Neil v R

1. [1]

   ADAMSON JA: John Neil (the applicant) seeks leave to appeal against his conviction of a single charge of sexual intercourse with a child under the age of 10 years without consent contrary to s 66A of the Crimes Act 1900 (NSW). The conviction followed a trial by jury over which Hudson DCJ (the trial judge) presided. The trial commenced on 20 August 2024 and concluded, with the return of the guilty verdict, on 28 August 2024. The indictment alleged that the offence was committed between 1 January 1989 and 31 December 1990, when GS (the complainant) was 8 or 9 years old.

2. [2]

   On 15 November 2024, the trial judge imposed a sentence of 5 years and 3 months imprisonment, with a non-parole period of 3 years, commencing 28 August 2024. The applicant will be first eligible for parole on 27 August 2027. There is no application for leave to appeal against the sentence.

3. [3]

   The applicant’s sole ground of appeal is that the trial miscarried because the trial judge failed to direct the jury as to the relevance of the applicant’s good character in assessing his credit as a witness.

4. [4]

   The applicant requires leave to appeal as the ground of appeal does not involve a question of law alone: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). He also requires leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (r 4.15) as no objection was taken on his behalf at trial to the character direction which was given to the jury by the trial judge.

5. [5]

   In order to put the good character direction into context, I propose to summarise the prosecution case, which was based largely on the evidence of the complainant, evidence corroborating her account and tendency evidence given by EH, and the defence case, which was based on the applicant’s sworn evidence, denying the offence.

The trial

1. [6]

   The complainant’s parents were friendly with the applicant and his wife. They socialised and did business with each other (through Amway) and with another family (the Hills). Their children attended the same school and were friends.

2. [7]

   At the time of the alleged offence, the three families had gathered at the Hill residence, a two-storied dwelling in a town in the Southern Highlands, south west of Sydney. In the evening, the children were put to bed upstairs while the parents continued to socialise downstairs. This was not an unusual occurrence, as was confirmed by the complainant, her parents, Mr Hill and RIN, one of the applicant’s sons.

3. [8]

   The complainant and JH, the Hills’ son, were allocated a bed each in one of the bedrooms. The applicant’s two sons, RON and RIN, slept in bedding on the floor between the two beds. The complainant’s sister, SK shared another upstairs bedroom with KH, one of the Hills’ daughters, who was about her age.

4. [9]

   At some stage in the evening, the applicant came upstairs to check on his two sons, who were both asleep at the time. After checking on his sons he approached the complainant’s bed. She closed her eyes, pretending to be asleep because she did not want to get into trouble for still being awake. He pulled down the covers and her underpants and inserted his finger into her vagina repeatedly. She gave evidence that it hurt and that she froze and felt scared. She tried to make the applicant stop by turning to face the wall but he pulled her back and continued to insert his finger into her vagina. He eventually stopped. While the applicant was upstairs, neither he nor the complainant said a word to each other.

5. [10]

   The complainant’s evidence was that she first complained to her sister, SK, months but less than a year after the alleged offending occurred. SK also gave evidence of the complainant telling her “[not] long after” and “weeks after” it happened, when SK could still remember the circumstances of the evening.

6. [11]

   In 2000, in the early stages of her relationship with NS, who later became her husband, the complainant disclosed that she had been sexually assaulted as a child. NS gave evidence that, “over the years”, as their relationship developed, the complainant disclosed that the applicant had digitally penetrated her vagina upstairs in a bedroom at the Hills residence.

7. [12]

   The complainant gave evidence that she told her mother in 2020, having told her several years prior. Her mother gave evidence of the complaint that was made in 2020 but had no recollection of having been told earlier.

