’s wife gave evidence that LA’s family did not visit any of their homes at Holsworthy.

47. There was some evidence supporting LA’s evidence that she had visited the applicant’s home in Holsworthy with her family:

1. LA’s father said he remembered visiting the applicant and his wife at least once when they were stationed at Holsworthy;

2. LA’s brother’s evidence was not clear but he recalled visiting the applicant’s home in a suburb of Sydney where there were military houses with military people around.

48. The Crown Prosecutor at the trial did not in his closing address submit to the jury that the applicant had lied about LA visiting his Holsworthy home out of consciousness of guilt. I reject the Crown submission on the appeal that cross-examination at the trial about the nature of the military housing and the uniform worn by the applicant at the time was equivalent to raising the issue of whether the applicant had lied about LA’s family visiting his home at Holsworthy out of a consciousness of guilt. Neither in the cross-examination of the applicant or in the summing up to the jury on this issue did the Crown Prosecutor make any suggestion whatsoever about the applicant telling a lie about LA visiting Holsworthy out of a consciousness of guilt.

49. The alleged “babysitting” or “Orange” lie involved a different complainant, MP. The applicant was not asked about MP by Mr Greville. Counts 10-13 in the indictment related to the allegations made by MP. MP gave evidence that the applicant babysat MP and her brother every Friday evening at his home in Orange when MP was about 6 or 7 and MP’s mother went out collecting for the Salvation Army with the applicant’s wife. MP gave evidence that all but one incident occurred during a time when the applicant was babysitting MP and her brother. MP gave evidence that the first incident (charged as count 10) occurred in a granny flat at the back of the applicant’s home in Orange.

50. At the trial, the applicant gave evidence that during the time his family lived in Orange his wife did not collect at the pubs and the applicant never babysat MP.

51. The applicant’s family gave evidence that the applicant had not babysat MP and that the granny flat at the back of the Orange property (where MP said the incident charged as count 10 occurred) had not been used as an office whilst their family lived there:

1. the applicant’s daughter, Sandra, who was about 18 when the family moved to Orange, gave evidence that MP did not visit the family home at Orange and neither did her mother. Sandra said that the granny flat at the back of the Orange property had not been used as an office while their family lived there. It was used to store boxes;

2. the applicant’s wife gave evidence that MP never came to the family home in Orange. Neither did MP’s mother. Mrs Pethybridge did collect money in pubs in Orange every Friday night, but never with MP’s mother. Mrs Pethybridge said that the granny flat was used for storage and not used as an office;

3. Desley, the other daughter of the applicant, said that she never lived in Orange and therefore did not know MP or her mother.

52. There was evidence supporting MP’s evidence that she was babysat by the applicant at Orange:

1. the applicant’s mother gave evidence that she would often assist the applicant’s wife in collecting money at hotels on a Friday night and her children would be babysat by the applicant;

2. MP’s brother gave evidence that he recalled one occasion only when he was babysat by the applicant.

53. The Crown did not submit to the jury in its closing address that the applicant had lied about babysitting MP at his Orange home out of consciousness of guilt. I reject the Crown submission on the appeal that the suggestion by the Crown Prosecutor in the summing up that the applicant’s family had “manufactured” their evidence “in cooperation with each other” amounts to a submission that the applicant had lied about babysitting MP in Orange out of a consciousness of guilt. Neither in the cross-examination of the applicant or in the summing up to the jury on this issue did the Crown Prosecutor make any suggestion whatever about the applicant telling a lie about babysitting MP in Orange out of a consciousness of guilt.

54. Notwithstanding that lies told out of a consciousness of guilt about LA visiting Holsworthy or MP being babysat in Orange formed no part of the Crown case, the trial judge gave an Edwards direction to the jury about each of those matters:

“You can only use this type of lie (denial of the [LA] visit to Holsworthy and denial of babysitting) as being relevant in any way to the question of the guilt of the accused if you are satisfied beyond reasonable doubt, in this case, that it was a deliberate lie; that it related to a significant circumstance; it must be relevant, in some way, ie. connected to the actual alleged crime; and, thirdly, that the accused lied about not having the opportunity because he realised that the truth would tend to implicate in the offence and he wanted to distance himself from the complainant because he was conscious of inappropriate sexual contact with the particular complainant. I know it seems like a lot. In essence, the Crown has to establish that it was deliberate lie about a material matter and the only reasonable explanation for the deliberate lie was that the accused was conscious of sexually inappropriate behaviour with the child. As I have said to you repeatedly, there are arguments both ways.”

