R v TKWJ - [2000] NSWCCA 246

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v T.K.W.J [2000] NSWCCA 246

FILE NUMBER(S):
060426/98

HEARING DATE(S): 06/07/2000

JUDGMENT DATE: 13/09/2000

PARTIES:
Regina v T.K.W.J

JUDGMENT OF: Sheller JA James J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 96/31/0391

LOWER COURT JUDICIAL OFFICER: Viney DCJ

COUNSEL:
GP Craddock - Appellant
LMB Lamprati - Crown

SOLICITORS:
TA Murphy - Appellant
SE O'Connor - Crown

CATCHWORDS:

LEGISLATION CITED:

DECISION:
By majority - Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60426/98

SHELLER JA
JAMES J
ADAMS J

Wednesday 13 September 2000

REGINA v TKWJ

JUDGMENT

SHELLER JA: I have had the benefit of reading the draft judgments of James and Adams JJ. Like James J and for the reasons his Honour has given I do not think the appellant underwent an unfair trial or a trial in which he had less chance of being acquitted than he would have had if the trial had proceeded as his counsel had anticipated. In my opinion, the appeal against conviction should be dismissed.
JAMES J: TKWJ has appealed against his conviction, after a trial in the District Court before his Honour Judge Viney QC and a jury, on two counts of aggravated indecent assault, offences under s61M(1) of the Crimes Act, and one count of an aggravated act of indecency, an offence under s61O(1) of the Crimes Act. The two counts of aggravated indecent assault were the first and the third counts in the indictment and the count of an aggravated act of indecency was the second count in the indictment.
It was alleged by the Crown that the first two offences in the indictment had been committed on the same occasion on or about 17 December 1995 and that the third offence in the indictment had been committed in December 1995 or January 1996. The victim of all the offences (who I will refer to as “the complainant”) was a boy born on 20 December 1983, so that he was just under twelve or just over twelve at the time the offences were allegedly committed. The complainant had a sister, who I will refer to as “K”, who had been born in August 1988.
At the time the offences were allegedly committed the mother of the complainant and K was in a relationship with the appellant. The history of that relationship was established by evidence given at the trial by the complainant’s mother and by the appellant. The appellant and the complainant’s mother had entered into the relationship in February 1993. In December 1994 the appellant, the complainant’s mother and the two children moved to Kempsey. In May 1995 the appellant moved alone to a small settlement near Kempsey, which I will refer to as “H.H”. A few weeks later the appellant was joined by the complainant’s mother and the two children. In late 1995, because of his misconduct, the complainant was sent to live with his grandparents in Wollongong for two months. He then resumed living at H.H. As indicated earlier in this judgment, the first two offences were allegedly committed on or about 17 December 1995. Shortly afterwards, the family went to Queensland on holidays for a couple of weeks. They then returned to H.H, where the third offence was allegedly committed.
The complainant’s evidence about the commission of the alleged offences can be briefly summarised as follows.
By December 1995 the complainant had become curious about sexual matters. He spoke to his mother, who suggested that he should speak to the appellant, because the appellant was a male. The complainant spoke to the appellant in a shed on the property at H.H. After some conversation between them, the appellant untied the strings of the complainant’s shorts and lowered them, the appellant put his hand on the complainant’s penis “and started playing with it” (this conduct on the part of the appellant was the subject of the first count in the indictment). The appellant then took down his own clothing, put the complainant’s hand on his penis and incited the complainant to stimulate him until he ejaculated (this conduct was the subject of the second count in the indictment).
The complainant gave evidence that the third offence was committed, after the group had returned from the holiday in Queensland. One day when his mother was asleep in the house, the complainant asked the appellant, who was having a shower, whether he could have a drink of cordial. The appellant asked the complainant to join him in the shower, which the complainant did. While they were in the shower, the appellant took hold of the complainant’s penis. This conduct was the subject of the third count in the indictment
According to the evidence of the complainant and his mother, the complainant spoke to his mother more than once about the appellant’s conduct. Initially, the complainant’s mother did not believe the complainant. However, on or about 23 January 1996 she reported the complainant’s allegations. Two social workers called at the property at H.H and took away the complainant’s mother and the two children. They were taken to a police station, where both the complainant and his sister K, who had also made allegations to her mother that the appellant had sexually interfered with her, made statements alleging that the appellant had committed sexual offences against them.
