Lucknow (a pseudonym) v R

1. [1]

   MACFARLAN JA: I agree with Button J.

2. [2]

   BUTTON J:

Introduction

1. [3]

   There were two complainants: “Charles”, a young man who by the time of the trial had transitioned from having been female at the time of the offences; and “Claudia”, his younger sister, who was still a child at the time of the trial. The applicant had been in a romantic relationship with their mother, “Miriam”, for an extended period between January 2009 and the end of 2017. He had been stepfather to the two complainants, along with two other brothers of theirs, all of whom resided in the family home.

2. [4]

   At the conclusion of the trial, the jury returned verdicts of guilty on all counts (count 2 was in the alternative to count 1, and with the return of a verdict of guilty on the latter, no verdict was taken on the former). The applicant was subsequently sentenced to a substantial period of imprisonment, with regard to which there is no application for leave to appeal.

Sketch of evidence

1. [5]

   Because of the nature of the ground of appeal – namely, an assertion that a miscarriage of justice occurred as a result of the failure of defence counsel to raise the character of the applicant, either in general or in a particular respect – the offences and the evidence in support of them need only be briefly sketched.

2. [6]

   Charles gave evidence of having been born in June 1996. His younger sister, Claudia, was born in 2006, and so was 10 years younger than him.

3. [7]

   He gave evidence of having been in year 10 in 2012. On one occasion, he and the applicant were watching a cartoon show on a laptop computer. The applicant, who was lying behind Charles on a couch, placed his hand on the right thigh of the child, and thereafter “twitched” it higher and higher towards the inner thigh. Eventually, the hand of the applicant reached the meeting point between the upper part of the thigh and vagina of the complainant. Charles used the excuse of obtaining a drink to escape.

4. [8]

   That allegation gave rise to the first two counts on the indictment: indecent assault of a person under the age of 16 years; and in the alternative (in order to deal with uncertainty as to the date of the offence, and therefore the age of the complainant), assault with an act of indecency.

5. [9]

   The following year, when Charles was in year 11, he was asleep in his bedroom one night with the door closed. He felt something moving towards his arm, whilst half asleep. About a minute later, he felt more movement, underneath his doona and towards his leg. He used a mobile phone to light up the room, and saw the applicant standing within it. Charles said to the applicant “[Y]ou’re sleepwalking. Go to bed”. The applicant wordlessly walked out. This incident did not give rise to a count on the indictment, but was said to have led Charles to complain.

6. [10]

   Claudia gave evidence of a number of offences, which founded the remainder of the indictment, and which commenced when she was about six years of age and concluded when she was ten or eleven. They included: the applicant exposing his penis and pushing it onto the back of her pants; an effort by him to bribe her with chocolate if she would permit him to rub his genitals on hers; an occasion when the two of them went for a drive in the bush, and he masturbated in her presence; an occasion when, in the family home, the applicant made her place her hand on his penis; an occasion when, in the lounge room of the home, the applicant demanded a cuddle, thereafter exposed his penis, tried to pull her pants down, spread her legs apart, and moved his penis between her legs, rubbing it against her vagina through her clothes; an occasion when she awoke to find the applicant with his penis exposed, trying to place it on her mouth; and, finally, an occasion when he approached her whilst she was having a shower with his penis exposed.

7. [11]

   Without recounting them in detail, the seven counts on the indictment pertaining to Claudia were founded on: indecent assault on a person under the age of 16 years; inciting a person under the age of 10 years to commit an act of indecency; committing an act of indecency towards a person under the age of 16 years who was under authority; three counts of indecent assault of a person under the age of 16 years; and, finally, committing an act of indecency towards a person under the age of 16 years who was under authority.

8. [12]

   Claudia also gave evidence of other incidents that were relied upon as context evidence by the Crown.

9. [13]

   Evidence was led from a number of complaint witnesses, adults and children, with regard to both complainants, not only as to what they said, but also their demeanour when they said it. Charles had complained to a school counsellor soon after the second interaction with the applicant in the bedroom. Charles was also a complaint witness with regard to Claudia, who had spoken to him of being sexually assaulted by the applicant at a family gathering. There was also evidence that Charles had complained to Miriam at an early stage, but she had not believed him. After that position was adopted by her, Charles suffered psychological difficulties, left the home, became cut off from his mother, and commenced to transition.

10. [14]

    There was also evidence of sexualised conduct by Claudia towards her uncle in a shower, many years before, that on investigation had led to her complaining that she had been subject to similar conduct by the applicant.

11. [15]

    There was evidence in the Crown case of repeated denials of any wrongdoing on the part of the applicant to Miriam.

