FB v R

1. [1]

   BASTEN JA: The applicant was put on trial in April 2018 on an indictment containing charges of assault and acts of indecency involving his daughter and son. There were three counts of assault involving the daughter and two of indecency. The applicant was convicted of counts 1 (assault on daughter), and count 3 (act of indecency in circumstances of aggravation involving his daughter). He was acquitted on one count of assault and one count of an act of indecency (counts 4 and 2 respectively). With respect to his son he was convicted of six counts of common assault and two counts involving acts of indecency.

2. [2]

   Pursuant to a notice of appeal filed on 8 October 2019 he appealed, globally, from his convictions.

3. [3]

   Ground 1 alleged that the trial miscarried on account of the use by the prosecutor in her closing address to the jury of evidence given in rebuttal of evidence led by him of his good character. For the reasons given by N Adams J, that ground should be rejected.

4. [4]

   Ground 3 alleged that the convictions on each of the 11 counts was unreasonable. That ground should be rejected for the reasons given by R A Hulme J.

5. [5]

   Ground 2 alleged that there was a miscarriage on account of the inadequacy of the directions as to:

6. [6]

   For the reasons set out below, each limb of ground 2 should also be rejected. It follows that the applicant may be given leave to appeal to the extent necessary pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW), but his appeal should be dismissed. As he has been released on bail having served approximately 12 months of his aggregate sentence of 4 years and 6 months, orders will need to be made returning him to custody.

Character evidence

1. [7]

   The evidence given at the trial has been described by R A Hulme J and N Adams J and need not be repeated. With respect to ground 2, the relevant evidence was (i) that which concerned the good character of the applicant (2(b)), and (ii) evidence of his misconduct or bad behaviour on occasions other than those the subject of the charges in the indictment, which could have reflected adversely on his character (2(a)). The submissions for the applicant described the latter as “rebuttal evidence”, but the circumstances of the trial require closer analysis of how it came to be admitted.

2. [8]

   First, there was evidence of violence towards the children on occasions not the basis of any charge. That evidence was admitted without objection, as “tendency evidence”. In other words, it was sufficiently closely related to evidence of the assaults to be admissible to demonstrate a tendency to be violent towards his children, pursuant to s 97 of the Evidence Act 1995 (NSW). That evidence had the capacity to rebut evidence of good character, but it was admitted for a purpose which permitted it to be taken into account by the jury in considering whether the charges had been proven.

3. [9]

   Secondly, there was evidence of aggression towards the mother, the applicant’s then wife. That evidence did not demonstrate a tendency to be aggressive towards his children and was not admissible as tendency evidence. Nevertheless, there was no objection taken to the prosecutor leading the evidence. Indeed, counsel for the applicant indicated that if the prosecutor did not lead it, she would. That evidence had the capacity to diminish the effect of the good character evidence. However, the defence sought to use it for a different purpose, namely to establish that the charges were a fabrication, orchestrated by the mother. The parties had been involved in proceedings in the Family Court in which such evidence might have been presented. To the extent that it was not, the applicant relied on it before the jury to demonstrate that both it and the charged events were untrue. For that purpose, the greater the number and seriousness of the allegations against him by the mother, the greater the plausibility of the charge of concoction.

4. [10]

   The basis on which the evidence was admitted is not determinative of the directions to be given to the jury about it use. At this point, it is sufficient to note that the judge ruled that the prosecutor could only rely upon the mother’s evidence of the applicant’s aggression towards her as available in rebuttal of his good character evidence.

Directing the jury as to character evidence – general law principles

1. [11]

   As explained by Kirby J in Melbourne v The Queen, [1] long before an accused was allowed to give evidence a practice developed permitting evidence of his or her good character. By 1995 it was well-established that such evidence could be used for one or both of two purposes, namely (i) to demonstrate the “improbability of the accused having committed the instant offence”, and (ii) in “assessing the credibility of the accused”, both in respect of his or her evidence and in respect of statements made out of court which become part of the evidence. [2] With respect to an early statutory recognition of the right to call evidence of good character on the question of the accused’s guilt, [3] this Court held that it was erroneous to direct a jury that it might not be used in assessing the credibility of the accused. [4]

2. [12]

   Beyond that, it is not necessary to explore the history of the general law. It is sufficient to note that the law was not, as it were, even-handed in this regard. Although general good character could be relied upon by an accused to establish the improbability of him or her having committed the offence, the prosecutor could only rely upon evidence of propensity to commit such a crime in limited circumstances. That limitation meant that evidence of rebuttal of good character, which was also permitted under the general law, required the judge to direct the jury not to use the rebuttal evidence as directly relevant, by way of establishing propensity, to the guilt of the accused. [5]

3. [13]

   Questions of admissibility are now dealt with under s 110 of the Evidence Act; the basis of the admissibility of evidence is an important factor in considering, and may determine, the nature of the directions to be given to the jury as to its use. Further, aspects of the Evidence Act and the Criminal Procedure Act 1986 (NSW) address and regulate the content of such directions.

Evidence Act 1995

1. [14]

   In Papakosmas v The Queen, [6] the High Court was concerned with the effect of the Evidence Act on evidence of recent complaint in sexual assault cases. As the Court made clear, although s 9 preserved the operation of the common law except where the Act otherwise provided, the proper focus of attention must be the statute. Gleeson CJ and Hayne J stated:

2. [15]

   Gaudron and Kirby JJ noted that the Act “specifies new rules of evidence in place of those developed by the common law.” [7] McHugh J noted a concession by the appellant that “a court should not approach the admissibility of evidence in a sexual assault trial by examining the preexisting common law and seeing whether the Act conformed to that law.” [8] He turned to the central issue in the following passage:

3. [16]

   The provisions of the Evidence Act relating to character evidence both encapsulated and varied pre-existing principles. It is now necessary therefore to focus on the statutory provisions.

4. [17]

   Part 3.8 of the Evidence Act is headed “Character”; it applies to, and only to, criminal proceedings: s 109. Section 110 identifies two forms of good character of an accused person, namely that the accused may “generally” be a person of good character, or “in a particular respect”, a person of good character. It reads:

5. [18]

   The structure of s 110 is important. Subsection (1) allows an accused to adduce evidence of his or her good character. It does so by removing potential constraints on the admissibility of such evidence. Disapplying the hearsay rule [9] (to allow a witness to report what others have said) and the opinion rule [10] (to allow evidence of reputation) are understandable. The tendency and credibility rules require further exposition. As to the credibility rule, one starts with the identification of relevant evidence in s 55:

6. [19]

   Credibility evidence is defined in s 101A:

7. [20]

   More importantly for present purposes, s 110(1) disapplies the tendency rule, which directly engages with character evidence:

8. [21]

   There may have been some doubt whether s 97 would have precluded an accused calling evidence of good character without satisfying the conditions in s 97(1)(a) and (b), but s 110(1) removes that issue. A similar disapplication operates with respect to rebuttal evidence, adduced under s 110(2) or (3). The question raised by disapplying the tendency rule is whether rebuttal evidence may be used for a tendency purpose. Section 97 provides that tendency is not admissible, subject to qualifications; the disapplication of that prohibition indicates that evidence adduced pursuant to s 110(2) or (3) may be used for a tendency purpose, although it would not comply with the qualifications to the exclusion under s 97. This construction was adopted by Payne JA in Clegg v R. [11]

9. [22]

   That this was the statutory intention obtains some support from the Australian Law Reform Commission proposals which described the confinement of rebuttal evidence to disproving good character, as opposed to permitting relevant to guilt, as “incapable of enforcement”, noting that such a constraint “does not seem to have been adopted in the United States.” [12]

10. [23]

    It is convenient at this point to note the terms of s 95 in Pt 3.6 of the Evidence Act:

11. [24]

    The possibility that rebuttal evidence could now be used by the prosecutor to support the commission of the offence was noted by the Full Court of the Federal Court in Eastman v The Queen. [13] The Court (von Doussa, O’Loughlin and Cooper JJ) stated: [14]

12. [25]

    If it were accepted that s 110 has varied the common law with respect to the use of rebuttal evidence, it would be necessary for an accused to seek a direction under s 136 that rebuttal evidence be used only to challenge the evidence of good character, and not to form the basis for an inference that the accused is a person likely to have committed the offence charged. Whether such a direction would be given might well depend upon the closeness of the particular aspect of character in issue to the charges. If the statute permitted the general use of such evidence it might be rare for a limiting order to be made under s 136, for the reasons noted by McHugh J in Papakosmas. [15]

13. [26]

    While the construction of s 110 advanced in Eastman has much to recommend it, it was not argued by either party in this case and must therefore be put to one side. That means that this judgment may be proceeding on a legally false basis. It is, however, necessary to assume, in favour of the applicant, that rebuttal evidence adduced under s 110 cannot be used to demonstrate a tendency to commit offences of the kind charged unless it qualifies as admissible tendency evidence under s 97 (or as coincidence evidence under s 98).

(a) principles

1. [27]

   Before considering the approach to rebuttal evidence, it is appropriate to note the principles applicable with respect to character evidence generally. In Simic v the Queen, [16] the High Court held:

2. [28]

   In Melbourne, the High Court was invited to find that such directions should now be required and that the failure to direct the jury with respect to the appropriate use of good character evidence would generally constitute a miscarriage of justice. That invitation was rejected. The admissibility of good character evidence is anomalous and “must be regarded as an indulgence granted to the accused which continues to be maintained for historical reasons.” [17] There are difficulties in defining in advance what is good character, [18] and in defining precisely how the jury should take the evidence into account. [19]

3. [29]

   These difficulties were elaborated upon by Gummow J in Melbourne, responding to a question as to what is meant by an assertion that an accused is a person of “previous good character”: [20]

4. [30]

   The other member of the majority in Melbourne, Hayne J, stated:

5. [31]

   Hayne J concluded:

(b) application of principles

1. [32]

   Ground 2(b) alleged that there had been a miscarriage of justice because the trial judge did not adequately summarise the character evidence relied upon for the accused. If this ground had stood alone, it would have been appropriate to refuse leave to appeal with respect to it, for the following reasons.

2. [33]

   First, the function of the trial judge in summing up to the jury is primarily to give directions as to the law, including such warnings as are necessary and appropriate with respect to particular aspects of the evidence. The extent to which the trial judge seeks to summarise the evidence and the addresses of counsel is very much a matter for the individual judge, in the circumstances of the trial. Some repetition will be necessary to ensure that the jury focus on the relevant issues and understand how particular evidence, obtained from a variety of witnesses, may relate to those issues. Closing addresses of counsel may not achieve the necessary balance and degree of objectivity.

3. [34]

   Secondly, and consistently with the first matter, it was appropriate and necessary for the judge to give a direction as to how character evidence should be used. The judge addressed this topic methodically. She commenced with the following proposition: [23]

4. [35]

   The judge then summarised over two pages of the summing up, the evidence obtained from five witnesses called by the defence. The judge then explained the nature and purpose of that evidence in the following terms: [24]

5. [36]

   Thirdly, in circumstances where there is no obligation to given any particular direction with respect to character evidence, as established in Simic, and reaffirmed in Melbourne, there can be very little opportunity to allege a miscarriage of justice where a direction has been given.

6. [37]

   Fourthly, the directions set out above dealt with the evidence without comment, and then addressed how it could be used, together with the limitations on its use. The allegation that the trial miscarried because the judge failed to give directions with respect to “the nature and extent of the evidence of good character called in the trial” is based on a false premise.

7. [38]

   Ground 2(b) must be rejected.

(a) principles

1. [39]

   Accepting that evidence in rebuttal of good character cannot be used to demonstrate a tendency of the accused to behave consistently with the conduct the subject of the charges, the issue is what the law presently requires the jury to be told.

2. [40]

   The approach identified in Simic and Melbourne was confirmed in KRM v The Queen, [25] with respect to misconduct of the accused. KRM was not an Evidence Act case; rather, it dealt with an offender convicted of maintaining a sexual relationship with a child under the age of 16. [26] Three acts were required within a particular period to satisfy the definition of the offence. The reasoning as to the admissibility of tendency evidence under the general law is not directly relevant; it concerned multiple charges involving conduct with a single complainant. The essence of the proposed missing direction, was that it would be dangerous to reason that “because you find the accused engaged in sexual conduct the subject of count 18, he was the kind of person to have done so on the other occasions charged. Such a process of reasoning would be quite wrong.” [27]

3. [41]

   The Court held that where a “separate consideration” warning was given with respect to each count, no further warning was required. As explained by McHugh J:

4. [42]

   Kirby J in KRM dismissed the suggestion that a universal propensity warning was required, stating: [28]

5. [43]

   Hayne J broadly agreed with McHugh J, in particular accepting that there was “no absolute rule that the judge must always give a warning against ‘propensity’ reasoning when the presentment contains a count of maintaining a sexual relationship with a young person”. [30] Gummow and Callinan JJ noted that it would “not have been inappropriate” for the trial judge to have given the direction sought, but further stated that “[n]o universal rule should, or indeed, may be laid down in that regard.” [31]

6. [44]

   Although KRM is dealing with an unusual offence, it is commonly referred to in later cases. It is necessary to refer to one further passage in the judgment of McHugh J which, although following the passages set out above, and expressed in cautious language, has on occasion been read to identify a proposition for which it does not stand:

7. [45]

   It is clear from the opening sentence involving “some cases” having “some feature” which “may” create a particular risk, followed by a proposition which only arises “[i]f that risk exists”, that the passage proposes no universal rule. Further, the example of a joint trial involving several charges, the evidence on which is not cross-admissible, is remote from the present case.

8. [46]

   It is readily apparent that circumstances will differ greatly. The conduct revealed by the rebuttal evidence may be remote from the conduct the subject of the charges. For example, a jury told that the accused had been convicted of social security fraud is most unlikely to find a tendency to sexually assault children. On the other hand, evidence that the accused and a friend regularly watched pornographic film involving children might lead the jury to a different opinion. One would expect the law in this respect to require flexibility and careful attention to the particular case. Unsurprisingly, that is so.

9. [47]

   The cases with respect to a tendency warning were recently addressed in Hamilton (a pseudonym) v R. [33] In that case, after reviewing earlier authorities, Beech-Jones J (Adamson J agreeing), stated:

10. [48]

    With one qualification, that reasoning should be accepted. The qualification relates to the assumption that McHugh J in the passage in KRM at [38] (set out at [44] above) and in particular the “example” at the end of that passage, was setting down a general rule. If that were so, it would contradict the careful language with which [38] began. Otherwise the Court should apply the approach adopted by Beech-Jones J.

11. [49]

    It follows that reference to cases where anti-tendency directions have or have not been given is useful only to the extent that assistance may be obtained in identifying the factors which should be considered. Beyond that, recitation of “authority” is not only unhelpful, but is a distraction from the central task of focusing on the circumstances of the case before the court.

(b) application of principles

1. [50]

   The evidence of misconduct of the accused, not the subject of the charges, was as follows:

2. [51]

   In the absence of the jury, the trial judge discussed with counsel the basis on which she would permit evidence to be relied on by the prosecution in rebuttal of good character. The judge rejected the proposal by the prosecutor that context evidence given by the children and other evidence admissible as tendency evidence could be relied upon in rebuttal of good character. She did not accept that the prosecution could seek to use its case against the accused to rebut character evidence. [34] Having reached that view, the judge put to counsel for the accused: [35]

3. [52]

   In the result, the evidence permitted to be relied on as rebuttal evidence was only that identified in (v) above, namely the mother’s evidence of aggression towards her, including being pushed into the fridge and punched.

4. [53]

   There are five factors which are significant in the present case.

5. [54]

   The first, and most obvious, factor is the possible probative value of the evidence. That is, was there a logical connection between the rebuttal evidence and the charged conduct? The evidence permitted to go to the jury as rebuttal of good character (the aggression towards the mother) patently had no connection with the charges of acts of indecency with the children. Its connection with the assaults committed on the children was, at best, fragile. Taken by itself, there is a possibility that the jury could have reasoned that a man who was aggressive towards his wife might be aggressive towards his children. That reasoning would have depended upon the jury accepting the mother’s account of that event. However, this factor cannot, taken in isolation, determine the need for, and nature of, any proposed direction.