55. The allegation that the applicant’s evidence about LA visiting Holsworthy and his not babysitting MP in Orange were lies told in consciousness of guilt formed no part of the Crown case. It was common ground that the Crown case statement, served prior to the trial in accordance with ss 141-142 of the Criminal Procedure Act1986 (NSW) contained no such allegation. No such allegation was put in cross-examination by the Crown or suggested in the Crown’s summing up to the jury. The trial judge in giving this direction unilaterally expanded the scope of the Crown’s case at a time in the trial when the applicant’s counsel had no opportunity to rectify any prejudice caused to the applicant.

56. The Crown’s submission to the jury in closing was that all of the evidence given by the applicant’s family should be rejected as it had been given “in cooperation with each other”. That allegation of “cooperation” was a subject addressed by the applicant’s counsel in his closing submissions to the jury. The trial judge’s direction that it was open to the jury to conclude that the applicant had lied out of consciousness of guilt was an alternative path of reasoning, not relied upon by the Crown.

57. In Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, Mr Dhanhoa, who was suspected of having attacked and robbed another person, was told by investigating police that his fingerprints were found in the hotel where the alleged robbery took place. When interviewed by police, he denied ever having been at the hotel. During the trial, he gave evidence admitting that he had been at the hotel and that he had gone back to the victim’s unit with three others. If accepted, this provided an innocent explanation for the presence of his fingerprints. The prosecution did not present a consciousness of guilt case to the jury and no Edwards direction was sought or given. On appeal, it was submitted that such a direction should have been given. The High Court rejected that submission. Gleeson CJ and Hayne J explained that:

“[34]   It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.” (Footnotes omitted.)

58. In the present case, issue had been joined by the parties at the applicant’s trial about LA visiting Holsworthy and the babysitting of MP in Orange. The prosecution did not contend that the applicant had told lies that the jury could consider was evidence of his guilt about LA visiting Holsworthy or the babysitting of MP in Orange. It was, in those circumstances, “unnecessary and inappropriate” for the trial judge to give the jury an Edwards direction about those matters. This was not a case where it was appropriate to give such a direction due to any risk of misunderstanding about the significance of the evidence about LA visiting Holsworthy or the babysitting of MP in Orange.

59. In Dhanhoa, McHugh and Gummow JJ in a separate joint judgment explained that even where it is assumed that the accused has lied because he was conscious that he was guilty of participating in the crimes, in a case where the Crown made no attempt to conduct a case that the lie was told in consciousness of guilt:

“[64]   … to have given a direction about lies — to have given an Edwards direction — might not only have emphasised the issue but made it difficult for the jury to disregard consciousness of guilt as an issue.” (Footnote omitted.)

60. I have reached the same conclusion here. The Crown did not rely on the alleged Holsworthy and Orange lies as supporting consciousness of guilt reasoning. The Edwards direction from the trial judge about those topics made prominent an issue the parties had not addressed in their closing submissions and created an obvious difficulty for the jury in disregarding consciousness of guilt as an issue.

61. As to the risk of the jury misunderstanding the evidence about Holsworthy and Orange babysitting without an Edwards direction, in Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [16] Gleeson CJ, Gaudron, Gummow and Callinan JJ said, as Gleeson CJ and Hayne J later repeated in Dhanoha, that “there may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of a consciousness of guilt”.

62. The plurality in Zoneff went on, however, to deal with the issue of an Edwards direction in a case such as the present in a way that is dispositive of the present ground of appeal:

“[16]   … As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, ‘the accused knew that the truth ... would implicate him in [the commission of] the offence’ and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)

[17]   Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.” (Footnotes omitted, emphasis in original.)