8. [13]

   EH gave evidence that in about 1990, when she was nine years old and in Grade 3 at the local primary school, the applicant was her teacher. During a physical education class, when she was wearing her “school dress”, she was trying to get across the monkey bars and called out to him for help when she felt herself “starting to slip”. Her evidence was:

9. [14]

   She clarified this evidence by saying:

10. [15]

    The applicant’s hand which was over her vagina was an “open hand”, which he “left … there. Just had it there the whole time”. She “could feel pressure there as he was carrying [her] across the monkey bars”. EH said that the conduct made her feel “very uncomfortable”. When asked how she reacted, EH said:

11. [16]

    EH said that she told a friend, CT, what had happened, and also her mother, when her mother returned from Canberra. Shortly after the monkey bar incident, EH was in the school library when the applicant asked her to read the book which she had chosen aloud to him. EH said that as she approached where he was sitting he “reached out his left hand and put it on [her] backside and cupped [her] buttock and asked [her] to come closer so that [she] could read the story to him”, although she was already “reasonably close”. She recalled that this touching lasted for 10-15 seconds and was over her clothing. EH said that she had given evidence in the “Picton Courthouse” about what had happened.

12. [17]

    The applicant denied the allegations and denied ever going upstairs at the Hill residence or indeed knowing that his children had ever slept upstairs at that residence. He also denied carrying EH in the manner described and said that he carried her with a hand on each of her hips. He denied touching her buttock to get her to come closer in the school library.

13. [18]

    The applicant gave evidence that EH’s complaint was the subject of a criminal charge in 1990, he pleaded not guilty and was not convicted of that charge. The following further exchange ensued:

14. [19]

    While the applicant was still under cross-examination, the Crown sought to revisit the effect of the negative answer to the question which the applicant had been asked in examination in chief (highlighted in bold in the passage extracted above). The Crown submitted that there was a further allegation of a sexual nature (in addition to those made by the complainant and EH) which had been made had been made before the applicant was suspended from teaching. The Crown submitted that, in those circumstances, the exchange was misleading, although the applicant’s answer was literally true.

15. [20]

    The Crown sought that, either the applicant’s trial counsel withdraw the highlighted question and answer or that the Crown be given leave to cross-examine the applicant about character pursuant to s 112 of the Evidence Act 1995 (NSW). The primary judge refused the Crown’s application and gave an ex tempore judgment. In the course of the reasons, his Honour recorded his then understanding of the Crown’s position on the applicant’s character:

16. [21]

    The applicant’s wife gave evidence that they had visited the Hill residence on social occasions but that she did not recall ever having gone upstairs herself or any of her children having been put to bed there.

17. [22]

    The applicant’s trial counsel elicited evidence from Detective Egan, a prosecution witness, that the applicant had no previous criminal convictions. He called four witnesses as to his good character: Margaret Pomfret (who knew the applicant at the time of the alleged offending); Andrew Madigan (who met the applicant in 1996 or 1997); Greta Martin (who met the applicant, who was then her school supervisor in her role as a classroom teacher in 2007 or 2008); and Robin Kramar (who met the applicant in about 2017).

18. [23]

    Ms Pomfret described the applicant as “an upstanding, kind, generous, good friend”. She “would never say he was dishonest in any form or fashion”. She said that the allegations (made by the complainant and by EH) did not affect her assessment of the applicant’s character “one iota”.

19. [24]

    Mr Madigan said that he would not “question [the applicant’s] integrity at all in any way”. He described the applicant as being “very, very honest, to the point of probably being too honest and blunt sometimes with … the way he comes across”. When asked about whether the allegations (made by the complainant and EH) had had any effect on his assessment of the applicant, Mr Madigan responded:

20. [25]

    Ms Martin said that she found the applicant to be “highly professional”. She never found him to be “anything but” honest and “would not have questioned his honesty”. She had never seen him behave inappropriately with school aged children. Learning of the allegations made by the complainant and EH did not affect her assessment of the applicant’s character.

21. [26]

    Dr Kramar played bridge and cards with the applicant socially and was his bridge partner. Occasionally they went away for the weekend together, as part of a card-playing group. She “would not doubt his honesty”. When asked whether the fact of the allegations made against the applicant by the complainant and EH had affected her assessment of the applicant, Dr Kramar answered:

22. [27]

    Dr Kramar also volunteered that she would have no hesitation in having the applicant supervise her own grandchildren (her grand-daughters aged 12 and 2 and her grandson aged 9).