6. [55]

   The evidence of the mother with respect to the aggression directed to her was not elicited by the prosecutor following the character evidence, but rather as part of the prosecution case, at the behest of counsel for the accused. It was built upon in cross-examination of the mother. The purpose of reliance on this evidence by the defence was to form a basis for an allegation of fabrication of the conduct the subject of the charges. The wider the scope of the allegations made by the mother, the better for the defence in seeking to raise a doubt that the charges were malicious falsehoods orchestrated by the mother. No doubt the evidence of good character bolstered the concoction defence, but they stood or fell together.

7. [56]

   As noted above, the trial judge dealt with the character evidence called for the accused over some three and a half pages of the summing up. The judge also gave careful directions as to the manner in which the jury should address the separate counts. [36] That discussion led into the directions as to “tendency reasoning”. [37] Those directions were clear, detailed and dealt with the evidence relied upon. They included “the body of evidence given by [the mother] regarding aggressive and/or violent conduct by the accused that she alleged she witnessed him commit towards one or both of the children.” [38] The judge further said:

8. [57]

   Notably, there was no reference to the mother’s evidence of aggression towards her.

9. [58]

   The judge further gave clear and careful directions as to “how you cannot use tendency reasoning.” [40] The judge also gave directions with respect to context evidence. Those directions were somewhat more broadly stated, no doubt because the judge was seeking to play down the significance of that evidence, rather than remind the jury of the detail. In the course of giving directions, she stated: [41]

10. [59]

    It is, perhaps, possible that the jury may have thought that the general description of the background or contextual evidence included the claims by the mother of aggression towards herself. No complaint was made about how the jury were directed in that respect.

11. [60]

    There was specific reference in the summing up to the mother’s evidence, as being evidence relied upon the prosecutor. The judge stated: [43]

12. [61]

    The trial judge was alert to the need to address the mother’s evidence with care. The accused’s counsel accepted a muted approach which did not recount the mother’s evidence in detail, but characterised it as evidence of physical violence. [44] It followed that if the judge had directed the jury to the effect that they could not use the mother’s evidence of violence towards her as a basis for accepting that the accused was aggressive towards the children, that might have been interpreted by the jury as undermining the defence case that they could rely on that evidence to support the concoction defence. Whether to seek a further direction in the unusual circumstances presented by the defence case was quintessentially a forensic decision to be made by counsel at the trial.

13. [62]

    While it is true that the trial judge did not expressly direct the jury that they could use the mother’s evidence of violence towards her only to rebut evidence of good character of the accused, and not to reason that the accused was the sort of person who might be violent towards his children, the defence sought no further ruling. In the context set out above, that omission was understandable; it was no part of the defence case that this was the only use the jury could make of that evidence. The defence sought to have it available as a basis for inviting the jury to disbelieve the whole of the evidence of the mother and the children. An additional warning would not only have been of little importance to the accused, it would have been apt to lead to confusion, and possibly to weaken the focus of the defence.

(c) conclusions

1. [63]

   Bearing in mind that there is no general obligation on the trial judge to give a warning with respect to how rebuttal evidence should not be used, regardless of the particular circumstances of the case, the factors set out above, in combination, lead to the conclusion that there was no miscarriage of justice. Taken in combination, and having regard to the careful, clear and extensive directions which were given, there is no real possibility that the omission of a general warning that the evidence of the mother regarding aggression towards her could not be taken into account as demonstrating a tendency towards violence towards his children, caused the jury to misuse that evidence. There was no real risk of the accused having lost an opportunity of acquittal on this account; there was therefore no miscarriage of justice.

2. [64]

   Ground 2(a) must be rejected.

Orders

1. [65]

   Each ground of appeal being rejected, the appeal must be dismissed. The Court should make the following orders:

   1. (1)

      To the extent necessary, grant the applicant leave to appeal against his convictions.

   2. (2)

      Dismiss the appeal.

   3. (3)

      Order that the applicant be returned to custody to serve the balance of the sentence imposed on him in the District Court.

2. [66]

   R A HULME J: I have read the judgments of Basten JA and N Adams J in draft. I agree that Grounds 1 and 2 should be rejected for the reasons provided.

3. [67]

   Ground 3 contends that the verdicts of guilty on each of Counts 1, 3, and 5 to 13 are unreasonable.

4. [68]

   The offences were alleged to have occurred within the period 1 January 2015 and 31 October 2016. The victims were the applicant's daughter and his son. The Crown contended there was a long history of the applicant physically and sexually abusing the children. The charged offences were incidents that the children were able to particularise. The physical abuse occurred on occasions when the applicant lost his temper because of something done, or not done, by the children. The sexual abuse occurred when the applicant rubbed oil into the children, often after they had bathed.

Background

1. [69]

   The applicant met the children's mother in the late 1990s. They commenced living together in 2002 at Bronte. Their daughter was born in early 2005 and their son was born in 2006.

2. [70]

   The family moved into an apartment next door at the end of 2009 and then to a home in Randwick about a year later. In September 2013, they moved to Saratoga on the Central Coast. The applicant and the mother were still in a relationship but the applicant remained working in Sydney and he lived in an apartment at Paddington. He came up to Saratoga from time to time to stay with the family.

3. [71]

   The applicant and the mother separated in around autumn 2014. The applicant continued living at Paddington while the family lived at Saratoga. He came to see the children at Saratoga, but he sometimes took them to Sydney.

4. [72]

   The applicant moved from Paddington to a two-bedroom home in Bronte in March 2015. Both children slept in the applicant's bedroom at Bronte until around mid-2016 when a sofa bed in a back room was made available for the daughter.

5. [73]

   A friend, David Walker, lived with the applicant at Bronte from that time until May 2016.

6. [74]

   The applicant commenced a relationship with Lorna Hankin in October 2014. She stayed at his home on weekends on an increasingly frequent basis from March 2015. She moved in to live with him in September 2016.

7. [75]

   The applicant and the mother agreed to financial and parenting orders made by the Family Court in August 2016 and they became divorced in September 2016.

8. [76]

   The Family Court orders included that the mother would have the children three out of every four weekends and half of each school holidays. Those orders reflected the reality of what had been occurring since around the time of the separation. The mother said that it was from about the middle of 2015 that the applicant no longer had access to the children at Saratoga but they would travel to Sydney and see him there. The last weekend that the children visited the applicant in Sydney was 29-30 October 2016.

Overview of the Crown case

1. [77]

   The trial commenced on 27 November 2018 and concluded with the jury's verdicts being delivered on 20 December 2018. The principal witnesses relied upon by the Crown were the two complainants and their mother.

2. [78]

   The children were interviewed by a police officer working with the Joint Investigation Response Taskforce (JIRT) and the interview recordings were played to the jury as the children's evidence in chief. The daughter was interviewed on 3 August 2017, 15 November 2017 and 10 January 2018. The son was interviewed on 3 August 2017 and 10 January 2018.

3. [79]

   The children were cross-examined in advance of the trial at a hearing before Girdham SC DCJ over four days in July 2018. The recording of their evidence was played to the jury following the playing of the JIRT interview recordings.

4. [80]

   The Crown called four other witnesses:

5. [81]

   The police officer in charge of the investigation, Detective Senior Constable Amanda Etheridge, was unavailable to give evidence but her statement was read by consent.

6. [82]

   The Crown relied upon the complaints made by the children to their mother as evidence that enhanced their credibility as to what was complained about.

7. [83]

   The Crown relied upon tendency reasoning. It contended that the applicant had a sexual or indecent interest in his two children which he acted upon by touching and/or rubbing parts of their bodies, breasts and bottom in the case of his daughter and penis in the case of his son and that he did that under the guise of needing to rub oil onto those parts of their bodies for a therapeutic purpose. Further, that he acted upon that sexual or indecent interest by masturbating his own penis in the presence of one or both of his children. The Crown relied upon this reasoning in relation to the counts in the indictment alleging an act of a sexualised type (Counts 2-3, 6-9 and 11-13). To establish this tendency the Crown relied upon the evidence of the children.

8. [84]

   The Crown also contended that the applicant had a tendency to behave aggressively and/or violently towards one or both of his children on some occasions when he was with them on his own. This was relied upon in relation to Counts 1, 4-5 and 10. To establish this tendency, the Crown relied upon the evidence of the children. It also relied upon the evidence of the mother insofar as her evidence related to aggressive and/or violent conduct by the applicant towards the children; that is, not the evidence of such conduct by the applicant towards herself.

9. [85]

   The Crown relied upon the evidence of the complainants as to uncharged (other) acts of alleged misconduct and/or mistreatment by the applicant as establishing a context or background in which the charged acts occurred. The Crown contended that this body of evidence was relevant in a number of ways. It enabled the jury to understand a complainant's reaction to specific charged acts; there was no surprise or protest because they had become habituated to such conduct. It enabled the jury to understand why there was no timely and/or thorough complaint; a complainant had come to expect that kind of conduct because it was routine. It made the complainants more believable than would be the case if the jury only heard of conduct on isolated occasions. It explained why the complainants may have found it difficult to isolate specific occasions and describe them in detail because such conduct occurred a lot in similar circumstances.

10. [86]

    In relation to the evidence of the mother concerning physical violence by the applicant towards herself, the Crown relied upon this in rebuttal of the applicant's good character evidence.

Overview of the defence case

1. [87]

   The applicant contested the veracity, credibility and reliability of the evidence of the complainants and their mother. It was contended that there were discrepancies and inconsistencies and there was evidence that contradicted the allegations and the complaint evidence. The applicant asserted that the acts complained of did not occur and the Crown could not prove beyond reasonable doubt that they did.

2. [88]

   A principal thrust of the defence case was that the evidence of the complainants and their mother was comprised of "fabrication, fantasy, concoction, coaching and bears no truth". The allegations were raised against a background of Family Court disputes including as to the custody of the children, and defamation proceedings brought by the applicant against the mother.

3. [89]

   There was also a positive defence case in which the applicant gave evidence and called a number of witnesses:

4. [90]

   The applicant also relied upon the evidence given in the Crown case by David Walker, Lorna Hankin and Senior Constable Tunningley as well as the police interview of the applicant.

Principles

1. [91]

   The applicable principles in relation to this Ground were conveniently summarised by Leeming JA in Cabot (a pseudonym) v R [2018] NSWCCA 265 at [54]-[55], [57]-[58]:

2. [92]

   Added to that summary should also be reference to some principles set out in the applicant's written submissions:

3. [93]

   In IW v R [2019] NSWCCA 311 at [268], Bellew J observed that the question is not whether a complainant's evidence, taken in isolation, might be viewed as cogent; an assessment is required of the entirety of the evidence.

Submissions

1. [94]

   The applicant submitted that for each of Counts 1, 3, and 5 to 13 it was not open for the jury to be satisfied of guilt beyond reasonable doubt. That was said to be because the Crown did not eliminate the reasonable possibility that each complainant was making up their evidence, or gave evidence that was not a genuine memory, or simply that the acts alleged in relation to each count did not happen.

2. [95]

   The evidence the Crown relied upon in respect of Counts 1, 3, 5 and 10 included that both complainants were present when the charged act occurred. However, only one of them gave evidence about it and the absence of corroboration by the other complainant was submitted to be significant.

3. [96]

   Counts 1 and 5 involved allegations that the applicant assaulted his daughter and his son respectively. His daughter gave evidence of these assaults having occurred in the context of the children having spilt rice at dinnertime in the Dubbo motel room in which they were staying. His son gave no evidence about such an event. He recalled assaults by the applicant on a morning in the context of the applicant being concerned about his daughter wanting to wear shorts. Accordingly, the Crown was reliant upon the evidence of the daughter alone in respect of each of these counts. (More detail about the evidence concerning these counts appears later (at [178]-[180]).)

4. [97]

   Count 3 was concerned with the last of numerous occasions when the applicant committed an act of indecency by masturbating his penis in the presence of his daughter. She said, in her third and final JIRT interview on 10 January 2018, that the applicant came out of the shower wearing a towel, took it off and started playing with himself. He was standing “near the door” so that the children could not leave. She said that she was “pretty sure” that her brother was present when this occurred: "I think he was on the bed, or somewhere like that."

5. [98]

   The son’s evidence did not include that his sister was present on the occasions he said the applicant behaved indecently. He said that this behaviour usually occurred in the bathroom but it occurred on two occasions in the bedroom and that was because an adult was using the bathroom (David Walker or Lorna Hankin). His evidence was that it was just the applicant and himself present on those occasions.

6. [99]

   Count 10 involved an alleged assault at a restaurant during a meal in which his sister and Lorna Hankin were present. At this dinner, the children were told that the applicant and Ms Hankin were in a relationship. The son said, in his first JIRT interview on 3 August 2017, that he did not eat all of his meal because he was not hungry, so the applicant took him outside for a “dad talk”. The applicant wanted everything to be “perfect”, and told his son he was ruining dinner. The son reported that the applicant, yelling and swearing, grabbed him by the arm and dug his nails into his skin, leaving marks that lasted for “about probably like three to four days”. The son’s evidence in cross-examination was consistent with the JIRT interview.

7. [100]

   The applicant agreed that his son ate slowly, and agreed with the concept of “daddy talks”. He said he might grab the children and raise his voice to get their attention, but denied ever leaving marks or bruising. In his ERISP, he had no recollection of this incident. In cross-examination, he recalled the dinner but denied having a “dad talk”.

8. [101]

   There was no evidence of the daughter concerning this incident at all and Lorna Hankin's evidence accorded with that of the applicant and was directly contradictory. The son’s evidence stood alone in supporting the Crown's allegation.

9. [102]

   The applicant submitted that the Court would find that the verdicts of guilty in respect of these counts are unreasonable because there was no confirmatory evidence such as would be expected, given there were said to be witnesses to the events.

10. [103]

    The absence of supporting evidence from witnesses said to be present by a complainant does not necessarily give rise to a reasonable doubt. The evidence was to the effect that the applicant conducted himself in a manner as described in respect of Counts 1, 3, 5 and 10 on a multitude of occasions. In addition, the events about which the complainants gave evidence occurred nine months or more before they were first interviewed about them. At that time, the daughter was aged 12 and the son was aged 11.

11. [104]

    The trial judge directed the jury that context evidence was relevant in a number of ways including that it may explain "why a complainant may have found it difficult to isolate specific occasions and describe the detail of specific occasions". In other words: "If it happened a lot in similar circumstances, it might be difficult for a complainant to isolate and describe specific particular occasions".

12. [105]

    The fact that the children had been habituated to the applicant's mistreatment of them (on the Crown case) provides a ready and credible explanation for the fact that one child may have recalled something that occurred when they were both present while the other child did not. Moreover, insofar as the defence case contended that the allegations had been concocted, the differences in the events recalled by the complainants were an indication to the contrary.

13. [106]

    In relation to Count 10, the assault upon the son at the restaurant, Ms Hankin was unequivocal in her evidence in chief that no one left the table during the meal. When cross-examined by the Crown Prosecutor, she was asked if it was possible that the son did leave the table with the applicant. She claimed to have a "vivid memory" of the occasion and did not have any recollection of the son leaving the table. However, she also agreed that he could be difficult about finishing his food at meals and she remembered he was taking a long time to eat his food on this occasion. In this respect, her evidence supported that of the son. When asked again whether it was possible that the applicant did take his son from the table to speak to him about that, she replied, "of course it's possible, but I have no recollection of it".

14. [107]

    The applicant in his police interview denied that this event occurred. He accepted that there might have been occasions when he would take a child outside a restaurant but claimed that would have been when they were "really playing up" and it would not have been just to get them to eat their food.

15. [108]

    Where the evidence of Ms Hankin and the appellant contradicts the son’s account, that evidence was disputed. This was not a case where the inconsistent evidence was left to the jury unchallenged: Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [119], [127]. The evidence was not of a quality that required the jury to accept it, and therefore it did not require the jury to hold a reasonable doubt. In relation to Ms Hankin, the jury could well have taken the view that she was overstating her confidence in claiming to have a "vivid memory" of the occasion.