In her statement, which was in question and answer form, K said that the appellant had pulled her pants down and rubbed her on “my bum and my bajina” (sic). When asked when such conduct had happened, she said “during these Christmas holidays… some in the day and some in the night”. She also said that the appellant had made her play with him in the shed “in the rude part”.
After the two children had made their statements, the mother and the two children were taken to a refuge, where they spent two or three days. On Australia Day, 26 January 1996, the mother and the two children set off by train for Wollongong. The mother drank wine on the train and became intoxicated. She repeatedly told the complainant he had been lying in making the allegations against the appellant. Ultimately, the complainant said to his mother words to the effect that he had been lying. Both the complainant and his mother gave evidence at the trial that the complainant had said these words, only after continual pressure from his mother.
The appellant was interviewed by police on 25 January 1996 about the allegations made by both children. He denied having committed any misconduct against either child. In answer to one question he said “(K’s) probably only doing (it), ‘cause he’s (the complainant) said, but I know he’s not happy here, ‘cause we’ve had a lot of trouble like”.
After living apart from the appellant for some months, the complainant’s mother returned to H.H and briefly resumed her relationship with the appellant. At the instance of the appellant, the complainant’s mother wrote a note in which she recorded that the complainant had told her that he had been lying when he made his allegations against the appellant.
The complainant made two statements to the police, the one made on 23 January 1996 and a second one made on 8 May 1998, just before the trial started. There were some inconsistencies between the two statements or between one or other of the statements and the complainant’s evidence, concerning such matters as the timing, sequence and details of the alleged offences.
The complainant admitted in cross-examination that he had been “grounded” by the appellant for misbehaviour, that he did not like being grounded, that he had resented being sent to Wollongong for two months in 1995 and that he blamed the appellant for it, that he had told lies on other matters to his mother, that he had stolen money from his mother and that he had wagged school. He denied that he had fabricated allegations of misconduct by the appellant, so as to break up the relationship between the appellant and his mother.
When she was cross-examined, the complainant’s mother confirmed that, when the complainant had first spoken to her, she had not believed him. She also confirmed that the complainant had told lies on other matters, that he had wagged school, that he had run away from home and that he had stolen cigarettes and money. She also said that the complainant had not liked the appellant, had not liked his mother being with the appellant and had wanted his mother and the appellant to separate. It is clear that by the time of the trial the complainant’s mother was not well disposed to the appellant.
In the note which the complainant’s mother wrote at the instance of the appellant, the complainant’s mother recorded that the complainant had admitted that his allegations against the appellant were lies and that he had wanted to get even with the appellant for sending him away the previous year. The complainant’s mother said that on the train trip she had kept on pressing the complainant, until he admitted that he had been lying.
The appellant gave evidence at the trial. In his evidence he denied having committed any of the offences. He said that the complainant had resented the stance he had taken on disciplining the complainant. With regard to the offences allegedly committed in the shed, the appellant said that the complainant’s mother had asked him to speak to the complainant and he had had a conversation with the complainant. He said in evidence “I just spoke to him about hygiene and not to treat girls badly”. He said that he had demonstrated to the complainant how to pull back one’s foreskin.
In the proceedings on sentence a number of testimonials, testifying to the previous good character of the appellant, were admitted into evidence.
In his remarks on sentence Judge Viney said:-
“It was into that domestic situation (that is, the situation of the complainant’s mother and the two children) that the prisoner arrived, a man then about thirty, of previous excellent character, a hard worker, a qualified tradesman as a motor mechanic and a refrigeration and air-conditioning mechanic, and held in high esteem by his family and friends, who have provided references indicating that this sort of conduct is totally out of character.
I must say, although it is none of my affair, I was a little surprised at the verdicts, given the situation was one of the evidence of one person against another, with no corroboration at all. But that is a matter for the jury. They have chosen to accept the victim beyond reasonable doubt and I am required to give effect to that verdict.
(TKWJ) then, and ever since, and his family, have attested to his still proclaimed innocence. It does seem odd that a person of his background and character would engage in this sort of conduct and it has to be said then that it is totally out of character”.
A factor which played a part in his Honour’s decision to impose a fairly lenient sentences consisting of community service orders was that the appellant had suffered serious personal injuries in a motor vehicle accident, from which he had not fully recovered and which required continuing physiotherapy.
The only ground of appeal against conviction is:-
The appellant’s convictions constitute a miscarriage of justice in that the trial was unfair.
The following written particulars of this ground of appeal were supplied:-
“(1) The appellant was the subject of allegations by two siblings of sexual offences committed contemporaneously.
(2) The statements of the complainants squarely raised the issue whether there had been dishonest collusion between them.
(3) The appellant sought a joint trial in order to assert:
(a) that the allegations were untrue and
(b) that the siblings had jointly fabricated the allegations.
(4) The Crown refused to present an indictment charging all matters.
(5) Counsel for the appellant informed the Crown that the appellant intended to raise his character for the jury’s consideration as to his credibility and guilt.
(6) The Crown asserted that, if character was raised, the Crown would lead evidence in reply as to the allegations made by the complainant’s sister.
(7) Accordingly, as a consequence of (a) the Crown’s reliance upon its right as to the content of the indictment, and (b) its insistence upon calling evidence as to the outstanding allegations in the event of raising of character, the appellant was unfairly denied the benefit of his good character in the jury’s consideration of his credibility and as to his guilt”.
There was no ground of appeal alleging that the verdicts of guilty were “unsafe”, according to the principles discussed in such cases as M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439.
Three affidavits were sworn and filed for the purposes of the appeal, an affidavit by counsel who appeared for the appellant at the trial, an affidavit by the appellant’s solicitor and an affidavit by the Crown Prosecutor who had appeared for the Crown at the trial. No objection was taken to any part of any of these affidavits and the Court was prepared to receive them.
Parts of the affidavit of counsel who appeared for the appellant at the trial were as follows:-
6. When the appellant was first arraigned the Crown presented an indictment that included charges of sexual misconduct stemming from the allegations made by both (the complainant) and (K)…
7. It was always my intention to allow the Crown to adduce evidence from both complainants before the same jury. It was the appellant’s case that the complainants had colluded and made false allegations against him…
8. The appellant had no prior criminal convictions. It was my intention to call evidence of the appellant’s good character in his case…
9. By the time the matter came on for trial in May 1998 the Crown had amended the indictment by excluding all of the counts that related to the allegations made against the appellant by (K)…
11. I recall that I informed the Crown I proposed to adduce evidence regarding the appellant’s good character. My best recollection is that he informed me that, if character evidence was adduced, he would call evidence in reply from (K) as to the further allegations.
12. As a consequence of this advice I decided not to call the character evidence. I was unable to develop the issue of collusion occurring between the two complainants.
13. It did not occur to me at the time of the trial to seek a ruling from the trial judge on the question of whether the Crown would be permitted to call evidence in reply, should the character evidence be adduced in the appellant’s case”.
The affidavit by the appellant’s solicitor corroborated part of the appellant’s counsel’s affidavit.
In his affidavit the Crown Prosecutor said that he had formed the opinion that there should be separate trials of the charges involving the two complainants, having regard to the decision of the High Court in S v The Queen (1989) 168 CLR 266, in which the High Court emphasised the need for some specific act to be identified as the subject of an offence charged, and the decision of the Court of Criminal Appeal in R v Harvey (unreported Court of Criminal Appeal 11 December 1996), especially at p38 per Beazley JA, where her Honour referred to the dangers inherent in trying together charges involving more than one complainant, even where that course has been agreed to. In par 8 of his affidavit the Crown Prosecutor said:-
8. Although I have no specific recollection of it, it is likely that (counsel for the appellant) raised the question of the accused’s character with me. I have no recollection of the precise terms of the conversation, nor do I have a recollection of when it took place. To the best of my knowledge and belief the conversation would have occurred at the court, possibly in my chambers, at an early stage of the proceedings. I do not appear to have made any note on my brief regarding any such conversation. During the course of the discussion with (counsel for the appellant), I could well have said that if good character were raised, the crown would seek to lead evidence from (K) in rebuttal. To the best of my knowledge and belief, the issue was not raised again at any stage of the trial, either privately between (counsel for the appellant) and myself or before the trial judge”.
The charges involving K have not been pursued but have not been abandoned.
In counsel for the appellant’s written submissions it was conceded that it was for the Crown to determine what charges should be included in an indictment. However, it was submitted that the way in which the Crown had chosen to frame the indictment, by limiting the charges in the indictment to charges involving the complainant, together with the way in which the Crown had conducted the prosecution, including indicating that, if the appellant raised his character, the Crown would seek to call evidence in rebuttal from K, had led to a miscarriage of justice. It was submitted that, effectively, the appellant had been precluded from putting, in defence to the complainant’s allegations, that the complainant had been colluding with his sister in making false allegations against the appellant and that the appellant had been precluded from using evidence of his good character which was available to him.
In oral argument before the Court it was submitted that it had been unfair to the appellant to have been tried in a trial in which evidence of good character which was available to him had not been placed before the jury and that this unfairness amounted to a miscarriage of justice.
I will now proceed to a consideration of the ground of appeal relied on.
As was conceded by counsel for the appellant, the Crown was entitled to determine what charges would be included in the indictment it presented. The Crown was, accordingly, entitled to limit the charges in the indictment to charges involving the complainant, omitting from the indictment charges involving his sister K.
Notwithstanding some submissions made by counsel for the appellant, I do not consider that any criticism can validly be made of the Crown Prosecutor for deciding to include in the indictment only charges involving the complainant. In my opinion, the Crown Prosecutor was justified in being concerned by the lack of specificity in the allegations made by K in her statement of 23 January 1996 and was also justified in paying heed to what Beazley JA said in Harvey. I am satisfied that the Crown Prosecutor’s decision to include in the indictment only charges involving the complainant was not prompted by a desire to obtain some tactical advantage for the Crown.
It was not submitted, and I would not in any event have accepted, that the severing of the indictment, of itself and without taking into account that evidence of the appellant’s good character was not adduced, caused the trial to be unfair. In the trial, as it was in fact conducted, evidence was adduced, which was not contradicted, that there had been a troubled relationship between the complainant and the appellant as the complainant’s mother’s partner, that the complainant had resented the appellant and that there was reason for that resentment. This evidence could have afforded grounds for the complainant making false allegations against the appellant. In the trial, as it was conducted, there was no evidence by K. In my opinion, it would be, at best, quite speculative to suppose that the advantage to the appellant of being able to put an argument that the complainant had been colluding with his sister would have outweighed the disadvantage of the jury hearing evidence that, at about the time the appellant had allegedly committed the offences charged against the complainant, the appellant had been sexually interfering with the complainant’s sister. Whatever directions the jury were given by the trial judge, the jury might well have regarded such evidence by K as lending support to the complainant’s evidence.
The ground of appeal, as it was ultimately relied on in oral argument, was that there had been a miscarriage of justice, because the appellant had been subjected to an unfair trial, in that evidence of good character which was available to the appellant was not adduced.

Although no proofs had been obtained from character witnesses for the purposes of the trial, the nature of the evidence of good character which would have been available at the trial can be inferred from the written testimonials which were tendered in the proceedings on sentence to which Judge Viney referred in his remarks on sentence.
The appellant’s trial was a trial in which evidence of good character might have assisted the appellant. There was no corroboration of the complainant’s evidence. The complainant was a troubled, undisciplined child, who had told lies on other matters, who had reasons for resenting the appellant and who did resent the appellant and who on one occasion had said that his allegations against the appellant were lies. The adducing before the jury of impressive evidence of the appellant’s good character might have raised a reasonable doubt in the minds of the jury. See R v RJC (unreported Court of Criminal Appeal 10 October 1998 especially at p30).
In the present case, unlike some other cases which have come before this Court, counsel for the appellant at the trial was aware of the right of an accused person to adduce evidence to prove that he is a person of good character and was aware that evidence of the appellant’s good character was available
Counsel for the appellant at the trial took the appropriate course of communicating with the Crown Prosecutor, before he adduced any evidence of the appellant’s good character. See R v Hamilton (1993) 68 A Crim R 298 especially at 300-301 per Hunt CJ at CL. Counsel was informed by the Crown Prosecutor that, if evidence of the good character of the appellant was adduced, the Crown would seek to adduce evidence of the appellant’s alleged conduct in relation to the complainant’s sister K. In the light of this indication of the Crown’s position, counsel for the appellant at the trial decided not to adduce any evidence of the appellant’s good character.
No criticism can validly be made of the Crown Prosecutor for adopting this position. In a trial of alleged sexual offences the Crown Prosecutor held a statement from the complainant’s sister in which the complainant’s sister alleged that she also had been sexually interfered with by the accused person. If in defence of the charges involving the complainant the accused adduced evidence tending to show that he was a person of good character, the Crown Prosecutor was entitled to seek to rely on evidence by K as a means of rebutting the evidence of good character.
The decision taken by counsel for the appellant at the trial that, in the light of what the Crown Prosecutor had told him, he would not seek to raise the appellant’s good character was, subject to one possible qualification, a tactical decision which it was well open to counsel to make and by which the appellant was bound. R v Birks (1990) 19 NSWLR 677.
The one possible qualification is that it did not occur to counsel for the appellant at the trial to seek, and counsel for the appellant at the trial did not seek, a ruling from the trial judge on whether, if the appellant raised his good character, the Crown would be permitted to adduce evidence in rebuttal about the appellant’s alleged misconduct relating to K.
It is well established that counsel for the accused at a criminal trial is entitled to seek such an advance ruling from the trial judge and that, if such an application is made, the trial judge is obliged to give a ruling. See R v Robinson (2000 NSW CCA 59 especially per Barr J at pars 35-44).
Evidence of the appellant’s alleged misconduct relating to K would not necessarily have been admissible. If an application had been made for a ruling the trial judge would have had to decide whether the probative value of such evidence was outweighed by the danger of unfair prejudice to the appellant, so that the evidence should be excluded under s137 of the Evidence Act. The discretion under s135 of the Evidence Act could also have been relevant. In deciding whether such evidence should be admitted, the trial judge would also have had to have given consideration to whether, if the evidence was admitted, leave would be given to cross-examine the appellant (s112 of the Evidence Act).
The evidence before this Court in the affidavits by counsel who appeared for the appellant at the trial and the Crown Prosecutor at the trial do not precisely indicate at what stage in the trial the conversation between counsel and the Crown Prosecutor occurred. However, the Crown Prosecutor says in his affidavit that any such conversation would have occurred “at an early stage of the proceedings” and I would infer that the conversation took place before the Crown had closed its case.
The evidence by counsel for the appellant and the Crown Prosecutor is also ambiguous, in that it speaks of the Crown Prosecutor saying that he would seek to call evidence “in reply” or “in rebuttal”, leaving it unclear whether the Crown Prosecutor was merely saying that, if the appellant raised his good character, the Crown would seek to adduce evidence in rebuttal or whether he was also saying that the Crown would seek to defer the adducing of evidence in rebuttal until a Crown case in reply, to be given after the defence case. Such a Crown case in reply might have been prohibited by the principles discussed in such cases as R v Chin (1984-1985) 157 CLR 671.
Having regard to the Crown Prosecutor’s evidence that any conversation he had with counsel for the appellant at the trial would have occurred “at an early stage of the proceedings” and the Crown Prosecutor’s use of the expression “evidence in rebuttal”, I would not infer that the Crown Prosecutor intended to defer the adducing of the evidence in rebuttal, until after the Crown case in chief had been closed and the defence case had been given.
There are obvious difficulties in any attempt to determine what the trial judge ought to have done, if an application, which was not in fact made, had been made to him.