23. [28]

    There was only very limited cross-examination of Ms Pomfret and no cross-examination of Mr Madigan, Ms Martin or Dr Kramar.

24. [29]

    Before the Crown closing began, the trial judge conferred with counsel about the directions which would be required in the summing up. The character direction was referred to. The trial judge said:

25. [30]

    After summarising the evidence in the Crown case, the prosecutor turned to the applicant’s evidence. He prefaced his submissions about the applicant’s evidence as follows:

26. [31]

    After highlighting particular aspects of the applicant’s evidence which the prosecutor said were “untruthful”, the prosecutor addressed the applicant’s evidence about whether there were stairs in the Hill residence. In concluding that part of his submissions, he said:

27. [32]

    Apart from the prosecutor clarifying one matter which is not presently material, that concluded the Crown closing.

28. [33]

    At the outset of the defence closing, the applicant’s trial counsel identified five reasons why the jury would not accept the complainant’s evidence: first, it was “implausible”; second, it was inconsistent; third, the evidence of complaint to her sister was not supported by the complainant’s parents’ evidence; fourth, there was no evidence of the complainant expressing reluctance or discomfort about being in the presence of the applicant after the alleged offending; and, fifth, the applicant’s “otherwise good character”.

29. [34]

    The applicant’s trial counsel made the following submissions about the applicant’s character:

30. [35]

    The trial judge gave the standard Liberato direction (after Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J); [1985] HCA 66; considered in De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48) as follows:

31. [36]

    In summarising the Crown closing, the trial judge said:

32. [37]

    The trial judge summarised the defence case and listed the five matters relied upon, including that the applicant “is otherwise a person of good character”.

33. [38]

    When summarising the evidence, the trial judge referred to Detective Egan’s evidence that the applicant had no prior convictions. His Honour then gave a detailed summary of the evidence of each of the character witnesses called by the applicant, with express reference to their evidence of the applicant’s honesty and integrity and that the allegations did not affect their assessment of the applicant’s character.

34. [39]

    At the conclusion of this summary of the evidence of the applicant’s good character, the transcript of which amounted to two and a half pages in the summing up, his Honour said:

35. [40]

    Neither counsel raised any complaint about the content or adequacy of that part of the summing up.

36. [41]

    At 12.10pm on Tuesday, 27 August 2024, the jury retired to consider its verdict. After 2.00pm that afternoon the jury asked for the trial judge to repeat his direction regarding forensic disadvantage, following which the jury resumed its deliberations, which continued until about 4pm.

37. [42]

    In the course of its deliberations on the morning of Wednesday, 28 August 2024, the jury sent a note to the trial judge as follows:

38. [43]

    There was doubt about whether the word “[d]efine” in the last line was actually “define”. Another suggestion was that the word was “defence”.

39. [44]

    After consulting with counsel about an appropriate response (during which the consensus appeared to be that the word was “define” and that the jury should be asked to clarify that part of the note), the jury was recalled and the trial judge dealt with the request for an explanation of the three types of evidence. Of the somewhat cryptic line highlighted in the extract above, the trial judge said:

40. [45]

    The jury retired again to consider its verdict at 10.50am. No note concerning the last line of the previous note was forthcoming. Later that morning, the jury sent a note that it had reached its verdict. At 12.11pm, the jury returned its verdict of guilty.

The relevant principles

1. [46]

   The applicant challenges the verdict on the ground that there has been a miscarriage of justice because the trial judge omitted to direct the jury that the evidence of the good character of the accused could be used to assess his credibility. This requires the applicant to establish that there has been a departure from the requirements of a fair trial according to law: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [14].

2. [47]

   Because the applicant submits that there has been an error or irregularity in his trial, he must establish, first, that there is an error or irregularity; and, second, that the error or irregularity was material. The second matter requires the applicant to establish that the error or irregularity could realistically have affected the jury’s reasoning towards verdict in that actual trial: and thus, amounted to a miscarriage of justice: Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20 (Brawn) at [3], [10] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). As the Court said in Brawn at [11]:

3. [48]

   In Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 (Hargraves), the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) articulated the relevant principle to determine whether there has been a miscarriage of justice at [46], as follows:

4. [49]

   In Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 (Huxley), the High Court, by majority (Gordon, Steward and Gleeson JJ) held, at [42], that the principles in Hargraves “concerning the approach to a misdirection of law apply in the same way whether the misdirection is characterised as an ‘error of law’, as a ‘miscarriage of justice’, or as a ‘wrong decision of any question of law’” (Footnotes omitted).

5. [50]

   The term “good character” has a positive aspect – that the accused possesses certain qualities or has performed good works – and a negative aspect – that the accused has no criminal convictions: see the authorities referred to in Warton v R [2025] NSWCCA 5 at [66]-[67]. Evidence of the first variety is commonly given by so-called character witnesses in the defence case but may also be elicited from prosecution witnesses; evidence of the second variety is commonly elicited from a police officer called in the prosecution case.

6. [51]

   Good character evidence (of either variety) may be relevant on either one, or both, of the following bases:

   1. (1)

      to show that it was unlikely that the accused committed the crime alleged; and

   2. (2)

      in assessing the credibility of out-of-court statements made by the accused and, if applicable, the accused’s sworn evidence.

7. [52]

   The starting point is Simic v The Queen (1980) 144 CLR 319 at 333; [1980] HCA 25 (Simic) in which the High Court (Gibbs, Stephen, Mason, Murphy and Wilson JJ) said:

8. [53]

   In R v Farquhar (Court of Criminal Appeal (NSW), 29 May 1985, unrep) (Farquhar), the accused, the Chief Stipendiary Magistrate, was charged with attempting to pervert the course of justice by attempting to influence a magistrate not to commit a person for trial. The accused called extensive character evidence. The trial judge directed the jury that the character evidence had to be taken into account, with all the other evidence in the trial on the question whether the Crown had established its case beyond reasonable doubt. The offender argued that there was a miscarriage of justice on the ground that the jury had not been directed that they could use the evidence of good character in an assessment of his credibility. The argument was rejected and the appeal dismissed.

9. [54]

   In R v Murphy (1985) 4 NSWLR 42 (Murphy), this Court, sitting concurrently as the Court of Appeal, as a five-judge bench, summarised the authorities and said of its decision in Farquhar at 54:

10. [55]

    The Court also addressed its decision in R v Wasow (1985) 18 A Crim R 348 (Wasow), in which the summing up did not include a direction that the jury could use the evidence of good character in its assessment of the appellant’s credibility. At the conclusion of the summing up, defence counsel requested a direction to this effect which the trial judge refused to give. The appeal in Wasow was dismissed (Street CJ, Hope JA and Enderby J agreeing).

11. [56]

    In Murphy, at 54, this Court said of Wasow that while “[t]he court affirmed the validity of the request”, it nonetheless held that the trial had not miscarried as there was no “actual or implied misdirection in relation to the legitimate use of evidence of good character in relation to credit”.

12. [57]

    After further reference to authority, the Court continued:

13. [58]

    The discretionary nature of the decision whether to give a character direction and the extent of the character direction to be given was addressed in Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 (Melbourne). The High Court, by majority (McHugh, Gummow, Hayne JJ), dismissed the appellant’s appeal against his conviction on the basis that there had been no error.

14. [59]

    In Melbourne, the appellant was convicted of murdering his next door neighbour. He did not deny that he had stabbed the victim but maintained that he was guilty only of manslaughter on the ground of diminished responsibility. He did not give evidence at the trial but had made statements to two psychiatrists and a psychologist who gave evidence as expert witnesses that in their opinion he was in a state of diminished responsibility at the time of the killing. The evidence of the accused’s statements was admitted without objection. The trial judge directed that the accused’s character be taken into account on the issue of his guilt but did not separately direct that it could be taken into account on the question of the appellant’s credibility.

15. [60]

    Although the trial judge in Melbourne said that she would give the good character direction sought by the defence, her Honour did not give a direction that it could be used in the appellant’s favour when assessing his credibility. No objection to the direction was taken at trial. On appeal senior and junior defence counsel swore affidavits, as did defence counsel in the present case, saying that they had overlooked the omission. McHugh J observed at [21] that “[t]here [was] no reason to doubt the sworn statements of counsel that they did not seek any tactical advantage in not pressing for a further direction on character and that they did not intend to abandon the credibility aspect of the character evidence.”

16. [61]

    The appellant in Melbourne argued that there was a rule of practice that a direction should be given about all aspects of good character evidence where an accused has made out-of-court statements and that failure to give a direction that the accused’s good character could be used when assessing the credibility of such out-of-court statements amounted to a miscarriage of the discretion.

17. [62]

    McHugh J acknowledged, at [14], that whether the jury accepted the truth of the out-of-court statements on which the experts relied “was largely, if not wholly, dependent on the view that they formed about the credibility of the accused. His credibility was therefore an issue of great importance at the trial.”

18. [63]

    McHugh J said, when addressing the submission that the Court should depart from Simic:

19. [64]

    When applying these principles, McHugh J held:

20. [65]

    Following Melbourne, the High Court in Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 adverted to the question of good character but, because the appeal was allowed on another ground, did not need to determine it. The plurality (Gaudron, Kirby and Callinan JJ) said at [21]:

21. [66]

    The circumstances in which an omission to give a non-mandatory direction will result in a miscarriage of justice were considered in Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 (Hamilton). In that case, no anti-tendency direction was given. Hamilton was decided on the basis that there was a forensic reason, judged objectively, why the appellant’s counsel did not seek such a direction. In Hamilton, the appellant’s case at trial was that his sons had colluded to fabricate their evidence that he had sexually assaulted them. Thus, in these circumstances, an anti-tendency direction might have undermined his “all-or-nothing” defence. However, at [43], the Court said, of present relevance, that if there was a real risk of the jury engaging in impermissible reasoning, then the direction would be necessary to obviate that risk.

The present application

1. [67]

   As referred to above, the language of good character is redolent with ambiguity. Sometimes, it is described as having “two limbs”. However, the authorities are consistent with the two limbs being either:

   1. (1)

      (negative) good character on the basis of absence of criminal history; or (positive) good character by reason of possessing “good” character traits, such as honesty and integrity; or

   2. (2)

      the relevance of good character to guilt, as opposed to its relevance to the accused’s credibility.

2. [68]

   Where good character is relied on solely in its negative sense (absence of criminal history), it does not generally allow for a Crown rebuttal. However, where it is relied on in its positive sense, there is a potential avenue for the Crown to lead evidence, or to further cross-examine, to challenge that evidence (as the prosecutor sought, unsuccessfully, to do in the present case): cf Radburn (a pseudonym) v R [2025] NSWCCA 125.

3. [69]

   In these circumstances, where the trial judge said to counsel that he would give the “full” character direction, it is not possible to know with any certainty whether his Honour meant that he would direct the jury as to its relevance in both negative and positive senses (as in (1) above) or whether he would also direct the jury that it was relevant to guilt as well as to the jury’s assessment of credibility (as in (2) above). If his Honour meant the former, then there was no intentional omission in the summing up. If his Honour meant the latter, this could form a basis for an inference that the trial judge overlooked addressing its relevance to credibility.

4. [70]

   Mr Walker SC, who appeared with Mr Woods for the applicant, acknowledged that there was no rule which requires a character direction to be given in every case or in a particular category of case. He did not seek to challenge the authority of Simic by submitting that there ought be a rule.

5. [71]

   However, Mr Walker submitted that a “full” direction (being one which included both aspects of each of (1) and (2) above) was “compellingly justified” in the circumstances of the present case and that the trial judge’s omission to give it gave rise to a miscarriage of justice. He relied, in particular, on the fact that the character witnesses had given unchallenged evidence of the applicant’s “qualities of honesty and integrity” and that these qualities were plainly relevant not only to guilt but also to “truth telling”, that is, credibility. Mr Walker also highlighted the Crown’s closing address in which the prosecutor repeatedly described the applicant as “untruthful” and submitted that they would not find the applicant to be “a witness who told the truth about [these] things” (the offending behaviour).

6. [72]

   Mr Walker also placed significant emphasis on the jury note. In written submissions, he said:

7. [73]

   Mr Walker submitted that “[i]f ever there were a case in which it was necessary to direct the jury as to the relevance of good character evidence in assessing the accused’s credit, this was it”. He highlighted the several references in the character evidence to “honesty” and “integrity” and sought to distinguish the present case from authorities such as Melbourne, where the character evidence did not include such descriptions. Mr Walker submitted on the substantive question:

8. [74]

   Mr Walker submitted, partly in answer to the Crown’s submission, that the Liberato direction given by the trial judge did not cure the deficiency in the good character direction. Further, he submitted that there was a risk that the incomplete good character direction had an effect on the jury’s consideration of whether it was reasonably possible that the applicant’s evidence was true. On this basis, I understood him to submit that, far from curing the omission, the Liberato direction was weakened by the omission.

9. [75]

   Because the questions whether leave under r 4.15 to argue the ground of appeal and leave to appeal ought be granted depend, at least in part, on the substantive question, I propose to address the questions of error and materiality before turning to whether leave ought be granted.

10. [76]

    The starting point, as acknowledged by Mr Walker (and referred to above), is that there is no rule which requires a direction about good character to be given to the jury. While a trial judge is generally obliged to correct misstatements made by counsel about the relevance of evidence of good character, the authorities do not support the proposition that, if a good character direction is given at all, it must cover relevance to credibility as well as relevance to guilt.

11. [77]

    In the present case, the complaint is that the jury was entitled to use evidence of good character adduced on behalf of the applicant in its assessment of the credibility of his denials but was not directed that it could. The question, paraphrasing Hamilton, is whether there was a real risk that the jury would, in the absence of such a direction, overlook the relevance of that evidence to its assessment of the applicant’s credibility. As was said in Stanoevski, at [21], the assessment of this risk requires “close attention to the relevance of the evidence to the offence, and to the issue or issues to which the evidence relates”.

12. [78]

    In the present case, the jury was neither told by counsel nor directed by the trial judge that they were not permitted to take into account the evidence of the applicant’s good character in his favour on credibility: cf Murphy at 52-54. All that the Crown said, relevantly, was that the jury “would not be impressed or convinced by [the good character] evidence”.

13. [79]

    I reject Mr Walker’s submission that an inference can be drawn from the terms of the jury note of the importance of “honesty and integrity” to the jury’s deliberations. The jury, without clarifying what these words meant on the note (including whether they amounted to a question at all), having been expressly invited to do so by the trial judge, was prepared to inform his Honour that they had a verdict. This circumstance compels the inference that, whatever the words on the previous jury note meant, they did not stand in the way of the jury being unanimous in its verdict of guilty and prepared to return its verdict without any further communication with the trial judge about those words.

14. [80]

    These words in the jury note, without more (and there is no more), cannot be used as a reasonable basis for an inference that “the jury” was particularly concerned about this issue. At their highest, the words may indicate that at least one juror was considering the words “honesty” and “integrity” in the context of the jury’s deliberations. For this Court to seek to draw more from the words, would be to trench into the forbidden area of speculation. There is no reason here not to assume that the jury followed the trial judge’s directions, which included a request to formulate a question arising from the cryptic notation in the jury note, if there were one which the jury wanted to be answered: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13] (Gleeson CJ and Gummow J), [31]-[38] (McHugh J).

15. [81]

    For these reasons, the only matter that distinguishes this case from other cases where an accused person positively denies the offending in either sworn evidence or an out-of-court statement is that the character evidence adduced on behalf of the accused makes express reference to the quality of honesty or its close relation, integrity, as opposed to more general evidence of good character, or to other attributes commonly regarded as comprising good character which do not necessarily carry the implication that a person who possesses them reliably tells the truth.