16. [109]

    One of the two tendencies the Crown sought to establish was that the applicant tended "to behave aggressively and/or violently towards one or both of his children on some occasions when he was with them on his own" (the aggressive or violent tendency). The applicant submitted that the evidence of this tendency was of limited or no weight in relation to his daughter (Count 1) and of no weight in relation to his son (Counts 5 and 10).

17. [110]

    The applicant's written submissions included a detailed analysis of instances where the complainants and their mother gave evidence of acts of violence of the applicant that occurred in the presence of someone else but the other person did not give evidence about it. For example, the daughter and the mother gave evidence of violence towards the daughter but the son did not give any evidence of having witnessed the same. One example of that was the daughter’s account of what occurred at Dubbo (Counts 1 and 5).

18. [111]

    Another example was an occasion when Lorna Hankin was said to have been present when, according to the daughter, the applicant angrily shook his son by the shoulders. The son gave evidence of the occasion but did not give evidence of the applicant being violent. Lorna Hankin's evidence involved a denial that the applicant had been violent.

19. [112]

    David Walker and Lorna Hankin gave evidence that during the times they lived in the applicant's home they did not see any marks or bruises on the children. The mother said that she did not see any marks or bruises in the period between the separation and 30 October 2016. That meant that all of the adults who had lived with the children gave positive evidence that they never saw bruising or marks. The character witnesses did not see anything of that nature either.

20. [113]

    For these reasons, it was submitted that the evidence of the aggressive or violent tendency was extremely weak. The evidence was unreliable and was unsubstantiated or contradicted by others who were said to have been present when violent acts occurred.

21. [114]

    The answer to these submissions is much the same as for the previous issue. Many of the asserted inconsistencies and the lack of corroboration are unsurprising given that the violent conduct described by the complainants was of frequent occurrence. Importantly, however, there was consistency in the theme that they each described: a sudden angry outburst accompanied by physical violence of the same type involving grabbing, pushing and/or slapping.

22. [115]

    The failure of a complainant to have mentioned something in their police interviews is not something that raised questions about veracity or reliability. Expecting children of their age to have remembered every single instance of violent conduct by the applicant that occurred over a considerable period is quite unrealistic. It would also have been inappropriate for the interviewing officer to prolong the interviews beyond a reasonable period. The longest of the daughter’s three interviews was 57 minutes (the first) and the others were 32 minutes and 22 minutes. The son’s two interviews went for 92 and 26 minutes respectively.

23. [116]

    One of the applicant's criticisms is that matters were recalled by the mother but not mentioned by the complainants. However, it was generally the case that where the children did not volunteer information on a subject they were not prompted to do so, either in the JIRT interviews or in cross-examination.

24. [117]

    The criticisms of the daughter’s evidence included that she spoke of an incident that occurred in the kitchen when the household was being packed for the move to Saratoga. The applicant's written submissions included that "[the son] gave no evidence of this incident". A reasonable explanation could well be that the son simply did not remember it. The incident was said to have occurred in 2013. The son was aged 6, turning 7, that year. He was first asked to recall incidents of the applicant's violence when he was interviewed at the age of 11 and he gave evidence in court (from a remote room) when aged 12.

25. [118]

    A similar response can be made in relation to the criticism of there being differences in the accounts of the mother and the daughter as to the 2013 incident. Different family members having differing recollections of an incident that occurred in the home some four or five years earlier are not surprising. One inference that does arise, however, is that it is inconsistent with deliberate contamination or concoction. That inference also arises in relation to other asserted inconsistencies or contradictions; for example, the different accounts of the children as to what occurred at Dubbo.

26. [119]

    Evidence that witnesses did not observe marks or bruises on the children (aside from the mother in the period leading up to the separation) was available for the jury to consider. Whether they should have, if they were available to be seen, in the absence of the children drawing attention to them with a complaint of having been assaulted was also a matter for their assessment.

27. [120]

    The other tendency the Crown sought to establish was a tendency of the applicant to have a sexual or indecent interest in his two children which he acted upon by committing the acts upon which Counts 3, 6-9 and 11-13 were based (the sexual or indecent tendency). The applicant contended in written submissions that the evidence relied upon by the Crown to establish this tendency was in starkly inconsistent terms and of questionable veracity, reliability and weight.

28. [121]

    In relation to the son’s evidence of sexual and indecent misconduct by the applicant, his account was generally to the effect that either his sister was not present, or he was not sure if she was present. The applicant contrasted this to the daughter’s evidence in which she said that she was present when such misconduct involving her brother occurred. There was also the contrast between the son saying that it mainly occurred in the bathroom but it also occurred in the bedroom when another adult was using the bathroom and the daughter saying that what she saw between the applicant and her brother occurred in the bedroom.

29. [122]

    It was also submitted that if there was a tendency in relation to the son as he had described, it only related to acts carried out when only the son and the applicant were present. Accordingly, it was not significantly probative of the verdict on Count 3. The sexual and indecent acts that the daughter said the applicant committed against her, which were not corroborated by the son, were submitted to be not significantly probative of the offences said to have been committed against the son.

30. [123]

    When the son disclosed in his first interview that the applicant sexually or indecently misconducted himself, he said, "So what happens ... he'll take me to the bath, well, actually if no one's there, he will do it like at any time in the house, like he would just start like randomly … just playing with his … private parts and stuff". But he also said, "but when someone is there, he'll like he'll go to the bathroom and he will do it …"

31. [124]

    The son said a number of times that he was not sure if his sister was present. It is not unusual for a child to recall an event with a focus upon their own experience; the presence of others who played no role would not necessarily be a significant feature. In any event, there is force in the Crown's contention that the strength of the tendency depended upon the acts described by the complainants rather than upon who witnessed them. Further, that was consistent with the way the trial judge described this tendency to the jury: "… further, that he acted upon that sexual or indecent interest he had in the two children by masturbating his own penis in the presence of one or both of his children".

32. [125]

    Both children gave evidence of indecent assaults and acts of indecency that comprised counts in the indictment but both also gave evidence of the applicant habitually masturbating his own penis in front of them. There was ample evidence to establish the tendency. If the jury rejected the suggestion of concoction or fabrication, it was well open to the jury to conclude that the applicant had a propensity to act in a completely disinhibited fashion as described in the presence of one or both of the children.

33. [126]

    The evidence relied upon by the Crown as establishing a context (in the manner described above at [85]) was submitted to suffer from the same flaws as the tendency evidence. That submission is not accepted for the same reasons.

34. [127]

    The written submissions dealt with the complaint evidence and the evidence of the applicant's good character separately. However, it is convenient to deal with the submissions on both subjects together as they both involved a substantial attack upon the credibility and quality of the mother’s evidence.

35. [128]

    There was evidence of "complaint" by the children that related to the events in Counts 4, 6-9 and 11-13 but the applicant submitted that this was contradicted by other evidence and arose in the context of legal proceedings between the applicant and the mother.

36. [129]

    The applicant emphasised the ticking of negative boxes titled "sexual assault" and "sexual behaviour" in an interchange with Senior Constable Tunningley on 5 November 2017. He similarly emphasised evidence of the mother raising the sexual abuse allegations in Family Court proceedings and in District Court defamation proceedings. She had also raised the "pot plant" incident (Count 4) in email correspondence with the applicant concerned with a dispute over the title deeds to the Saratoga home that was to be hers following the Family Court property settlement.

37. [130]

    The defence case was that the allegations of violent, sexual and indecent misconduct, and the evidence that the children complained to their mother, was falsified for the purpose of the two court proceedings and the mother’s intention to move with the children to Queensland.

38. [131]

    It was submitted that there was a substantial body of evidence in support of the unlikelihood of the applicant committing any of the charged acts by many people who saw him not only outdoors with the children but lived with him, the children and their mother. It was submitted that the credibility of the mother was "significantly damaged" and that her evidence was "replete with inconsistencies, exaggeration and animosity such that her veracity was significantly undermined in the trial". Without making any concession, it was also submitted that even if her evidence were to be accepted, it did not rebut the character opinion evidence that was relevant to Counts 3, 6-9 and 11-13.

39. [132]

    The mother gave evidence that she picked the children up from Central Station on 30 October 2016, following the weekend of the “pot plant” incident (Count 4). On the journey home, her son told her about the daughter spilling dirt on the applicant’s carpet. The applicant became very angry, grabbed the daughter’s arm and was shaking her and holding her tightly. The daughter was very quiet during the car ride, but her mother noticed a bruise and spoke to her the following day. The daughter told her a similar story and said that she did not want to visit her father anymore. This evidence was not self-evidently false. It could not be impugned as delayed or as having resulted from prompting, suggestion or joint concoction.

40. [133]

    Senior Constable Tunningley gave evidence that on 5 November 2016, the mother brought the children to Gosford Police Station. They were taken to a private room, where the daughter relayed her account of the “pot plant incident”. In the course of questioning, the officer ticked “no” in boxes marked “sexual behaviour” and “sexual assault”. This was relied upon at trial as something that was inconsistent with the claim that there had been any "sexual behaviour" or "sexual assault".

41. [134]

    That evidence is problematic for a number of reasons. Senior Constable Tunningley could not recall much about what was said, and by whom. He could not remember whose response gave rise to him ticking the negative boxes for those items. The mother thought the children had responded to the various questions but there was no detail as to what was said. (All of this assumes that questions were in fact asked and responses were given.)

42. [135]

    The applicant's argument in relation to this issue is based upon a premise that a question was asked as to whether there had ever been sexual behaviour or sexual assault by the children's father. The fact is that the visit to the police station was prompted by the assault of the daughter by the applicant a few days before. A physical assault was being alleged; not something of a sexual nature. The children did not disclose sexual misconduct by the applicant until the middle of the following year. Accordingly, it is unsurprising that there were ticks in the negative box against these two items in the officer's notebook. The applicant's criticism of inconsistency must be rejected.

43. [136]

    On the mother’s account, the son disclosed the sexual abuse during a journey home from the Gold Coast on 10 July 2017. This immediately followed her telling him, at his request, of abuse she suffered as a child. However, abuse she had previously told the children about was confined to physical assaults. She said she was quite taken aback when her son asked, "Your uncle sexually abused you, didn't he?" She then told him, "He touched my vagina, made me touch his penis, touched his own penis." It was then that the son said, "That's happened to us."

44. [137]

    If the evidence was confined to that, it may appear that the son was simply adopting his mother's description as his own complaint; but he did a lot more than that. He told her that the applicant "gets oil and he rubs it all over me when I'm naked" and gave her a detailed description of that. His mother then asked his sister if this was true. According to the mother, she started screaming and said, "Yes, but I don't want to talk about it." The mother said that she gave some reassurance that it was never okay for someone to touch them and she said her son replied, "I always told him to stop, Mum. I didn't like it. It made me feel really weird." The mother told her children that it would be best if they spoke to Debbie, their child psychologist.

45. [138]

    It was well open to the jury to consider that this evidence had an air of verisimilitude about it.

46. [139]

    A significant part of the applicant's criticism of the Crown case concerned the asserted inconsistency of the mother certifying in the Family Court proceedings that there had been and was no current risk of family violence. However, the mother gave a detailed explanation for this. She said that she was impecunious and anxious to finalise the proceedings, which had been going for two years. Her lawyer advised her that any allegations of violence would “[open] a can of worms” and delay the settlement. In cross-examination, she said she did not think the children were at immediate risk, and never would have signed the form had she known about the ongoing sexual abuse. It was well open to the jury to accept this as a rational thing to do, even though it was objectively wrong.

47. [140]

    There was a conversation with the children on the evening of 2 August 2017. The children were aware that there were Family Court proceedings on foot and that the applicant was applying for custody. According to the mother, her son asked whether she had told the Family Court about the abuse. She told them she had and that the courts take such things seriously. She said that her son wanted to talk more about the abuse but her daughter became hysterical, said she did not want to listen or talk about it, and ran to her bedroom. The son then spoke further about the abuse with his mother. He also asked his mother what he would be asked about at the JIRT office the next day. She simply told him to "just tell the truth and just answer their questions". There was nothing improbable or unacceptable about this evidence.

48. [141]

    The description of the defence case in the applicant's written submissions is an incomplete account of the assertions of malice that were raised with the mother. Such propositions were not confined to the Family Court and defamation proceedings and a desire to take the children to live in Queensland. The mother denied a proposition that upon hearing from the children that their father was in a relationship she became jealous and concerned about the children forming an attachment to Lorna Hankin. She denied that she raised the "pot plant incident" in email correspondence with the applicant because of various disputes between them. She denied that she wanted to punish the applicant by cutting off his contact with the children.

49. [142]

    In relation to a proposition that she wanted to take the children and move to Queensland at the time of the email correspondence in early November 2017, as events happened, the mother did move to Queensland in 2018 after she sold the house at Saratoga in order to pay legal fees. However, as the applicant wanted access to the children, she then moved back to the Central Coast.

50. [143]

    The mother gave evidence over two days. The jury had a good opportunity to assess the veracity and reliability of her responses to extended and intense questioning. Nothing arose by way of concession or slip that could be seized upon as an indicator of credit unworthiness.

51. [144]

    The Crown submitted that it is usually the similarity of versions between witnesses that will give rise to a concern about concoction or fabrication. That is the opposite of the criticisms advanced by the appellant at the trial and on this appeal.

52. [145]

    The submissions concerning the strength of the evidence of the applicant's character do not acknowledge the experience of the courts that child sexual and physical abuse often occurs in circumstances in which there are unlikely to be independent witnesses. Often such abuse does not become known until a victim feels capable, comfortable and secure in making a disclosure. Where the perpetrator is a member or close friend of the victim's family the preparedness of the victim to disclose is beset by further conflict.

53. [146]

    It is recognised that an absent or delayed complaint in relation to sexual offences does not equate with falsehood and that it is necessary to consider that there may be good reasons why a victim may hesitate or refrain from making a complaint: Criminal Procedure Act 1986 (NSW), s 294(2). Parliament has also recognised (by the insertion of s 293A in the Criminal Procedure Act) that experience shows that:

54. [147]

    It was a matter for the jury to make an assessment of these types of matters to the extent that they were raised.

55. [148]

    None of the matters raised by the applicant in relation to the complaint evidence, the character evidence, or the credibility of the evidence of the mother and the children generally, viewed either individually or collectively, give rise to a conclusion that the jury should have had a reasonable doubt about the applicant's guilt.

56. [149]

    The jury returned verdicts of not guilty on Counts 2 and 4 that were both concerned with the daughter. All nine of the counts involving the son attracted verdicts of guilty.

57. [150]

    In relation to the acquittal on Count 2 (the applicant rubbed oil onto the top half of his daughter’s breasts and bottom for the last time), the written submissions for the applicant stated that the issue joined was as to whether the incident occurred. There was also an issue as to whether the act was indecent. The applicant accepted that the jury may not have been satisfied that the prosecution had proved that the circumstances "clearly [give] rise to a sexual connotation" given that only the top of the breasts were touched and on the first account, the underpants were left on. However, it was submitted that because the issue between the parties was whether the incident occurred, the acquittal also called into question the credit of the daughter. It was also said to be significant because of the reliance on this count in proving the remaining counts, particularly Counts 3, 6-9 and 11-13.

58. [151]

    In relation to the acquittal of the applicant on Count 4 (the "pot plant incident"), the written submissions postulated the possibility that the jury were not satisfied that actual bodily harm was caused, or that the applicant had the relevant intention at the time he grabbed the complainant, beyond reasonable doubt.

59. [152]

    There was no dispute that the applicant had grabbed his daughter’s arm. She described the applicant having an angry response to her spilling soil on the floor. He grabbed her upper left arm "really tight" and she ended up having a big bruise as a result. She said that her mother and her brother saw the bruise. It was "very faint" when they went to the police station six days later. The son said that the applicant was angry and grabbed his daughter by the arm. The mother heard about what happened from her son that day and from her daughter the following day when the mother also saw the bruise. She wrote in an email to the applicant on 2 November 2016 that he has "physically hurt [his daughter] AGAIN on the weekend". The incident was what prompted her to take the children to the police station on 5 November 2016.

