FB v R - [2020] NSWCCA 137 - NSWCCA 2020 case summary — Zoe

NSWNSWCCA

FB v R

[2020] NSWCCA 137

Court of Criminal Appeal (NSW)|2020-02-10|Before: Basten JA, Hulme J, Adams J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2020-02-10

Before

Basten JA, Hulme J, Adams J

Catchwords

[1960] HCA 15 Bishop v R (2013) 39 VR 642
[2013] VSCA 273 Braysich v The Queen (2011) 243 CLR 434
[2011] HCA 14 BRS v The Queen (1997) 191 CLR 275
[1972] HCA 71 Eastman v The Queen (1997) 76 FCR 9

Source

Original judgment source is linked above.

Catchwords

[1960] HCA 15 Bishop v R (2013) 39 VR 642[2013] VSCA 273 Braysich v The Queen (2011) 243 CLR 434[2011] HCA 14 BRS v The Queen (1997) 191 CLR 275[1972] HCA 71 Eastman v The Queen (1997) 76 FCR 9(1997) 158 ALR 107 GAX v The Queen (2017) 91 ALJR 698[2017] HCA 25 Gilbert v The Queen (2000) 201 CLR 414[2000] HCA 15 Hamilton (a pseudonym) v R [2020] NSWCCA 80 Hoch v The Queen (1988) 165 CLR 292[1988] HCA 50 Hogg v R [2019] NSWCCA 323 Hughes v The Queen (2017) 263 CLR 338[2017] HCA 20 IW v R [2019] NSWCCA 311 James v The Queen (2014) 253 CLR 475[2014] HCA 6 JV v R [2017] NSWCCA 49 KRM v The Queen (2001) 206 CLR 221[2001] HCA 11 L'Estrange v R [2011] NSWCCA 89 Li, Wing Cheong v R [2010] NSWCCA 40 Melbourne v The Queen (1999) 198 CLR 1[1999] HCA 32 Oliverio v R (1993) 70 A Crim R 5(1993) 61 SASR 354 Papakosmas v The Queen (1999) 196 CLR 297[1999] HCA 37 Pell v The Queen [2020] HCA 12 Pemble v The Queen (1971) 124 CLR 107

Judgment (43 paragraphs)

[1]

Background

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

[2]

The charged offences Count 1 The Crown alleged that this assault of the daughter (and the son - see Count 5) occurred in a motel room at Dubbo during a trip to visit the zoo. Assault the daughter at Dubbo between 12 and 17 July 2016. Count 2 This was alleged to have been the last of the occasions on which the applicant rubbed oil on the daughter and touched her bottom and breasts. Indecent assault upon the daughter, a person under 16, at Bronte between 1 January 2015 and 31 October 2016 Count 3 This was alleged to have been the last of the occasions on which the applicant had masturbated his penis in the presence of his daughter. Act of indecency towards the daughter, a person under 16 by a person in authority at Bronte between 1 January 2015 and 31 October 2016 Count 4 It was alleged that the applicant grabbed the daughter's arm, causing bruising, and forcibly hugged and dragged her, following her spilling soil from a pot plant in the Bronte home. Assault the daughter occasioning actual bodily harm at Bronte on or about 30 October 2016 Count 5 This was alleged to be the assault of the son at Dubbo (see Count 1 above). Assault the son at Dubbo between 12 and 17 July 2016 Count 6 It was alleged that on an occasion when David Walker was using the bathroom to have a shower, the applicant fondled the son's penis in the bedroom. Indecent assault upon the son, a person under 16, at Bronte between 1 January 2015 and 31 July 2016 The applicant also masturbated his penis in the presence of his son. The applicant then put the son's hand on the applicant's penis, forcing him to masturbate it. Count 7 Act of indecency towards the son, a person under 16 by a person in authority at Bronte between 1 January 2015 and 31 July 2016 Count 8 Indecent assault upon the son, a person under 16, at Bronte between 1 January 2015 and 31 July 2016 Count 9 It was alleged that on an occasion when Lorna Hankin was using the bathroom to have a shower, the applicant fondled the son's penis in the bedroom. Indecent assault upon the son, a person under 16, at Bronte between 1 January 2015 and 31 July 2016 Count 10 It was alleged that on an occasion when the applicant, Ms Hankin, and the two children were having dinner at a restaurant, the applicant grabbed his son's arm, digging his nails in and causing redness as he took him outside and remonstrated with him for not eating his food. Assault the son at Sydney Count 11 On the last weekend that the children stayed at the applicant's home, in the bathroom, the applicant put oil on his son's penis and fondled it. Indecent assault upon the son, a person under 16, at Bronte on or about 30 October 2016 The applicant also masturbated his penis in the presence of his son. The applicant then put his son's hand on the applicant's penis, forcing him to masturbate it. Count 12 Act of indecency towards the son, a person under 16, by a person in authority, at Bronte on or about 30 October 2016 Count 13 Indecent assault upon the son, a person under 16, at Bronte on or about 30 October 2016

[3]

Overview of the Crown case

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.
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.
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.
The Crown called four other witnesses: Dr Meers was a general practitioner who treated the son at his local medical practice on a number of occasions. David Walker, a friend of the applicant, and Lorna Hankin, the applicant's partner, gave evidence about events that occurred when they lived in the applicant's home at relevant times. Senior Constable Tunningley was an officer who received a complaint on 5 November 2016 when the mother and her children attended the Gosford police station.
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.
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.
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.

[4]

Overview of the defence case

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.
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.
There was also a positive defence case in which the applicant gave evidence and called a number of witnesses: Edwin Fenton, Neal Da Costa, Jonathan Rubinsztein and Nicki Leap gave evidence as to the applicant's good character. Jocelyn Brewer gave good character evidence as well as evidence relevant to a particular incident that was alleged to have occurred whilst she was living with the applicant, the children and the mother in 2007-2008.
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.

[5]

Principles

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]: "The importance of the jury in determining guilt has been consistently emphasised and recently confirmed in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 53. The High Court said at [65]: 'It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact". Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. ... Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".' (Footnotes omitted) It is uncontroversial that an appellate court in determining whether a verdict is unreasonable must first give due weight to the advantage of the jury before independently assessing the sufficiency and quality of the evidence: M v The Queen (1994) 181 CLR 487 at 493, 494-5; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]. That said, the court must carry out its own independent assessment of the evidence, as the High Court said in M v The Queen at 492. … It has been said that an appellate court will not readily set aside a guilty verdict on account of inconsistent verdicts: R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [65], [73] and [99] (Spigelman CJ, with whom Carruthers AJ agreed), [217]-[219] and [224] (Wood CJ at CL); R v NEK [2001] NSWCCA 392 at [24]; R v Bonat [2004] NSWCCA 240 at [106]; McCann v R [2014] NSWCCA 79 at [19], and that it should not immediately be assumed that a difference in verdicts [inevitably] demonstrates a want of credibility in the complainant's evidence: Allan v R [2017] NSWCCA 6 at [84]. An appellate court faced with inconsistent verdicts must attempt to reconcile the verdicts, allowing it to conclude that the jury had adequately performed its functions: Mackenzie at 367. In this exercise, "the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals": R v TK (2009) 74 NSWLR 299 at [128] per Simpson J (McClellan CJ at CL and Latham J agreeing). If a rational explanation for the acquittals can be found, without casting doubt over the complainant's credibility, then the verdicts are not unreasonable: R v TK at [128], [130]."

[6]

Submissions

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.

[7]

Witnesses said to be present do not give evidence of the act or occurrence or surrounding circumstances

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.
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]).)
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."
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.
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.

[8]

Consideration

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.
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".
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.
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".
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.

[9]

The evidence supporting the asserted tendency to behave aggressively or violently

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).
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).
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.
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.
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.

[10]

Consideration

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.
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.
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.
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.
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.

[11]

The evidence supporting the asserted tendency to have a sexual or indecent interest

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.
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.
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.

[12]

Consideration

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 …"
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".
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.

[13]

Context evidence

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.

[14]

Complaint evidence and character evidence

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.
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.
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.
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.
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.

[15]

Consideration

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.
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".
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.)
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.
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."

[16]

Verdicts of acquittal

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.
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.
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.
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.
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.

[17]

Consideration

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.
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.
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.
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.
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.

[18]

Submissions in relation to each count

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.)
The following points were repeated by the applicant in relation to each count: ● The applicant denied the offence. ● The applicant's good character made the offending unlikely and supported his credibility. ● Evidence relied upon by the Crown to establish either or both tendencies was of low, or no, probative value. ● Senior Constable Tunningley ticked "no" for "sexual assault" and "sexual behaviour" when he spoke to the mother and the children on 5 November 2017. This constituted prior inconsistent statements by the complainants. ● Dr Meers' evidence did not assist where the defence case was that the acts did not occur.
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.
Other submissions relating to specific counts are summarised below.

[19]

Consideration

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.
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.
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: "He'll like grab us by the arm or something, he'll start yelling and swearing at us and like, sometime like he'll slap us as well and like sometimes he'll like put his nails into my arm."
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. "He was like moving it around, like my penis and he was like moving it around in circles and then he just started pulling it back and forth." "Q. So when you had your hand on dad's penis, was anything happening to his penis? A. … I think it like, did it seem to start it was going a bit like harder and stuff. … it did go harder and like it did, you know, like move up and stuff." "Q. So, when you had your hand on his penis, … was anything happening to his penis? A. Um … not at first. And then he grabs it and then he starts pulling it back, playing around, and then his penis, like I can see like it starts rising and like his, it gets a bit harder …"
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: "He said it's a thing that, like, fathers and sons do …."

[20]

Counts 1 and 5 (assault of the children at Dubbo)

The applicant submitted in relation to these counts: ● There was evidence of the daughter as to the alleged assaults but no evidence from the son. ● The tendency and context evidence was significantly undermined and could not overcome the above deficiency. ● There was no complaint evidence.

[21]

Consideration

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.
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.
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.
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]).
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.

[22]

Count 3 (masturbation in front of the daughter)

The applicant submitted: ● This count was dependent solely upon his daughter's evidence in her third JIRT interview. ● His son, who was said by the daughter to have been present, gave no evidence about this. His evidence did not assist the Crown in relation to any tendency of the applicant relevant to this count.

[23]

Consideration

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.
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.
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.
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.

[24]

Counts 6-8 (aggravated indecent assaults and act of indecency against the son when David Walker in bathroom)

The applicant submitted: ● The son only gave evidence of one of the offences when asked in cross-examination what occurred when David Walker was in the shower. ● The complaint evidence was tainted because the complaints were made in the context of Family Court and defamation proceedings and by the mother having described indecent assaults she had been subjected to as a child. ● David Walker did not always call out if he was leaving. If he were in the shower, he would first go to his bedroom before leaving. Whilst the son said (after some equivocation) that these events occurred in June 2016, David Walker had moved out by then.

[25]

Consideration

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.
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: "Q. I'm moving to another incident. I'm going to call this the David Walker incident. A. Okay. Q. Did you tell police that your dad did something to you in the bedroom one time when David Walker was in the shower? A. Yes. … Q. What do you say your dad did to you in the bedroom when David Walker was in the shower? A. He put oil all over my body and touched my private parts. Q. I'm saying to you that that incident never happened. Do you agree or disagree? A. I disagree. Q. I'm moving on to another incident, [the son]. A. Yes. Q. I'm going to call it the Lorna Hankin shower incident. A. Yep. … HER HONOUR: The last one didn't last long. MOEN: No, that's right, your Honour." (Emphasis added)
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.
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.

[26]

Count 9 (aggravated indecent assault upon the son when Lorna Hankin in bathroom)

The applicant submitted: ● The son gave evidence in his first interview of three offences occurring on this occasion but both in his second interview and in cross-examination, he only gave evidence of one offence. His evidence was therefore inconsistent and unreliable. ● The complaint evidence was tainted by a context of Family Court and defamation proceedings and by the mother having described indecent assaults she had been subjected to as a child. ● A feature of the son's evidence was that Lorna Hankin called out for something she was cooking to be taken off the stove but this conflicted with her evidence and the applicant's evidence.

[27]

Consideration

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).
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: "Q. So when you had your hand on his penis …"
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: "Q. … So you're telling me that both those two times in the bedroom were pretty well the same? A. Yeah. Q. Yep, exactly the same, yep, oil, dad touched your penis, you touched, sorry, then he touched his own penis, and then you touched his penis? A. Yep."
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?"
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.

[28]

Count 10 (assault of the son outside a restaurant)

The applicant submitted: ● There was no supporting evidence of the daughter. ● There was no complaint evidence. ● The mother said she never noticed marks on the children after she separated from the applicant (in Autumn 2014). ● Lorna Hankin's evidence supported the applicant's denial.

[29]

Consideration

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.
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": "… he does it when no one's around … what he will do is like, he will grab my arm and like it's actually like, no, no joke, like it will be red, like after he will grab it …"
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: "Um, I'm trying to think. Q. That's all right. Just, can you describe A. About Q. the marks to me? A. Sorry, yeah. Q. Yeah, you go? A. About probably like three to four days".
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.
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.
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: "Q. When you got back to the table, you were not crying, were you? A. No. I was crying before that. Q. When were you crying? … A. Been crying when he grabbed my arm Because I got scared."

[30]

Counts 11-13 (aggravated indecent assaults and act of indecency against the son on 30 October 2016)

The applicant submitted: ● The evidence given by the son in cross-examination on 12 July 2018 was inconsistent in certain respects with his evidence in the interview of 3 August 2017. ● The daughter was present in the house at the time but did not give evidence supporting her brother's account and in some respects, her evidence conflicted with it. ● The son did not complain until mid-2017 and that occurred in the context of Family Court proceedings. ● Evidence supporting a proposition that the applicant and the children returned home on 30 October 2016 at 5.00pm made the offending less likely. ● Lorna Hankin gave evidence "we had a shower" in the morning (implying that the applicant's evidence of not showering in the afternoon was correct).

[31]

Consideration

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).
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.
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: "Abuse stuff happened, actually. I know my dad went into the shower then. He came - after he was in the shower, he told me to come in to - so he could put some oil on me, and he did that. And - I need a break. I need a break."
A short adjournment was taken. Immediately after the resumption, the applicant's counsel misstated what the son had said: "[The son], what you said just before the break was 'a few stuff happened, actually. I know my dad went in the shower'."
The witness intermediary interrupted and told the judge that the son had whispered to her that he was a bit confused. That was unsurprising.
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."

[32]

Conclusion

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.
The following observations of Leeming JA in Cabot (a pseudonym) v R (at [59]-[61]) are pertinent: "In almost every case which depends on testimonial evidence, witnesses will give inconsistent evidence. That is especially so in any case where the witness originally makes a complaint and later is asked to give evidence about it and is cross-examined about it. Material inconsistencies can of course detract from the probative value of a witness's testimony. However, the mere fact of inconsistent evidence does not of itself entail that a verdict cannot be sustained. Indeed, if the witness is capable of a mechanically perfect reproduction of evidence originally given in an interview or a statement months or years before, the appropriate inference may be that the witness has learned his or her lines but has little actual recollection of what occurred. Thus, it has commonly been stated that there is no necessary unreasonableness for the jury to accept some inconsistencies in the complainant's evidence. As McHugh J observed in M v The Queen at 534, "[i]t is the everyday experience of the courts that honest witnesses are frequently in error about the details of events". Recently, in Palmer v R [2018] NSWCCA 205, Basten JA said (with the agreement of McCallum and Bellew JJ) at [51]: 'At the most general level, a suggestion that a witness must be credible in relation to all aspects of her evidence, or none, defies common sense. First, it elides questions of unreliability and untruthfulness. Once those elements are separated, it will generally be accepted that even witnesses who lie do not lie about everything, and witnesses who are unreliable in one respect may be perfectly reliable in another.' In the particular case of sexual offences, Johnson J said in Tonari v R at [192]: 'victims of sexual assault do not necessarily respond in ways that accord with some mechanical or pre-determined view as to how a victim should respond.'"

[33]

Overview

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

[34]

The trial

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: "There is in the trial, referred to in the evidence of the two children, evidence of uncharged acts, both in relation to other physical assaults and other indecent assaults, and related behaviour. The Crown has served a tendency notice, seeking to rely on that evidence as tendency evidence. It is also relied on by the Crown as context evidence. I understand, on behalf of [the applicant], he will be raising character. The Crown position is that that evidence of uncharged acts is relevant, both as context evidence and evidence rebutting good character. I understand from discussions with my learned friend, that she accepts that. What we are asking the court to do, subject to your Honour's view, is to rule on the admissibility of the evidence prior to closing addresses, after your Honour has heard the evidence. The reason for that is, in this case, given the admissibility of the evidence on other bases, it is thought that is the most efficient use of court time, because the volume of the material comprising police transcript interviews, interview transcripts, and the pre‑recorded transcripts is quite a large volume of material." (Emphasis added.)
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.
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: "COUNSEL: Now in relation to the actual allegation of the conversation about wanting to take pills with his children, I do propose to cross‑examine [the mother] on that particular one, that's para 20 of her statement. I appreciate the Crown's not letting it in chief, but I can certainly cross‑examine it in, your Honour. Again it's this context of the defence position is that's a false allegation and the defence position will be that it's a false allegation in the very same police statement where [the mother] stating her evidence that she is giving in the witness box on matters the Crown does rely on and that if the jury has some concerns that she's made false allegations about the accused and his parenting attitudes on that topic, they may more readily consider the defence proposition that she's also making false statements about the allegations that he was violent to her and that he was violent to the children that she's witnessed, and again it's in response to these questions are in response to the police simply putting to the accused, the thrust of the allegation that's made. In my submission he's entitled to have the jury assess his response, his demeanour. There are examples in my submission of him answering the police question in a straightforward fashion and not ducking them. That goes to an assessment of the balance of the interview where he's responding to the specific allegations on the indictment. So in my submission, certainly relevant to the defence case. It has no relevance to the Crown case, I concede that, but it's relevant to the defence case in my submission and clearly we're prepared to wear the prejudice that could come in some cases with that material then coming before the jury that the allegation had been made." (Emphasis added.)

[35]

Whether a child has been or is at risk of abuse, neglect or family violence Complete one section only under this heading [ ] I certify that I do, or the party I represent does, consider that a child concerned in the draft order has been or is at risk of being subjected to or exposed to abuse, neglect or family violence. [X] I certify that I do, or the party I represent does, not consider that a child concerned in the draft order has been or is at risk of being subjected to or exposed to abuse, neglect or family violence. 2. Whether a party has been or is at risk of family violence Complete one section only under this heading [ ] I certify that I do, or the party I represent does, consider that I, the party I represent or another party to the proceedings has been or is at risk of being subjected to family violence. [X] I certify that I do, or the party I represent does, not consider that I, the party I represent or another party to the proceedings has been or is at risk of being subjected to family violence. 3. Allegations of or risk of abuse, neglect or family violence Complete one section only under this heading [X] I certify that no allegations of or risk of, abuse, neglect or family violence have been made in: 1. Any document filed or exhibited in the proceedings; or 2. Any report prepared for the proceedings; or 3. Any document subpoenaed to the court in the proceedings. OR [ ] Allegations of or risk of, abuse, neglect or family violence have been made in: …
The Crown Prosecutor asked the mother about this document in her evidence in chief and she gave the following explanation: "Q. Why did you mark those boxes indicating that you didn't think either the children or you were at risk? A. For a couple of reasons. My lawyer advised me to tick those boxes. Q. When you say your lawyer advised you, can you tell us what‑‑ A. Yeah. She just ‑ initially I didn't tell my lawyer about the family violence, it was only after ‑ the divorce went on for about two years, so close towards the end I told her some of the examples of mostly what had happened to me, and then at the very end, after a very long divorce, we had to sign a form and she said, 'There's this extra form here to say there has been a history of family violence. I know there has been because of what you've told me, but do you think you are at risk anymore' I said, 'Well, I don't, because I don't see him anymore, only at the child handovers. I haven't seen him much in about a year. I'm fine', that's how I felt. Then in relation to the children she said, 'How are the kids?' I said, 'The kids seem fine, I don't think they are at risk', and she said, 'Look, just tick this box, [the mother], because you will be opening a can of worms if you don't tick it because you will have to go all the way back to the beginning of this divorce proceeding.' I had no money, I was trying to get the house that we lived in, I didn't even have money to pay for this lawyer. I was advised by my lawyer to tick the box. I also have only fully in the last two years understood what domestic violence is. Q. I just want you to concentrate on what was in your mind when you were answering this form. A. Yep. Q. So you said a moment ago in the dialogue that you were having with your lawyer you said, 'The kids seem fine'? A. Yes. Q. So this is a form that you filled out and signed on 30 June 2016? A. Yep, because they were regularly going every three out of four weekends, coming home, yep."

[36]

Closing addresses

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: "…You might think, particularly in cross-examination, he was at times defensive and argumentative. That at times during the cross- examination in particular you might think that he portrayed something of his true character, something of what you have heard [the daughter] and [the son] and [the mother] describe the accused being like."
The Crown Prosecutor then referred to the character evidence at trial: "You heard yesterday and again this morning from a number of people who told you that in effect in their opinion the accused is a person of good character, in their opinion that he's not the type of person that would have done the things that [the daughter] and [the son] describe or what [the mother] describes he did to her. As her Honour will tell you I expect, good character is not a defence. It's an unfortunate reality, you might think, members of the jury, of our society that good people commit criminal offences. But one thing that you might reflect on when you come to consider character is whether or not you are satisfied that the accused is someone who was of good character of the time. You've heard the evidence of [the mother] that he was someone that over the course of their marriage was physically violent towards her, and you'll recall the detail that she provided you in relation to that. You heard in terms of the witnesses called yesterday from people, friends of the accused, who you would have appreciated the Crown said have spent differing amounts of time with him, and some you might think had very limited opportunity when probed or when questioned about the extent of that opportunity to observe the accused and his interaction with the children. … It's a simple fact of the extent of their relationship, but you might think having considered all the evidence and looked closely at what opportunity they really had to observe the accused, that they're not in a position to provide you with a complete understanding of his character. Consider too, members of the jury, the Crown says, your own life experience when you consider this. How you behave in public, when you're meeting up with friends. Are you on your best behaviour? As a matter of common sense and life experience, you might think you are, and you might factor that into what you make of their assessment of when they saw the accused on those occasions. … None of those witnesses had an opportunity to watch [the daughter] and [the son] give evidence, to hear [the mother] give evidence, and that's no criticism at all of them, it's how the system works, that unless and until you give evidence as her Honour told you, you don't sit in court. But what that means, the Crown says, is you and not them have listened to the evidence. You and not them have heard from [the daughter] and [the son] what the accused did to them, and you are in a better position, the Crown says, than them. You have the advantage of having done that and you would factor that in when you're considering the weight you would give to this evidence. Nothing that any of those people said, or anything David Walker and Lorna Hankin said would cause you, the Crown says, to have any reasonable doubt about any of the offences; whether or not the accused committed any of the offences that are charged against him. The fact that neither David Walker nor Lorna Hankin observed anything you might think is entirely consistent with what [the daughter] and [the son] described, that I've just taken you to, that the accused behaved towards them in the manner they've described in private." (Emphasis added.)

[37]

The Summing Up

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: "Evidence of this type is characterised by the law as evidence of good character. While the Crown accepts the evidence given by each of these witnesses, the Crown contends that in deciding what weight you would give to evidence pertaining to the accused's character, you would also have regard to the evidence that [the mother] gave, if you accept this evidence about the way the accused behaved towards her in the privacy of the family home. Now the law requires that you take evidence of good character into account in favour of the accused in two different ways. Firstly, when you are considering the likelihood that he committed any offence alleged against him. On the basis of this evidence, you are entitled to reason that he is unlikely to have acted in any of the ways alleged by the Crown. Secondly, you can use evidence of good character to assist you when you are determining whether you believe what the accused said in his interview, and in his evidence and what weight you give to the account he offered in his interview and the evidence he gave. In other words, to support his credibility. On the basis of this evidence, you may reason that the accused is less likely to lie or give a false account in speaking to the police and/or in giving evidence before you. While the evidence of the accused's good character is evidence you must take into account when you are determining whether the Crown has discharged its onus of proof in relation to each count, understand that evidence of good character does not provide the accused with some sort of defence or shield nor does it mean that you must find him not guilty. What weight you give to evidence of good character in your consideration of the offences alleged against the accused, is completely a matter for you. The mere fact a person is of good character, cannot alter proven facts. It can only help you to determine whether or not those facts have been proven, and of course keep in mind that a person who was once of good character, can commit a criminal offence for the first time." (Emphasis added.)

[38]

Character evidence: relevant principles

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): "The admission and use of evidence of good character has a long history. It dates back, as Gummow J pointed out in Melbourne v The Queen, to a time before the accused became a competent witness when there was generally no question of a jury using such evidence in an assessment of the accused's testimonial credit."
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: "Every witness examined as to character ... may give evidence not only as to the general repute of such person, but also as to the witness's own knowledge of his habits, disposition, and conduct."
Character evidence is now dealt with in Part 3.8 of the Evidence Act (ss 109-112). Section 110(1) provides that: (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
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.
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.
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): "In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called 'disposition - which is something more intrinsic to the individual in question.' It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person." (emphasis in original)

[39]

Procedure when calling good character evidence

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.
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]: "It is not in issue that, had evidence of good character been led on behalf of the appellant at his trial, the evidence of K with respect to the matters which were the subject of outstanding charges would have been admissible under either sub-ss (2) or (3) of s 110 of the Evidence Act. However, those sub-sections do not entail the result that her evidence would have been admitted. Her evidence might have been excluded under either s 135 or s 137 of the Evidence Act."
McHugh J observed the following at [90] in relation to character evidence generally: "In exercising the discretion the judge would not be required to weigh K's evidence against the good character evidence but only against any prejudice that it might create. In a case that turned on the complainant's word against the appellant's, the good character of the appellant was a factor that might well swing the balance in his favour. To let the appellant go to the jury as a man of good character when K's evidence, if believed, showed the opposite would be contrary to the public interest unless the judge was satisfied that it gave rise to prejudice that outweighed the probative value of the evidence. K's evidence therefore went to a vital issue in the case and, if believed, was cogent evidence concerning that issue. Its probative value was very high."
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.

[40]

Good character evidence in child sexual assault trials

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]): "Consistent with what I have just told you it comes as no surprise to you to learn, of course, that generally speaking crimes of a sexual nature as are alleged in this trial are by and large secret crimes by their very nature. In other words you seldom would expect to hear from an eye witness to crimes involving sexual abuse of children, and we know from our experience that in this day and age or even over the decades that so-called pillars of society have been involved with sexual crimes involving children, leaders of our community, politicians, even members of the clergy, and people are often shocked by those revelations, believing that those sort of people have led exemplary lives. They do on the surface, but we now we (sic) know from our experience that sometimes these people lead double lives."
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]: "Apart from the fact, that in my view, there was a palpable danger of the jury treating the comments as directions as to the law, the trial judge's references to what was known from experience over the decades may have caused the jury to think that the judge's views represented the distilled knowledge of the courts gained from their experience of conducting criminal trials."
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: "Remember, in assessing this evidence, that the essential allegation here is of sexual offending against a stepchild in the family home, something that happened in private. Such alleged offending does not usually take place in the presence of witnesses. The specific evidence as to the accused having a reputation for appropriate dealings with children obviously must relate to his conduct with children that he has been with or dealt with in the presence of others, otherwise people could not give that evidence about his reputation. There is no allegation that he has offended against children outside of the home, but rather that he has offended against his stepdaughter inside the home and in private. So, you bear that in mind as being the essential allegation against him in the context of the good character evidence that has been given in his favour."

[41]

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

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".
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.
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.
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.

[42]

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

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.
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.
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.
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.

[43]

Endnotes

(1999) 198 CLR 1, [1999] HCA 32 at [98] (Kirby J).
Melbourne v The Queen at [16] (McHugh J).
Crimes Act 1900 (NSW), s 412.
R v Murphy (1985) 4 NSWLR 42 at 54F (Street CJ, Hope, Glass, Samuels and Priestley JJA).
Attwood v The Queen (1960) 102 CLR 353; 359 (Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ); [1960] HCA 15.
(1999) 196 CLR 297; [1999] HCA 37.
Papakosmas at [46].
Papakosmas at [66].
Evidence Act, s 59.
Evidence Act, s 76.
[2017] NSWCCA 125 at [69], [83], [92] (Schmidt and Fagan JJ agreeing).
The Law Reform Commission, Report No 26, Interim - Evidence, at par 803 and fn 63.
(1997) 76 FCR 9.
Eastman at 57G-58C.
See [14] above.
(1980) 144 CLR 319 at 333-334 (Gibbs, Stephen, Mason, Murphy and Wilson JJ); [1980] HCA 25.
Melbourne at [47] (McHugh J).
Melbourne at [52] (McHugh J).
Melbourne at [50] (McHugh J) adopting the reasoning of Thomas J, in dissent in R v Falealili [1996] 3 NZLR 664 at 671-672.
Melbourne at [61].
Evidence in Trials at Common Law, Tillers rev (1983), vol 1a, s55 (footnote omitted).
2nd ed, (1989), vol 3 at p 31.
Summing up, p 24.
Summing up, pp 26-27.
(2001) 206 CLR 221; [2001] HCA 11.
Crimes Act 1958 (Vic), s 47A.
KRM at [63(v)].
Footnotes omitted.
Melbourne v The Queen at [142], per Hayne J.
See also at [134].
KRM at [72].
Emphasis added; citations omitted.
[2020] NSWCCA 80.
Tcpt, 12/12/18, pp 497(3)-498(35).
Tcpt, p 499(28).
Summing up, pp 33-34.
Summing up, p 34.
Summing up, p 36.
Emphasis added.
Summing up, pp 39-41
Summing up, p 43.
Summing up, p 46.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Legislation Cited (6)

Evidence Act 1995(NSW)

Crimes Act 1900(NSW)

Crimes Act 1958(Vic)

Criminal Appeal Act 1912(NSW)

Criminal Procedure Act 1986(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Cases Cited (83)

R v Falealili [1996] 3 NZLR 664 R v Hamilton (Court of Criminal Appeal, 6 July 1993, unreported) R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Murphy (1985) 4 NSWLR 42 R v Murray (1987) 11 NSWLR 12 R v MWL (2002) 137 A Crim R 282; [2002] VSCA 221 R v Oliverio (1993) 70 A Crim R 5; (1993) 61 SASR 354 R v Rowton (1865) Le & Ca 520; (1865) 169 ER 1479 R v Stalder [1981] 2 NSWLR 9 Re OGD (No 2) 50 NSWLR 433; [2000] NSWCCA 404 Simic v the Queen (1980) 144 CLR 319; [1980] HCA 25 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Vagg v R [2020] NSWCCA 134 Texts Cited: Criminal Practice and Procedure NSW, (LexisNexis) Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (2017) The Law Reform Commission, Report No 26, Interim - Evidence (1985) Category: Principal judgment Parties: FB (Applicant) Regina (Respondent) Representation: Counsel: Ms G Bashir SC (Applicant) Mr B Hatfield (Respondent)

(a) principles

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.
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]
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: "[36] It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a "separate consideration warning"). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. … [37] Thus, although the evidence on one count may show a propensity to commit crime - even crime of the kind the subject of the other charges - the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain of reasoning."

[2013] VSCA 273

[1972] HCA 71

[1988] HCA 50

[2002] VSCA 221

(1960) 102 CLR 353

(2013) 39 VR 642

(2011) 243 CLR 434

(1997) 191 CLR 275

(1972) 128 CLR 114

(1997) 76 FCR 9

(1997) 158 ALR 107

(2017) 91 ALJR 698

(2000) 201 CLR 414

(1988) 165 CLR 292

(2017) 263 CLR 338

(2014) 253 CLR 475

(2001) 206 CLR 221

(1999) 198 CLR 1

(1993) 61 SASR 354

(1999) 196 CLR 297

(1971) 124 CLR 107

(2001) 52 NSWLR 82

(1985) 4 NSWLR 42

(1987) 11 NSWLR 12

(1980) 144 CLR 319

(2002) 212 CLR 124

(2001) 207 CLR 96

(2016) 258 CLR 308

(1994) 181 CLR 487

(2011) 243 CLR 400

(2009) 74 NSWLR 299

(1997) 191 CLR 439

(1996) 190 CLR 348

(2002) 213 CLR 606

(2020) 94 ALJR 394

(2007) 70 NSWLR 467

Cited By (4)

Finally, it was put to the mother that the fridge incident did not occur: "Q. You've got both arms were punching, at about waist-- A. Yep, pushing me into the fridge, that my back was going into the fridge and he was like, doing that into my stomach area. Q. Both his fists moving upwards punching you many times, on what you're describing there, into the stomach and the trunk area? A. Yep. Q. Other than punching you are you saying he did anything else to you in that incident? A. Yes, he did. He pushed me up against, and he swore at me, yelled at me, said 'Don't fucking talk about me like that'. He pushed me up against the fridge, it was the corner of the fridge. He kept shoving me into it and then that's when he was punching me in the stomach. It's, I, I was in a lot of shock. He'd actually never been that physically violent with me before except for the other two strangling attempts. Q. What I'm suggesting to you is that none of that happened; he didn't punch you at all during that argument. Do you agree or disagree? A. I'll remember that day for the rest of my life. …. Q. When you got off the phone he told you that what you said to your friend was a lie on the phone. You agree with that don't you? A. What's the question sorry? Q. That when you got off the phone the accused said to you 'What you told your friend, that's a lie'? A. He's like 'Don't fucking talk about me like that' cause he's very focused on appearances and he doesn't want people to know how he behaves at home with his family. Q. I'm suggesting that you actually started shouting at him and said something like 'You shouldn't have been listening to my conversation'? Did you say something like that? A. No. Q. Did you raise your voice? A. Only to tell him to get away from me. Q. I'm suggesting to you that the accused said something like 'I couldn't help but listen. You talk loudly'? Did he say something like that? A. I think you've found that I talk quite softly a lot in this court room and I have at different times. I'd, I'm hearing impaired so I, he's actually never talked to me the way you're suggesting. Q. After that I'm suggesting that there was a verbal argument between the two of you which - were you saying things to each other? A. He came straight up to me and pushed me into that fridge. I, I was blindsided pretty much the second I got off the phone. Q. I'm suggesting to you he never pushed you into the fridge? A. He definitely pushed me into the fridge. Q. I'm suggesting he told you something like 'Settle down. Stop telling your friends that I'm lazy'. Do you agree he said that? A. I disagree with you."

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: "Q. On occasions when you observed him disciplining either [the daughter] or [the son], did you ever see him touch them? A. Not aggressive touching, yes. Q. Did you ever see him grab them? A. No, I didn't. Q. When you say 'Not aggressive touching', what do you mean? A. Well, not in a way that would cause any kind of physical harm, like any kind of bruising or type holding against their will. Q. Just so we're clear on what you mean by non‑aggressive touching, what was it that you saw that you remember? A. So, I would see - so, if there was a situation where, where one of them had been naughty, it would be a raised voice situation, it wouldn't be physically imposed in any way. Q. On the occasions when you did see touching though, what did you see, what was the touching? A. So, if it was any other time, not, not when there was anything going on, it was always very loving, connected kind of connection and touch. Q. I'm asking you specifically about occasions when you were observing the accused disciplining [the daughter] or [the son]. A. Yes, I didn't see any physical touch happening when that was happening. It was verbal. Q. Just so I understand your evidence correct, you're saying now that you didn't observe any physical touching by the accused of either [the daughter] or [the son] during the course of him disciplining them? A. No, I didn't."

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: "CROWN PROSECUTOR: Well the Crown's essential position simplified is this. The accused, by his character, or by the evidence that's been led into relation to character, essentially makes the submission that these offences are out of character for him. We say they're not out of character for him. HER HONOUR: But isn't the Crown's position the character witnesses knew the accused in this capacity or that capacity? The gentleman who is the financial adviser knows him in that professional capacity, had dinner a couple of times. A witness this morning was on a holiday for three or four days in France with him and saw him so many times when they're cleaning out the house next door, and saw him when she's got her own wedding ceremony. And Ms Brewer's in and out of the house a number of times, and so forth. CROWN PROSECUTOR: Yes. HER HONOUR: And isn't the Crown really saying those people weren't there the whole time? Things can happen privately that are different to one's public face, and really, the Crown's attack on the body of evidence, the character evidence, is more kind of along the lines of no-one can speak to the character of somebody 24 hours a day, seven days a week. Isn't it more generally an attack like that on those witnesses rather than - my concern is that the defence are entitled to rely upon that evidence when the jury is determining whether the Crown has proved its case, yet the Crown's seeking to use its case to rebut the character, which to me-- CROWN PROSECUTOR: It's other acts in the Crown case though. HER HONOUR: But it's other acts coming from the same sources though. It's all coming from the two complainants. [The mother's] potentially, because she isn't a complainant. So potentially the Crown - because when you give the good character direction you either say the Crown accepts the accused is a person or good character or you say the Crown - I'm paraphrasing here without looking at the bench book - but the Crown challenges the accused's claim to good character. The Crown submits when you are assessing that evidence that has been called on his behalf, you would on the one hand, for example, understand, or you'd find that these people only knew him in a particular public setting or in a particular capacity, they weren't there with him when the children were perhaps older and answering back. And secondly, the Crown would say you'd look at the evidence [the mother] gave about things she said the accused did towards her, and if you accept her evidence then you would take that evidence into account in weighing whether he is a person of good character. So I suppose in a more general way rather than getting down to the nitty-gritty of that allegation, that allegation, the Crown says that challenges his good character; in my view, things that the children have said, because they are the very witnesses who are the subject of the counts on the indictment, as I say, I think it's chicken and egg type argument, I don't think the Crown can use that uncharged conduct or charged conduct to rebut good character because he's entitled to have it taken into account." (Emphasis added.)

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: "…The accused, you would think, would be stressed. He was certainly argumentative. At times, you might think, he was defensive. At times, you may think, he wasn't answering immediately a question asked of him. And, ladies and gentlemen, you might think about whether you detected - a matter for you - in the way that he presented his evidence, a genuine, deep sense of personal affront and offence at what he's accused of and the questions that he necessarily faced, going into detail." … …You might think the sort of approach of a man who considers himself innocent and just wants to give his side of the story. You can certainly take into account his response, so when looking at argumentative, think of the types of questions he's got to face, and remember as well that at the heart of many of the accusations by the children about physical violence is what they describe as a tendency to, a habit of just suddenly exploding into a physical violent reaction, to the extent where if you remember [the son's] account of what's going on in the pot plant incident with [the daughter], is 'hush‑hush, don't let him know', and all that's happened you might think is a small pot plant, some potting mix has gone on the carpet, and yet what the children are describing is a man who, from such a small incident, could suddenly be provoked into violence, and that's a repeated feature, and I'll come back to in what they're alleging over the years, it's totally inconsistent with what you've heard from the character witnesses who have known [the applicant] for a long time. You need to square that up, that's the sort of person who does that and what you've seen in the witness box, certainly you could say there's anger, there's offence, defensiveness and argumentativeness in the accused's responses of parts of his cross‑examination, but you might think ladies and gentlemen that's exactly what you would expect given how he's coming, he said 'I didn't do these things', and yet he's been accused and he's got to keep facing those allegations."

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: "At common law, different opinions have been expressed as to the use which can be made of evidence of bad character adduced in response to an assertion of good character by an accused person: see R v Perrier (No 1) [1991] 1 VR 697 at 703-704. The present case however is governed not by the common law but by the Evidence Act. Section 110(2) and (3) provides that if in criminal proceedings evidence of good character of a defendant has been admitted "the hearsay rule, opinion rule, the tendency rule and the credibility rule do not apply" to evidence adduced to prove that the defendant is not a person of good character, either generally or in a particular respect as the case may be. The section appears to place no limitation on the use which may be made of evidence adduced under these provisions. Section 110(1) provides for a defendant to adduce evidence of his or her good character. If evidence of good character is admitted under s 10(1) it may be used as evidence directly relevant to the issue of guilt, as is the position at common law. The corresponding provisions in s 110(2) and (3) are drawn in terms similar to s 110(1). It may therefore be arguable that, as a matter of consistency, if evidence adduced under s 110(1) is admissible on the issue of guilt, so too would evidence adduced under s 110(2) or (3) be admissible on the issue of guilt, and not merely to rebut the evidence of good character. We note, however, the observation of Street CJ in R v Stalder at 17-18 concerning the influence of the common law on the construction of s 412 of the Crimes Act 1900 (NSW). As we consider the submission under consideration can be decided on another ground, and as the interpretation of the provisions of s 110 was not argued before us we express no view on the interpretation of that section." (Emphasis added.)

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: "Now I have said again and I will say again what I said to you yesterday about the way in which you may use the evidence of rebuttal of character. If you take the view the accused is not a person of good character but a person of bad character, in the light of the evidence given by [JS] alone, or [JS] and [SB] and [PP], I must emphasise that that must not be used to strengthen the Crown case in relation to these matters. It would not be entitled to say, "Because we find him to be a person of bad character he is a person who is likely to have committed these crimes. (at [113]) … But I say again, the evidence of sexual activity, alleged sexual activity between [SB] has been brought in for a specific purpose, that is to answer the question of character and I have given you a direction about character, it cannot be used by you to strengthen the Crown case." (at [115])

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: "92. There is no doubt that the Crown confined its submissions to the jury with respect to the pension card issue to the contention that that evidence was highly relevant to the appellant's credibility. However, in my opinion, neither that fact nor the fact that trial counsel for the appellant sought to utilise the evidence in order to bolster the appellant's credibility detracts from the risk that the jury unless instructed otherwise may have impersonally [sic - impermissibly] considered that they could use any finding by them that the accused was not a person of good character, to reason that it would make it more likely that he had committed the offence charged. That risk I consider to be both real and significant given the juxtaposition by the trial judge in his summing up of the pension card issue and the use that the jury might legitimately make of evidence of good character on the question of the appellant's guilt. The jury unless instructed otherwise, may have impermissibly considered that they could use any finding by them that the accused was not a person of good character to reason that that would make it more likely that he had committed the offence charged. There was at the very least, a reasonable possibility that the jury convicted the appellant because, having found that he was a person of bad character due to his dishonest dealings with Centrelink, it was more probable that he was guilty of the offence with which he was charged. 93. I have already noted that trial counsel for the appellant did not seek a Hamilton direction from the trial judge. Rule 4 therefore applies. In my opinion the overriding duty of his Honour to ensure a trial according to law obligated him, irrespective of whether the direction was sought, to instruct the jury accordingly: BRS v The Queen (1997) 191 CLR 275 at 302, 306. The defence case very much depended upon the jury's belief in the honesty of the appellant which in turn depended upon their finding that he was a person of good character. The failure of the trial judge to properly direct the jury resulted in the appellant being denied a real chance of an acquittal and hence a fair trial. In these circumstances, in my opinion, there has been a miscarriage of justice as a consequence whereof leave should be granted pursuant to Rule 4 and this ground of appeal should be upheld."

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: "118 The complaint is now made that his Honour should have given directions found in the Criminal Trial Courts Bench Book at [2-390] being a suggested direction where good character is contested. The relevant part of that suggested direction is as follows: 'If, on the other hand, you do not accept that [the accused] is a person of good character, evidence led by the Crown to the contrary to rebut such evidence must not be used to strengthen the Crown case against [him/her]. Thus, you are not entitled to say, 'Because of [the accused's] … [specify the evidence to the effect that the accused is not a person of good character] we think [he/she] is a person who is likely to have committed the crime'. Indeed, if you are not satisfied that [the accused] is a person of good character, the law requires you to put all consideration of character out of your minds in determining whether you are satisfied beyond reasonable doubt that [the accused] is guilty of the crime charged.' 119 We accept that it may have been preferable for his Honour to have warned the jury about the use of a finding that the appellant was not of good character, and we have little doubt that he would have done so had he been asked to give such a warning. But simply because a direction or warning might have been given, it does not follow that there was a miscarriage of justice because the direction or warning was not given, especially where it was not sought."

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): "53 If, on the other hand, you do not accept that the accused is a person of good character, you cannot use the evidence called by the Crown on that issue to strengthen the Crown case. That is, you are not entitled to reason that because of the evidence led by the Crown on the issue of character, that he is more likely to have committed the offence charged against him. The Crown did not call the evidence and does not rely upon that evidence to establish his guilt. It was simply led on the issue of the accused's character and it would be improper of you to use that evidence for any purpose other than on the issue of whether he is a person of good character. 54 If, after considering the evidence on this issue, you find that he is not a person of good character, then you cannot decide that he is a person of bad character and use that finding against the accused. Indeed, if you are not satisfied that he is a person of good character, the law requires you to put all consideration of character out of your minds in determining whether you are satisfied beyond a reasonable doubt that he is guilty of the crime or the crimes charged. That is a direction of law that you are bound by your promises as jurors, to follow, during your deliberations."

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]: "It follows that, notwithstanding the statements of McHugh J in KRM, there is neither a requirement or even a presumption that in all cases in which multiple counts of sexual assault involving different victims are tried together then, unless the evidence in respect of the counts is admissible as tendency evidence on the other counts, an anti‑tendency direction must be given such that a failure to do so will amount 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. Instead, whether such a direction is required and whether a miscarriage of justice is occasioned by reason of the failure to give such a direction requires an assessment of the likelihood or risk of the jury having engaged in tendency reasoning (Toalepai; Jiang; Lyndon). