Schmidt v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0089

JERMAINE SCHMIDT	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, NIALL and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2024
DATE OF JUDGMENT:	31 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 256
JUDGMENT APPEALED FROM:	[2023] VCC 1429 (Judge Lacava)

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CRIMINAL LAW – Appeal – Conviction – Sexual assault and rape – Whether ruling preventing defence from adducing character evidence in a particular respect occasioned miscarriage of justice – Judge erred in refusing to allow evidence to be adduced – Substantial miscarriage – Leave to appeal granted – Appeal allowed.

CRIMINAL LAW – Appeal – Conviction – Sexual assault and rape – Whether deficiencies in conduct of defence at trial occasioned miscarriage of justice – Deficiencies did not render trial unfair – Leave to appeal refused.

Evidence Act 2008, ss 32, 59, 76, 97, 110; Jury Directions Act 2015, s 54D.

Attwood v The Queen (1960) 102 CLR 353; Awad v The Queen (2022) 275 CLR 421; Baini v The Queen (2012) 246 CLR 469; Bishop v The Queen (2013) 39 VR 642; Karam v The King [2023] VSCA 13; Melbourne v The Queen (1999) 198 CLR 1; Parsons (a pseudonym) v The Queen [2016] VSCA 17; Wah v The Queen (2014) 45 VR 440 considered.

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Counsel
Applicant:		Mr DA Dann KC
Respondent:		Mr BF Kissane KC with Ms S Lenthall
Interested party:		Mr PA Chadwick KC
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Niall JA, whose reasons for judgment I have had the advantage of reading in draft, has concluded that neither of the applicant’s grounds of appeal against conviction should succeed. Not without considerable hesitation, I agree that particulars (a), (c) and (d) of ground 2 are not made out,[1] essentially for the reasons given by Niall JA.
[1]The particulars contend that a substantial miscarriage of justice occurred in circumstances where: (a) the complainant’s evidence was not challenged in a manner that was consistent with the applicant’s instructions; (c) inconsistencies in the Complainant’s evidence were not identified; and (d) the Prosecution case was not challenged in a manner that was consistent with the applicant’s instructions.
It is my misfortune to have reached a different view, however, with respect to grounds 1 and 2(b), which are formulated as follows:
1A substantial miscarriage of justice has occurred as a result of the confusion that developed about the Applicant’s entitlement to rely on good character evidence in a particular respect.
2A substantial miscarriage of justice has occurred in circumstances where:
…
(b)available good character evidence was not placed before the jury;
…
I consider that a substantial miscarriage of justice resulted from the applicant having been refused permission to introduce evidence that he was of good character ‘in a particular respect’. As a result, I would grant the extension of time for leave to appeal against conviction; grant leave to appeal against conviction; allow the appeal; set aside the applicant’s convictions; and order a new trial. In stating my reasons for those conclusions, however, I am largely relieved of the need to recapitulate the evidence of the complainant (and defence counsel’s cross-examination of her), the complaint witnesses and the final addresses of counsel at trial; or the evidence given in this Court by the applicant and his trial counsel; since they are set out in detail in the reasons of Niall JA. I therefore need only repeat so much of the evidence and discussion at trial as is necessary to make my own reasons comprehensible.
Niall JA has described defence counsel’s cross-examination of the complainant and his closing as ‘barely sufficient’.
No matter any other qualities it enjoyed, it certainly cannot be said that defence counsel’s cross-examination of the complainant — occupying about 16 pages of transcript — was other than economical. Although economy in the conduct of cross-examination may in some circumstances be a virtue, it will only be so if the cross-examination also possesses substance. There was not much substance, however, in defence counsel’s cross-examination of the crucial prosecution witness in the present case. Even if it be assumed that counsel was possessed of inadequate instructions, there was a lot more that competent counsel could have achieved in the present case had a little more skill been brought to bear.
Against the backdrop of defence counsel’s barely sufficient cross-examination, I consider that the trial judge’s failure to permit Dr Clarissa Whitehead to give character evidence as to the manner in which the applicant behaves towards women delivered the coup de grâce to an already moribund defence case.
In circumstances where the applicant had not given evidence, and his version of events was not put before the jury in the form of a record of interview with police, so that the jury could only have been apprised of his version of events through his counsel’s barely sufficient cross-examination of the complainant — the cross-examination was at best perfunctory — it was of paramount importance that the applicant be permitted to put forward in his defence such character evidence as was available to him, that character evidence bearing on the unlikelihood of guilt. He was, however, prevented from doing so, by the prosecutor’s objections and the trial judge’s ruling.
Although Niall JA has summarised the unfortunate turn of events that followed Dr Whitehead being called to give evidence, the full impact of what occurred is best appreciated when her evidence, and the relevant passages of discussion between judge and counsel with respect to it, are set out in full. Hence, at the conclusion of the prosecution case, defence counsel announced that he would call one character witness, Clarissa Whitehead. Her evidence proceeded as follows:[2]
[2]Emphasis added to this and passages following.
HIS HONOUR: Yes, [Defence Counsel].
[DEFENCE COUNSEL]: Thank you. (To witness) Could you please state your full name?---Sure. It is Clarissa Ann Whitehead.
And you live somewhere in Melbourne; is that correct?---Yes; correct.
How old are you?---I’m 27 years old.
What formal qualifications do you hold?---I hold a doctorate in cancer cell biology from the University of Melbourne.
HIS HONOUR: Sorry, in what discipline?---Cancer cell biology.
Cancer cell biology?---Yes; correct.
[DEFENCE COUNSEL]: And what is your occupation?---I’m a research scientist for a private biotech company called Exopharm.
And as I understand, you are giving evidence from your workplace right now; is that right?---Yes, unfortunately. I have quite a big day so I couldn’t make it in today.
Do you have any prior convictions?---None at all.
For how long have you known Jermaine Schmidt?---I’ve known Jermaine for almost five years now.
What would you say Mr Schmidt’s best qualities are?---He is a very - - -
[PROSECUTOR]: It’s a limited area - - -
HIS HONOUR: Just a moment.
[PROSECUTOR]: - - - for evidence in this - - -
HIS HONOUR: That’s not admissible, [Defence Counsel].
[DEFENCE COUNSEL]: I withdraw it, Your Honour. (To witness) Doctor, could I put it – be more specific. What would you say about Mr Schmidt’s attitudes towards women?
[PROSECUTOR]: I object to this, Your Honour.
HIS HONOUR: That’s inadmissible, [Defence Counsel].
[PROSECUTOR]: There’s a very strict formula for the giving of character evidence, Your Honour.
HIS HONOUR: Members of the jury, would you just go to the jury room, please. ...
There was then the following discussion in the absence of the jury, from which it may readily be discerned that neither the prosecutor nor the judge appeared to have had an acquaintance with s 110 of the Evidence Act 2008 (‘the Act’):
HIS HONOUR: [Defence Counsel], I understood that you were going to call this witness to give character evidence.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: That is not character evidence.
[DEFENCE COUNSEL]: As Your Honour pleases.
HIS HONOUR: Well, it’s not. You seem somewhat taken aback by that. You’re asking the witness to give evidence about your client’s attitude towards women.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: That’s not relevant.
[DEFENCE COUNSEL]: Your Honour, am I therefore confined to simply asking a general question about Mr Schmidt’s character?
HIS HONOUR: And his reputation, exactly.
[DEFENCE COUNSEL]: Yes. And I would not be permitted to go any further than that?
HIS HONOUR: I beg your pardon?
[DEFENCE COUNSEL]: I would not be permitted to go any further than that?
HIS HONOUR: I’ve got no idea what it is you’ve got in mind.
[DEFENCE COUNSEL]: Yes. In essence, Your Honour — well, again, given the nature of these charges, I was seeking to lead more specific evidence.
HIS HONOUR: Of what kind?
[DEFENCE COUNSEL]: That he is perhaps less likely to have offended in the way that he is alleged to have offended.
HIS HONOUR: Well, you better enlighten me on what it is the sort of evidence you’re seeking to lead.
[DEFENCE COUNSEL]: Well, for example, has this witness ever seen Mr Schmidt affected by alcohol and has — what observations would she make about how he behaves towards women, whether he is affected or unaffected by alcohol.
HIS HONOUR: What do you say, [Prosecutor]?
[PROSECUTOR]: They’re impermissible questions, Your Honour, going to opinion.
HIS HONOUR: Yes.
[PROSECUTOR]: Matters that are not the subject of character evidence. My understanding of the rules in relation to giving character evidence is he’s allowed to ask, ‘Do you know the accused? Do you know people that know the accused? What is his reputation like for honesty?’
HIS HONOUR: Correct.
[PROSECUTOR]: Beyond that, my learned friend is not allowed to go.
[DEFENCE COUNSEL]: As Your Honour pleases.
HIS HONOUR: I won’t permit it, [Defence Counsel].
[DEFENCE COUNSEL]: Okay.
HIS HONOUR: You flagged asking the witness if she’s ever seen the accused intoxicated. Assuming she says ‘no’, that’s completely contrary to the evidence here.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: The only evidence here is that he was. I won’t permit it.
[DEFENCE COUNSEL]: As Your Honour pleases.
HIS HONOUR: Bring in the jury. Just confine your questions to the accused’s reputation and character.
[DEFENCE COUNSEL]: Yes.
From the passages extracted above it may be observed, first, that the judge thought that the evidence defence counsel was trying to adduce about the applicant’s attitude towards women was ‘not character evidence’; secondly, that evidence about the applicant’s attitude towards women was ‘not relevant’; and thirdly, that defence counsel was confined to ‘asking a general question about [the applicant’s] character’. Indeed, the trial judge seemed to agree with the prosecutor’s submission that Dr Whitehead could not give evidence about the applicant’s attitude to women because that would be evidence of ‘opinion’. It also seems clear that the judge agreed with the prosecutor’s assertions that ‘there’s a very strict formula for the giving of character evidence’, and that the ‘rules’ dictated that defence counsel could not go beyond asking questions like: ‘Do you know the accused? Do you know people that know the accused? What is his reputation like for honesty?’. All of this was, however, quite wrong.
In the result, upon Dr Whitehead being recalled, her evidence was limited to the applicant’s general reputation:
[DEFENCE COUNSEL]: Thank you, Your Honour. Dr Whitehead, you’ve said you’ve known Mr Schmidt for approximately five years; is that right?---Yes; correct.
And do you know other people who know Mr Schmidt?---Yes, quite a few.
And what is Mr Schmidt’s reputation for honesty?---He is very honest. All of us trust Jermaine immensely.
Yes, thank you, Your Honour. I’ve got no further questions.
[PROSECUTOR]: I have no cross-examination, Your Honour.
HIS HONOUR: Thank you, Doctor Whitehead. That completes your evidence. You’re excused. Thank you very much?---Okay, thank you.
As I have said, the bases upon which the prosecutor objected to Dr Whitehead’s opinion, and the bases upon which the trial judge prevented defence counsel from leading character evidence in a particular respect from her, simply were wrong.
At common law, a witness called to give character evidence could speak only of an accused person’s general reputation.[3] Hence, the kinds of questions permitted to elicit evidence of good character generally were: Do you know the accused? Do you know people who know the accused? What reputation does he enjoy? The prosecutor and judge thought that still to be the case. It is not.
[3]R v Rowton (1865) Le & Ca 520; 169 ER 1497.
Moreover, at common law, character was not divisible. Hence, an accused person who asserted his or her good character exposed himself or herself to an examination of all aspects of his or her character. Once more, that is no longer the case.
Good character evidence is now — and has been for some years — covered by s 110 of the Act, which provides:
110 Evidence about character of an accused
(1)The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.
(2)If evidence adduced to prove (directly or by implication) that an accused 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 accused is not generally a person of good character.
(3)If evidence adduced to prove (directly or by implication) that an accused 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 accused is not a person of good character in that respect.
As was observed in Bishop:[4]
It may immediately be appreciated that, by virtue of s 110, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove good character. Thus hearsay evidence concerning a person’s reputation, which would otherwise fall to be excluded under s 59 of the Act, is admissible. Further, opinion evidence about a person, which would generally be excluded by virtue of s 76, is also admissible. So, too, is tendency evidence — evidence of ‘the character, reputation or conduct of a person, or a tendency that a person has or had’ — which would be proscribed by virtue of s 97, admissible. Finally, evidence about a person’s credibility — which generally is inadmissible because of s 102 of the Act — is admissible.
[4]Bishop v The Queen (2013) 39 VR 642, 650 [33] (Priest JA).
And significantly, s 110 permits an accused person to adduce evidence that he or she is a person of good character either generally or in a particular respect. So that in Parsons the Court observed that:[5]
so far as evidence of good character is concerned, the plain intention of s 110 of the Evidence Act 2008 is to vary the common law ‘all or nothing’ attitude. It is thus open to an accused person to lead evidence that he or she is of good character ‘generally’ or ‘in a particular respect’.[6] Evidence of good character in a particular respect might, for example, include evidence that an accused person has no prior history of sexual misconduct with children. All other things being equal, it would comprehend the kind of evidence that the applicant’s counsel submitted was available to be called in this case; namely, the applicant had no history of sexual misconduct with teen-aged female students whom the applicant coached. So much is clear from Zurita,[7] …
[5]Parsons (a pseudonym) v The Queen [2016] VSCA 17, [63] (Maxwell P, Redlich and Priest JJA).
[6]Bishop v R (2013) 39 VR 642; See Wah v R (2014) 239 A Crim R 41, 52 [57]–[62] (Weinberg JA).
[7]R v Zurita [2002] NSWCCA 22, [14]–[15] (‘Zurita’).
In Eastman, it was held that the expression ‘good character’ in s 110 ‘has the meaning accorded to the expression in Attwood’,[8] in which the Court said:[9]
The expression ‘good character’ has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of R v Rowton [(1865) Le & Ca 520; 169 ER 1497]. Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn CJ 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 [at 530; 1502]’.
[8]Eastman v The Queen (1997) 76 FCR 9, 53 (von Doussa, O’Loughlin and Cooper JJ).
[9]Attwood v The Queen (1960) 102 CLR 353, 359 (Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ).
In my view it is plain that the evidence that Dr Whitehead was apparently capable of giving — that the applicant is a person who behaves respectfully towards women, including when he is affected by alcohol — was evidence of good character in a particular respect, and was admissible under s 110. As Attwood makes clear, if character evidence from Dr Whitehead had been admitted in the applicant’s trial, it could have been used by the jury as directly relevant to the issue of the applicant’s guilt (there being no capacity in the present case for it to go to his credibility). Had it been admitted, the jury could have used the evidence as directly bearing on the improbability of guilt, and as going to the unlikelihood of the applicant having committed the crimes with which he was charged, given that a person of good character (in a particular respect) is presumed to be incapable of committing the crime for which he or she is being tried.
For these reasons, I cannot agree that the judge’s error in excluding the evidence could not have affected the result. In circumstances where defence counsel’s cross-examination of the complainant was only barely sufficient, and the applicant’s version was not before the jury by way of sworn (or affirmed) evidence or a record of interview, the putative character evidence ‘in a particular respect’ was of more, rather than less, importance. Certainly, its importance was greater than ‘marginal’ or negligible’.
In my opinion, this Court must intervene. There has been a substantial miscarriage of justice. The applicant’s convictions must be set aside and a new trial had.
There is one final observation that I should make. The cross-examination of defence counsel in the abortive trial was, as has been observed, perfunctory, lacking in substance and only barely sufficient. No measure of editing of the recording of the complainant’s