60. [153]

    The applicant, on the other hand, agreed in his police interview that he probably did grab his daughter on the arm but he said there was not a lot of force. It was probably to get her attention and it was an insignificant incident. He did not see any bruising on her arm. Lorna Hankin said that she did not see any marks on the daughter when she arrived home after the incident but she did not make any point of inspecting her body. Senior Constable Tunningley did not see any injuries to the daughter six days after the event. He did not specifically remember, but said he "would have" asked to see the arm because that would be his usual practice.

61. [154]

    The judge directed the jury that "actual bodily harm" meant "bodily injury of some kind that is more than trifling or transitory. A bruise is a typical example of an injury that is capable of constituting actual bodily harm."

62. [155]

    On the third day of their deliberations, the jury indicated in a note that they had reached verdicts on 12 counts but asked in relation to Count 4:

63. [156]

    After a response was formulated with the input of counsel, the judge brought the jury into the courtroom at 2.45pm. The judge directed the jury in terms that appear to have been derived from RN Howie QC and PA Johnson SC, Criminal Practice and Procedure NSW, (LexisNexis) at [8 – s59.5]:

64. [157]

    The judge provided the jury with transcript references (they had the entire trial transcript as well as the transcript and recordings of the children’s evidence). There were references for the evidence of the daughter, the mother and Senior Constable Tunningley. The jury were reminded that the defence case was summarised in the written directions. The judge added:

65. [158]

    The jury returned to the jury room after receiving the judge's answer to their question at 2.50pm. By agreement, they were sent a note at the request of the applicant's counsel with transcript references for the relevant evidence of Lorna Hankin. The jury returned and gave the verdicts on all 13 counts at 3.35pm.

66. [159]

    There were two possibilities as the applicant accepts: the jury had a reasonable doubt about whether there was an intentional application of force (as opposed to the applicant simply getting his daughter’s attention) or about whether actual bodily harm was caused. The applicant submitted that in either case this called into question the credibility of the daughter and that was significant because of the reliance on this count in proof of the remaining counts, in particular Counts 1, 5 and 10.

67. [160]

    In relation to Count 2, the applicant's account of rubbing oil onto his daughter was confused. In his police interview, he conveyed that he would not have rubbed oil onto her after she reached puberty by the age of 11. (She turned 11 in early 2016.) He said that in 2016, he would have asked his daughter to apply the oil herself. However, in the cross-examination of the daughter, the applicant's counsel put to her that the applicant rubbed oil onto her during 2016 but it was confined to her back and her arms and that it was she who put oil onto other parts of her body.

68. [161]

    In his evidence in chief, the applicant said that his rubbing of oil onto the children was confined to their backs from when they were aged five or six as they could otherwise do it themselves from that time. In cross-examination, he said that he never rubbed oil onto his daughter, including her back, in 2016. He said that if it had been suggested to the daughter in cross-examination that there were times that he had put oil on her back and arms in 2016, that would be wrong.

69. [162]

    The daughter’s evidence included that the applicant applied oil to her bottom (after she was required to lower her underpants) and the top half of her chest. As the applicant's submissions acknowledged, it was open to the jury to have a reasonable doubt about the necessary sexual connotation aspect of the offence elements. This did not call into question the daughter’s credibility. The jury could have accepted her evidence entirely, rejected the applicant's denial completely, and still returned a verdict of not guilty.

70. [163]

    In relation to Count 4, there was evidence for and against the Crown's contention that the complainant suffered bruising. Without confirmatory evidence, such as by the police officer, a doctor or from photographs, it was open to the jury to have a reasonable doubt that the daughter sustained actual bodily harm. The jury could well have accepted that she sustained a bruise but considered it a reasonable possibility that it was no more than trifling or transitory. A doubt about her credibility generally did not necessarily arise.

71. [164]

    These were logical reasons for the acquittals on Counts 2 and 4. The verdicts of guilty on all of the other counts that depended substantially upon the daughter’s account (Counts 1, 3 and 5) indicate that she must have been accepted as a credible witness in relation to those disputed issues. It is to be noted that the judge gave the jury a direction based upon R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. It must be assumed that the jury paid heed to that direction. It follows that any doubt the jury may have had about the daughter’s honesty in relation to the evidence concerning Counts 2 and 4 was not considered to give rise to doubt about her evidence concerning the other counts.

72. [165]

    The acquittal in respect of Count 2 did not necessitate the jury putting completely aside the Crown's reliance upon tendency reasoning. In accordance with the directions of the trial judge, the jury would have had to simply put the Count 2 incident aside and determine whether the tendency was established by the other evidence.

73. [166]

    In addition to the submissions that broadly affected the entirety of the Crown case, the applicant made submissions directed specifically to each of the counts upon which the jury returned verdicts of guilty. A number of points were made in respect of one or more counts that had been previously made in the more general submissions. (Where they have been reviewed earlier they will not be discussed again.)

74. [167]

    The following points were repeated by the applicant in relation to each count:

75. [168]

    Counts 1, 3 and 5 were dependent upon the daughter’s evidence and it was submitted that there were doubts about her credibility because of the acquittals on Counts 2 and 4.

76. [169]

    Other submissions relating to specific counts are summarised below.

77. [170]

    In addition to reasons given earlier for rejecting the more general submissions of the applicant, upon my own assessment I am satisfied that each of the verdicts of guilty were not unreasonable or not unsupported by the evidence.

78. [171]

    A relevant circumstance in each case is the tendencies that the Crown asserted that the applicant possessed, both the aggressive and violent tendency and the sexual or indecent interest tendency. I am satisfied that it was well open to the jury to be satisfied that each tendency had been proved. It depended upon an overall acceptance of the evidence of the complainants and I am satisfied that it was open to the jury to accept that they were speaking the truth about things they actually saw and experienced.

79. [172]

    The son’s description of the applicant's aggression and violence was in child-like terms that had a ring of truth. For example, he described the concept of "dad talks". (The applicant did not dispute that there was such a concept; he simply denied that they involved aggression or violence.) He said, for example:

80. [173]

    The son’s description of the applicant handling the son’s penis and masturbating his own penis with his son’s hand held onto it also had the ring of truth. There was no evidence suggesting he derived the following descriptions from what his mother told him about the abuse she suffered as a child. In my view, the language used by the child is consistent with him recounting an event that he actually experienced.

81. [174]

    The same could be said for his evidence of the applicant's response when the son got older and started questioning what the applicant was doing by touching the son’s private parts:

82. [175]

    Similarly, the daughter’s account of the applicant's violence generally appeared credible. One example is the following description:

83. [176]

    There are also examples of the complainants saying things that are unlikely to be included, and would be unnecessary to include, in a made up or imagined account. The daughter, for example, gave an account of a fight that occurred between her friends at school in late April 2016, prior to her spending the weekend with the applicant. Another example is the son’s account of the applicant putting a towel down on the carpet to protect it on occasions when oil was applied to him in the applicant's bedroom.

84. [177]

    The applicant submitted in relation to these counts:

85. [178]

    The daughter’s account was that the applicant became angry after rice was spilt on the bedsheets of their motel room in Dubbo. The applicant cornered her and her brother, yelling, screaming and slapping them. Her account in cross-examination was similar to her JIRT interview.

86. [179]

    The son, when asked in his JIRT interview if he had gone to Dubbo with the applicant, recounted an incident in which the applicant cornered the children, yelling and swearing, and grabbed and slapped his son on the arm. He recalled that incident began because his sister wanted to wear shorts, but the applicant wanted her to be “classy”. The applicant became angry when his son came to his sister’s defence. The son’s evidence in cross-examination was consistent with the JIRT interview.

87. [180]

    There was no dispute about rice being spilt in a motel room at Dubbo. The applicant gave evidence of the incident but claimed that he did not become angry and no assaults occurred. He denied becoming angry about his daughter wearing shorts, saying she had not brought shorts because it was winter.

88. [181]

    The Crown Prosecutor submitted to the jury that they would accept that the son’s account was a description of something else that happened at Dubbo. As to what the jury would make of the children having described a different incident, she submitted that the jury would accept that these types of incidents were not an unusual facet of the relationship the children had with their father. Their evidence comprised accounts of particular incidents that stood out for each of them. There was a sound evidentiary foundation for this submission. It was not incumbent upon the jury to doubt the reliability and veracity of the daughter’s account because her brother gave evidence of a different incident (see above at [103]-[105]).

89. [182]

    No submissions were made in the applicant's written or oral submissions about the nature and quality of the daughter’s evidence concerning this specific incident. It was evidence that was clear and reasonably consistent. The applicant's criticisms of her evidence on other subjects have not made good a proposition that the jury could not accept beyond reasonable doubt her account in relation to these assaults.

90. [183]

    The applicant submitted:

91. [184]

    It was open to the jury to accept that Count 3 represented an instance of the applicant acting on his sexual and indecent interest tendency. The applicant submitted that the sexual or indecent tendency was of low probative value but this has been discussed, and rejected, earlier (at [123]-[125]). The fact that the son said nothing specific about occasions when the applicant acted on this tendency in the presence of the daughter did not diminish the probative value of the tendency in relation to her.

92. [185]

    The applicant's submissions sought to impugn the daughter’s evidence in relation to this count by claiming that it was contradicted by the son’s evidence. It is certainly the case that the son gave evidence of two occasions of indecent acts by the applicant in the bedroom (Counts 6-8 and 9). He said that these acts happened in the bathroom "most of the time", but he also said that "sometimes when no one was there, he would just randomly like start playing with it …". The implication is that the applicant would behave in this fashion elsewhere in the house, with no specific location being mentioned. He did not know if the daughter was ever there. The son was never asked about the incident the subject of Count 3.

93. [186]

    In oral submissions, it was contended that there were "large problems" with the credit of the daughter. An example was given of her having described the bruise she said she received from the assault alleged in relation to Count 4 (the pot plant incident). It was contended she described a bruise "the size of a rockmelon". She did not say that. That was a reference to the submission made to the jury by the applicant's counsel that her (that is, counsel's) "recollection is that she indicated something roughly the size of a rockmelon". Counsel derived this from a physical indication given by the daughter in her first JIRT interview when saying about the bruise, "I think it was, like, that big". It is difficult to take an adverse view of the daughter’s credit about this from an appellate perspective. The jury saw what the applicant's counsel saw and it was obviously not something that persuaded the jury to reject the daughter as a truthful witness.

94. [187]

    The applicant also sought to discredit the daughter by reference to her evidence concerning Count 2 for which he was acquitted. That contention has been discussed earlier (at [160]-[165]) and rejected.

95. [188]

    The daughter was rather reticent in speaking about this type of conduct by the applicant. In her first interview, she said that the applicant had been "very rude". Later in that interview, when asked to explain what she meant, she said, "I don't really feel comfortable talking about it". When asked what the applicant did when he "played" with his penis she said, "I don't really want to say".

96. [189]

    It is not easy to reconcile such reticence with defence case theories that were put to the jury. It may be accepted that it would be difficult for a young girl to speak of her father conducting himself in such a lewd manner. This reticence of the daughter was part of an account of the applicant's behaviour that appeared credible. Reticence is the antithesis of an account that was made up or the product of suggestion or imagination. It is more consistent with it arising from an actual memory of conduct of the applicant. Acceptance of the daughter’s evidence to the criminal standard was not unreasonable.

97. [190]

    The applicant submitted:

98. [191]

    Counts 6-8 concerned an incident that occurred when David Walker was showering. The son said that the applicant put a towel down in the bedroom to avoid spilling oil on the carpet. The applicant applied oil to the son, played with the son’s penis, then his own penis, and then put the son’s hand on the applicant’s penis. The incident came to an end when David Walker called out that he was leaving.

99. [192]

    The son was only briefly cross-examined about this incident. One of the applicant's criticisms is that the evidence in cross-examination was inconsistent with the evidence in chief where the son mentioned three offences occurring, not just one. To assess that criticism it is necessary to have regard to the way the cross-examination was conducted:

100. [193]

     The son was aged 12 when giving this evidence and it concerned an event that occurred 2 years earlier. It was one of many similar such events. Whether it could have been asked in cross-examination or in re-examination, the fact is that no-one asked him a question that would have clarified whether there was inconsistency or otherwise, such as, "Did anything else happen on that occasion?" Absent him saying, "nothing else happened", this is incompleteness rather than inconsistency. It is little wonder that counsel for the applicant did not seek to take any advantage of it in what was a very lengthy and detailed closing address to the jury. She risked diminishing her own credibility if she did.

101. [194]

     David Walker gave evidence that he sometimes called out when he was leaving the apartment. In cross-examination, he said that he would go from the shower to the bedroom to get changed. This does not justify criticism of the son’s evidence. In fact, the point that the applicant is seeking to make about this evidence is not clear. The closing address of counsel who appeared for the applicant at trial did not include any criticism of the son’s account based on David Walker's evidence.

102. [195]

     The issue the applicant raised about the event being said by the son to have occurred in June 2016 is minor. No significance was placed on it in trial counsel's closing address. Senior counsel for the applicant mentioned it briefly in the course of her submissions to this Court but immediately added "not a lot turns on that". In my view, nothing turns on it.

103. [196]

     The applicant submitted:

104. [197]

     The applicant was critical of the son’s evidence in relation to this matter because in his first JIRT interview he said that the applicant played with his son’s penis, the applicant masturbated, and the applicant had his son masturbate the applicant. However, in his second interview, the son only spoke of the applicant playing with the son’s penis (and that is what Count 9 alleged).

105. [198]

     The initial disclosure of this incident occurred when the son was asked in his first interview whether anything like he had described occurring in the bathroom ever happened in the bedroom. He referred to two incidents that occurred in the bedroom because someone was using the bathroom to have a shower, David Walker on one occasion and Lorna Hankin on the other. Later, in the course of describing what occurred when David Walker was in the shower, he was asked whether the applicant putting a towel on the bedroom floor occurred on the occasion when Lorna Hankin was in the shower and the son confirmed that it did. Just before that interruption to the son’s narrative, he had been describing how during the David Walker occasion the applicant had placed his son’s hand on the applicant's penis. Following the interruption, the interviewer directed the complainant’s attention back to that aspect of the David Walker occasion:

106. [199]

     In the ensuing passage, there appears to be some confusion of the two incidents. The interviewing officer thought that the son was describing the same thing happening on both occasions:

107. [200]

     It certainly appears that the son was saying that the three types of indecent acts occurred on both occasions. It is unfortunate that the interviewer mingled them together. This perhaps explains the reason for the second interview. After introductory matters, the officer explained to the son that she wanted him to tell her "from start to finish … Just in relation to when Lorna was in the shower, what happened in the bedroom?"

108. [201]

     The son then described the applicant applying oil and then playing with the son’s penis. He then interrupted himself by saying he could not remember if the applicant had clothes on. If the applicant did have clothes on, he still would have demonstrated using his son’s penis: "this is how you do it and pulled back my penis a bit, 'cause I do remember him … actually touching my penis and pulling it back a bit". He was later asked if anything else happened in the bedroom on that occasion and he answered by again just referring to the applicant applying oil and playing with the son’s penis. Further into the interview he was directly asked, "Did [the applicant] have clothes on or off while he was doing this … when Lorna was in the shower" and he repeated that he did not remember.

109. [202]

     The significance of this is limited. It appears the son remembered during the first JIRT interview that the applicant committed three indecent acts on this occasion. However, in the second JIRT interview five months later he could only remember one of them. There is no criticism of inconsistency in the description that the son gave of the act that he did refer to in each interview. In addition, the jury would undoubtedly have taken into account that this type of behaviour of the applicant was said by the son (and his sister) to have occurred a great many times over a period of years. It is unsurprising in such circumstances that the son could not recall between interviews five months apart, when he was aged 11, whether all three forms of indecent acts occurred on a particular occasion (when Lorna Hankin was in the shower) about a year and a half before. A submission made at the hearing of the appeal that this issue was indicative of a reasonable possibility of "reconstruction" cannot be accepted.

110. [203]

     As for the conflicting evidence of Lorna Hankin, the jury heard her being cross-examined by the Crown Prosecutor and they were aware that she was in a relationship with the applicant. Her credibility was very much in issue and that was quintessentially a matter for the jury's evaluation. It is apparent that the jury did not regard her evidence as sufficiently credible to justify a reasonable doubt about the applicant's guilt in respect of Count 9 (or 10). It was open to the jury to take that view.

111. [204]

     At the hearing of the appeal, it was submitted that the son had described the separate incidents that occurred when David Walker and Lorna Hankin were in the shower as the same. It was said that this demonstrated a real possibility of either "reconstruction" or that they were events that did not happen. The criticism is unfair. It is certainly the case that the son’s evidence was that the applicant engaged in the same conduct on numerous occasions and he was able to recall these as two examples. It was the interviewing police officer who put to him in leading questions that these incidents were the same:

112. [205]

     I pause to observe that "reconstruction" being asserted as a reasonable possibility in this case was something that emerged for the first time on the appeal. The Court was taken to GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25, a case in which there was a possibility of reconstruction. There, the complainant had given evidence of an occasion when her father indecently touched her when she was in bed a decade earlier when she was 13 years of age. Her father had scurried from her bedroom when the child's mother entered. Indicating a possibility of reconstruction, the complainant said: "I was asleep before and ended up finding out what happened". "Reconstruction" was not argued by trial counsel in the present case. That is unsurprising as there is nothing in the evidence of either child suggesting that they were unaware of what had occurred to them at the time but only came to a realisation later.

113. [206]

     Another concept introduced on the appeal was "improbability reasoning". For example, in relation to this ground it was contended that it was improbable that the events described by the son would occur in the bedroom while Lorna Hankin was in the shower when the bathroom was nearby. That is a matter that was available for the jury's consideration but it did not mean there was reasonable doubt about guilt.

114. [207]

     The applicant submitted:

115. [208]

     In the written submissions, the applicant briefly summarised the son’s evidence in his first JIRT interview and in the recorded hearing. It was submitted that there were "clearly, again, internal contradictions in [the son’s] evidence". Based upon the summary provided, it appears one contradiction is asserted to be whether the son had marks on his arm for three or four days or he did not think the marks were there when he got back to his mother's home, presumably at the end of the weekend. Another appears to be whether the son was "crying and stuff" when he came back inside the restaurant as opposed to crying when the applicant grabbed his arm but not crying when he returned to the table.

116. [209]

     In relation to the marks on the arm, in his first interview the son spoke generally about what the applicant would do in the course of "dad talks":

117. [210]

     The interviewing officer then directed him to the particular occasion at the restaurant, and he said his arm was red and he had marks from where the applicant's nails went into his arm. He was asked how long the marks stayed on his arm for and he said:

118. [211]

     That interview was about a year after the incident. In his cross-examination almost another year later, the son said that he saw that his arm was red and there were nail marks. He was asked if the marks were there when he got back to his mother's home and he replied, "I don't think so". The apparent lack of confidence in his recollection of this aspect is not surprising.

119. [212]

     Submissions were also made about Lorna Hankin not observing any marks on this or any other occasion and the mother saying she had not seen any marks on the children subsequent to the separation in autumn 2014. Whether they would have been expected to see any marks, absent the children complaining about them, was a matter for the jury to consider.

120. [213]

     In relation to the son crying, he said in the first JIRT interview that when he came back inside the restaurant he was "crying and stuff". His evidence in cross-examination was:

121. [214]

     It is notable that he was not asked if he was crying when he came back inside the restaurant, or when he went to the bathroom, before returning to the table. If the jury perceived an inconsistency between the two accounts, it was entitled to reject it as insignificant. There is no wonder that trial counsel's only point in her closing address about the evidence of crying was that it was contradicted by Ms Hankin's evidence of this occasion being a happy event.

122. [215]

     There was a lot more detail in the son’s account of this incident that was not the subject of any criticism in the applicant's written submissions. On my assessment of it, the son’s account in interview and in cross-examination (to the more limited extent it was dealt with) was detailed, cogent and consistent.

123. [216]

     The impact of the conflicting evidence given by the applicant and Lorna Hankin was entirely a matter for the jury's assessment. (Ms Hankin's evidence has been discussed above (at [106]).) Their evidence did not require the jury to have a reasonable doubt.

124. [217]

     The absence of evidence by the daughter in relation to this alleged assault was not a matter of significance. (She was not asked anything about it.) Where two young siblings have an abusive father, it is unrealistic to expect that one will remember every occasion that the father was physically abusive to the other (see above at [105]). The same can be said about there being no evidence of complaint. There were so many incidents of this type that the children had been habituated to the reality that their father often behaved in this way.

125. [218]

     The applicant submitted:

126. [219]

     The applicant submitted that the son’s evidence in interview was inconsistent with ("clearly contradicted") his evidence in the recorded hearing. In the former, he spoke of three forms of indecent acts but in the latter he only spoke of one (the applicant playing with his son’s penis).

127. [220]

     The evidence the son gave at the recorded hearing was towards the end of the cross-examination on 12 July, it having commenced the previous day. It was not an unduly long cross-examination but it seems apparent, even from the transcript, that it was somewhat tedious. (Counsel even conceded to the jury in her closing address, "I'll fairly concede my questions were not scintillating and there were long pauses" before them.) A 12-year old boy was being asked in 2018 for details of specific events that occurred in 2016. The events were examples of conduct of the applicant that had been recurring frequently for years.

128. [221]

     The son was asked an extremely broad question: what he remembered happened on 30 October 2016 after they had returned from a school fete up until when he and his sister "headed back to your mum's". (According to his JIRT interview, he had been subject to indecent acts by his father, his sister had been assaulted, they had packed their bags and put them in the car, and they had travelled to Central Station where they met their mother.) He replied:

129. [222]

     A short adjournment was taken. Immediately after the resumption, the applicant's counsel misstated what the son had said:

130. [223]

     The witness intermediary interrupted and told the judge that the son had whispered to her that he was a bit confused. That was unsurprising.

131. [224]

     The applicant's counsel asked questions that prompted the judge to intervene and seek clarity. Her Honour addressed the son to try to direct his attention to the subject matter of counsel's questions, namely, what happened after they arrived home and before the applicant went into the shower. Counsel continued, "What happened in that time?" He replied, "I don't remember, to be honest."

132. [225]

     All of the above preceded the son giving an account in which he spoke only of one indecent act being committed by the applicant in the bathroom, not three. Without it having been clarified with the son that he was saying that only one such act occurred during this incident, and in the context of the questioning that preceded this point, I am not prepared to accept that there was any inconsistency or contradiction of significance.

133. [226]

     This is the same point the applicant sought to make in relation to Counts 6 to 8. Again, it is not surprising that trial counsel did not seek to make anything of it in her closing address.

134. [227]

     Another submission of the applicant in relation to these three counts was that the daughter, who was present in the house, did not give any supporting evidence and gave some evidence that was conflicting. The short answer to this is, as the Crown submitted, that the daughter’s focus upon this particular date naturally would have been on what occurred to her. She was not to have known what happened to her brother in the bathroom. Even whether anyone had a shower, or who was in the bathroom, would have been of no moment in her recollection of the events of that afternoon.

135. [228]

     The suggestion that the daughter gave definitive evidence of all that occurred between the times the children and the applicant arrived home and they left to be taken to their mother cannot be accepted. She simply gave evidence of what she recalled, no more and no less. The absence of the daughter recalling events that were not directly relevant to her experience was not "fatal to Counts 11-13" as it was put at the hearing of the appeal. It was not a matter that should have led to, or contributed to, the jury having a reasonable doubt.

136. [229]

     The submission about the son not complaining about the applicant's indecent misconduct until mid-2017 when Family Court custody proceedings were afoot has been discussed elsewhere (at [140]-[146]).

137. [230]

     The submission that there was evidence supporting a proposition that the applicant and the children returned home at 5.00pm on this day raise matters of detail that were hardly decisive of whether the son’s evidence could be accepted beyond reasonable doubt.

138. [231]

     There is no merit in the submission about the evidence of Lorna Hankin that "we had a shower" in the morning. The submission is based on a flawed premise that if the applicant did so, he would not have done so again in the afternoon before dropping the children off to their mother and then going out for a social outing.

Conclusion

1. [232]

   A large part of the defence case put to the jury was that the evidence of the children and their mother was made up. It was made up because they either colluded in doing so or that the mother somehow influenced the children to give false evidence. The proposition could have been supported if there was some direct indication, such as a commonality of complaints made by the two children. The fact that the applicant's case relies more upon asserted inconsistencies and contradictions tends to indicate to the contrary.

2. [233]

   The following observations of Leeming JA in Cabot (a pseudonym) v R (at [59]-[61]) are pertinent:

3. [234]

   In addition, the jury were well-directed on this point by an experienced trial judge. They were told that consistency does not necessarily equate to honesty and reliability, and vice versa. They were directed that while inconsistency can indicate that an account is founded on lies, it can also just flow from the foibles of human memory. In addition, they were warned that consistency may be a product of well-rehearsed and scripted untruths.

4. [235]

   Therefore, to the extent that there was contradiction or variation in the evidence, it did not require there to be a reasonable doubt. Returning verdicts of guilty was well open to the jury.

5. [236]

   Throughout the transcript there are various examples of the children talking about events that have the ring of a child-like but truthful recounting of actual memory of events which in fact happened. Some examples have been quoted previously (see above at [172]-[175]). In my view, a particularly striking example is the evidence of the son disclosing the applicant's sexual misconduct on the car journey home from the Gold Coast on 10 July 2017 (above at [136]-[137]).

6. [237]

   The level of detail in the complainant's evidence concerning each count strongly supports their credibility. It is inconceivable, for example, that the son would have been influenced to tell, or had imagined, a false story about being assaulted during a restaurant meal where Lorna Hankin was present, or about being indecently assaulted in the bedroom when David Walker and Lorna Hankin were using the nearby bathroom.

7. [238]

   The defence case largely rested upon it being accepted the applicant was fastidious about rubbing oil into his children in the absence of any medical or other therapeutic need to do so, particularly when they were at an age when they were well able to do it themselves if it really was necessary, as the applicant admitted. The proposition is not self-evidently credible.

8. [239]

   Upon my assessment of the whole of the evidence, I have no doubt that the complainants gave evidence of events that they truly experienced.

9. [240]

   I have no doubt about the applicant's guilt in respect of each of the counts upon which the jury returned verdicts of guilty. It follows that it was open to the jury to return such verdicts. They are not verdicts that are unreasonable or unsupported by the evidence.

10. [241]

    Ground 3 should be rejected.

11. [242]

    I have previously mentioned that I agree that Grounds 1 and 2 should be rejected. As a result, I agree with the orders proposed by Basten JA.

12. [243]

    N ADAMS J: On 20 December 2018, the applicant was found guilty by a jury of 11 out of 13 counts following a trial in the Sydney District Court before Huggett DCJ. The charges pertained to the physical and sexual abuse of his daughter and his son. He was convicted on three counts of common assault contrary to s 61 of the Crimes Act 1900 (NSW) (counts 1, 5 and 10), three counts of aggravated act of indecency towards a child under the age of 16 years contrary to s 61O(1) of the Crimes Act (counts 3, 7 and 12) and five counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act (counts 6, 8, 9, 11 and 13). Counts 1 and 3 related to the daughter and counts 5-13 related to the son. The applicant was acquitted on counts 2 and 4, which related to the daughter.

13. [244]

    The applicant was sentenced to an aggregate sentence of 4 years and 6 months’ imprisonment with an aggregate non-parole period of 2 years and 3 months to date from 20 December 2018.

14. [245]

    The applicant seeks leave to appeal against his convictions under s 5(1) of the Criminal Appeal Act 1912 (NSW). He does not seek leave to appeal against the sentence imposed on him. On 20 December 2019, he was released on bail pending the hearing of this appeal. That bail was continued after the Court reserved its decision on 11 February 2020. The applicant had served one year of his non-parole period of 2 years and 3 months at the time he was released on bail.

15. [246]

    The applicant relies on three grounds of appeal, which are as follows:

    1. (1)

       Ground 1: The trial miscarried on account of the use of evidence in rebuttal of evidence of good character in the trial by the prosecutor in her closing address to the jury.

    2. (2)

       Ground 2: The trial miscarried on account of the lack of necessary and/or adequate directions as to:

    3. (3)

       Ground 3: The verdicts on counts 1, 3 and 5-13 are unreasonable.

16. [247]

    The evidence at trial is summarised by R A Hulme J in his Honour’s consideration of Ground 3. I have had the advantage of reading his Honour’s draft judgment concerning Ground 3. I too am not persuaded, for the reasons set out by his Honour, that the jury ought to have entertained a reasonable doubt as to the applicant’s guilt. My agreement with his Honour on Ground 3 was reached after an independent examination of the trial evidence.

Grounds 1 and 2

1. [248]

   Both grounds arise from the applicant’s claim to be of good character.

2. [249]

   The applicant called a number of character witnesses at trial. For tactical reasons which are set out below, defence counsel had no objection to the Crown adducing evidence from the mother of the complainants to the effect that the applicant had physically assaulted her on an occasion whilst they were married (“the fridge incident”). It was accepted on behalf of the applicant that this evidence was relevant and admissible to rebut the evidence of good character. The mother’s evidence is central to the consideration of these two grounds.

3. [250]

   Both the daughter and the son gave evidence that, in addition to the counts in the indictment, there were other occasions in which the applicant behaved in the same manner as alleged in the charged acts. There was no objection to this evidence being admitted as “context” evidence. Nor was there any objection to the Crown being permitted to rely upon each of the counts in the indictment in support of each of the other counts in the indictment as tendency evidence under s 97(1) of the Evidence Act 1995 (NSW). There were two tendencies relied upon. The first tendency was that “the accused was a person who had a sexual or indecent interest in his two children, which interest he acted upon”. The second tendency was that the applicant “tended to behave aggressively and/or violently towards one of both of his children on some occasions when he was with them on his own.”

4. [251]

   The mother primarily gave evidence of first complaint by her children of the alleged assaults. She also gave evidence as to the custodial arrangements at the time of the assaults. She and the applicant had separated and the offences were said to have occurred on visits by the children with their father. The mother also gave evidence of observing the applicant lose his temper with the children and grab them, dig his nails in their arms and yell and scream at them, more commonly the daughter, during the marriage. This evidence was admitted as tendency evidence under s 97(1) of the Evidence Act in relation to the tendency to behave aggressively. There was no objection by the applicant to the evidence being admitted on this basis and no complaint made about it in this Court.

5. [252]

   The defence case, as put to the mother in cross-examination, was that the mother had put the children up to making false allegations against their father in the context of acrimonious divorce proceedings. The defence case was that the mother had fabricated the evidence of complaint, was lying when she gave evidence that she had observed violence at the hands of the applicant towards the children and was also lying when she gave evidence that the applicant had been violent towards her.

6. [253]

   The trial commenced on 27 November 2018. There was no pre-trial argument. Before the jury was empanelled the Crown Prosecutor informed the trial judge of the following:

7. [254]

   The trial proceeded until 4 December 2019. The evidence of the son and the daughter had been pre-recorded under Part 29 in Schedule 2 to the Criminal Procedure Act 1986 (NSW). It was played to the jury and a number of documents were tendered.

8. [255]

   On 30 November 2018, there was legal argument about edits to the applicant’s ERISP. The Crown wanted to edit certain parts and the applicant did not want them edited. One of the disputed portions of the ERISP recorded the applicant’s reaction (a denial) when an allegation by the mother contained in her police statement was put to him. This allegation pertained to the accused looking forward to taking “pills” with the daughter and the son in the future. Defence counsel made the following submission about this evidence:

9. [256]

   The mother commenced her evidence on 4 December 2019. During her evidence in chief she was asked about a document she had signed during the Family Court proceedings. It recorded that she had ticked “no” in boxes on the form, indicating that she did not consider the children or herself to be at risk of family violence (from the applicant). That document was before the jury and, significantly for the defence case, included the following:

10. [257]

    The Crown Prosecutor asked the mother about this document in her evidence in chief and she gave the following explanation:

11. [258]

    The mother then confirmed that she had signed this form before her children made the complaints that were the subject of the trial.