12. [16]

    On arrest, he was cautioned, and there was no evidence that he engaged in an interview with police.

13. [17]

    There were agreed facts about the birthdates of the two complainants, the homes in which the family had lived over the years, the school years of the complainants at various times, and other undisputed matters.

14. [18]

    In cross-examination, it was suggested to Charles that, due to his ill feeling against the applicant, he sought to bring the applicant’s relationship with Miriam to an end by making false allegations against him.

15. [19]

    In cross-examination of Claudia, the consistency of her allegations was explored, as was the proposition that other members of the family were in the vicinity on some occasions when she alleged that she had been sexually assaulted.

16. [20]

    In the trial, the applicant did not give evidence, and called no witnesses. He relied upon his denials, and the cross-examination of the Crown witnesses.

Aspects of the proceedings

1. [21]

   In accordance with contemporary criminal procedure, the evidence of the younger complainant Claudia was pre-recorded before a different judge, and placed before the jury by way of digital recordings. The same procedure was adopted with regard to other child witnesses.

2. [22]

   At the commencement of the trial proper before his Honour on 27 May 2019, it was indicated by defence counsel (after a short adjournment) that there was no objection to the evidence of each complainant being admissible as tendency evidence with regard to the allegations about the other complainant.

3. [23]

   A little later, the prosecutor noted that the Crown case statement had foreshadowed that character would be raised by the applicant, but defence counsel confirmed that “It’s not raised”. On other occasions throughout the trial, defence counsel made it clear that he had adverted to the question of raising character, but that he would not do so to any extent, including with regard to what the learned trial judge called “divisibility of character”.

4. [24]

   During the cross-examination of Miriam by defence counsel, the following exchange occurred:

5. [25]

   In the absence of the jury and the witness, defence counsel accepted that he had asked an open-ended question in cross-examination, and received an undesired answer. It was during that discussion that it was confirmed that character would be raised neither generally nor in a particular respect.

6. [26]

   Quite apart from the evidence placed before the jury, Miriam had made a statement to police on 18 September 2017 that was marked for identification in the trial. In that document, she spoke of having had a disrupted relationship with the applicant since January 2009. She stated that “[a]t the start it would be [the applicant] breaking up with me over little things such as me going out with my girlfriends, and towards the end I would break up with him due to him being angry and yelling at me”.

7. [27]

   She also said that, in later years, “the applicant became very possessive and abused alcohol and then would verbally abuse me”.

8. [28]

   She also stated “About 2 months ago in July 2017 I kicked [the applicant] out of the house as he had been yelling at me and the kids and being angry. His behaviour was starting to scare me so I snapped and told him to get out and he went back to his mum’s house. [The applicant] apologised for being angry at the time and he began staying over again”.

9. [29]

   Separately, there was evidence given by Miriam in the trial that the applicant mistreated her other children, the two brothers. She gave evidence that the applicant was “very hard on them”, “they would get in trouble for the littlest things”, and that the applicant would “yell at them more”.

10. [30]

    In similar vein, in re-examination, Charles had described the applicant as “a bully”. Furthermore, in a statement to police of 20 September 2017 that had been marked for identification before the judge in the pre-trial proceedings, Charles had stated that the applicant “was always grumpy, he would yell and try to assert himself as the man of the house. He would act in a bullying way to my brothers, yell at them a lot, and belittle them”.

11. [31]

    Finally on this topic, in her pre-recorded evidence, Claudia spoke in re-examination of the applicant yelling “at us all the time we did something wrong”.

12. [32]

    In final address, defence counsel focused upon internal inconsistencies of the evidence of the two complainants, and also inconsistencies in the evidence given by the complaint witnesses.

13. [33]

    After the verdicts of guilty were returned, it was revealed in the proceedings on sentence that, apart from a conviction for driving with a middle range concentration of alcohol in October 2008, for which he was fined and disqualified early the following year, the applicant possessed no criminal record.

Ground of appeal

1. [34]

   The single ground of appeal against conviction was originally formulated as: “The trial miscarried as a result of the failure to produce evidence of the applicant’s good character”.

2. [35]

   At the hearing in this Court, counsel reformulated the ground so that it was understood to be a complaint that character had not been raised, whether generally (pursuant to s 110(1) of the Evidence Act 1995 (NSW), or in one or more particular respects (pursuant to the same sub-section) . As for the latter, the ultimate submission was that it was a serious failing, constituting a miscarriage of justice, for defence counsel not to have placed before the jury at the least evidence that the applicant had never been convicted of, nor charged with, nor accused of, sexually assaulting a child, except by way of the allegations made by Charles and Claudia.

Submissions of the applicant

1. [36]

   Counsel for the applicant submitted that the principles enunciated by the High Court of Australia in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 govern the determination of the appeal; in particular, the judgment of Gaudron J, with which Gummow and Hayne JJ agreed, Hayne J with additional reasons.

2. [37]

   In a nutshell, counsel for the applicant accepted that a considered forensic decision had been made not to raise character, either in general or in a particular respect, and that so much is clear from the several references in the trial transcript.

3. [38]

   She also accepted the burden of demonstrating not merely that a contestable forensic decision had been made; nor merely that defence counsel made a decision that, with the benefit of hindsight, might be thought of as erroneous. Rather, she submitted that, in the circumstances of this trial, the ignorance of the jury about the fact that the applicant, by then in his late thirties, had never shown any sign of sexual attraction or activity towards children, constituted a miscarriage of justice.

4. [39]

   By the end of the hearing, she seemed to accept that there would have been significant forensic disadvantages in raising the character of the applicant in a general way; at the least, the calling of evidence by the prosecution to rebut his general good character (hereinafter “rebutting character evidence”) pursuant to s 110(2) of the Evidence Act, by way of sworn evidence from Miriam extrapolating upon her statement. Having said that, her thesis was that, adverse evidence about the applicant having been adduced unintentionally before the jury in any event, defence counsel could have decided to “go for broke”.

5. [40]

   She made the point that, in the event, the jury heard from two complainants; was told that they could use the evidence of each as tendency evidence supporting the allegation of the other; but never heard significant countervailing evidence that a man in early middle age had never shown any sign of a sexual interest in other children.

6. [41]

   At the hearing before us, she relied upon affidavits read neither in the trial nor in the proceedings on sentence to the effect that many persons had trusted the applicant to be in the company of their children, and nothing adverse whatsoever had come to light. I interpolate that, although they could hardly be characterised as fresh, in my opinion they should be admitted in the application, because not to do so would prevent proper consideration of the ground.

7. [42]

   Counsel for the applicant resisted the proposition that a forensic disadvantage that would have arisen, if character had been raised in a particular way, would have been that the Crown could have relied the evidence of each complainant as rebutting character evidence in the case of the other complainant, pursuant to s 110(3) of the Evidence Act. But even if that were correct, she invited attention to the fact that the Crown was already relying upon each complainant as tendency evidence with regard to the other in any event.

8. [43]

   In other words, her proposition was that the jury was already being asked to reflect upon the evidence of each complainant when considering upon proof of the offences said to have been committed against the other complainant. Therefore, it was said, whether that exercise – of taking into account the evidence of one complainant when considering whether any offence had been proven with regard to the other complainant to the criminal standard – were given the label of tendency evidence, or rebutting character evidence, or both, was of very little moment.

Submissions of the Crown

1. [44]

   In written submissions, prepared before the refinement of the ground to include raising character in a particular respect, the Crown contended that the applicant had not established the single ground of appeal. That was said to be because the decision not to adduce evidence of good character was a deliberate forensic decision made by defence counsel when he was in possession of the statement from Miriam that contained material that would have been available to the Crown to rebut an assertion that the applicant was a person of good character. That decision by defence counsel was said to be rational, and binding on the applicant, with the result that the applicant could not establish that it gave rise to a miscarriage of justice.

2. [45]

   In oral submissions, the Crown accepted that TKWJ v The Queen is the touchstone. After the ground had been refined, the Crown submitted that, once it became clear that the jury would hear from two complainants as a result of the concession that the evidence of each was admissible to prove a tendency in consideration of the evidence of the other, defence counsel could not have raised character effectively, due to the consequence that the evidence of each complainant could have been admissible as rebutting character evidence pertaining to the other.

3. [46]

   The point was made that, if there had been two trials with the counts separated between complainants, and the applicant had raised character in this particular respect in the first trial, then the second complainant would surely have been permitted to give rebutting character evidence in that first trial. If that is the case, it can hardly be that the Crown is to be “penalised” if all counts are on the one indictment. That reflection was said to show that it would indeed be the case that, in a trial featuring a multiple count indictment, if character were raised, the evidence with regard to unproven counts could be relied upon by the Crown as rebutting character evidence.

4. [47]

   The Crown also submitted that, even if good character should have been adduced in a specific respect, the failure to have done so does not give rise to a miscarriage of justice, for two reasons.