It is arguable that, if an application had been made, the trial judge ought to have made a ruling that, even if the appellant raised his good character, the Crown should not be permitted to adduce evidence relating to K. The Crown had chosen to include in the indictment only the charges involving the complainant and not the charges involving K. The giving of evidence by K of the offences allegedly committed against her would have been very likely to cause the appellant serious prejudice in the trial of the charges involving the complainant. It can be inferred that, if K was permitted to give evidence of the offences allegedly committed against her, the appellant would have contested her evidence and a trial within a trial would have developed, that is a trial of the charges involving K within the trial of the charges involving the complainant. Permitting such evidence to be given by K would have led to formidable difficulties in instructing the jury on the way or ways in which they could properly use the evidence about the offences allegedly committed against K in the trial of the charges involving the complainant and the risk of the jury, whatever instructions they were given, misusing such evidence.
On the other hand, it is arguable for the Crown that the trial judge ought to have made a ruling that, if the appellant raised his good character in defence of the charges involving the complainant, the Crown should be permitted to seek to prove that the appellant had, at about the same time as the offences allegedly committed against the complainant, committed sexual offences against the complainant’s sister. To have allowed the appellant to present himself to the jury as a person of unblemished character, preventing the Crown from adducing evidence which, if accepted, would show the contrary, would have been unfair to the Crown.
In my opinion, it is not possible for this Court to say any more than that, if an application for a ruling had been made, the trial judge might have made, but might not have made, a ruling favourable to the appellant.
Although it was submitted by counsel for the appellant on this appeal that counsel for the appellant at the trial ought to have made an application to the trial judge for an advance ruling, it was not submitted that the omission to apply for such a ruling amounted to such an error on the part of counsel as to give rise to a miscarriage of justice within the principles discussed in such cases as Birks and R v Ignjatic (1993) 68 A Crim R 333. What was submitted was, as I have already indicated, that there had been a miscarriage of justice because the appellant had been subjected to a unfair trial, in that the evidence of good character which was available had not been adduced.
The trial to which the appellant was actually subjected was a trial in which only the charges involving the complainant were preferred against him, there was no evidence which would support an argument that the complainant had colluded with K and there was no evidence as to the appellant’s character but there was also no evidence of the appellant having committed offences against K.
The trial which the appellant’s legal representatives had anticipated would be held would have been a trial in which the charges involving K were also preferred against the appellant, evidence that the appellant had committed offences against K would have been given, the appellant would have been able to allege that the complainant and K had been colluding and evidence of the appellant’s good character would have been led.
I am not persuaded that I should conclude that the trial which the appellant actually underwent was an unfair trial or a trial in which he had less chance of being acquitted than he would have had, if he had undergone a trial of the kind that was anticipated by his legal representatives. As against the advantages to the appellant of being able to rely on evidence of his good character and of being able to put an argument about collusion, there would have been the disadvantage, of a kind usually thought to be serious, that the jury would have heard evidence against the appellant not from one, but from two complainants, both alleging that the appellant had committed sexual offences against them.
Moreover, it would have been open to counsel for the appellant at the trial to convert the trial the appellant was undergoing into a trial approximating in most respects to the trial which the appellant’s legal representatives had anticipated. Counsel could have adduced evidence of the good character of the appellant, even though that meant that the Crown was permitted to adduce evidence of the appellant having committed offences against K, counsel could then have put an argument that the complainant and K had been colluding and counsel could have put an argument that, apart from the allegations made against him by the complainant and K, which were disputed, the appellant was a person of good character.
Counsel for the appellant at the trial did not take this course. In my opinion, it can be inferred that counsel for the appellant did not take this course, because he considered that the admission of evidence of the offences allegedly committed against K would be seriously damaging to the appellant and would outweigh any advantage to the appellant from adducing evidence of good character. This was a decision which competent counsel would have been warranted in making.
From the appellant’s point of view, the kind of trial which would have offered the greatest chance of an acquittal would have been a trial in which only the charges against the complainant were preferred and evidence of the appellant’s good character was admitted but no evidence of the appellant having committed offences against K was admitted. However, I have already stated my conclusion that it is not possible to say whether, if the question of the admissibility of the Crown’s rebutting evidence had been raised before the trial judge, the trial judge would have made a ruling preventing the Crown from adducing the rebutting evidence. The trial judge might well have made a ruling permitting the Crown to call the rebutting evidence.
The fact that if matters had transpired differently, and in particular if the trial judge had made a ruling in favour of the appellant, being a ruling the trial judge was never asked to make and which, if he had been asked to make, he might not have made, the appellant would have received a trial in which he might have had a greater chance of being acquitted than he had in the trial which he actually underwent, does not, in my opinion, establish that the trial which the appellant actually underwent was an unfair trial or that there has been a miscarriage of justice.
I would dismiss the appeal against conviction.