12. [259]

    Whilst the mother was still giving her evidence in chief on 4 December 2018, and the jury were not in court, defence counsel queried why the Crown had not, as yet, led evidence of the fridge incident. The transcript records defence counsel stating the following:

13. [260]

    The Crown Prosecutor subsequently asked the mother about the fridge incident that she said occurred when the family was moving from Sydney to the Central Coast. The following answer was given:

14. [261]

    The mother went on to give evidence that the children had observed this incident. The Crown Prosecutor then asked whether that was the only occasion that the accused had been violent towards her to which she replied “[n]o”. The Crown then moved to a different topic.

15. [262]

    The mother was cross-examined about her police statement and, in particular, whether the applicant had been violent towards her when another woman, Nicole Brewer, was residing with them. The following cross-examination then took place:

16. [263]

    The mother was also cross-examined about the Family Court document at length and adhered to the explanation she provided in chief.

17. [264]

    The mother was cross-examined about her feelings towards the applicant at various times throughout the marriage and the ongoing disputes during the divorce proceedings. It was suggested to her that she was not telling the truth about observations that the applicant had been violent to their children. She was also cross-examined about defamation proceedings the applicant had brought against her after she posted an article online on White Ribbon Day about having been the victim of domestic violence. When it was put to her that these allegations of domestic violence were untrue she responded “[e]very word I wrote in that is true”.

18. [265]

    Towards the end of the cross-examination that part of the mother’s police statement concerning the “pills” was put to her as follows:

19. [266]

    The mother was then cross-examined to the effect that she was fabricating her evidence that the applicant was violent to her:

20. [267]

    The evidence that the applicant had tried to strangle the mother emerged for the first time during this cross-examination.

21. [268]

    Finally, it was put to the mother that the fridge incident did not occur:

22. [269]

    The Crown then called David Walker as a witness. He is a friend of the applicant who resided with him in Sydney after the applicant and the mother separated. His evidence was that he saw the complainants when they visited, he never saw any injuries on them, he never saw the applicant put oil on either of them and that the accused rarely drank. In cross-examination he agreed that the children made no complaint to him and that he did not witness any violence against them. He had heard the applicant raise his voice with the children when disciplining them but did not see anything he would regard as “outside normal parenting”. In re-examination he was asked about the applicant raising his voice and the following is recorded in the transcript:

23. [270]

    Lorna Hankin was also called as a witness for the Crown. She was the applicant’s new partner and had been so at the time of the offences. She gave evidence in chief about when the children visited the applicant in Sydney on weekends. She gave evidence, inter alia, that she had “regularly” seen the applicant rub baby oil on the son. This took place in the bathroom. She also gave evidence about count 10. Her evidence was that nobody left the restaurant table during the time that the assault on the son was said to have occurred.

24. [271]

    During her evidence, the Crown Prosecutor sought and was granted leave under s 38 of the Evidence Act to cross-examine Ms Hankin on some of her evidence. She was subsequently cross-examined by the Crown Prosecutor about aspects of her evidence concerning the son’s allegation of being dragged outside at the restaurant and whether she had been cooking for the children on a particular occasion. During that time, it was put to her that she was giving certain evidence to help the applicant, which she denied.

25. [272]

    In cross-examination, Ms Hankin gave evidence about, inter alia, outings with the children and the applicant’s relationship with his children generally. She gave the following answers during her cross-examination:

26. [273]

    The applicant’s ERISP was played in the Crown case. He denied all allegations. The applicant also gave evidence. In addition to denying the allegations, he denied rubbing oil on the son at all during the relevant period. He also denied ever raising his voice or being violent towards the mother.

27. [274]

    It would appear from the transcript, and from closing addresses, that at times during his cross-examination the applicant became somewhat belligerent with the Crown Prosecutor. An example is as follows:

28. [275]

    A number of character witnesses were then called in the defence case.

29. [276]

    The first character witness called by the applicant was Edwin Fenton. He was a friend of the applicant. He was a mortgage broker who had previously been a police officer. He gave evidence of spending time with the applicant and his children both before and after the divorce. The effect of his evidence was that he had never seen anything to suggest the applicant had committed these offences. He also agreed that he was the kind of person who would do his best to tell the truth sitting in a witness box. The cross-examination commenced with these questions:

30. [277]

    It concluded with these questions:

31. [278]

    The next witness was Neal Peres Da Costa. He is a professor at the conservatorium of music. He had close contact with the family. He never observed any tension between the children and their father. He also gave evidence to the effect that the applicant was not “the kind of person” who would engage in physical violence towards his children. As for the allegations of sexual abuse, he was asked whether he thought the applicant was the kind of person who would engage in that sort of behaviour to his own children and answered in the negative. He also agreed that the applicant was the sort of person who would do his best to tell the truth sitting in the witness box. Again, the cross-examination of this witness commenced as follows:

32. [279]

    The cross-examination finished in this way:

33. [280]

    The next character witness was Jonathan Rubinsztein. He is the CEO of a listed technology company and a friend of the applicant. He observed the family together and never saw the applicant hit the children. He saw the applicant put oil on the children but he denied that it made him feel uncomfortable “as if something inappropriate or perhaps sexualised was going on”. He agreed with the applicant’s counsel that the applicant was not the sort of person who would engage in the alleged behaviour with either of his children. He would let the applicant look after his own children. He also agreed that the applicant was the sort of person who would do his best to tell the truth in the witness box.

34. [281]

    The cross-examination of Mr Rubinsztein commenced and concluded with the same questions that were asked of the previous two witnesses.

35. [282]

    After Mr Rubinsztein finished his evidence, defence counsel raised the following issue in the absence of the jury:

36. [283]

    When the jury returned to the courtroom, her Honour directed them as follows:

37. [284]

    The next witness was Nicki Leap. She is a retired adjunct professor of midwifery who had known the applicant for 14 years. She gave evidence of the opportunities she had had to observe the family together, including on a family holiday to France. She replied in the negative to questions as to whether he was the kind of person who would engage in the behaviour alleged towards the mother or the children.

38. [285]

    The next witness was Jocelyn Brewer. She is a friend of the applicant who had resided with the family in 2007 and 2008. She was working and studying at that time. She would babysit the children in lieu of rent. She saw both parents apply oil to the children. When asked to describe the family whilst she was living with them she gave the following evidence.

39. [286]

    Ms Brewer denied that the mother asked her to move out of the house (contrary to the mother’s evidence on this issue) and instead described the mother as being “a little more erratic and difficult to live with”, so she moved out with relatives.

40. [287]

    The defence case then closed. There was no case in reply. The trial judge then sought submissions on the directions to be included in the summing up. This included the tendency, context and character evidence directions. During these submissions the Crown Prosecutor confirmed that the tendency evidence was specific to the applicant’s assaults (both physical and sexual) on the children and the evidence of the mother about violence to her was only relevant to rebut the evidence of good character.

41. [288]

    Evidence had been given by the daughter as to an occasion when she had been the target of violence by the applicant in relation to a fridge as well. The Crown indicated that the mother’s evidence of the fridge incident supported the daughter’s evidence on this issue.

42. [289]

    During submissions about what evidence could rebut the good character evidence, her Honour observed the following:

43. [290]

    The Crown confirmed that she was relying upon the evidence of the mother and the context evidence of the daughter and the son to rebut the good character evidence. Later, the following exchange took place:

44. [291]

    In response to further submissions by the Crown, her Honour stated:

45. [292]

    Her Honour refused to allow the Crown to rely upon the context evidence of the children to rebut good character.

46. [293]

    Her Honour also ruled that the evidence of the applicant discussing his hopes to be with his children when they first took “pills” could not be relied upon to rebut good character.

47. [294]

    Her Honour then asked defence counsel her position on the mother’s evidence of conduct by the applicant towards her. The exchange was as follows:

48. [295]

    The following exchange then occurred:

49. [296]

    The effect of these rulings was that: the only evidence admitted for a tendency purpose was the evidence on the indictment and the evidence of the mother having observed violence towards the children; the context evidence was confined to the evidence of the daughter and the son as to other acts in addition to those charges on the indictment and the only evidence admissible to rebut good character evidence was the evidence of the mother that the applicant had been violent to her.

50. [297]

    In the Crown Prosecutor’s closing address, the jury was told that they should consider whether the applicant was of good character at all times. The Crown Prosecutor referred to the applicant as an “unimpressive witness”, commenting that:

51. [298]

    The Crown Prosecutor then referred to the character evidence at trial:

52. [299]

    The Crown Prosecutor concluded her closing address by stating:

53. [300]

    No complaint was made about any aspect of this closing address.

54. [301]

    In response to this “two faces” submission in the Crown closing address, defence counsel submitted that:

55. [302]

    Defence counsel reminded the jury of the mother’s evidence about the Family Court form and the jury was invited to be “very, very sceptical” about the mother’s evidence on this issue. Defence counsel also sought to explain the applicant’s demeanour under cross-examination in this way:

56. [303]

    The trial judge gave standard directions concerning the role of judge and jury, standard and burden of proof, witnesses, the need not to compromise given the multiple charges, the ERISP and the fact that the applicant gave evidence. Her Honour summarised the applicant’s evidence in some detail and then summarised the evidence of all of the defence character witnesses called. After doing so, her Honour directed the jury about the use of this character evidence:

57. [304]

    Her Honour gave a clear tendency direction in relation to which no complaint has been made. It included the following warning:

58. [305]

    Her Honour specified that the tendency evidence to have a sexual and/or indecent interest in children came only from the son and the daughter. When identifying the evidence that allegedly supported the tendency to behave aggressively or violently towards one or both of his children, her Honour directed the jury that, in addition to the evidence of the son and the daughter, it also included:

59. [306]

    After giving the tendency direction, her Honour turned to direct the jury in relation to the context evidence. Her Honour identified the context evidence in general terms, gave the appropriate direction and then stated this:

60. [307]

    After going through the elements of the offences her Honour then summarised the addresses of counsel in some detail. In summarising the Crown Prosecutor’s address, her Honour stated the following:

61. [308]

    And later:

Character evidence: relevant principles

1. [309]

   As French CJ, Crennan and Kiefel JJ observed in Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 at 455-456 (footnotes omitted):

2. [310]

   For many years the common law principle was that a witness called to give good character evidence could only speak of the accused’s general reputation and not his or her personal opinion: R v Rowton [1865] EngR 53; 169 ER 1497. In NSW, the common law rule was reversed by the enactment of s 413 of the Crimes Act 1900 (NSW) which relevantly provided:

3. [311]

   Character evidence is now dealt with in Part 3.8 of the Evidence Act (ss 109-112). Section 110(1) provides that:

4. [312]

   The fact that an accused person can raise his or her character in a “particular respect” is a change to the common law brought about by the enactment of the Evidence Act.

5. [313]

   A witness called to give evidence of a person’s good character is permitted to give his or her opinion of the accused’s good character, usually by reference to their observations of them during time spent together.

6. [314]

   The Evidence Act does not define what is meant by evidence that an accused person is “a person of good character” for the purpose of Part 3.8. In Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, McHugh J described it in this way at 15 (footnotes omitted):

7. [315]

   Similarly Kirby J (albeit in dissent) described character evidence in this way in Melbourne v The Queen at 105:

8. [316]

   Kirby J also observed in Melbourne v The Queen at 108 that:

9. [317]

   Evidence of an accused person’s “good” character can carry significant weight in a trial, depending on the quality of that evidence and the issues in the trial. As McHugh J observed in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at 155:

10. [318]

    Similarly, Gaudron J observed in TKWJ v The Queen at 135:

11. [319]

    If a person raises their good character then, usually, the jury is directed that they can use that evidence in two discrete ways, as the jury in the applicant’s trial was (see above at [303]). First, they are directed that they can take that evidence into account as making it less likely the accused person committed the charged offence(s). Secondly, if the accused has participated in an ERISP or given evidence at trial, the jury can be directed that they can use the evidence of good character as being relevant to the accused’s credibility. The High Court held in Melbourne v The Queen that it is not mandatory for such a direction to be given in every case in which good character evidence is raised. In NSW the practice is that a character evidence direction will usually be given if the trial judge considers it appropriate to do so in the circumstances of that case.

12. [320]

    As for the basis of such a direction, McHugh J observed the following in Melbourne v The Queen at 20:

13. [321]

    Just as the admission of evidence of good character has a long history, so too does the exclusionary rule that the Crown is not permitted to introduce evidence of a person’s general “bad” character to suggest that he or she has a tendency or propensity to commit crime. Such “bad” character evidence can include criminal convictions as well as other evidence of uncharged criminal or dishonest dealings or pending criminal charges.

14. [322]

    In Melbourne v The Queen, McHugh J observed the following in relation to the admissibility of bad character evidence at 16-17:

15. [323]

    In Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15, the High Court (Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ) was called upon to consider whether the Crown Prosecutor had cross-examined the accused as to his “bad” character contrary to the then provision prohibiting such a course in s 399(e) of the Crimes Act 1958 (Vic). In doing so, the Court observed the following in the context of the exclusionary rule regarding evidence of an accused person’s bad character (at 359-360):

16. [324]

    As the High Court observed in Atwood v The Queen (1960) 102 CLR 353; [1960] HCA 15, despite the exclusionary rule regarding evidence of bad character, the Crown has long been permitted to challenge any assertion by an accused person to be of good character by the introduction of rebuttal evidence.

17. [325]

    The circumstances in which the Crown can seek leave to adduce evidence to rebut evidence of good character in NSW are now governed by ss 110 and 112 of the Evidence Act. Section 110(2)(3) of the Evidence Act provides:

18. [326]

    Section 112 provides that an accused person must not be cross-examined about good character evidence unless the court gives leave. As Payne JA explained in Clegg v R [2017] NSWCCA 125 at [41], the ability of the Crown to adduce rebuttal evidence that a person is not of good character, either generally or in a specific respect, is subject to the applicable rules of limitation or exclusion, not only in s 112 but also ss 135 and 137 of the Evidence Act.

19. [327]

    Prior to the commencement of the Evidence Act, the common law rule was that if the Crown was permitted to lead evidence to rebut evidence of good character, the jury had to be directed as to how they could use this evidence of “bad” character. That is, the jury was instructed, inter alia, that they could not use the bad character evidence to reason that the accused was guilty. I propose to refer to such a direction as an “anti-tendency direction” for ease of reference. In Donnini v The Queen (1972) 128 CLR 114; [1972] HCA 71, the High Court considered again the operation of s 399(e) of the Crimes Act 1958 (Vic). In that context, Barwick CJ observed the following about when such rebuttal evidence is called (at 123):

20. [328]

    His Honour went on to state (at 123):

21. [329]

    In R v Stalder [1981] 2 NSWLR 9, Street CJ (Begg and Yeldham JJ agreeing), observed the following about such rebuttal evidence (at 15 and 18):

22. [330]

    In R v Hamilton (Court of Criminal Appeal (NSW), 6 July 1993, unreported), Hunt CJ at CL noted the following:

23. [331]

    In R v Oliverio (1993) 70 A Crim R 5; (1993) 61 SASR 354, Olsson J referred to the decision of Hunt CJ at CL in Hamilton v R and commented that:

24. [332]

    In BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47, the applicant was a teacher who was alleged to have committed sexual acts against a male pupil aged between 13 and 14 years. The trial took place prior to the enactment of the Evidence Act 1995. The issue on appeal concerned directions regarding the evidence of a witness “W”. W gave evidence that while he was at the school, the applicant had asked him if he "felt like masturbating with him in his room" and said that he kept a yellow towel under his bed to clean himself up afterwards. The complainant in the proceedings had also alleged that the defendant had used an old yellow towel under his bed to wipe up after masturbating.

25. [333]

    The accused put his good character in issue by giving evidence and calling witnesses who gave evidence as to his “excellence as a teacher” (Kirby J at 312). During the trial, defence counsel indicated that W’s evidence was being led without objection on the basis that it only went to the accused’s character, in circumstances where BRS v The Queen had raised his good character.

26. [334]

    As McHugh J noted (at 307), the Crown Prosecutor addressed the jury that W’s evidence was also relied upon by the Crown to corroborate aspects of the complainant’s evidence. The Crown further addressed the jury as follows:

27. [335]

    As this court noted in its judgment, the trial judge then “summed-up strongly in favour of the applicant on the issue of character”: R v BRS, (Court of Criminal Appeal (NSW), unreported, 5 March 1996), Gleeson CJ at 19. The trial judge reminded the jury of the accused’s character and explained to them the way that good character should be used in favour of the applicant. He did not refer to W’s evidence or address the Crown’s use of this evidence during closing addresses.