16. [82]

    I am not satisfied that the applicant has established an error or irregularity. While there is a well-established practice of trial judges directing juries that they can use the good character of an accused person in assessing both guilt and the accused’s credibility, deviation from a practice is insufficient to establish error or irregularity (as was confirmed by this Court in Murphy). I am not persuaded that the trial judge was obliged positively to direct the jury that it could use good character evidence in assessing the applicant’s credibility. Accordingly, the question of materiality does not arise, since the question whether there was a misdirection is anterior to the question of materiality: Brawn.

17. [83]

    However, even if it be accepted (contrary to the view which I have expressed above) that there was an irregularity or error of law, I am not persuaded that there was a real risk that any omission to give such a direction deflected the jury from its fundamental task of determining whether the prosecution had proved its case beyond reasonable doubt.

18. [84]

    I understood Mr Walker to submit that this Court ought not place weight on the way the trial was conducted, as opposed to the directions which were given in the summing up, in determining the question of whether there was a real risk that the jury would reason that it could not use evidence of good character. I am not persuaded that this is the case. The directions which were, and which were not, given must be viewed in the context of the trial as a whole in order to determine whether the omission to give the direction about evidence of the applicant’s character being relevant to his credibility “deflected” the jury from its task.

19. [85]

    The jury heard unchallenged evidence as to the applicant’s character, including as to the witnesses’ experience and impressions of his honesty and integrity. The Crown confirmed that the character evidence could be used by the jury in their deliberations. The applicant’s defence counsel referred to that evidence at length in closing and particularly emphasised the evidence of the applicant’s honesty. In the summing up, the trial judge, when summarising the evidence in the trial, referred extensively to the evidence adduced on behalf of the applicant as to his honesty. The trial judge, in summing up, directed the jury that the evidence of the applicant’s good character was relevant to the likelihood of the applicant’s having committed the offence.

20. [86]

    Neither counsel nor the trial judge gave any intimation to the jury that it could not use the evidence of the applicant’s honesty when considering his credibility. In my view, the trial judge’s extensive reference to the evidence of the applicant’s honesty in the summing up (including when taken together with the fact that the evidence of good character was entirely unchallenged by the Crown) was such as to remove any risk that the jury would not appreciate that they could use the evidence on the question of the applicant’s credibility, notwithstanding a specific direction in terms that they could. Further, the offence charged was not a dishonesty offence as such. The repeated references in the character evidence to the applicant being honest could only be regarded as relevant to whether he was telling the truth when he denied the conduct (in respect of the complainant and in respect of EH), both when it was alleged and in his evidence.

21. [87]

    In these circumstances, I am not persuaded that there was any real risk of the jury failing to appreciate that they could use the evidence of the applicant’s honesty to assess his credibility. This assessment was relevant to the Liberato enquiry (whether the Crown established that it was not reasonably possible that the applicant’s evidence was true) as well as to the ultimate determination of guilt.

22. [88]

    Were this Court to require the giving of a direction that evidence of good character is relevant to both guilt and credibility in a case such as the present, this Court would, in effect, be laying down a general rule. I regard this as inconsistent with Simic and the cases which have followed it.

23. [89]

    For the reasons given below, the requisite leave ought be granted but, for the reasons given above, the appeal ought be dismissed.

24. [90]

    Mr Walker accepted that the applicant required leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

25. [91]

    In support of the application, and generally, Mr Walker read an affidavit of the applicant’s trial counsel affirmed on 1 September 2025, who deposed in part:

26. [92]

    Mr Walker submitted that the affidavit was relevant to the determination whether defence counsel’s failure to ask for the second limb of the direction to be given was a matter of forensic judgment or tactics. He submitted that counsel’s failure to draw the omission to the trial judge’s attention was “clearly an oversight rather than a forensic decision” and that the omission “could not have secured for the applicant a forensic advantage of any kind, and counsel cannot have thought that a direction on credibility was unnecessary or that it could not have made a difference”.

27. [93]

    The Crown sought to characterise counsel’s omission to seek a direction that the character evidence adduced on behalf of the applicant as, objectively, to the applicant’s forensic advantage. The Crown argued that there was an objective reason for the applicant’s trial counsel not to, in effect, “push his luck” by pressing good character to the maximum extent: he had already asked the applicant a question (referred to above, concerning other allegations), which invited a misleading answer, since the complainant was one of three women who complained about his conduct towards them when they were pre-pubescent girls. The Crown submitted orally to this Court:

28. [94]

    I am not persuaded by the Crown’s submission that there was, objectively, a forensic reason why the applicant’s trial counsel might not have sought a further direction that the jury could use the evidence of good character in the applicant’s favour when assessing his credibility. The applicant’s trial counsel had already successfully resisted the prosecutor’s application for leave to cross-examine the applicant about the further allegation of sexual misconduct which related to the period before his suspension from teaching. Therefore, that risk was no longer extant by the time the sufficiency of the good character direction could have been called into question. However, objectively viewed, there were grounds to consider that the applicant’s counsel might have considered that the lengthy summary which the trial judge had given of the evidence of good character, together with his Honour’s direction that they could use the applicant’s good character was sufficient and that no further direction was required.

29. [95]

    Notwithstanding my reservations about whether leave under r 4.15 ought be granted, I am persuaded that, as this ground of appeal was fully argued in this Court, leave under r 4.15 and leave to appeal ought be granted.

Proposed orders

1. [96]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [97]

   N ADAMS J: I have had the advantage of reading the judgment of Adamson JA in draft. I agree with the orders proposed by her Honour for the reasons provided but I wish to add to what her Honour has stated at [94].

3. [98]

   The conviction the subject of this appeal was for one count of digitally penetrating the vagina of an eight or nine-year-old child between 1989 and 1990. Although the complainant told her sister about the assault not that long afterwards (see above at [10]) and made later complaint to her husband as an adult, there was no formal complaint made to police until many years later.

4. [99]

   In 1990, at around the same time as the sexual assault on the complainant, two other nine year old girls had made separate contemporaneous complaints that the applicant had indecently assaulted them which led to him being charged at that time. Both complaints related to incidents in 1990 when each of EH and KC were nine year old students. EH’s complaint is summarised above at [13] – [16]. KC’s complaint also related to an incident in which the applicant placed his hands on her vagina and buttocks on the monkey bars. She also made complaint that in March 1990, the applicant sat next to her in a bus after a school excursion and placed his hand between her legs onto the front of her vagina.

5. [100]

   As was the practice in 1990, both EH and KC were required to give evidence at committal proceedings. After hearing their evidence, the Magistrate declined to commit the applicant for trial on the charges relating to either of them. The applicant was thus neither convicted nor acquitted of the allegations made by those two girls.

6. [101]

   The tendency notice filed in this matter initially included the allegations made by both EH and KC. Shortly before the trial commenced, the Crown confined the tendency notice to the evidence of EH only. No reason for this was placed on the record.

7. [102]

   Although the Crown adduced evidence from EH as to what she alleged the applicant had done to her, the Crown did not oppose the applicant relying on evidence of good character nor the jury being given a good character direction. During his evidence, the applicant gave an answer which implied, perhaps not intentionally, that apart from EH nobody else had ever made a similar allegation against him (see above at [18]). The trial judge refused the Crown leave to cross-examine the applicant about the earlier allegation concerning KC.

8. [103]

   Thus, despite the fact that two other children, beside the complainant, had come forward with similar complaints at around the same time, the jury was only aware of one of them and the applicant still received a good character direction.

9. [104]

   Given those circumstances, I consider it to be understandable that, in the atmosphere of the trial, defence counsel did not see anything unfair about the character direction given by the sentencing judge: BQ v The King (2024) 279 CLR 124; [2024] HCA 29 at [56]; Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472 at [58]-[61]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121], and Greenhalgh v R [2017] NSWCCA 94 at [42].

10. [105]

    McGUIRE J: I agree with Adamson JA.