ADAMS J: I have read the judgment in draft of James J and agree with his Honour that no miscarriage of this trial arose because the Crown included in the indictment only those offences which concerned the complainant and excluded those which allegedly concerned K. Mr Craddock submitted that the appellant lost the opportunity of defending the allegations made against him upon the ground that the complainant had colluded with K to make them. If this defence were to be raised, it is elementary that the allegation would have had to be put to the complainant. The Crown prosecutor would than have needed to call K to refute them or else be faced with a Jones v Dunkel (1959) 101 CLR 298 submission which, in the circumstances, may well have been very persuasive. The suggestion by counsel for the appellant, which was reluctantly abandoned when pressed by the Court, that the Crown prosecutor acted improperly in failing to join the allegations in respect of K in the indictment was entirely baseless and should not have been made.
I also agree with James J that no valid criticism can be made of the Crown prosecutor for intimating that he would seek to adduce evidence concerning the allegations made by K should the appellant adduce any evidence tending to establish that he was a person of good character. The evidence of K was admissible to rebut evidence of the appellant’s “good disposition or reputation”: s 110 of the Evidence Act 1995 (the Act); R v Stalder [1981] 2 NSWLR 9; M (1993) 67 A Crim R 549; BRS v The Queen (1997) 191 CLR 275; Gipp v The Queen (1998) 194 CLR 106 per Gaudron J at [10].
Since the defence had made timely disclosure of the intention to call character evidence, in light of the principles laid down in R v Chin (1984-85) 157 CLR 671, the Crown would have been required to lead any material in rebuttal of that evidence in its own case and not in reply. It would then have been necessary for the trial Judge to consider whether he would permit the adducing of evidence by the Crown which was highly prejudicial, having regard to the nature of the Crown case in respect of the complainant and would certainly raise as an issue whether the appellant actually committed the offences in respect of K. If objection were taken, this would need to be determined on the voir dire. However, if the Crown were permitted to call evidence from K, the jury would need to be directed that it could not be used either as tendency or coincidence evidence and must be disregarded in any consideration of the guilt of the appellant in respect of the charge for which he was on trial, except to the extent that it might reflect on whether, indeed, he was a person of good character. The trial Judge would have needed to very carefully consider the application of s 135 of the Act, weighing up the likelihood that each paragraph of that section could, in the circumstances, be satisfied, namely, that the evidence of K might be unfairly prejudicial and that it would confuse the jury having regard to its limited relevance and also, because, in effect, a trial of the appellant’s guilt in respect of K would ensue, whether it might also result in undue waste of time. At common law, the question of undue prejudice applied to admission of rebuttal evidence on character and the existence of a discretion to exclude such evidence in an appropriate case is undoubted: R v Stalder (1981) 2 NSWLR 9 per Street CJ at 19.
In order to properly determine this question the trial Judge would need to have regard to the cogency of the evidence of K. Her statement has been tendered in this proceedings. In the circumstances, I do not think it appropriate to say more than it appears that a number of crucial facts were elicited during the police interview by way of inappropriate leading questions. Her allegations were entirely uncorroborated.
In R v Wheeler (unreported NSWCCA 16 November 1989), the trial Judge on a trial for indecent assaults against a nine year old in a classroom, permitted the Crown to call in reply, where the appellant had in his case adduced evidence of good character, the evidence of two other girls from the same class who alleged that they had been victims of the appellant’s criminal attentions. It was held by the Court of Criminal Appeal that the trial judge erred in holding that Hoch (1988) 165 CLR 292 did not apply to evidence called by the Crown in rebuttal in the accused’s evidence of good character. The Crown prosecutor in this Court did not submit that Wheeler was wrongly decided but I have some doubts that Hoch makes evidence tendered to rebut good character inadmissible merely because there is a reasonable possibility of collusion, especially in light of the judgments of Toohey, Gaudron and Kirby JJ in BRS (1997) 191 CLR 275, respectively at 292, 301, and 328. However, it seems to me that the existence of a reasonable possibility of collusion between the complainant and K would have been a relevant and, perhaps, decisive consideration (as K’s evidence was uncorroborated) in the application of s 135 of the Act. Given its character, K’s evidence was capable of being extremely prejudicial and should not have been admitted unless its probative worth was truly significant. After all, the substance of the issue on the question of character would have been whether the appellant had committed the crimes alleged by K. I do not see how this could be decided adversely to the appellant unless the jury accepted the truthfulness of K’s evidence.
K was the younger sister of the complainant, living in the same house and sharing the same bedroom at the material time. The complainant said in evidence that he had complained to his mother about the appellant’s sexual behaviour towards him in K’s presence. He also said that his mother declined to believe him and K. When K was interviewed by the police and asked if she knew why she was at the police station, she said that it was because the appellant “did something bad to me and [C]”. It seems at the very least likely that the complainant discussed to some degree or other what had happened to him and what they should do about it.
I think that there was almost certainly a reasonable possibility of collusion between the complainant and K. If the trial judge applied Wheeler (as he was bound to) he should have excluded the evidence of K on the issue of the appellant’s character. If there be added to this consideration the imprecision of K’s allegations and the unsatisfactory way in which they were elicited by the police, the fact that it was uncorroborated, the nature of the only issue to which it was relevant and the reasonable possibility of collusion, the case for exclusion under s135 of the Act becomes very powerful indeed.
It is clear that counsel for the appellant did not consider the materiality of the alleged concoction which (I accept) was a significant part of the defence case, let alone whether the trial judge had a discretion to exclude the evidence of K in rebuttal of the evidence of good character proposed to be adduced. This is not a case where, having considered the relevant factors which might affect a trial judge’s discretion, counsel made a judgment not to lead the character evidence. Rather, counsel simply omitted to consider the elementary question whether the trial judge might have a discretion at all, a discretion given in terms by the Evidence Act 1995 and having been part of the common law before that. Whether this constitutes “flagrant incompetence” (Birks (1990) 19 NSWLR 677, per Gleeson CJ at 655) may be doubted, although the failure to even to consider the elementary legal factors bearing on the admissibility of K’s evidence, in respect of evidence of potentially decisive importance for his client, seems to me to come quite close, but, as Hunt CJ at CL observed in Ignatic (1993) 68 A Crim R 333 at 337, “the principles stated in that case are not...restricted to the case in which the incompetence of counsel has been flagrant”. His Honour pointed out that the “issue to be determined is whether the error made by counsel was of such a nature in the circumstances of the case as to have led to a miscarriage of justice”. Mere errors of judgment or even negligence will not, of themselves, be sufficient: Birks 1990 19 NSWLR at 685.