28. [336]

    The High Court upheld the appeal in BRS v The Queen, although their Honours took different positions regarding the appropriate directions. Toohey J held (at 291) that W’s evidence was not capable of corroborating the evidence of the complainant, nor was it admissible as similar fact evidence or on any ground other than to rebut character. His Honour held that a direction should have been given as to the limited use that the jury could have made of such evidence, despite the fact that this was not requested by defence counsel.

29. [337]

    Similarly, Gaudron J held (at 301) that “in this case there was a clear risk that, unless instructed otherwise, the jury would make improper use of W's evidence, treating it ‘as indicative of a disposition to [sexual impropriety with young boys]’ and using it as evidence of the applicant's guilt.” (footnotes omitted).

30. [338]

    McHugh J was of the view that a lengthy direction as to the limited use of W’s evidence would have been “far more damaging to the applicant than the course which the learned trial judge took”. The directions actually given by the trial judge limited the conflict in the evidence to that between the complainant and the accused. Despite this, his Honour was satisfied that a proper direction would have avoided the risk of the jury using a forbidden chain of reasoning (at 310).

31. [339]

    Similarly, Kirby J held that the risk of propensity reasoning was high. His Honour held that W’s evidence tended to show that the applicant had the “predilection” alleged by the Crown, as demonstrated by the similarities in the conduct reported by the complainant and W. As such, his Honour held that W’s evidence should have been subject to a direction limiting its use to rebutting good character (at 331-332).

32. [340]

    As the above decisions suggest, prior to the enactment of the Evidence Act, if the Crown called evidence to rebut good character evidence, an anti-tendency direction was usually given to the jury. The need to do so was questioned by the Australian Law Reform Commission (“ALRC”) in the italicised portion of its proposals regarding character evidence in Evidence: Interim Report (August 1985) extracted below:

33. [341]

    In Eastman v The Queen (1997) 76 FCR 9; (1997)158 ALR 107, (von Doussa, O'Loughlin and Cooper JJ) the Federal Court considered the same question as that raised in the italicised portion of the ALRC proposal extracted above. That is, should bad character evidence adduced under ss 110(2) and (3) be admissible as tendency evidence? The court did not consider it necessary to determine the question, observing at 57:

34. [342]

    Despite these obiter observations, in R v OGD (No 2) 50 NSWLR 433; [2000] NSWCCA 404, this court held that bad character evidence adduced under s 110(2) or (3) can only be used to negate good character evidence. In that matter the accused was on trial for sexual assault offences on a male under 18 years of age. The Crown was granted leave to introduce evidence of other complainants to rebut the good character evidence raised by the accused. The accused was convicted and appealed to this Court. The grounds of appeal included complaints that the Crown should not have been granted leave to introduce this other evidence, that it amounted to tendency evidence and that the character direction was inadequate. The appeal was dismissed. Simpson J (as her Honour then was), with whom Mason P and Dowd J agreed, was satisfied that the Crown ought to have been able to rebut the evidence of good character and that, under the Evidence Act, previous decisions such as Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50 were no longer relevant to that issue. Her Honour was also satisfied that no error was disclosed in the character direction. Relevantly, the trial judge’s direction on character evidence had included the following warnings:

35. [343]

    In R v El-Kheir [2004] NSWCCA 461, this Court considered the failure of the trial judge to direct the jury as to the use they might make of the evidence of a "lie" told by the accused in relation to social security payments (the “pension card issue”). The accused had raised his good character and the trial judge directed the jury that they could use this evidence to reason that it was “improbable” that the accused would have committed the offence. When dealing with the alleged lie, the jury was directed that “[i]t is a matter for you to decide whether you think that in any relevant sense the accused is a man of good character.”

36. [344]

    Tobias JA held in R v El-Kheir that, citing BRS v The Queen, there was a miscarriage of justice because the jury was not directed what to do with the evidence of the alleged lie. Defence counsel at trial had not requested any re-direction. Tobias JA observed at [92]-[93] (Hoeben J and Smart AJ agreeing) that:

37. [345]

    In R v OGD (No 2) and R v El-Kheir this Court confirmed the need for an anti-tendency direction when evidence of bad character is adduced. On the other hand, in Li, Wing Cheong v R [2010] NSWCCA 40 this Court held that a failure to give an anti-tendency direction will not inevitably lead to the trial miscarrying; it depends on the risk of tendency reasoning in each case. In that matter, the evidence of bad character arose from the accused’s cross-examination in which it was suggested that he was involved in tax evasion. Evidence had been previously led about the defendant’s good character in terms of his reputation as a “family man” and a business man.

38. [346]

    The trial judge’s directions referred to the accused’s good character evidence as well as the evidence that he “engaged in Venezuela in commercial dealings which appear to be intended to avoid obligations under Venezuelan law”. His Honour instructed the jury that “[i]f you accept that an accused person…is a person of prior good character, you are bound by law to consider that fact in relation to the question of whether that good character makes it less likely than otherwise that he or she would engage in criminality such as is alleged here…”. There was no instruction prohibiting the jury from using the bad character evidence to reason that it was more likely that the accused had committed the offence. On appeal to this Court, Howie and Hall JJ held that this did not give rise to a miscarriage of justice and observed the following:

39. [347]

    Evidence adduced by an accused person to establish that he or she is of good character need only be relevant under s 56 to be admissible. Section 110 of the Evidence Act in its terms provides that the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to such evidence. Although, as Kirby J noted in Melbourne v The Queen, an absence of criminal convictions is usually not a sufficient basis for an accused person to assert positively that he or she is a person of “good character”, it is common in NSW for such a direction to be given on not much more than an absence of convictions. Even if a character witness is cross-examined to test the quality of observations made by such a witness about the accused’s character and/or the limited opportunity the witness might have had to arrive at the opinion of his good character given in evidence, a good character direction is usually still given.

40. [348]

    Although the Crown is not permitted to introduce evidence of a person’s “bad” character generally, it may adduce evidence for a tendency purpose under s 97(1) of the Evidence Act. That is, the Crown can adduce evidence of an accused person’s “character, reputation or conduct…or a tendency that a person has or had” to prove that the accused has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way. The admission of tendency evidence under ss 97(1) and 101(1) is subject to the trial judge first being satisfied that the evidence has a high degree of probative value. As the High Court held in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41], this level of satisfaction might be met if the evidence, either alone or together with other evidence, strongly supports proof of a tendency, and that tendency strongly supports the proof of a fact that makes up the offence charged: Vagg v R [2020] NSWCCA 134 per Simpson AJA at [52]. If s 97(1) is satisfied then the additional hurdle to admissibility in s 101(2) must be overcome.

41. [349]

    “Tendency evidence” is defined in the Dictionary to the Evidence Act as meaning “evidence of a kind referred to in section 97 (1) that a party seeks to have adduced for the purpose referred to in that subsection.” That is, it is defined by the purpose for which it is tendered: L'Estrange v R [2011] NSWCCA 89 at [59]; CA v R [2017] NSWCCA 324 at [82].

42. [350]

    Section 95 of the Evidence Act provides that:

43. [351]

    Thus, if evidence is not relied upon by the Crown for a tendency purpose, but there is a risk that the jury might use tendency reasoning in relation to it, an “anti-tendency direction” should usually be given.

44. [352]

    Another common situation where an anti-tendency direction should be given is when the Crown relies upon “relationship evidence”, or, as it is described in sexual assault trials, “context evidence”. This evidence usually raises other uncharged acts of the accused (although they are not to be described in that way before the jury) to give context to evidence by an alleged victim as to why he or she behaved in a particular way at the time of a charged act. This evidence is not being adduced for a tendency purpose and the jury must be directed accordingly. As I observed in D’Agostino v Regina [2019] NSWCCA 259 at [81]:

45. [353]

    A recent decision in which evidence of both context and bad character evidence was adduced by the Crown to rebut evidence of good character is Hamilton (a pseudonym) v R [2020] NSWCCA 80. The accused in that matter stood trial on 10 counts of indecent assault on three of his five children described as the first, third and fifth child. Some context evidence was also given by the fourth child. The defence case was that these four children and their mother had concocted the complaints. On this basis, defence counsel sought that all counts be heard together. The Crown did not rely upon the evidence of the multiple complainants as tendency evidence and no tendency direction was given. Although an anti-tendency direction was given in relation to the context evidence and the bad character evidence, such a direction was not sought or given in relation to the counts on the indictment pertaining to multiple complainants. In relation to the evidence of “bad” character to rebut the evidence of good character the following direction was given, after referring to the evidence led by both the Crown and accused on this issue and giving the good character direction (quoted at [36] of the Court of Criminal Appeal judgment):

46. [354]

    In Hamilton v R, the Crown led limited context evidence of the accused’s violent behaviour. This included an occasion when the accused was convicted in the Local Court of the common assault of his wife and the fifth child. When the accused indicated that he intended to raise his good character at the trial, the Crown was permitted to rely on the context evidence of this violence to rebut the evidence of good character. There was also context evidence of other indecent assaults. The accused was convicted on all counts.

47. [355]

    The nub of the complaint on appeal to this Court was whether the trial judge should have given an anti-tendency direction in relation to the counts on the indictment, even though no such direction had been sought. Macfarlan JA would have allowed the appeal and ordered a re-trial. His Honour was not satisfied that it was possible to form a firm view as to whether the applicant’s trial counsel made a “calculated forensic decision” not to seek the relevant directions (at [54]). Beech-Jones J, on the other hand, with whom Adamson J agreed, dismissed the appeal on the basis that there is no rule that such a direction must be given in every case and there was a tactical explanation for the decision by counsel not to seek it in the present matter. As Beech-Jones J explained, after reviewing the relevant authorities, at [113]:

48. [356]

    Beech-Jones J went on to conclude that a failure to give the anti-tendency direction in that case did not lead the trial to miscarry. A “Murray” direction (R v Murray (1987) 11 NSWLR 12) had been given, the effect of which was that the jury could not convict on each count unless positively satisfied that that child was an honest and accurate witness (at [117]). Although Beech-Jones J accepted that there was “at least a theoretical risk” that the jury may reason that if they accepted the evidence of one child they might reason that another child was also honest and accurate, in the context of the trial overall, his Honour did not regard that risk “as sufficiently material to give rise to any obligation on the part of the trial judge to give the anti-tendency direction or that any failure to do so was a miscarriage of justice” (at [118]). His Honour also considered the conduct of defence counsel at trial to be relevant (at [119]).

49. [357]

    In TKWJ v The Queen, defence counsel at trial had not led evidence of the accused’s good character, despite such evidence being available. He did not do so because of concern that the Crown Prosecutor would seek leave to lead evidence of another complainant (“K”) to rebut the evidence of good character. The complaint made in the High Court was that defence counsel was incompetent for failing to seek an advance ruling from the trial judge as to whether leave would be granted to the Crown to rebut that evidence with the evidence of K. All five judges (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held that the appeal should be dismissed.

50. [358]

    Gaudron J, after making the observation at [35] (extracted above at [318]), and after referring to s 110(2) and (3) of the Evidence Act, went on to observe at [36]:

51. [359]

    McHugh J observed the following at [90] in relation to character evidence generally:

52. [360]

    Gaudron J was not satisfied in TKWJ v The Queen (at [40]-[45]) that the NSW District Court had the power to make such an “advance ruling” regarding character evidence under the Evidence Act. Her Honour reached this conclusion on the basis that an “advance ruling” was not a ruling as to the giving of leave, permission or a direction required by the Evidence Act, was not authorised either by s 189 of that Act, was not authorised under the Criminal Procedure Rules and did not fall within the implied power of the District Court.

53. [361]

    As Payne JA observed in Clegg v R at [43]:

54. [362]

    Section 192A of the Evidence Act provides:

55. [363]

    The usual course when an accused person seeks to raise evidence of good character is for defence counsel to first ascertain from the Crown whether there is anything known to the Crown in relation to which leave would be sought to adduce to rebut the good character evidence. If evidence is available to rebut the good character evidence, a forensic decision then needs to be made as to whether to call the good character evidence (regardless), not call the good character evidence because of the risk of the rebuttal evidence being before the jury, or to seek an advance ruling as to whether the Crown would in fact be granted leave to call the rebuttal evidence.

56. [364]

    An advance ruling on this issue was sought in Clegg v R. The trial judge indicated that she would grant leave to the Crown to adduce evidence to rebut the accused’s claim to be of good character. The judgment shows that following that decision by her Honour, the tactical decision was made by defence counsel not to call the proposed “good” character witnesses. That is a common approach taken in these circumstances.

57. [365]

    When evidence of good character has been raised and not challenged in sexual assault trials, it has been held that the trial might miscarry if the good character evidence is undermined by suggesting, for example, that sexual offences occur in private and thus good character evidence is of little or no weight in such cases. This occurred in R v MWL (2002) 137 A Crim R 282; [2002] VSCA 221, in which an appeal asserting error in the character direction was upheld. The accused had called evidence of good character. In that context the trial judge directed the jury (at [8]):

58. [366]

    The Court of Appeal upheld the appeal on the basis that this part of the summing up limited the good character direction. Buchanan JA (with whom Philips CJ and Phillips JA agreed) held that this direction irrevocably damaged the appellant’s case at [11]:

59. [367]

    A similar situation arose in Bishop v R (2013) 39 VR 642; [2013] VSCA 273. The trial judge had, incorrectly, ruled that the character evidence witnesses could only give evidence of the accused’s reputation, in compliance with the abolished rule in R v Rowton (1865) Le & Ca 520; (1865) 169 ER 1497. A separate issue arose, however, concerning the relevance of good character evidence in sexual assault trials. The trial concerned allegations of sexual assault on the accused’s stepdaughter. Good character evidence was raised and not challenged. After directing the jury as to how character evidence could be used by them the trial judge then observed this:

60. [368]

    The Victorian Court of Appeal allowed the appeal on the basis of this aspect of the summing up. It held that a trial judge cannot limit the good character direction in sexual assault trials by suggesting that it is of lesser or no weight because sexual offences are committed in private and evidence of good character witnesses can only address the accused’s conduct in the presence of others. As Priest JA noted at [28], “…the instructions wrongly suggest that the appellant’s ‘reputation for appropriate dealings with children must have related to his dealings with children in public’, and draw a contrast between the public context and the private context surrounding the allegations of sexual offending in this case.”

61. [369]

    A similar complaint was made in Hogg v R [2019] NSWCCA 323. In that case a school chaplain/Youth Baptist Minister was charged with historical child sexual assault offences. He had adduced evidence of his good character at trial. In the Crown closing address it was suggested that people who are outwardly perceived to be of good character can offend against vulnerable children. It was submitted, “you might think the fact that he has good character doesn’t really determine the matter because it can cut both ways”. White JA (with whom Wright and Wilson JJ agreed) allowed the appeal on the basis that the trial had miscarried because the Crown had impermissibly undermined the effect of the good character evidence (see [120]-[123]).

62. [370]

    The fact that good character can assist offenders to commit such offences was recognised by the Royal Commission into Institutional Responses to Child Sexual Abuse. It was following a recommendation made by the Commission that s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was enacted which provides that:

63. [371]

    Despite the fact that juries would no doubt be aware that persons accused of child sexual assault offences are often of previously good character given, for example, the publicity surrounding clerical child sexual abuse, attention cannot be drawn to this fact as to do so would undermine the good character direction.

64. [372]

    With these principles in mind, I turn to consider the first two grounds of appeal.

Ground 1: The trial miscarried on account of the use of evidence in rebuttal of evidence of good character in the trial by the prosecutor in her closing address to the jury

1. [373]

   Turning first to Ground 1, the applicant made eight separate complaints about the closing address in written submissions. The applicant contended that the Crown closing: went beyond what the trial judge permitted the Crown Prosecutor to say regarding the evidence of the complainants' mother “mischaracterised and restricted” the good character evidence when it was suggested that the good character witnesses were not in a position to provide the jury with a complete understanding of his character; “mischaracterised and restricted” the good character evidence when it drew upon the complainants' evidence to rebut good character; overlooked the evidence that some witnesses had stayed or lived with the applicant and the complainants; used tendency and context evidence to rebut good character; drew upon the mother’s evidence as tendency evidence; included the irrelevant suggestion that the good character witnesses had not seen or heard the evidence of the complainants or the mother in Court; and failed to include the qualifier "for the first time", when stating that "good people commit criminal offences”.

2. [374]

   Some of these complaints can be dealt with briefly. I would not uphold the complaint about the omission of the words "for the first time”. As the Crown submitted, her Honour included these words when giving the standard character direction.

3. [375]

   A number of criticisms were levelled at the Crown Prosecutor at trial for “undermining” the applicant’s “good character”. There is nothing impermissible about challenging the basis for a witness’s good character evidence. As for the complaint that the Crown Prosecutor had cross-examined the character witnesses about not having seen the applicant give evidence, no complaint was made about this by defence counsel. In fact, defence counsel accepted that it was an appropriate form of cross-examination; she simply sought a direction explaining why the witnesses had not been present in court. As soon as this request was made, her Honour complied and gave the direction I have extracted above at [283]. I am satisfied that that direction cured any perceived unfairness on this discrete issue.

4. [376]

   As for the questions themselves, there is nothing improper in suggesting to a character witness that an accused person might have acted in a certain way when the character witness was not present. Nor is it improper to point out to the jury in a closing address that those witnesses did not see the accused give his evidence. It is to be inferred from the transcript and the closing address of defence counsel that, consistent with the evidence of the son, the daughter and the mother, and contrary to the evidence of the character witnesses, the applicant was quick to anger in his cross-examination. It was permissible for the Crown Prosecutor to point this out.

5. [377]

   Similarly, when the Crown Prosecutor suggested to the jury that the character witnesses were not in a position to provide the jury with a complete understanding of his character, this went no further than challenging the picture of the applicant painted by those character witnesses when compared with the evidence of the mother. In circumstances where the Crown Prosecutor challenged the character witnesses in cross-examination on this issue, it was open to her to address the jury in a similar fashion.

6. [378]

   Nor do I accept the applicant’s submission that the Crown sought to undermine the good character direction in the same manner as occurred in R v Bishop. The trial judge had limited the character evidence in that matter to evidence of reputation. It was in that context that the jury in R v Bishop was directed that the accused’s “reputation” for dealing appropriately with children could only have come from observations of him dealing publicly with children. What the Crown Prosecutor suggested to the jury in the present matter was that the character witnesses had only had limited opportunity to observe the applicant with his children and that he may have been on his best behaviour when in public, as opposed to when he was in private. In any event, in R v Bishop the character evidence was accepted whereas in the applicant’s trial it was disputed.

7. [379]

   The remaining complaints about the Crown closing address were that the Crown Prosecutor went beyond what the trial judge permitted her to say regarding the mother’s evidence, drew upon the daughter’s and the son’s evidence to rebut good character, used tendency and context evidence to rebut good character and drew upon the mother's evidence as tendency evidence. These four complaints all arise from the final part of the closing address when it was suggested to the jury that the applicant had “two faces”. I have extracted this portion of the closing above at [299].

8. [380]

   The “two faces” the Crown Prosecutor referred to were, on the one hand, the face the applicant presented to the world (the good character evidence) and on the other hand, the one he showed at home to “the son, the daughter and the mother”. With the benefit of hindsight, it can be seen that by referring to the evidence of all three of these witnesses collectively in that one sentence four separate bodies of evidence were conflated and there was a possibility that this one sentence of the closing address could be construed as meaning that all of that evidence could rebut the evidence of good character. Those four areas were the evidence of the charged offences (the evidence of the daughter and the son), the tendency evidence (the evidence of the daughter and the son and the mother’s evidence of the tendency to violence to the children), the context evidence (the evidence of the daughter and the son) and the mother’s evidence rebutting character. The Crown Prosecutor immediately went on to refer to the evidence of the daughter and the son in support of the charges.

9. [381]

   In this court, the Crown submitted that the “two faces" analogy was simply a way of emphasising that the case turned on the truthfulness of the complainants’ evidence at the end of the closing address. The Crown had earlier suggested that when they came to consider character they should consider the evidence of the mother that he was someone that over the course of their marriage was physically violent towards her. That is, the evidence to rebut character was confined to the mother’s evidence of him having been violent to her during the marriage.

10. [382]

    The fact that the Crown had previously limited the evidence to rebut good character to the mother’s evidence of violence to her suggests that she did not intend to suggest that the evidence of the son and the daughter could also be relied upon to rebut the good character evidence. If it had been apparent at the time that she was doing so, no doubt objection would have been taken by defence counsel and/or or the trial judge would have corrected it, having already ruled that such rebuttal evidence was confined to the mother’s evidence of violence to her.

11. [383]

    Not only was there no complaint made about this aspect of the Crown closing at trial, as the extract from the defence closing address at [301] above records, defence counsel responded to it directly. As the High Court held in TKWJ v The Queen, an appellate court will not ordinarily conclude that an accused’s trial has been unfair when defence counsel makes a rational tactical decision to avoid a forensic risk. It is possible that no objection was made to this aspect of the closing because it was not considered at the time as being objectionable or, even if it was, a decision was made that correcting it might lead to a re-direction which drew more attention to the mother’s “bad” character evidence. Defence counsel had already agreed with the trial judge that it was preferable that the details of the mother’s evidence in that regard not be highlighted.

12. [384]

    I would not uphold Ground 1.

Ground 2: The trial miscarried on account of the lack of necessary and/or adequate directions as to: (a) the prohibited use(s) of the evidence called in rebuttal of good character; and/or (b) the nature and extent of the evidence of good character called in the trial

1. [385]

   I shall consider Ground 2(b) first. It was contended under this sub ground that the jury directions on the nature and extent of the good character evidence were inadequate. As the High Court held in Melbourne v The Queen, there is no requirement to give a good character direction in every trial when requested to do so, let alone to do so in particular terms. Despite this, her Honour gave a “standard” character direction explaining the two ways in which the jury could have regard to the applicant’s good character.

2. [386]

   Complaint was also made under Ground 2(b) that when her Honour summarised the character evidence she did not expressly refer to the good character evidence given by the Crown witnesses, Mr Walker and Ms Hankin. Nor, it was contended, did her Honour point out to the jury that Mr Walker and Ms Hankin, as well as Nicki Leap, had had the opportunity to observe the applicant in his home environment with the children, as each of them had resided with him.

3. [387]

   The trial judge summarised the evidence of the applicant and then summarised the evidence of all of the defence witnesses: Edwin Fenton, Neal Peres Da Costa, Jonathan Rubinsztein, Nicki Leap and Jocelyn Brewer. It was after summarising this evidence that her Honour gave the character direction. There is no requirement for a trial judge to refer to or summarise the evidence of every witness in a summing up. The trial was not a particularly long one and the jury had the benefit of the closing addresses. It could not be the case that the jury was unaware of the fact that these witnesses had resided with the applicant at various times. No request was made by defence counsel at trial for her Honour to include the evidence of Mr Walker and Mr Hankin in the summary of the character witnesses. Nor was any request made for any further summary or explanation of the character evidence at all.

4. [388]

   I am not satisfied that the trial miscarried because her Honour did not include the evidence of these two Crown witnesses in the summary of the good character evidence nor because of any lack of elaboration of the “nature and extent” of this character evidence.

5. [389]

   As for Ground 2(a), a number of separate complaints were made concerning the character direction given by the trial judge. These complaints were directed at the lack of any anti-tendency direction, the failure to specify which parts of the mother’s evidence could be used as rebuttal evidence, the direction that the Crown did not challenge the character witnesses and the fact that the trial judge repeated portions of the Crown's closing address in respect of the applicant behaving differently in public and in private.

6. [390]

   This last complaint can be dealt with briefly. I have already held under Ground 1 that there was no error disclosed in the manner in which the Crown addressed the jury on the issue of the applicant’s character. It follows that I am also satisfied that there was no error in the trial judge repeating that portion of the Crown closing in her Honour’s summing up.

7. [391]

   As for the complaint that the trial judge failed to specify which particular parts of the mother’s evidence could be used as rebuttal evidence, defence counsel had requested that her Honour take this approach (see above at [294]-[295]). It is not surprising that defence counsel was content for her Honour not to dwell in her summing up on the details of the “bad” character adduced in cross-examination.

8. [392]

   The nub of Ground 2(a) is the complaint that the trial miscarried because, instead of directing the jury that the good character evidence was in dispute (which, it was contended, would have required, inter alia, an anti-tendency direction such as was suggested in BRS v The Queen), her Honour directed the jury that the character evidence was not in dispute.

9. [393]

   The applicant’s “good character” was a live issue at trial. The mother’s evidence of the applicant’s violence to her was only relevant and admissible to rebut good character evidence. It was not admissible on any other basis. The first question put to a number of the character witnesses in cross-examination sought to challenge their evidence by suggesting that the witnesses had not seen the applicant when he was angry and aggressive (as he was in Court). As the extracts of the Crown closing address above indicate, the Crown clearly invited the jury to consider whether the accused was of good character. Nowhere in the Crown closing address was there any suggestion that the Crown accepted that the applicant was a person of good character.

10. [394]

    The Crown had only led evidence (by consent) of one discrete incident of violence by the applicant to the mother (the fridge incident), although the mother’s answers regarding the Family Court document suggested it was not an isolated event. Most of the evidence of the applicant’s “bad” character was adduced by defence counsel in cross-examination for a forensic purpose other than suggesting he was of bad character. The defence case was that the mother was lying and her allegations were fabricated. She was cross-examined about these false claims of domestic violence in an attempt to attack her credibility. Thus, there would only be this “bad” character evidence before the jury (that the mother had been the victim of domestic violence at the hands of the applicant) if the jury rejected the defence case that the mother was a fabricator. As extracts of the transcript show, defence counsel accepted that this was a potential prejudice that the applicant was prepared to accept as part of its case.

11. [395]

    It is to be inferred that the applicant anticipated that the mother’s credibility would be adversely affected when she was confronted with the prior inconsistent statements in the Family Court document. As events unfolded, the mother was able to give a cogent explanation for filling out the Family Court document in the manner she did. Furthermore, the attack on the mother’s credibility in cross-examination resulted in the following additional evidence being before the jury.

12. [396]

    First, defence counsel introduced the evidence about the applicant looking forward to taking “pills” with his children. The Crown did not propose to lead that evidence. It would not have been admissible in the Crown case. It was adduced so that the jury could see the applicant’s demeanour when the allegation was put to him in his ERISP. It was conduct denied by the applicant.

13. [397]

    Secondly, defence counsel introduced the evidence from the mother in cross-examination that the applicant had commenced defamation proceedings against her after she had posted an article on Facebook alleging that she had been the victim of domestic violence at the hands of her former husband. This material was not otherwise admissible. The mother explained that she had published the article on White Ribbon day, had not named the applicant by name, and that it was all completely true. This was cogent evidence that the applicant’s alleged violence towards the mother was not isolated.

14. [398]

    Thirdly, when it was put to the mother in cross-examination that the applicant had not assaulted her during the fridge incident, she responded that he had also inflicted additional violence on her when he attempted to strangle her, twice, once whilst pregnant.

15. [399]

    As a result of this additional “bad” character evidence adduced in cross-examination being before the jury, the trial judge was left to determine how to direct the jury in a manner least likely to prejudice the applicant’s trial. Her Honour did not permit the evidence of the pills to be used to rebut good character. Rather, her Honour limited the evidence to rebut good character to violence only and, at the request of defence counsel, did not go through and repeat the incidents of violence that had emerged in the evidence, confining the direction to one of generality to avoid highlighting the prejudicial nature of the material.

16. [400]

    When her Honour summed up the trial for the jury, she was required to provide a number of directions as to how certain evidence could be used in deliberations. Her Honour directed the jury that they could only use certain evidence as tendency evidence and only if preconditions were met. She instructed the jury that they could only use certain evidence as context evidence, for that specified purpose and not for other purposes. An anti-tendency direction was given in relation to the context evidence. The jury was told to consider each count separately. Despite all of these careful directions, in relation to which no complaint is made, it was contended that the absence of a specific direction as to how the mother’s evidence of violence to her by the applicant could be used led the trial to miscarry.

17. [401]

    In one sense, the trial judge’s suggestion to the jury that the Crown did not dispute the evidence of the good character witnesses benefited the applicant. Given the challenge to the character evidence, the jury would usually have been directed that they could only have regard to the applicant’s good character (both on issues of credibility and the likelihood of having committed the offences) if they were first satisfied that he was in fact of good character. In the present case the jury was not directed in this way. That is, the good character direction was not said to be conditional on any finding of good character. The jury was told they must have regard to it. This benefited the applicant.

18. [402]

    The applicant contended in this Court that the trial miscarried because it is mandatory in all cases where good character rebuttal evidence is adduced for the jury to be given an anti-tendency direction. Examples of this direction in the context of rebuttal evidence can be found in the portions of Hamilton v R and Re OGD (No 2) that I have extracted above. It is also to be found in the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales.

19. [403]

    Consistent with the authorities I have considered above, an “anti-tendency” direction would usually be required in relation to evidence of “bad character” adduced by the Crown to rebut evidence of an accused’s good character. But contrary to the submissions of senior counsel on this appeal, I am not satisfied that a failure to do so inevitably leads to a miscarriage of justice for the purposes of applying Rule 4 or satisfying the third limb of s 6(1) of the Criminal Appeal Act. It did not do so in Li, Wing Cheong v R [2010] NSWCCA 40, for example. I do not consider BRS v The Queen to be authority for such a proposition. Each trial is to be determined on its own facts.

20. [404]

    One of the two tendencies the Crown relied upon at trial was a tendency to be violent to his children. The mother’s evidence of being the victim of domestic violence when the applicant was on trial for, inter alia, violence to his children, means that there was some risk of the jury using tendency reasoning in relation to the mother’s evidence on this issue. But that risk must be considered in the context of the directions provided by the trial judge. As stated above, the jury was told that it was only the evidence of the counts on the indictment and the mother’s evidence of violence to the children which could be used as tendency evidence. As the Crown submitted in this Court, that direction in its terms excluded the rebuttal evidence provided by the mother from being considered as tendency

21. [405]

    A trial judge is obliged to ensure a trial’s fairness even if defence counsel does not seek a particular direction: Pemble v The Queen (1971) 124 CLR 107 at 117-118; [1971] HCA 20; James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [24], [38]. The summing up reflects that her Honour sought to ensure the trial’s fairness in circumstances where a number of complex directions were required.

22. [406]

    Criminal trials are adversarial in nature. An accused person is bound by the tactical decisions made by his or her counsel. One of the tactical decisions made in this trial was to introduce additional evidence of the applicant’s “bad” character during cross-examination of the mother in order to establish that she was a fabricator. It may well have been the case that defence counsel considered that a further direction as to how the jury should use that “bad” character evidence would only draw attention to the nature and extent of it. It is not difficult to see why no re-direction was sought in those circumstances. It was not contended on this appeal that the trial miscarried because of the incompetence of counsel, as occurred in TKWJ v The Queen.

23. [407]

    The Crown relied upon Rule 4 of the Criminal Appeal Rules in relation to this ground. Rule 4 is in these terms:

24. [408]

    In ARS v R [2011] NSWCCA 266, Bathurst CJ summarised some of the relevant decisions of this Court regarding the effect of Rule 4 and observed the following at [148]:

25. [409]

    In JV v R [2017] NSWCCA 49 this Court (Leeming JA, Fagan J and N Adams J) considered an appeal in which the sole ground of appeal was that the trial miscarried as a result of the failure of the applicant to lead evidence of good character. As I observed in that decision at [140]:

26. [410]

    Similarly, having regard to the conduct of the applicant’s defence at trial, I am not satisfied that the applicant has lost either a real chance or a chance fairly open of being acquitted at trial in not seeking further directions from the trial judge as to the proper use of the evidence of “bad” character.

27. [411]

    Accordingly, although I would grant leave to argue Ground 2, I would dismiss that ground and the appeal.