5. [48]

   First, it was explicitly accepted that the Crown could not have led any further rebutting character evidence in relation to the putative evidence that there was a lifetime disconnection between the applicant and child sexual assault. Even so, the evidence of the two complainants, “cross-admissible” as tendency to bolster each of them circumstantially, could not have been damaged meaningfully by good character evidence in that specific respect. I interpolate that counsel made it clear that this submission was not to be understood as reliance upon “the proviso” in s 6 of the Criminal Appeal Act 1912 (NSW), but rather as focusing on the antecedent question: whether there had been a miscarriage of justice at all.

6. [49]

   Secondly, it was emphasised that, even if good character were to be confined at trial, the Crown’s entitlement to lead the cross-admissible tendency evidence in terms of the two complainants meant that the Crown could rely upon the evidence of one child to rebut the defendant’s claim of good character in respect of the other. In other words, I understood the submission to be that, if character had been raised in this particular respect, the applicant would have suffered a significant forensic disadvantage by way of the jury being told that the evidence of each complainant could be used not only as tendency evidence, but additionally as rebutting character evidence.

Determination

1. [50]

   Reflecting on the judgment of Gaudron J in TKWJ v The Queen, I consider that the principles to be applied in determining this application are as follows.

2. [51]

   First, the fundamental question is whether there has been a miscarriage of justice: at [25].

3. [52]

   Secondly, that question can usually be answered by reflecting upon whether the accused has been deprived of a chance of acquittal that was “fairly open”: at [26].

4. [53]

   Thirdly, the enquiry as to the act or omission of counsel is objective, not subjective; in other words, it is not an enquiry into the mind of the advocate, but rather whether the approach taken is capable of explanation by way of an effort to obtain a forensic advantage: at [27].

5. [54]

   Fourthly, even if the conduct of counsel is explicable on that basis, that does not preclude a finding that a miscarriage of justice has occurred. In particular, “[i]t may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question”: at [28].

6. [55]

   Fifthly, it is an error to focus upon questions of competence or otherwise on the part of counsel. The question remains whether a miscarriage of justice is able to be established by the applicant: [31].

7. [56]

   Sixthly and finally, an informed and deliberate decision to take a particular course of action in a criminal trial will not ordinarily deprive an accused person of a chance of acquittal that was “fairly open”. Having said that, there can be reflection upon whether the forensic advantage obtained was “slight in comparison with the disadvantage resulting from the course in question”: at [33].

8. [57]

   Turning now to address the submissions made by counsel for the applicant, in my respectful opinion, the thesis of the applicant that it was a miscarriage of justice for character not to have been raised generally can be readily dismissed.

9. [58]

   If defence counsel had done so, one would have expected the Crown to be permitted to recall Miriam, and give all of the details of the adverse things she had said about the behaviour and character of the applicant in her statement. Those details, in my opinion, went well beyond what had been unintentionally adduced in cross-examination. And they would have been able to be placed before the jury in a methodical and emphatic way.

10. [59]

    Furthermore, the Crown in all likelihood would have been permitted to lead evidence of the mistreatment of the children in the family, including but not limited to the complainants, that went beyond the central sexual conduct. Again, the Crown in all likelihood would have been permitted to lead that evidence from the witness box, and to expand upon the evidence of Charles that the applicant was a “bully”.

11. [60]

    Finally, in the ordinary course, one would have expected that evidence to have been led in reply or, if no evidence was called in the defence case as here, right at the end of the Crown case; in other words, it would have been the last evidence that the jury heard in the trial.

12. [61]

    For those reasons, it cannot be said that the failure by defence counsel to raise the character of the applicant generally constituted a miscarriage of justice.

13. [62]

    In similar vein, I do not accept that some “middle ground” of asserting that the applicant was not a person who mistreated children generally would have been forensically advantageous: the simple fact is that there was evidence, at the least, that he mistreated the other two brothers within the family.

14. [63]

    The more finely balanced question is whether the failure to raise his character in a particular respect – namely, that there was no other suggestion of sexual interest in, or sexual crimes against, children in his lifetime – constitutes a miscarriage of justice.

15. [64]

    On reflection, and having due regard to the strictures spoken of in TKWJ v The Queen relating to the theoretical and practical autonomy of counsel, and the caution that must be adopted in determining that a considered strategic or tactical decision has led to a miscarriage of justice, I consider that it has. I hold that view for the following reasons.

16. [65]

    First, it has been the case for over a quarter of a century in New South Wales that an accused person is entitled to raise his or her character in a particular respect: see R v Zurita [2002] NSWCCA 22, Sah Wah v The Queen (2014) 239 A Crim R 41; [2014] VSCA 7, Restricted Decision [2021] NSWCCA 74. The precise parameters of the ways in which character may or may not be “divisible” do not need to be further explored in this judgment, because it was not disputed in this Court that the applicant would have been entitled to raise his character in the particular respect under consideration.