For the reasons which I have already mentioned, I consider that the decision of this Court in Wheeler (supra) would have required the trial judge to refuse admission of the evidence of K in the exercise of his Honour’s discretion under s 135 of the Evidence Act 1995 and that, even apart from the direct applicability of Hoch (supra) this would almost inevitably be so on general principles.
In Ignatic (68 A Crim R at 338) Hunt CJ at CL considered that, even on the assumption of either incompetence or negligence, the failure by the accused’s legal advisers to have him psychiatrically examined would not establish any miscarriage unless there was at least a substantial chance that the accused would have succeeded on the only issues to which the psychiatric evidence could be directed. I am of the view that the objection to the admission of K’s evidence certainly had this character. The result of counsel’s incompetence was, or at least probably was, that evidence of a potentially decisive kind was not available to the jury in its consideration of the appellant’s guilt. In D (1996) 86 A Crim R 41 an appeal was allowed where counsel had, for unexplained and inexplicable reasons failed to call character evidence. Here, the explanation for failing to seek a ruling on the admissibility of K’s evidence which, if successful, would have permitted the appellant to adduce character evidence is incompetence. The result is that available character evidence was not called. In my view, this has resulted in a miscarriage of justice and, accordingly, the appeal should be upheld and a new trial ordered.

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LAST UPDATED: 09/11/2000