63. In a case where the Crown has not sought a direction in accordance with Edwards, the plurality in Zoneff concluded:

“[20]   It follows in our opinion that it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial judge would have had to decide which of the appellant’s answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant.” (Footnotes omitted.)

64. I do not think that the trial judge gave an Edwards direction by reason of any perceived risk of confusion on the part of the jury. Even if his Honour had, in a case where the Crown had not submitted that the Holsworthy or Orange babysitting evidence involved lies told by the applicant in consciousness of guilt, the trial judge was obliged by Zoneff to inquire of the prosecution whether it contended that lies may constitute evidence of consciousness of guilt and, if so, should have required identification of the lie or lies in issue and the basis on which they were said to be capable of implicating the accused in the commission of the offence charged. The Crown on the appeal accepted that no such enquiry was made by the trial judge. The trial judge’s direction had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of the applicant’s credibility so as to give them an undeserved prominence in the jury’s mind to the prejudice of the applicant.

65. The Crown in writing relied upon rule 4 of the Criminal Appeal Rules. The question posed by rule 4 is whether the error directing the jury constituted a miscarriage of justice in the sense of a departure from a trial according to law? I have concluded that this is a case where there is a miscarriage of justice in the erroneous direction given by the trial judge. It is reasonable to conclude that the misdirection affected the jury’s verdict. There was a departure from a trial according to law.

66. Accordingly, I have concluded ground 1 is made out. The trial judge erred in giving the jury a direction that they could take the Holsworthy and Orange babysitting evidence into account as evidence of lies reflecting a consciousness of guilt.

67. The Crown on the appeal submitted that even if the direction was an error there was no substantial miscarriage of justice and the proviso should be applied. The Crown argued that any errors that the Court finds to have been established have not caused a substantial miscarriage of justice. In Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 the plurality explained:

“[39]   A misdirection by a trial judge always involves an error of law, but ‘sometimes [it] will prevent the application of the proviso; and sometimes it will not.  It is necessary for the appellate court to consider the nature and effect of the error in every case’.” (Footnotes omitted.) 

68. I reject the Crown’s submission. A lie told in consciousness of guilt was a powerful factor in support of the Crown case. The counts involving LA and MP encompassed 8 of the 13 counts the subject of the first trial. I am satisfied that, as Senior Counsel for the applicant put it, “lies travel”.

69. Highlighting the issue of alleged lies told about Holsworthy and Orange out of a consciousness of guilt, which related to the majority of counts in the indictment, where the Crown made no such allegation, gave that issue an undeserved prominence. I am unable to be satisfied to the requisite standard that the applicant did not lose a chance of acquittal that was fairly open to him. Put another way, I am not satisfied that the error made by the trial judge in directing the jury outside the Crown case about lies told in consciousness of guilt did not cause a substantial miscarriage of justice.

70. I would grant leave to appeal and allow ground 1. The subject matter of the first trial should be remitted to the District Court.

Ground 2: in the first trial, his Honour erred in refusing to allow the applicant to adduce evidence of his prior good character

71. The issue raised by ground 2 may be simply stated. The Crown Prosecutor did not oppose the applicant being permitted to adduce evidence through the officer-in-charge of the fact that the applicant had no prior convictions. Despite the agreement of the Crown, the trial judge rejected the admission of the evidence about the applicant’s lack of prior convictions.

72. The trial judge expressed concerns about being aware that there were “allegations outstanding” and that if evidence was adduced as to the absence of prior convictions, the trial judge would be required to give a direction about those allegations.

73. In the present case, the evidence that the applicant had no prior convictions over many decades was relevant to a fact in issue: s 55 Evidence Act 1995 (NSW).

74. As McHugh J explained in TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [94], evidence of good character almost always helps an accused person’s defence. Sometimes it is the decisive factor in returning a verdict of not guilty: R v D (1996) 86 A Crim R 41. It may demonstrate that it is unlikely that the accused committed the act charged: Simic v The Queen (1980) 144 CLR 319 at 333-334; [1980] HCA 25; Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 at [31], [79], [151]. It may support the credibility of the evidence of the accused in denying his or her guilt: Attwood v The Queen (1960) 102 CLR 353 at 359; [1960] HCA 15; Melbourne; R v Hamilton (1993) 68 A Crim R 298 at 302.

75. The absence of prior convictions has long been understood as an aspect of prior “good character”. In Attwood, the High Court said that an accused person may adduce evidence of his or her good character in a criminal trial as a fact or matter making it unlikely that he or she committed the crime charged. The Court said at 359:

“… evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn C.J. said: ‘The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried’.”

76. In Simic, the evidence of good character within the description in Attwood was described by the High Court at 333 thus:

“There was evidence that the applicant had not been previously convicted, that he was happily married, that he loved his children and had never been violent to them or to his wife and that he had been a satisfactory employee.”

77. In Melbourne, the evidence of prior good character considered by the High Court was described by McHugh J thus:

“[15]   In support of his claim that he was a person of good character, the accused adduced evidence that he had no previous convictions for a criminal offence other than a conviction for drink-driving in 1975, and evidence that he was not ‘adversely known to the police’. He also adduced evidence of his character and personality from those who knew him.”

78. In Melbourne, McHugh J explained at [47], in the course of expressing doubts about the soundness of much authority about adducing evidence of “good character”, that “the unconditional right of an accused person to tender good character evidence must be regarded as an indulgence granted to the accused which continues to be maintained for historical reasons. The basis of the rule for admitting evidence of good character is not logic but the ‘policy and humanity’ of the common law: R v Rowton (1865) Le & Ca 520 at 541 [169 ER 1497 at 1506] per Willes J (dissenting) cited in Attwood v The Queen (1960) 102 CLR 353 at 359”.

79. Section 110 of the Evidence Act provides:

110 Evidence about character of accused persons

(1)   The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.

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

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

80. As McHugh J explained in Melbourne at fn 70 s 110(1) (and before that s 413 of the Crimes Act 1900 (NSW)) were designed to overcome a common law rule, which was not adhered to in practice, that in a criminal trial evidence for or against a person’s good character must be confined to his or her general reputation.

81. What the trial judge actually did with the evidence which was to be adduced by consent should be set out in full:

“CROWN PROSECUTOR: The other issue - there was one other issue, your Honour--

HIS HONOUR: Another issue?

CROWN PROSECUTOR: A small one from the Crown’s point of view. I’m happy for my friend to ask the officer-in-charge about the accused’s lack of convictions.

HIS HONOUR: Why would you be happy about that, because that’s fundamentally wrong and it’s fundamentally wrong for this reason: even though the law now provides that good character can be led in compartments, a compartment is not actually a conviction on conviction. The Supreme Court has actually said that recently in that homicide matter, there’s some contrary authority in Victoria, but when you look at the actual section, it talks about by implication--

CROWN PROSECUTOR: Yes.

HIS HONOUR: --and if you say a person has got no convictions, the implication is they are a person of good character which would require me to give a direction about it. Now, I know for a fact that there are other allegations outstanding here, so that evidence would be completely misleading.

CROWN PROSECUTOR: I withdraw that happiness, then, your Honour.

HIS HONOUR: All right.

BUCKMAN: I’m just seeking a ruling on it from your Honour.

HIS HONOUR: No, it can’t happen. It’s completely misleading.”

82. I have concluded that the trial judge erred in excluding the evidence of the absence of prior convictions over many decades which was to be adduced by consent. The evidence was admissible. Even assuming in favour of the Crown that the hypothesis advanced on appeal that the Crown withdrew its consent to the tender after an indication by the trial judge was correct, the evidence remained admissible.

83. It is not to the point that allegations made in the second trial had been separated. The Crown had given no indication that it sought to lead evidence in rebuttal. The considerations that Fagan J and I addressed in Clegg v R [2017] NSWCCA 125 had not arisen and on the evidence in this appeal are unlikely ever to have arisen. It is also not to the point that it is desirable but not always necessary, for a trial judge to give a character direction. What character direction needed to be given was not then an issue in this case.