evidence — no matter how creative — is capable of remedying that situation. In those circumstances, although there is a presumption in favour of admitting a recording of the evidence of the complainant from the first trial on the new trial,[10] it is apparent that the applicant would be unfairly disadvantaged by the admission of the recording on a retrial.[11]

[10]Criminal Procedure Act 2009, s 381(1AAB).
[11]Criminal Procedure Act 2009, s 381(1)(d).

NIALL JA:

Following a trial before a judge and a jury in the County Court at Shepparton, the applicant was convicted of one charge of sexual assault (charge 1) and one charge of rape (charge 2) and sentenced to a total effective sentence of 5 years’ imprisonment.
Under cover of two proposed grounds of appeal, the applicant contends that there has been a substantial miscarriage of justice based on two principal complaints. The first concerns whether he was precluded from adducing character evidence in a particular respect and therefore denied the benefit of that evidence. The particular respect broadly concerned the applicant’s respectful attitude towards women whether he was affected by alcohol or unaffected by alcohol. The second concerns the adequacy of his legal representation at trial and whether, by reason of a number of identified deficiencies, namely that his instructions were not put to the complainant in cross-examination, inconsistencies in the complainant’s evidence were not adequately challenged and available good character evidence was not adduced, he suffered a substantial miscarriage of justice.
In order to deal with both grounds, it is necessary to refer to the evidence at trial. As will appear, evidence was also given in this Court by both the applicant and his trial counsel about the content of instructions given to counsel both before and during the trial. It will also be necessary to refer to that evidence.

The course of the trial

The trial was, by contemporary reckoning, of short duration and was completed within three days. The prosecution called the complainant and six other witnesses, who comprised four complaint witnesses, a person who was with the applicant on the night in question and the informant.
The applicant did not give evidence. Although he participated in a recorded interview with police, he gave no comment answers to questions relating to the alleged offending and the record of interview was not adduced into evidence. The applicant called a single character witness.
In his opening to the jury, trial counsel for the applicant told the jury that his address would be ‘very short’ and that he would explain to the jury which parts of the prosecution case were agreed upon and which parts were in dispute. He said, ‘In actual fact, a lot of what’s been set out by my learned friend is agreed upon, particularly the background that you’ve heard about.’ He said that it was agreed that the applicant and

the complainant were soldiers and had socialised together. He said that the applicant did enter the room of the complainant on the night in question and that there might be some dispute, but not a great deal, about the circumstances in which he entered the room. The jury were told that it was agreed that the applicant did lie on top of the complainant’s bed while she remained under the covers.

Counsel continued, in relation to charge 1 (sexual assault), ‘[s]o what is in dispute is that the [applicant] or it is denied by the [applicant] that he in fact touched [the complainant’s] breasts in the manner alleged and furthermore, the [applicant’s] belief in [the complainant’s] consent is in issue’. With respect to charge 2 (rape), counsel said that the applicant ‘denies that he in fact digitally penetrated the complainant’s vagina in the manner alleged’.

The evidence of the complainant

The complainant joined the army in February 2020. In June 2020, she was posted to the Puckapunyal military base. Accommodation at the base comprised a number of accommodation blocks, referred to as ‘lines’, which each contained a number of single rooms. The accommodation blocks were not segregated by gender.
The complainant’s room contained a single bed, a desk and a wardrobe. The bed was against the wall. The door to the room had a lock, which could be locked from the inside.
Asked some general questions about the events on 30 June 2020 leading up to the charged acts, the complainant said that she could not remember much of the detail. Over objection, she was permitted to refresh her memory[12] by reference to the first two pages of her signed statement to the police in relation to the events leading up to the charged acts.
[12]Evidence Act 2008, s 32.
Having refreshed her memory in that way, she said that after completing her duties on 30 June 2020 she returned to her room and waited until she and three friends, Aaron Cheel, Fergus Southern and Matthew Llamas, went out for dinner. She changed from her military uniform into civilian clothes. She said that the four of them drove to the Royal Hotel, Seymour. They had dinner and the complainant consumed three cans of Bundaberg rum and coke.
The complainant and her friends returned to the base and went to the Boozer, which is a bar that serves alcohol on the base. It is the only place, apart from the officers’ mess, where soldiers were permitted to drink alcohol on the base. She said that she observed the applicant at the Boozer together with a few other people. The complainant had first met the applicant when she arrived at the base on around 5 June 2020.
After staying at the Boozer for a period of time, which she described as being not very long, the complainant returned to her room to get ready for bed. She changed into short pyjamas and underneath her pyjamas she wore a bra and underpants. The complainant got into bed and fell asleep. Sometime later, there was a knock at her door, which she opened to find the applicant and Mr Cheel, who had also been at the Royal Hotel and the Boozer, outside her room. They asked whether she had any cigarettes and she replied that she did not. The two men then left and the complainant returned to bed and went back to sleep.
The complainant said that, sometime later, she was woken by the applicant who had let himself into her room and was tapping on her leg, trying to wake her up. She said that the applicant kept asking to stay in her room, to which she replied ‘no’. She said that the applicant refused to leave, was hassling her and would not stop asking to stay in the room and she ended up letting him stay. The complainant said that she allowed him to stay in her room because she was getting very frustrated and very tired. The complainant said that it was against army rules for soldiers to be in the room of a soldier of a different gender.
The complainant said that the applicant then lay on her bed. The bed was covered with a doona cover and a blanket. The applicant lay on top of the bedcovers and the complainant was tucked under the blankets. The complainant said that she went back to sleep.
The complainant said that she woke up to find the applicant touching her, putting his hands up her shirt and running his fingers down her leg. She said that the applicant was touching her breasts and had put his hand under her underclothing, lifting her bra and placing his hand on her breasts. She said that she had woken up because she could feel him touching her and asked him to stop because it was not what she wanted and that the applicant apologised and turned over. The complainant went back to sleep. She said that the applicant turned his back to her and she turned her back so that she was facing the wall. She said that she could not remember if the applicant was under the bedcovers or not by that point.
She said that she was again woken because the applicant’s fingers ‘had gone up [her] leg’, he had moved her underwear over and put his fingers inside her vagina. She did not know how long he did that for. She said that he removed his fingers when she woke up and told him to stop. She said that there was one stage when she was first waking up when he had been ‘bit more forceful, trying to touch [her] and he pinned [her] down a little bit and that’s when [she] told him to stop …’.
The complainant remained on the bed until the applicant fell back asleep and she then left the room and went to the bathroom. When she returned to the room, the applicant was fully dressed with his shoes on and he asked the complainant how he could get out of the building without being seen. She thought that this occurred possibly around 6:00 am or 6:30 am. The applicant left her room.
The complainant said that she received some text messages from the applicant. A text message marked as being received at 7:19 am was sent by the applicant to the complainant on the same morning, which said:
Hey dude,
Just wanted to apologise about last night/this morning!
I do not remember staying there at all I woke up this morning very fkn confused. There’s no excuse for me staying the night because I was drunk not really fair! I’m sorry I stayed I literally had no idea I was staying I’m super sorry! I’ll take you out and apologise again through out the week!!
Again I’m sorry! It won’t happen again x
I interpolate to observe that the text message was not relied on by the prosecution as incriminating conduct and the judge directed the jury accordingly. It did, however, create forensic difficulties for the applicant. In the event that the applicant gave evidence, it might undermine his account as to what occurred on the bed.
The complainant said that she spoke to a number of people about the incident. She said that, either on the day of or on the day after the incident, she spoke to Lachlan Jones and told him that she had ended up letting the applicant stay in her room, how the applicant was touching her and putting his hands down her pants and that, after that, she had gone to the bathroom and waited for him to leave. She said that Mr Jones told her to report it. She said that she spoke to another soldier, Samzun Langham, around the day after. She said that she told him the same thing that she told Mr Jones and that he had also told her to report it.

Cross-examination of the complainant

In cross-examination, the complainant agreed that she and the applicant were mates and had socialised on a number of occasions in the three or four weeks during which they had been acquainted.
The complainant was asked questions about the applicant and Mr Cheel knocking on her door seeking cigarettes. She agreed that she had a brief discussion with them and that Mr Cheel appeared to be somewhat drunk. She agreed with the proposition that the applicant, by comparison, seemed okay and did not seem to be affected by alcohol. She agreed that she had seen the applicant drunk on previous occasions but that night was not such an occasion.
The complainant said that she did not know how much time elapsed between the applicant and Mr Cheel leaving and the applicant returning to her room. Obviously addressing the time at which the applicant returned to the complainant’s room alone, it was suggested to her that the applicant had knocked on her door twice and that the complainant, from inside the room, permitted him to enter the room. The complainant denied this.
The complainant was asked a number of questions about what she was wearing in bed, the layout of her room and the size of her single bed. She agreed that when she first got into bed, the bedclothes would be fairly tightly tucked in but added that they would become ‘untucked’ as she moved throughout the night.
It was suggested to the complainant that the applicant had asked if he could stay the night in her room and that he had asked twice before the complainant said ‘yes’ or ‘okay’. The complainant said that she could not recall how many times he asked, adding that it was definitely more than once but it possibly could have been more than twice. When it was put to her that ultimately she said ‘yes’ in answer to his request to stay in her room, the complainant answered, ‘Yes, because he wouldn’t leave’.
The complainant said that sexual activity was definitely not discussed at all between them. She said that the only piece of clothing that she was aware the applicant had removed was his shoes but that she was not aware of him taking off any of his other clothing. Asked about the position the applicant took on the bed, the complainant said that for the majority of the night he had his back facing her. On questioning, she reiterated her earlier evidence that she could not recall whether the applicant remained on top of all of the bedcovers during the night.
The complainant denied telling a fellow soldier that the applicant had stripped naked.
Asked about the charged acts, the complainant said that she could not say for certain which of the applicant’s hands made contact with her breasts or vagina. She agreed that she could not say for how long her breasts had been touched or for how long her vagina had been penetrated. Asked whether it felt ‘like a dream’, the complainant said she did not think so and that she could not remember.
The following exchange then occurred between trial counsel for the defence and the complainant:
If I understand your evidence correctly, as you recall, when you did feel your breasts being touched, you said to [the applicant], ‘Stop’; is that right?---That’s correct.
Do you remember the exact words you used? Was it like, for example ‘stop’ or ‘don’t’ or — what was it?---I just said to him like, ‘Stop.’
And [the applicant] immediately complied; is that correct?---That’s correct.
So as soon as you made it clear that you did not want that sort of touching, [the applicant] backed off and rolled over the other way. Is that what you’re saying?---That’s correct, but only for a short amount of time.
If I understand your evidence correctly — and bear in mind I’m talking about Charge 1 here, the touching — you say you did go back to sleep; is that right?---That’s correct.
Perhaps understandably, you can’t say how long you were asleep for?---No, I can’t.
You couldn’t say how deeply or lightly you might have been sleeping. Would that be right?---That’s right.
But what you say is you then awake to this experience of your vagina being penetrated by a number of fingers on either the left or right hand. Is that your evidence?---Yeah, that’s correct.
And as you recall, what you said is — you again said, ‘Stop’; is that right?---Yes.
The cross-examination then turned to the following morning. The complainant disagreed with the suggestion that the applicant woke up whilst the complainant was in the room and getting dressed. She agreed that she and the applicant had a brief conversation but did not accept that the applicant asked her ‘what happened?’ It was put to her that she said to the applicant ‘you’re all good’ but the complainant did not recall saying that to him.
The complainant agreed that that she had spoken to a number of fellow soldiers after the incident and that she had made her first statement to the police one week later on 7 July 2020. She agreed that a number of people had told her to report the incident but that she took around a week before she approached her staff sergeant and told him about the incident.
Near the end of the cross-examination, the following propositions were put to the complainant:
Now, [complainant], there’s just some things that I need to put to you. Do you understand that?---Yes, I understand.
Can I suggest to you that your breasts were not touched in the manner that you have described to this jury?---That’s not true.
Can I also suggest to you that your vagina was not penetrated in the manner that you have described to this jury?---That is also not true.

The complaint evidence

Mr Cheel gave evidence that he attended the pub and the Boozer with the complainant on the night in question. He said that the complainant left the Boozer earlier than the others as she was tired and was going to go to bed. He stayed at the Boozer drinking with the applicant. The applicant asked him if he had any cigarettes, which he did not. Mr Cheel then suggested that they see if the complainant had any cigarettes. They knocked on the complainant’s door and she told them that she did not have any cigarettes left. Mr Cheel then turned to the applicant and said that they should ‘just go to bed’.
Mr Cheel said that the complainant ‘wasn’t herself’ for a few days after that night and she later disclosed the alleged offending to him. He said:
She didn’t go into the full details of what happened. She did say like he was trying to touch her and like forcefully on her and whatnot and she was saying, ‘No.’ But at first like she just said that — like, ‘Yeah, you can stay but you can stay on the ground’, and whatnot. And then the next minute she said that, yeah, he’d climbed in the bed and stripped off his clothes and tried to touch her up and whatnot.
…
I’ll think back. I’m pretty sure she told me that he came into the bedroom and whatnot, stripped off his clothes and tried to feel her up on her private parts and then tried to proceed to have sexual intercourse with him — with her, sorry.
Mr Cheel also said that he was present when the complainant disclosed the offending to Mr Jones.
Mr Jones gave evidence that he lived in the same accommodation block as the complainant and that he too had been woken by the applicant and Mr Cheel that night in search of cigarettes. He said that the next day the complainant appeared ‘upset, quite stand-offish’ and that he suspected something was wrong. When asked what the complainant had told him about that night, he gave the following evidence:
She told me that [the applicant] had knocked on her door, which was up the other end of that block that we lived in, and she told me that [the applicant] had come into her room, intoxicated, unable to speak clearly, and then laid down on her floor and went to sleep.
…
So following on from [the applicant] sleeping on the floor, she was then woken — she went back to bed in her room — in her bed, sorry, and was woken to [the applicant] trying to kiss her neck and he had his hand up her shirt.
…
She said that she was awoken to [the applicant] putting his fingers inside her.
Mr Langham was also called to give evidence as a complaint witness. He said that he spoke to the complainant the morning after the incident and she advised that the applicant ‘had gone into her room, intoxicated, and was pretty much trying to touch her private parts and was like just pushing for more’.
Georgia Roberts was a friend of the complainant and was stationed at Townsville at the time of the incident. She received a call from the complainant on 5 July 2020 in which the complainant disclosed the offending. She said:
Basically, she had said to me that a male from a different accommodation block had come down to her accommodation block and had knocked on her door and entered without [the complainant’s] permission and then said that he was pressuring her and she asked him to leave but he wouldn’t and she had — was under the intentions that he had sexually assaulted her but she didn’t use specific words.

Discussion regarding the judge’s directions to the jury

In anticipation of the charge to the jury, the judge and counsel discussed the content of directions that would be given. In relation to the elements of charge 1 (sexual assault), the applicant’s counsel agreed with the judge that it was ‘all about’ whether the touching occurred. Defence counsel confirmed that if the touching occurred there would be no dispute that it was sexual in nature and that it occurred without consent. Similarly, in relation to charge 2 (rape), defence counsel confirmed that the issue in dispute was whether the physical act of penetration had taken place and, if so, there was no dispute about consent.

The closing addresses

In his closing address, the prosecutor said that the critical issue for the jury was whether the alleged sexual touching had occurred. He said that the issue of consent ‘falls very much to one side in this case, because the evidence is uncontradicted that [the complainant] was asleep up until these events, awoken’.
Defence counsel, in his closing address, suggested that there was ‘some vagueness’ to the complainant’s evidence, including with respect to how long each particular alleged sexual contact took place. He suggested that there was ‘some implausibility or some impracticability’ about the complainant’s allegations, given that the applicant was not a small man, was lying on a bed designed for only one person and the complainant said he started off on top of the bedcovers while she was underneath, which defence counsel said meant she would have been ‘fairly tightly wedged’.

The evidence in this Court

The applicant

In support of his application for leave to appeal, the applicant swore an affidavit on 5 May 2023. In that affidavit, he said that he met his trial counsel ‘for one conference prior to the trial, on the Saturday before the trial started’. He said that the conference lasted approximately two and a half to three hours. He deposed that, at that conference, he gave his instructions to counsel about the evidence and the details of character witnesses that were available to him. He said that he had never had a ‘proper sit-down conference’ with his instructing solicitor and that he had no recollection of being shown the indictment, prosecution opening or defence response before trial.
The applicant deposed that he told trial counsel that he was happy to give evidence about what occurred but was advised not to give evidence. Under the heading ‘Specific instructions provided about the evidence’, the applicant deposed as follows:
14.     I instructed my barrister … as follows:
a)That I did remember what happened in the complainant’s room;
b)       What did happen in the complainant’s room;
c)That I denied running my fingers up or down the complainant’s leg;
d) That I did not place my hand underneath the complainant’s shirt and/or bra;
e)       That I did not touch the complainant’s breast or breasts;
f)       That the complainant did not tell me to stop;
g)       That the complainant did tell me to move over in the bed;
h)       That I did not touch the complainant’s underwear;
i)        That I did not touch the complainant’s vagina;
j)        The reason I apologised to the complainant.
15.I did not understand why my barrister did not cross examine the complainant about these matters.
The applicant was cross-examined on his affidavit. Trial counsel had acted for the applicant in his committal, which took place in 2021. The summary of prosecution opening for trial is dated 5 November 2021 and the defence response to the opening is dated 24 November 2021. When asked whether the applicant had met with his counsel between 8 November and 24 November 2021, the applicant replied ‘not to my knowledge’. He said that he would have given counsel instructions for the purpose of completing the defence response by telephone before 24 November 2021. He said that he had brief phone calls with his counsel. The applicant denied ever seeing the defence response, although he accepted that he had ‘possibly’ given telephone instructions to counsel consistent with that response.
I interpolate to note that, in the defence response, the applicant conceded that he served as a soldier together with the complainant at the relevant time and that he had socialised with her. He conceded sending the text messages to the complainant on which the prosecution relied. He conceded knocking on her door with Mr Cheel seeking cigarettes and that ‘he later entered the complainant’s room and that after some discussion, it was agreed that he could sleep on the complainant’s bed’. He conceded that ‘he removed his shoes and lay on top of the quilt, whilst the complainant remained under the quilt and against the wall’.
The defence response continues:
CHARGE 1 Sexual Assault
7. The accused denies that he touched the complainant’s breasts in the manner alleged.
8. The accused’s belief in the complainant’s consent to any touching alleged is in issue.
CHARGE 2 Rape
9. The accused denies that he digitally penetrated the complainant’s vagina.
10. The accused concedes the text messages subsequently sent, as set out in paragraphs 16 and 17.
In cross-examination, the applicant said that he had made it very clear to trial counsel that he denied committing the offences and that he never wavered from that position.
He agreed that, at the conference on the Saturday before the trial, trial counsel went through the evidence that the applicant might give and that counsel conducted a mock examination-in-chief and cross-examination with the applicant. He said that they discussed the text message that the applicant had sent to the complainant the following morning. The applicant said that he had apologised in the text message because it was against army regulations to share a room and that she may have got into trouble. Asked about the part of the text message in which he had said that he did ‘not remember staying there at all’, the applicant said that he was ‘scattered that morning’ when he woke up and sent the text message. He agreed that counsel told him that he would have difficulty explaining that part of the text message.
He said that he and counsel also discussed character witnesses who might be called.
The applicant said that trial counsel recommended to him that he not give evidence because counsel did not think he would be a good witness and thought he would be undermined in cross-examination. The applicant accepted that advice.
Cross-examined on whether counsel had put his instructions to the complainant at the trial, the applicant maintained that not all of his instructions were put. Specifically, he said that counsel had put to the complainant that the applicant had not touched her breasts or vagina ‘in the manner’ described when his instructions were that he had not touched her breasts or vagina at all. He said that the questions put by counsel did not cover his instructions. He said that he had instructed trial counsel that he had not run his fingers up the complainant’s leg or run his hand up her shirt or under her bra.
The applicant accepted that ‘over time’ he had an adequate opportunity to give instructions to his barrister. He denied telling his counsel that he had no clear recollection of what had taken place but that he believed that he would not have committed the offences.