17. [66]

    Secondly, at the hearing before this Court the Crown conceded that, if character had been raised in that particular respect, the Crown would not have been in a position to rebut it. In other words, in terms of evidence at the end of the trial if character had been raised in this particular respect, it would have been that: two children from the one family had accused the applicant of having committed child sexual assault; one of them was an important complaint witness with regard to the other; and yet the person accused was a man in early middle age against whom there was no other evidence whatsoever of sexual attraction or criminal acts with regard to children, and in favour of whom there was evidence of his good behaviour towards children, and the position of trust in which he was often placed with them.

18. [67]

    That state of affairs sharply distinguishes this case from those such as JV v R [2017] NSWCCA 49, in which there was an obvious forensic disadvantage that would have been inflicted if character had been raised.

19. [68]

    Thirdly, my experience as solicitor, counsel, and judge is that, just as the admission of rebutting character evidence at the conclusion of a trial can be a devastating blow to the defence case (for an example of which, see R v Stalder [1981] 2 NSWLR 9; (1981) 3 A Crim R 87), so can good character evidence powerfully call into question a prosecution case, no matter its seeming strength. To apply that here: the fact that the Crown case was strengthened by the cross-admissibility of the tendency evidence of two complainants is significant, but not determinative.

20. [69]

    Fourthly, the submission of counsel for the applicant that, in the event, the forensic outcome for the applicant was identical to that of a person with a lengthy record of imprisonment for child sexual assault (who would of course not have raised character at all, and about which record the jury would therefore have known nothing), when in fact the applicant had neither record, nor charge, nor allegation in that regard, is, with respect, very persuasive.

21. [70]

    Fifthly, it may well be correct that, if character had been raised in that particular respect, the prosecutor could have addressed, and the trial judge could have summed up, to the following effect. When considering the evidence that the applicant had shown no other sign of sexual attraction to or offences against children, the jury could reflect on the fact that, in the trial, he was being accused of committing sexual offences against two children, not one.

22. [71]

    In other words, I think there is force in the submission of the Crown that a consequence of raising character in this particular respect could have been that each complainant could have been thought of as giving rebutting character evidence when the jury came to examine the evidence in support of a count pertaining to the other complainant.

23. [72]

    Even so, the jury was to be told in any event that the evidence of each complainant could be considered as circumstantial evidence, in the form of tendency evidence, said to support the evidence of the other complainant. In other words, the applicant was already suffering the forensic disadvantage of fighting a “war on two fronts”, whereby the evidence of each complainant was said to bolster that of the other. Whether that phenomenon was to be called tendency evidence, or rebutting character evidence, or both, was therefore, in my opinion, of little moment.

24. [73]

    Finally, it is impossible to be affirmatively satisfied that, if the jury had known that there was evidence to suggest that the applicant was not at all the kind of person to commit child sexual assault, then they must have returned verdicts of not guilty. But I am of the opinion that evidence of that kind would have weighed powerfully on the minds of the jury, and could well have made the difference between satisfaction beyond reasonable doubt or the absence thereof.

25. [74]

    In short, to express my view in terms of the plurality judgment in TKWJ v The Queen: there was compelling evidence available at the time of the trial that was not placed before the jury. The decision not to place that evidence before the jury was undoubtedly a firm and considered one. The enquiry is not what was in the mind of counsel, and I make no finding in that regard. The evidence strongly (though not of course conclusively) argued against guilt. The forensic advantage that would have been gained from raising character in the particular respect under discussion would have been very significant. The Crown was not in a position to rebut it with further evidence to the contrary. In the circumstances, the forensic disadvantage that could have been suffered if it had been tendered would have been a technical one of taxonomy only. It must be characterised as “slight”. In my opinion, the evidence of good character in a particular respect could have given rise to a likelihood (in the sense of a significant possibility) of a reasonable doubt on the part of the jury.

26. [75]

    Based on that analysis, I consider that a miscarriage of justice has been established, and that the appeal should therefore be upheld.

Proposed orders

1. [76]

   I propose the following orders:

   1. (1)

      Leave to appeal against conviction granted.

   2. (2)

      Appeal against conviction upheld.

   3. (3)

      All of the convictions entered and sentences imposed by Judge Turnbull SC are quashed, and a new trial to be had.

   4. (4)

      The matter is listed in the District Court arraignments list on Friday 25 June 2021.

2. [77]

   IERACE J: I agree with Button J.