84. The Crown’s complaint on the appeal that some unfairness would be occasioned to it to let the applicant go to the jury relating to the five complainants as a person of otherwise good character, when the evidence of another three people, if believed, showed the opposite, is to be contrasted with the attitude of the Crown at the time which was to permit the evidence to be adduced and not indicate that it was seeking to lead evidence in rebuttal.

85. I have concluded that the applicant has established that the trial judge made a “wrong decision on any question of law”, being the second limb of s 6(1) of the Criminal Appeal Act. I have concluded that the rejection of evidence caused a miscarriage of justice. As McHugh J explained in TKJW, “evidence of good character almost always helps an accused person’s defence”. Whatever doubts have been expressed in the authorities about the cogency of reasoning based on good character, the admissibility and potential importance of such evidence is too deeply entrenched in our criminal law for it to be put to one side by reason of concern on the part of the trial judge about issues which had not arisen in the applicant’s trial and may never have arisen.

86. The importance of the decision of the trial judge peremptorily to reject the evidence of the applicant’s prior good character is underlined by the decision of N Adams J (with whom Leeming JA and Fagan J agreed) in JV v R [2017] NSWCCA 49. In that case their Honours considered a number of decisions from other intermediate Courts of Appeal where, by oversight, evidence of prior good character was not placed before the jury by an accused’s counsel. Their Honours concluded at [118] that a miscarriage of justice will be established on the basis of a failure to adduce evidence of good character if no rational basis can be gleaned from the transcript of the proceedings for failing to do so. I respectfully agree, however that is not the situation in this case. The evidence was in this case admissible. It was incorrectly rejected by the trial judge.

82. I would also reject the Crown submission that the proviso in s 6(1) of the Criminal Appeal Act applies and no substantial miscarriage of justice occurred. This applicant faced a formidable series of hurdles in his first trial. He needed evidence of his prior good character to support his credibility. One way to support the applicant’s credibility, albeit in a compartmentalised way, was to prove that at age 86, for his entire life he had never had a criminal conviction. I am not able to conclude that the absence of this evidence would not have affected the verdict of the jury. Accordingly, I am not satisfied that this is an appropriate case to apply the proviso. The error established by ground 2 had a potentially significant effect on the verdict.

83. I would allow ground 2.

Ground 3: in the second trial, his Honour erred in his directing the jury about coincidence reasoning

89. The only ground of appeal relevant to the second trial is ground 3. The issue raised may be simply stated. Despite serving both a tendency and coincidence notice prior to the trial, the applicant submits that the Crown in making its closing address to the jury relied on tendency reasoning but not coincidence reasoning. The trial judge nevertheless instructed the jury about both tendency and coincidence reasoning. The issue raised by ground 3 is whether his Honour erred in so directing the jury.

90. Near the conclusion of the Crown Prosecutor’s closing address, the Crown made a brief submission to the jury about tendency reasoning as follows:

“But when you have got similar things happening to other people they are making it up. You may think that. But when you look at the three accounts it shows that he had a tendency, he had an interest in young women. A tendency to act on it at his work place even though there is a risk that he might get caught. There hadn’t been a detailed comparison between or discussions between them all, between these three women, which would account for these stories, you might think were manufactured and ultimately in relation to the five counts that are left in the indictment that you would be satisfied beyond reasonable doubt despite the passage of time, despite the peripheral issues being somewhat vague that this accused is guilty of those offences.”

91. Immediately following the Crown address the trial judge (in the absence of the jury) raised that the Crown had not actually used the word “coincidence” during his address. His Honour said he proposed to give both directions:

“HIS HONOUR: Just so you are not misled, Mr Buckman, the Crown’s notice did refer to a tendency and coincidence. He addressed on tendency and not coincidence. I was proposing to direct on both aspects. You might need to address that in your submissions.

BUCKMAN: I am not sure if my friend was pressing coincidence.

HIS HONOUR: It is more coincidence than tendency, isn’t it?

CROWN PROSECUTOR: A tendency as to a state of mind and to act.

HIS HONOUR: I am just looking at your notice of both and you said there were three complainants, the same tendency and coincidence. I severed that. I was proposing to give [directions] on tendency and coincidence. You haven’t mentioned the word coincidence.

CROWN PROSECUTOR: I [did] not use that word, no.