Trial counsel

In light of the practice in this Court explained in Knowles v The Queen,[13] trial counsel was given an opportunity to respond to the allegations made in the application for leave to appeal. He was provided with a copy of the written cases in the application for leave to appeal, the affidavit of the applicant dated 5 May 2023 and the transcript of the trial. Trial counsel took up that opportunity and filed an affidavit in response and made himself available for cross-examination. Senior counsel appeared on his behalf. The respondent called him on the present application and he was cross-examined by senior counsel for the applicant.
[13][2015] VSCA 141, [127]–[147] (Ashley, Redlich and Priest JJA).
In his affidavit, trial counsel deposed that between the committal on 5 August 2021 and trial he had a number of conferences either in person or by telephone with the applicant. He said that he had a conference with the applicant after 8 November 2021, when he received the summary of prosecution opening and the indictment, for the purpose of settling the defence response. He said that he had a final conference on the Saturday before the trial and conducted a mock examination-in-chief and cross-examination. The affidavit continues:
Throughout my conferencing with the applicant over an approximately nine-month period, his instructions were that, somewhat contrary to his affidavit sworn some 12 months after the trial, he had no clear recollection of what had taken place in the complainant’s room but that he did not believe that he would have committed the charged acts. The mock giving of evidence served to reinforce these instructions. In all, his instructions were quite vague and provided me with little basis to challenge the complainant’s version of events.
The first time I viewed the applicant’s version of events in such clarity was when I was provided with his affidavit dated 5 May 2023.
As a result of the instructions I held by the time the trial was due to commence, I held concerns that the applicant would not be an impressive witness and that his evidence would be easily undermined in cross-examination. I shared these views with my instructor via email that same day, 28 May 2022.
Ultimately, I considered that I did not have clear instructions to put to the complainant nor the jury and as such I made a forensic decision not to call the applicant to give evidence.
I explained the above to the applicant and he appeared to understand and be comfortable with my advice.
In cross-examination, trial counsel said that his instructions were that the applicant did not believe that he had touched the complainant’s breasts or vagina and counsel therefore prepared the defence response on the basis that the applicant denied touching the complainant’s breasts or vagina. He said that the defence response kept the applicant’s belief in consent in issue because, given the ‘dynamics’ on the bed, that path might ‘at least be open’.
Trial counsel was asked to identify the basis on which he told the jury in his opening that ‘a lot of the complainant’s evidence is agreed’. Counsel accepted that this was ‘perhaps an overstatement’. Although no objection was taken to the question, in my opinion the question did not adequately describe the relevant part of the opening, which did not state that much of the complainant’s evidence was agreed but was more qualified. For that reason, counsel’s acknowledgement that he had perhaps overstated the position in his opening is of little present significance.
Trial counsel was cross-examined on why he had sought to elicit evidence from the complainant that the applicant did not appear to be as drunk as Mr Cheel when they came knocking on her door seeking cigarettes. Counsel explained that he did not have clear instructions from the applicant as to his level of intoxication. He also sought to explore whether he could elicit some evidence to suggest that the applicant was not as drunk as he might have confessed he was in his text message to the complainant the next morning in the event that he chose to call the applicant to give evidence.
Trial counsel was taken to a number of specific matters that he had put to the complainant in cross-examination to demonstrate an inconsistency with his evidence that the applicant’s instructions had been equivocal. To that end, trial counsel was asked how he was able to put to the complainant that, when he had returned, the applicant had knocked on the complainant’s door twice and that the complainant had let him into her room. Counsel replied that this information would have either come from a statement of the complainant or from the applicant and he could not remember which, but ultimately accepted that it could only have come from the applicant.
In a similar vein, trial counsel accepted that he may well have had instructions from his client to put to the complainant that the applicant had asked her twice to stay in her room before she agreed. He also said that he had instructions as to the circumstances in which the applicant and the complainant rose the next morning and what was said between them, which permitted him to put various matters to the complainant about that sequence of events.
Nonetheless, trial counsel maintained that he was not able to obtain specific instructions from the applicant about the actual offending beyond the applicant saying that he did not believe that he had committed the alleged acts. He also maintained that there was a ‘vagueness’ about the applicant’s instructions. Trial counsel accepted that he did not separately challenge the complainant about her evidence that she woke up with the applicant touching her or that he put his hands underneath her shirt, but kept his ‘puttage’ to two questions at the end of the cross-examination.
Trial counsel was asked to explain his decision to allow the complainant to confirm her evidence about asking the applicant to ‘stop’. He said that, at that stage, he was at least leaving open the issue of consent or belief in consent. For that reason, he did not put to the complainant directly that there had not been any touching of the complainant’s breasts because that may have undermined the applicant’s possible defence of consent or belief in consent.
Trial counsel said that, other than during the trial itself, he was ‘almost certain’ that he did not have a conference with the applicant at which his instructing solicitor was present. He said that he would have taken notes of his conferences but he no longer had them and would not have returned them to his instructing solicitor when he returned the brief at the conclusion of the criminal proceeding.
On the issue of good character evidence, trial counsel said that he had proposed to call Dr Clarissa Whitehead to give evidence about her observation of the applicant’s respectful treatment of women both when he was affected by alcohol and not so affected. He said that he was taken by surprise at the prosecutor’s objection to the evidence and agreed that he felt hamstrung by the judge’s ruling.
It was put to trial counsel that his closing address was perfunctory, which he denied. He said that he did not address inconsistencies between the complainant’s account and the evidence of complaint because he did not consider the inconsistencies to be significant and, in any event, such inconsistencies would perhaps have been ‘extinguished’ by directions from the trial judge under s 54D of the Jury Directions Act 2015.

Findings of fact

As already adverted to, proposed ground 2 includes, as a constituent element, the allegation that trial counsel did not challenge the complainant in a manner that was consistent with the applicant’s instructions. There remains a conflict in the evidence in this Court as to what those instructions were. Trial counsel maintains that the instructions were equivocal in that the applicant had instructed him that he did not believe that he had committed the offences. On the other hand, the applicant says that he gave express instructions that the offending had not occurred and that he had not touched the complainant’s leg, breasts or vagina at all.
Some preliminary observations should be made. First, it is for the applicant to establish the facts necessary to make out his proposed ground of appeal. Second, the balance of probabilities is the appropriate standard to apply in the present context. Finally, some general observations about each of the two witnesses in this Court is warranted.
As to the applicant, his affidavit lacks detail. Rather than setting out a narrative of what he told his counsel in conference about what occurred in the complainant’s room, the applicant set out a series of specific denials about what had occurred, as well as three general statements. The three general statements were that he had told trial counsel ‘[t]hat [he] did remember what happened in the complainant’s room’, ‘[w]hat did happen in the complainant’s room’ and ‘[t]he reason [he] apologised to the complainant’. Beyond the specific denials, he did not elaborate on any of these matters. The applicant also sought to convey the impression that he had limited opportunity to give instructions and that the first time he had been able to do so was on the Saturday before the trial. Ultimately, he accepted in his evidence that he gave instructions for the defence response at least by telephone prior to that date.
Trial counsel gave an account of his instructions unaided by any notes and having read the trial transcript and the arguments in this Court. He was giving evidence about events that took place more than two years earlier. It is notable that, contrary to sound practice, his instructing solicitor was not present at the critical conference on the Saturday before trial, which afforded the main opportunity for the applicant to provide detailed instructions to counsel. Instructions were not reduced to writing and confirmed by the applicant. No notes of the conference have been produced. In his affidavit, trial counsel deposes that ‘[t]he first time [he] viewed the applicant’s version of events in such clarity was when [he] was provided with his affidavit dated 5 May 2023’. As the cross-examination exposed, that does not sit well with the number of matters that trial counsel was able to put to the complainant with some specificity relating to the events prior to and the morning after the alleged offending.
On the account of trial counsel, his instructions in relation to the offending itself were left in a very unsettled state. On that version of events, the applicant told him that he believed that he had not committed the offences. As a matter of logic, that carries with it the proposition that he did not know whether or not he had touched the complainant’s breasts or inserted his finger into her vagina but, for some unstated reason, he did not believe he had done so. For any number of reasons, the idea that the applicant did not believe he committed the offences did not provide a viable foundation for a defence to the charges.
It is true that the applicant had sent the complainant a text message at 7:19 am on the morning after the alleged offending saying that he did ‘not remember staying there at all’. But complete amnesia induced by alcohol was not consistent with his instructions as to the events prior to the offending and the applicant’s departure from the room the next morning that were plainly given by the applicant to his counsel.
The evidence in this Court clearly shows that there were sufficient opportunities given to the applicant to provide his instructions directly to counsel, but neither witness was able to provide a clear account of what was said.
I think it likely that both the applicant and trial counsel have, in hindsight, firmed their respective recollections influenced by the context in which the present issues arise in a way that is unlikely to fully reflect the position immediately before and during the trial. In other words, the applicant now says that his instructions were unequivocal from start to finish, and his trial counsel says that there was uncertainty or equivocation on the part of the applicant about what had occurred on the night in question.
I think it plain that the applicant gave instructions denying that the offending took place. That is consistent with the defence response prepared on instructions. However, I also think it likely that there was some equivocation on the part of the applicant as to precisely what took place during the night in question. And trial counsel took that equivocation as a basis to contemplate leaving consent and belief in consent as potential avenues of defence. Whether that was a viable defence or not, it is plain from trial counsel’s opening to the jury that counsel wished to leave open those issues, as he said in his evidence in this Court, and some of the cross-examination of the complainant was directed to that end.

Ground 2

The applicant’s submissions

The applicant relied on four alleged deficiencies in the conduct of the applicant’s defence at trial to contend that there had been a substantial miscarriage of justice.
First, the applicant submits that the complainant’s evidence was not challenged in a manner that was consistent with his instructions. In cross-examination, there was no challenge to the complainant’s evidence that the applicant had run his fingers down her leg or that the applicant had placed his hands underneath her shirt and bra, despite the applicant’s instructions to the contrary. Similarly, there was no challenge to the complainant’s evidence that she had told the applicant to stop. On the contrary, certain questions put to the complainant seemed to suggest that the complainant had told the applicant to stop touching her breasts and that he had complied immediately.
The complainant was also not challenged as to her evidence that she was asleep and then awoken by the applicant touching her, that the applicant had apologised to her after complying with her request for him to stop touching her, that there was a second time that she asked the applicant to stop after which the applicant again apologised to her, and that the applicant had moved her ‘undies over’.

The applicant submits that the situation was not remedied by trial counsel suggesting, towards the end of the complainant’s cross-examination, that her breasts and vagina were not touched or penetrated (respectively) ‘in the manner [she had] described’ to the jury. That is because the jury did not hear any contrary version of events from the applicant. This is also the context in which the lack of challenge to aspects of the complainant’s evidence fell to be considered. That context also included the fact that trial counsel had instructions to convey positive denials to the alleged offending in his opening address and repeatedly put that the applicant was not drunk at the time of the alleged offending. The applicant also submits that it is not clear on what basis trial counsel told the jury in his opening address that the applicant’s belief in the complainant’s consent was in issue.
Second, the applicant argues that no attempt was made to call the applicant’s current girlfriend and her parents despite their availability to give good character evidence. Further, the legal justification for asking questions of Dr Whitehead beyond those articulated by the prosecutor was not identified.
Third, in trial counsel’s final address to the jury, the jury’s attention was not drawn to differences in the complainant’s various versions of events, including in relation to the applicant’s degree of inebriation, state of undress, where he slept in the room, what the complainant told the applicant as to where he should sleep, and the claims that the applicant tried to kiss the complainant’s neck and tried to have intercourse with her. This omission cannot be explained by an attempt to avoid the giving of a direction under s 54D of the Jury Directions Act as the prosecutor had already requested such a direction.
Fourth, trial counsel made no submissions in his final address as to the alleged apologies made by the applicant inside the complainant’s room or the apology from the applicant set out in his text message.

The respondent’s submissions

The respondent contends that trial counsel adequately challenged the complainant in cross-examination in accordance with the applicant’s instructions. It was unnecessary for trial counsel to put to the complainant that, for example, the applicant did not put his hands under her shirt and bra or that the complainant did not tell the applicant to ‘stop’ given that trial counsel put to her that the applicant did not touch her breasts or vagina. The cross-examination must also be viewed in light of the vague instructions provided by the applicant.
The respondent submits that little detail is provided as to the further character witnesses that the applicant now says could have been called or the evidence that they would have given. The respondent says that good character evidence from a person’s parents adds little and that the applicant’s girlfriend was not available to give evidence in any event.
The respondent says that trial counsel’s closing address reflects counsel’s strategy of focusing on the implausibility of the alleged offending in the context of a short trial. The inconsistencies to which the applicant now refers were between the complainant’s account and those of the complaint witnesses, rather than being internal to the complainant’s account. Further, focusing on such inconsistencies may only have served to emphasise the number of proximate complaints about the offending.

Decision

In considering ground 2, the following principles must be kept firmly in mind. A criminal trial is conducted as adversarial litigation and parties are bound by the way in which they run a trial.[14] Criticising unsuccessful counsel is pointless unless it can be shown that, by reason of how the trial was conducted, the accused was denied a fair trial and has sustained a substantial miscarriage of justice.[15]
[14]Nudd v The Queen (2006) 80 ALJR 614, 618 [9] (Gleeson CJ); [2006] HCA 9.
[15]Ibid.
The applicant submits that his instructions to his counsel were that he denied the offending. Whether or not that is so, the defence was conducted on that basis. For that reason, the difference in the evidence in this Court between the applicant and his trial counsel assumes less significance than it might otherwise have. Trial counsel put to the complainant that her breasts and vagina were not touched. It is true that each question was qualified by putting to the complainant that she had not been touched in the manner described by her. However, that did not detract from the defence based on denial. It is plain from trial counsel’s closing address that the charges were denied.
Overall, my assessment of the representation in terms of the complainant’s cross-examination and trial counsel’s closing address is that it was barely sufficient. But I am unable to say that it amounted to a substantial miscarriage of justice. In reaching that conclusion, I have focused on the nature and extent of the cross-examination of the complainant and the final address by defence counsel.
Although trial counsel asked the complainant to confirm aspects of her account of the offending, he did so on the basis that he was restating what her evidence was.[16] The questioning did not carry with it any admission, express or implied, that her account was true. That portion of the cross-examination was not inconsistent with a denial of the offending. That is not to say that giving the complainant the opportunity to repeat important parts of her account was prudent or wise. There are occasions when asking a witness to repeat their evidence or to confirm certain aspects of it is a useful cross-examination technique. Most obviously, that applies where the cross-examiner can independently show the witness’s account to be false. Having the witness repeat a demonstrable untruth can thus be effective in undermining the witness’s credibility. On the other hand, the repetition of damning evidence-in-chief may do little more than reiterate the evidence and give it more force. Where it is not met with an effective challenge, repetition may only strengthen the evidence.
[16]See the passage of cross-examination extracted at [52] above.
In this case, affording the complainant an opportunity to repeat critical aspects of her evidence served no useful purpose. First, and this was a major problem for the entire defence case, the applicant had given no alternative version in a record of interview, and the view had been taken that it would not be appropriate to call him to give evidence. Second, there was no challenge to some parts of the evidence that were repeated. Third, the aspects of the complainant’s account that were repeated were not inherently implausible or exaggerated so that repetition might serve to highlight their own weakness.
In his evidence in this Court, trial counsel suggested that asking the complainant to repeat that part of her evidence that showed that the applicant stopped his conduct when she asked him to do so may have enabled the applicant to run a defence of consent or reasonable belief in consent. This was likely to be a barren exercise unless there was a realistic prospect of calling the applicant. Given that trial counsel says that the applicant’s instructions were that he did not believe he had committed the offences and in light of his text message of 7:19 am stating that he had no memory of ‘staying there at all’, it seems very improbable that counsel was contemplating calling the applicant.
In short, I do not consider there to have been any forensic value in having the complainant repeat these aspects of her evidence. But I am not persuaded that doing so conveyed to the jury that the applicant was accepting the truth of her account.
Relatedly, the applicant places emphasis on the failure by trial counsel to challenge the complainant directly on various aspects of her account, including that the complainant was woken by the applicant touching her, that the applicant had run his fingers down her leg and placed his hand under her shirt, and that she had told him to stop. It is true that trial counsel did not challenge the complainant on these matters individually, in circumstances where there was no contrary account offered by the applicant. However, there is no reason to think that a direct challenge on these aspects would have caused the complainant to alter her version of events given that she rejected the puttage that the charged acts did not occur.
The significance of the alleged failure by trial counsel to put the applicant’s instructions to the complainant in cross-examination must also be seen in the context of the evidence as a whole. There was no aspect of the instructions that the applicant says he gave trial counsel that made the happening of the charged acts less probable. He denied the offending but did not provide any reason or fact that would have undermined the complainant’s account in a material way. It is not in dispute that he lay on the bed during the night. There was some basis in the evidence to say that he lay on top of the bedclothes with his clothes on and that the complainant was tucked under the bedclothes. The suggestion that this made the offending unlikely, improbable, implausible or physically difficult — including by reference to the applicant’s or the bed’s size — lacked forensic force.
Certainly, there are parts of the cross-examination that seem aimless. No doubt counsel was probing various areas in the vain hope that some line of attack might present itself. This somewhat forlorn exercise was ultimately a product of the lack of an alternative version beyond assertions by the cross-examiner that the events did not occur. Bearing in mind the usual direction to juries that it is the answer and not the question that constitutes evidence, and the fact that the account of the complainant was straightforward and not obviously embroidered, a defence based on assertive puttage was always likely to be problematic.
The final address given by trial counsel was brief, as was the prosecutor’s. Brevity alone is not a basis for criticism. It sufficiently put the applicant’s defence to the jury.
There were some inconsistencies in the complainant’s evidence of the offending and the evidence of complaint given by the witnesses, which the applicant says should have been highlighted in trial counsel’s closing address. For example, Mr Cheel said that the complainant told him that the applicant had stripped off his clothes and tried to have sexual intercourse with her, whereas the complainant gave evidence that the applicant only removed his shoes. However, the inconsistencies identified were between the complainant’s evidence and the evidence of complaint witnesses, rather than inconsistencies in the complainant’s own evidence. Moreover, dwelling on these inconsistencies might only have served to emphasise the number of people to whom the complainant had disclosed substantially similar allegations. An attack based on such inconsistencies might also have been diminished by the direction given by the judge under s 54D of the Jury Directions Act. In those circumstances, counsel’s decision not to raise the inconsistencies in his closing address has a plausible forensic basis.
Further, trial counsel’s decision not to deal with the applicant’s apology in his text message in his final address is explicable as a rational forensic decision in circumstances where the text message was not relied on by the prosecution as incriminating conduct and the judge had already agreed to give a direction regarding the jury’s use of that evidence. In that context, returning to the text message in the final address may only have served to highlight its significance. As to the applicant’s alleged apologies made in the complainant’s room, the minds of reasonable counsel may differ about the merits of addressing those apologies in the final address given that it was clear from the final address that the applicant denied committing the charged offences.
Finally, it is difficult to assess the applicant’s claim that the defence’s failure to call additional character witnesses occasioned a miscarriage of justice where the nature of the further character evidence that the applicant’s girlfriend and her parents were able to give has not been identified. The respondent contends that the applicant’s girlfriend was unavailable, although it is not clear on what basis that assertion is made. In any event, not calling the applicant’s parents and partner may have been a rational forensic decision in circumstances where such evidence would not meaningfully add to the evidence of a character witness who was called and is not related to the applicant.
I am not persuaded that the deficiencies in the defence rendered the trial unfair or resulted in a substantial miscarriage of justice. I would not uphold ground 2.

Ground 1

By this ground, the applicant contends that he was denied the ability to adduce evidence of his good character ‘in a particular respect’. The ground arises in the following way.

The course of the good character evidence and directions at trial

Just before the conclusion of the prosecution case, the applicant adduced evidence from the informant that he had no criminal convictions. In addition, his trial counsel informed the judge that the applicant would not give evidence but would call character evidence from Dr Whitehead.
During the discussion between counsel and the judge regarding the directions the judge would give to the jury, which took place before Dr Whitehead was called, the applicant sought the giving of a good character direction. The judge said that it would be in an ‘abbreviated’ form, meaning that he would not give that part of the direction which is to the effect that, by reason of good character, the jury could more easily accept his account.
Dr Whitehead was then called. Dr Whitehead, who was 27 years old and a research scientist, said that she had known the applicant for almost five years. Defence counsel then asked, ‘What would you say [the applicant’s] best qualities are?’ On objection, the judge observed that it was not ‘admissible’ and the question was withdrawn. Defence counsel then asked, ‘What would you say about [the applicant’s] attitude towards women?’
Objection was taken, the judge said ‘[t]hat’s inadmissible’ and the jury were asked to retire to the jury room. In discussion, the judge said that the applicant’s attitude towards women was not relevant and indicated that trial counsel was confined to asking a general question about the applicant’s character and reputation. Counsel said that he wanted to ask questions about Dr Whitehead’s observations of how the applicant behaves towards women when he is affected or unaffected by alcohol. The prosecutor then explained his understanding of the rules as enabling counsel to ask, ‘Do you know the accused? Do you know people that know the accused? What is his reputation like for honesty?’ The judge replied ‘correct’, adding that he would not permit trial counsel to go further.
Following that discussion, Dr Whitehead resumed her evidence and counsel asked the questions that had been suggested by the prosecutor and allowed by the judge. Dr Whitehead answered by saying that she had known the applicant for approximately five years, knew quite a few people who knew him and that ‘[h]e is very honest. All of us trust [the applicant] immensely’.
In his closing address, the prosecutor told the jury:
Character evidence that you’ve just heard. There’s a couple of things I want to say about it. It doesn’t change proven facts if you find those facts to be proven. The fact that he’s got a good reputation, the accused, doesn’t mean that you can’t still find him guilty, and of course the other thing with character evidence, is that everyone at some stage can have good character. They can then commit a crime for the first time. So as I say, it’s part of the considerations you have to weigh into the mix and [h]is Honour will give you specific directions as to how you can use that character evidence, but that’s when I say to you, it doesn’t change proven facts if you find them to be so proven, and on all of the evidence, you should accept [the complainant’s] evidence about what was done to her in her own room that night at the hands of, if I can put it that way, of the accused.
On the same topic, defence counsel said:
[The prosecutor] touched on character witnesses or the character witness in this case, Dr Whitehead. I will too. The questions that I asked of her were really quite limited and of a somewhat general nature one might think. The reason for that is simply that the law says that’s as far as I can go in terms of calling evidence of good character. And so effectively, that is what I did, I went as far as I could go.
The judge gave the following directions:
Now in this case you have heard evidence that the accused is a person of good character. The informant Inspector Gleason told you that he has no prior convictions and [Dr] Whitehead was called to say that he is a man of good reputation. If you accept the accused is a person of good character, you can use that fact when determining the likelihood that the accused committed the offences charged.
As [it] is generally believed that a person of good character is unlikely to commit a criminal offence, you may be less willing to accept the prosecution’s allegations that the accused committed the offence as charged than you would be if he was not a person of good character. Of course, this does not mean that you must find the accused not guilty if you accept that he is a person of good character. The mere fact that a person is of good character cannot alter proven facts. It can only help you determine whether or not those facts have been proven. In addition, you should keep in mind the fact that a person who has previously been of good character, can commit a crime for the first time.

The submissions

The applicant submits that, contrary to the prosecutor’s understanding, trial counsel was not confined to the three questions articulated by the prosecutor, nor was he confined to asking questions about the applicant’s reputation for honesty. Rather, trial counsel was entitled to lead more general evidence of the applicant’s good character and also of his good character in a particular respect, including Dr Whitehead’s observations and opinion as to a specific aspect of the applicant’s character. By contrast, eliciting evidence as to the applicant’s general reputation for honesty could have little or no impact in this case.
As to whether that irregularity caused a substantial miscarriage of justice, the applicant says that he was denied the opportunity of placing evidence before the jury that had a bearing on the likelihood that he committed the charged offences. That effect should be considered in the context of a defence case that was otherwise presented in a ‘paper thin’ manner. The applicant further contends that it cannot be safely concluded that evidence from potentially multiple witnesses that the applicant had always behaved in a respectful way towards women would have no impact on the trial at all.
Even if this irregularity did not on its own cause a miscarriage of justice, it should be viewed as causing a miscarriage of justice in combination with the difficulties associated with the presentation of the defence case addressed in ground 2.
The respondent contends that there was no irregularity in circumstances where trial counsel never indicated what good character evidence in a particular respect he had in mind. Further, the answers to questions regarding the applicant’s attitude or observed behaviour towards women had no relevance to the issues in the proceeding.
The respondent submits that the error was not material because the applicant obtained the benefit of a good character direction; evidence that he is respectful towards women is not relevantly evidence of good character but rather the absence of evidence of bad character; and, given that he had boorishly insisted on staying in the complainant’s room, such evidence was unlikely to help him.

The respondent submits that there was evidence on which the applicant could and did rely going to his good character. There was evidence that he had gained entry to the Australian Defence Force, he was free of any convictions and Dr Whitehead attested to his reputation for honesty, adding that she trusted him ‘immensely’. It is submitted that that evidence as to his trustworthiness was evidence bearing on the probability or improbability of guilt.

Was the judge’s ruling affected by error?

Evidence of good character can be relevant in two ways. First, it bears on the probability or improbability of guilt: ‘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’.[17] Second, it may also be used to bolster the credibility of an accused who denies their guilt.[18] Self-evidently, the second use is only relevant where the accused gives an account either in a record of interview or by giving evidence.
[17]Attwood v The Queen (1960) 102 CLR 353, 359 (Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ); [1960] HCA 15, quoting R v Rowton (1865) Le & Ca 520, 530 (Cockburn CJ); 169 ER 1497, 1502.
[18]R v Warasta (1991) 54 A Crim R 351, 354 (Young CJ, Crockett and Southwell JJ); Bishop v The Queen (2013) 39 VR 642, 651 [36] (Priest JA, Redlich JA agreeing at 632 [1], Coghlan JA agreeing at 654 [46]); [2013] VSCA 273.
The admission and use of character evidence is governed by s 110 of the Evidence Act 2008, which provides:
(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (directly or by implication) that an accused 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 accused is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that an accused 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 accused is not a person of good character in that respect.
As Priest JA observed in Bishop v The Queen, ‘the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove good character’.[19] Thus, despite ss 59, 76, 97 and 102 of the Evidence Act, hearsay evidence concerning a person’s reputation, opinion evidence about a person, tendency evidence — evidence of ‘the character, reputation or conduct of a person, or a tendency that a person has or had’[20] — and evidence about a person’s credibility are all admissible in the context of character evidence.[21]
[19](2013) 39 VR 642, 650 [33] (Priest JA, Redlich JA agreeing at 632 [1], Coghlan JA agreeing at 654 [46]); [2013] VSCA 273 (‘Bishop’).
[20]Evidence Act, s 97.
[21]Bishop (2013) 39 VR 642, 650 [33] (Priest JA, Redlich JA agreeing at 632 [1], Coghlan JA agreeing at 654 [46]); [2013] VSCA 273.
The ability to adduce evidence of character in a particular respect is a statutory innovation that modifies the common law. At common law, the character of an accused person was indivisible and was adduced on an all-or-nothing basis.[22] That had two consequences. The evidence was confined to evidence in general terms about the character and reputation of the accused.[23] And, once character was in issue, the accused was vulnerable to the prosecution being allowed to adduce evidence that undermined that general reputation.[24]
[22]Ibid 644 [7] (Redlich JA, Coghlan JA agreeing at 654 [46]).
[23]Ibid.
[24]Ibid, citing Stirland v Director of Public Prosecutions [1944] AC 315, 327 (Viscount Simon LC).
Section 110 alters this approach in an important way. It permits evidence to be adduced that the accused is, either generally or in a particular respect, a person of good character.[25] Where the accused elects to lead only evidence of good character in a particular respect, the prosecution will be confined to rebutting evidence in that particular respect.[26]
[25]Bishop (2013) 39 VR 642, 644–5 [7] (Redlich JA), 651–3 [37]–[39] (Priest JA), 654 [46] (Coghlan JA); [2013] VSCA 273; R v Zurita [2002] NSWCCA 22, [14], [19] (Howie J, Hodgson J agreeing at [27], Levine J agreeing at [28]). See also R v Makisi (2004) 151 A Crim R 245, 253–4 [26]–[28] (Barr J, Spigelman CJ agreeing at 246 [1], Hoeben J agreeing at 255 [35]); [2004] NSWCCA 333.
[26]Bishop (2013) 39 VR 642, 645 [7] (Redlich JA, Coghlan JA agreeing at 654 [46]); [2013] VSCA 273.
Having regard to the course of argument in the trial, it is plain that the judge, in accepting the submission of the prosecutor, proceeded on a misconception about the scope of character evidence permitted to be adduced under the Evidence Act. It is also clear that the ruling of the judge was not based on the particular form of the question asked of Dr Whitehead but based on the broader, and erroneous, proposition that character evidence was confined to general character evidence bearing on the reputation of the applicant.
In my opinion, evidence from Dr Whitehead that, in her estimation and observation, the applicant is a person who behaves respectfully towards women including when he is affected by alcohol was evidence of good character in a particular respect. It was admissible under s 110 of the Evidence Act.

Did the error occasion a miscarriage of justice?