HIS HONOUR: No, but you did say there were three people making –

CROWN PROSECUTOR: I did raise that.

HIS HONOUR: I propose to give both directions.”

92. No submission was made by counsel for the applicant that any unfairness would be occasioned by the course the trial judge indicated. The trial judge then gave the following direction to the jury about coincidence reasoning:

“There is another aspect as well. The Crown did not actually use the word coincidence, but he did say there were three complainants and there were similarities. You are entitled to consider that question of coincidence.

The Crown asks you to consider the improbability of coincidence when considering the allegations re the complainants. If you consider there are strong similarities in the events alleged or in the circumstances giving rise to the events, you may consider the improbability of those events taking place by coincidence or just chance. If you conclude that the probability of the events occurring by chance is so remote that in fact the only explanation for similar allegations by different complainants is that the accused did engage in the conduct in the conduct alleged and the complaints are truthful, then you can take that into account. Firstly, you need to consider whether there are in fact similarities in the events or the circumstances giving rise to the charges and whether they establish a pattern of similar behaviour making it highly improbable that each would give their account by chance. If you do not find such similarities and you reject this coincidence reasoning outright.

The suggested similarities are that each complainant was the employee of the Salvation Army and the accused was in a position of authority; each was a young adult female; each incident occurred in an office at work with other people nearby and there was a risk of detection. There is a common denominator for each of the complainants in that each of them was touched in the breast area. You need to be careful about this type of evidence, obviously, because you do know that there is a connection between some of the complainants. Mr Buckman, on behalf of the accused, addressed on the basis of there being a reasonable possibility of collusion. You do know, in relation to [KS] and [SC], there was a connection between them. I think [SC] said she complained to [KS] first but [KS] said that she never actually got a complaint from [SC] at all. There is that connection.

[LB]; she did not know [SC], she said, but she did know [KS]. I do not know if there is any evidence they had any conversation about any relevant matter, but they at least knew each other. You need to factor that in as to whether there is reasonable possibility of collusion and if there is, that would undermine the coincidence argument. I am not suggesting there is, I am simply alerting you to what type of things you should look at.”

93. There is no complaint on this appeal about the content of the coincidence direction. The complaint is that it was given at all.

94. The trial judge gave reasons on the following day for giving directions on both tendency and coincidence. The applicant on this appeal accepted that, as recorded there, there had been no objection prior to the trial about the Crown’s applications to adduce tendency and coincidence evidence.

95. The applicant’s complaint about those reasons was limited to a submission that his Honour’s reasons did not address or consider whether it remained appropriate in circumstances, where the Crown had not addressed the jury on coincidence, to introduce that mode of reasoning in his directions.

96. The strongest point in favour of the applicant is made in R v Meher [2004] NSWCCA 355 at [87]-[91] where Wood CL at CL (with whom Buddin and Shaw JJ agreed) said:

“[87]   Finally, it may be observed that trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. It is one thing to bring to the attention of a jury an alternative lesser count, that is fairly open on the evidence, or an available defence, even though it was not mentioned by the Crown Prosecutor and defence counsel, in their closing addresses, for example manslaughter in a case where the accused was indicted on a count for murder. It is quite another thing for a judge to advance an argument, on behalf of the Crown in support of the Prosecution case, which the judge considers was available, but was either overlooked, or not used by the Prosecution.

[88]   There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Prosecution case. First it is inconsistent with judicial impartiality. Secondly, to do so denies the Prosecution and the defence the opportunity either to disavow, or to meet the argument.”

97. Trial judges should refrain from advancing an argument in support of the Crown case that was not put by the Crown. If I had concluded that the trial judge had advanced an argument in support of the Crown case that was not put by the Crown I would uphold ground 3.

98. Here, however, there was a tendency notice and a coincidence notice served prior to the trial. I have concluded that whilst the Crown Prosecutor did not specifically use the word “coincidence” in his closing address, it was clear that in saying “But when you have got similar things happening to other people they are making it up. You may think that”, the Crown Prosecutor was raising coincidence reasoning for consideration by the jury. That is, the Crown Prosecutor raised coincidence reasoning although he had not fully articulated the submission or used the word “coincidence”.