The issue then becomes whether the ruling of the judge resulted in a substantial miscarriage of justice. This Court described the approach to be taken in determining whether an error caused a substantial miscarriage of justice in Karam v The King.[27] The Court synthesised the principles explained by the High Court in Baini v The Queen[28] as follows:
It follows from the above that this Court is required to:
(a)determine whether the [applicant] has established an error in connection with the conviction under appeal;
(b)if so, determine whether that error is ‘fundamental’ or a ‘serious departure’ from proper trial processes, so as necessarily to have resulted in a substantial miscarriage of justice;
(c)if that has not been shown, determine whether the [applicant] has established that the error may have affected the result of the trial;
(d)if so, there will be a substantial miscarriage of justice unless the respondent establishes that the conviction was inevitable.[29]
[27][2023] VSCA 318, [211]–[215] (Beach, McLeish and Kennedy JJA) (‘Karam’).
[28](2012) 246 CLR 469, 479–82 [26]–[33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
[29]Karam [2023] VSCA 318, [216] (Beach, McLeish and Kennedy JJA).
The applicant concedes that the relevant error was not a fundamental departure from proper trial processes. Consequently, the Court is required to determine whether the applicant has established that the error may have affected the result of the trial and, if so, there will be a substantial miscarriage of justice unless the respondent establishes that the conviction was inevitable. As to the question whether an error may have affected the result of the trial, in Awad v The Queen Kiefel CJ and Gleeson J recognised that some errors are ‘innocuous’, in the sense that they ‘could have occasioned no real forensic disadvantage’ to the applicant,[30] and Gordon and Edelman JJ similarly referred to errors ‘plainly so innocuous’ that they ‘could not possibly have affected the outcome’ of the trial.[31]
[30](2022) 275 CLR 421, 433 [30]; [2022] HCA 36.
[31]Ibid 449 [94].
In Wah v The Queen, Weinberg JA explained the potential significance of character evidence:
It should be said that the importance of evidence of good character is sometimes underrated. In a case such as the present, involving oath against oath, such evidence can be of particular significance. Not only does the jury learn that the accused has no prior convictions, but they are also told that this evidence bears directly upon the likelihood that he committed the offences charged. Moreover, they are also told that the accused’s previous good character is relevant to his credibility. It is obviously a significant disadvantage to the defence if, for whatever reason, the evidence of good character is not led, and the directions to which the accused is entitled are not given.[32]
[32](2014) 45 VR 440, 448 [41] (Priest JA agreeing at 456 [101], Coghlan JA agreeing at 456 [102]); [2014] VSCA 7.
As already observed, given that the applicant did not give evidence and his record of interview was not played to the jury, the character evidence in a particular respect would not have been able to be used to bolster his credibility.
There are a number of cases where a failure to permit character evidence or a failure on the part of defence counsel to seek to adduce it has resulted in a substantial miscarriage of justice.[33] In many of those cases, good character was not left to the jury at all and the accused was then denied the benefit of a direction on the topic. Those cases can be distinguished from the present case, because here the applicant did receive the benefit of a good character direction.
[33]For example, De Silva v DPP (2013) 236 A Crim R 214, 218–19 [19]–[24] (Priest and Coghlan JJA and Lasry AJA); [2013] VSCA 339; Sharma v The Queen [2011] VSCA 356, [51] (Neave and Hansen JJA and Beach AJA); Baker (a pseudonym) v The King [2024] VSCA 87, [102] (McLeish, Niall and Kaye JJA). Cf Parsons (a pseudonym) v The Queen [2016] VSCA 17, [80]–[84] (Maxwell P, Redlich and Priest JJA).
Nonetheless, the applicant was denied the ability to adduce relevant evidence as to his character. Although it might be thought that evidence of general good character might be preferable to a more qualified direction that relates to a particular aspect, much will depend on the circumstances of the case. As Hayne J observed in relation to a general good character direction in Melbourne v The Queen:
The argument that an accused is of previous good character seeks to attribute a single qualitative description (‘good’) to an indivisible character. But people are not divisible into two classes: those who are good and those who are not. And the use that a jury may make of such evidence as is given about the previous character of an accused will vary greatly according to the circumstances of the case. It will vary according to what is said about the previous character of the accused and what relationship (if any) that has to the case that it is sought to make against the accused.[34]
[34](1999) 198 CLR 1, 55 [152]; [1999] HCA 32.
At one level, the proposed evidence had ‘an immediate and obvious connection with an issue in the case’.[35] And I accept that evidence of good character in a particular respect may, in some contexts, have more impact than general character evidence.
[35]Ibid 57 [157] (Hayne J).
Having said that, the proposed evidence here was very general. It was to the effect that the applicant is respectful to women who, as the respondent pointedly observes, make up around 50 per cent of the population. Having a reputation for chivalry may not say much about how a person might behave in a particular context. Evidence that the applicant is respectful in his dealings with people would not take the evidence beyond the very general and confining it to women does not add a great deal of specificity and, to a large extent, is covered by the general good character direction.
The evidence that the applicant was respectful towards women whether he was inebriated or sober might have carried with it, in the present circumstances, the notion that he would not engage in sexually exploitative behaviour. The concept of respect towards women may have a particular resonance in the context of sexual misconduct. But the same can be said of Dr Whitehead’s opinion that she and others trusted him immensely. The expression of her opinion would not have been understood by the jury as being confined to establishing his honesty or to rebut the notion that he was dishonest. The notions of trust and respect when used in the same context have a high degree of affinity.
The direction given by the judge was that the applicant is of good character and, for that reason, the jury might be less willing to accept the prosecution case. That direction proceeds on a dichotomy between good and bad[36] and gave the applicant the benefit of the direction in his favour.
[36]Ibid 23–4 [63] (Gummow J).
The evidence that Dr Whitehead was permitted to give was that she and others trust the applicant immensely. Given that the alleged offending was opportunistic and involved taking advantage of a sleeping woman who was known to and socialised with the applicant, the opinion from a young woman who has known him for five years that he is trustworthy is not far off the general statement that he is respectful towards women including when drunk. In that respect, it is notable that in this Court the proposed evidence was not identified or articulated with any greater specificity than the bald expression of opinion that the applicant was respectful towards women when he is affected by alcohol and not so affected. The marginal utility of the difference between the character evidence and the direction that was given as against the additional evidence that was not admitted is negligible.
I would add that the potency of that general evidence was liable to be undermined by the complainant’s evidence that the applicant had let himself into her room at night, a place where he was not supposed to be, woke the complainant up and asked more than once to stay the night. It is true that trial counsel challenged aspects of that account in cross-examination, but at least part of that account — that the applicant was not supposed to be in the complainant’s room and that he asked more than once to stay the night — was not contradicted by the applicant.
The applicant has not persuaded me that the error had the capacity to affect the result of the trial given that there was evidence in addition to the proposed evidence that went to the applicant’s character and he received the benefit of the judge’s direction. It must be accepted that in the trial the applicant was limited in terms of what could be said as he did not, either in a record of interview or evidence, give an alternative version of events and the puttage was largely unsuccessful, leaving the complainant’s evidence to stand as the only evidence on a variety of matters.
I would not uphold ground 1.
Finally, I have considered whether the matters complained of by grounds 1 and 2 when considered cumulatively are such as to give rise to a substantial miscarriage of justice. In short, although I consider the cross-examination and final address to have been barely sufficient, given my view that the further character evidence in a particular respect would not have made a difference to the outcome of the trial, I am satisfied that, taken individually or collectively, the matters raised did not occasion a substantial miscarriage of justice.

Conclusion

I would grant the application for an extension of time to file the application for leave to appeal against conviction. As neither ground can be upheld, the application for leave to appeal should be refused.

ORR JA:

I am grateful to Priest JA and Niall JA for the opportunity to read their judgments in draft. I agree with Niall JA that ground 2 should not be upheld, for the reasons he gives. As to ground 1, I agree with both Priest JA and Niall JA that the judge erred in refusing to permit defence counsel to adduce evidence that the applicant was a person of good character ‘in a particular respect’,[37] namely that he was a person who behaved respectfully towards women, including when affected by alcohol.
[37]Evidence Act 2008 s 110(3).
Priest JA and Niall JA have different views as to the consequences of that error. I agree with Priest JA that the judge’s error had the capacity to affect the result of the trial.
Had the error not been made, the state of the evidence would have been different. The evidence of the applicant’s good character would have been enlarged. The character evidence that was adduced came from the informant and from Dr Clarissa Whitehead, a 27 year old research scientist who had known the applicant for almost five years. The informant gave evidence that the applicant had no prior convictions. Dr Whitehead gave evidence that she knew ‘quite a few’ other people who knew the applicant, that he was ‘very honest’ and that ‘[a]ll of us trust [him] immensely’. As a result of the judge’s erroneous ruling, Dr Whitehead was not permitted to give further evidence that she had observed the applicant to always behave respectfully towards women, including when affected by alcohol.
As Hayne J explained in Melbourne v The Queen, the use that a jury may make of evidence about the previous character of an accused will vary greatly according to the circumstances of the case. It will vary according to what is said about the previous character and what relationship that has to the case that is sought to be made against the accused.[38]
[38](1999) 198 CLR 1, 55 [152]; [1999] HCA 32.
Here, the use that a jury might have made of the further evidence of the applicant’s previous character must be informed by the fact that that the applicant was charged with sexual offending against a female complainant after he had consumed alcohol. In that context, I do not agree with the proposition that evidence that the applicant was regarded as a trustworthy person can be effectively equated with evidence that he had been observed to always behave in a manner that was respectful to women, including when affected by alcohol.

As Niall JA acknowledges, in the context of alleged sexual misconduct against a female complainant, evidence that a male accused has been observed to act respectfully towards women may have a particular resonance. It is capable of influencing the jury’s assessment of whether the accused is a person who is capable of engaging in the sexual misconduct that is alleged.
In circumstances where the Crown does not submit that the applicant’s conviction was inevitable, the erroneous ruling has resulted in a substantial miscarriage of justice and a retrial is necessary.
I consider that it is not in the interests of justice that the recording of the complainant’s evidence be admitted at the retrial.[39] I agree with Priest JA that the applicant would be unfairly disadvantaged by the admission of the recording in which the complainant was cross-examined. That is because the complainant was cross-examined in a manner that was ‘barely sufficient’ to avoid a determination by this Court that it occasioned a substantial miscarriage of justice.[40]
[39]Criminal Procedure Act2009 s 381(1).
[40]Criminal Procedure Act2009 s 381(1)(d).
I would grant the application for an extension of time to file the notice of application for leave to appeal. I would refuse leave to appeal on ground 2 and grant leave to appeal on ground 1. I would uphold ground 1, quash the applicant’s convictions and order a retrial.
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[2024] VSCA 256

31 October 2024