99. In context, it is clear that counsel for the applicant at the trial understood from the beginning that coincidence reasoning was relied upon by the Crown. Counsel for the applicant had raised the issue of coincidence in his opening address and through cross-examination of Crown witnesses about the possibility of concoction or collusion, which issues he addressed on.

100. At the conclusion of the case, counsel for the applicant at the trial understood that coincidence reasoning was still relied upon by the Crown. A central theme of counsel for the applicant’s address to the jury was the possibility of concoction or collusion between the complainants or others:

“Now, if you remember at the start of the trial I said a few words to you about listening to the evidence and considering the question of to what extent are there any inconsistencies in the evidence which would cause you concerns as well as to what extent do you think is it possible these, any or all of, these complainants got their heads together and came up with this false story about what they say happened to them.

Now of course, the defence can’t prove that they did. The defence can’t prove that they got their heads together or that they came up with these false allegations.”

101. Counsel for the applicant concluded:

“So, ladies and gentlemen, effectively that is really all I wanted to say to. His Honour will give you some directions about a number of matters. He will speak to you about, he will address you about tendency and coincidence. I don’t wish to say too much about that expect that when you are hearing those directions remember they are based on the preface that you accept the evidence of the witnesses. It is, the suggestion is that because they are three of them that the accused had some sort of tendency to assault, indecently assault women. Well, that is something that you can factor in in this trial. But that is if you accept what their evidence is. And if you don’t accept their evidence or you are left in a reasonable doubt about what their evidence is in my submission you would put aside any attempt to try and patch it up by some sort of notion of tendency and coincidence, which his Honour will direct you about.

The bottom line here is, having heard all of the evidence, is it consistent? Does it leave you in a state where you’re thinking, well, there is a some possibility that these ladies, some of them at least, got their heads together to come up with these allegations, because they spoke about it to each other and so on and so forth? Is it consistent? Or are there inconsistencies in the evidence before you such that you would say to yourself, Well I am just not satisfied beyond a reasonable doubt. And I know there is three of them asserting it. But just because there is three of them doesn’t mean it is three against one. It is [not] a case of three against one. There are inconsistencies here that cause me so much concern that I am left in a state of having reasonable doubt. At the end of day that is the test that you need to consider and I’d ask you to, respectfully ask you to consider those inconsistencies and those matters that I put to you for your discussions in the jury room whilst you are considering the evidence in this matter.”

102. Counsel for the applicant at trial voiced no opposition to the proposed direction about coincidence reasoning. In the circumstances of the case, coincidence reasoning was an issue in the trial and was, in truth, relied upon by the Crown. As the issue was sufficiently raised by the Crown and understood to have been so raised by counsel for the applicant, his Honour’s direction to the jury about coincidence reasoning was not an error.

103. I would grant leave under rule 4 of the Criminal Appeal Rules but for the reasons given dismiss ground 3.

Sentence

104. Given the conclusions I have reached about grounds 1 and 2 of the conviction appeal it will be necessary to re-sentence the applicant in respect of the convictions arising in the second trial. It will be recalled that an aggregate sentence of 15 years with a non-parole period of 10 years was imposed, to commence from the day the applicant went into custody, 2 August 2018.

105. The applicant appeals his sentence on two grounds:

1. Ground 1: the sentencing judge erred in assessing the objective seriousness of counts 1, 2, 4, 5, 7, 8 and 9;

2. Ground 2: the aggregate sentence of imprisonment imposed on the applicant is manifestly excessive.

106. As ground 1 of the appeal on sentence solely relates to counts in the indictment in the first trial, where I have proposed setting aside the convictions and remitting the applicant for a re-trial, it is inappropriate that I say anything about that ground.

107. As to grounds 2, to establish that a sentence is manifestly excessive, the appellant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [3]-[6].

108. When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] and Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as set out at [86] in Hughes v R [2018] NSWCCA 2:

1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3. it is not to the point that this Court might have exercised the sentencing discretion differently;

4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

109. As I propose to set aside the convictions arising from the first trial and resentence the applicant in relation to the convictions arising from the second trial alone, it is inappropriate that I say any more than that I would not have concluded that the applicant had established that the aggregate sentence was unreasonable or plainly unjust. Simply put, I would not conclude that there must have been some misapplication of principle, or that the sentence imposed is so far outside the range of sentences available that there must have been error.

110. In resentencing the applicant for the convictions arising from the second trial alone it is appropriate that the same findings of fact be made as were made by the sentencing judge and the same conclusions about matters relevant to sentence be drawn as were drawn by the sentencing judge.

111. The assessment made by the sentencing judge of the individual counts in relation to the convictions arising from the second trial were as follows:

Sequence	Offence	Conduct	Maximum penalty and standard non-parole period (SNPP)	Indicative sentence / objective seriousness
1	s 61E(1) Crimes Act	The applicant touched KS’ breasts on the outside of her bra	Imprisonment for 4 years No SNPP	14 months Lower mid-range
3	s 61E(1) Crimes Act	The applicant touched KS’ breasts on the outside of her bra	Imprisonment for 4 years No SNPP	14 months Lower mid-range
4	s 76 Crimes Act	The applicant pushed his body against SC and she felt his semi-erect penis against her thigh, and he put his hand down the front of her top and felt her breasts	Imprisonment for 6 years No SNPP	22 months Another serious offence of its type
5	(s61E(1)) Crimes Act	The applicant pushed LB against a wall in the office and touched her breast	Imprisonment for 4 years (s 61E(1)) No SNPP	12 months Below mid-range
6	s 61E(1) Crimes Act	In the same incident as count 5, the applicant touched LB’s vagina	Imprisonment for 4 years (s61E(1)) No SNPP	13 months Below mid-range

112. The same findings about objective seriousness should be made here. Given that an aggregate sentence was imposed, the same indicative sentences as given by the sentencing judge should also be identified: count 1: 14 months; count 3: 14 months; count 4: 22 months; count 5: 12 months; count 6: 13 months.

113. It is not possible to discern the extent to which the sentencing judge regarded it as appropriate to accumulate those sentences, given the large number of convictions arising from the first trial which are not presently relevant. In relation to those convictions, as shown at [6] above, the number of counts and the length of many of the indicative sentences demonstrate that the sentencing judge likely considered that by far the greater proportion of the aggregate sentence was intended to address the offending disclosed by the convictions arising from the first trial.

114. Doing the best I can to identify a sentence appropriate in all the circumstances for the convictions arising from the second trial, and maintaining the same ratio between the head sentence and the non-parole period as the initial aggregate sentence, I propose that an aggregate sentence of 4 years imprisonment be imposed, to date from 2 August 2018, with a non-parole period of 2 years and 9 months to date from the same date. The applicant would be first eligible for parole on 1 May 2021.

115. The matters raised in the first indictment should be remitted to the District Court arraignment list.

Conclusion and Orders

116. For the foregoing reasons I propose the following orders:

1. Leave to appeal (including leave to appeal under rule 4) granted on all grounds;

2. Appeal allowed on grounds 1 and 2 of appeal against conviction;

3. Appeal dismissed on ground 3 of appeal against conviction;

4. Quash the conviction dated 20 June 2018;

5. Aggregate sentence imposed on 21 September 2018 quashed and in lieu thereof the following sentence imposed on counts 1-6 on the indictment presented on the second trial:

1. Aggregate sentence of 4 years imprisonment imposed to commence on 2 August 2018;

2. Aggregate non-parole period of 2 years and 9 months imposed;

3. The applicant will first be eligible for parole on 1 May 2021;

4. The following indicative sentences are identified:

1. Count 1: 14 months;

2. Count 3: 14 months;

3. Count 4: 22 months;

4. Count 5: 12 months;

5. Count 6: 13 months.

6. Matters the subject of the indictment presented in the first trial remitted to the arraignment list in the District Court on 9 October 2020.

117. FAGAN J: I agree with Payne JA.

118. CAVANAGH J: I agree with the orders proposed by Payne JA and with his Honour’s reasons.

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Decision last updated: 14 February 2024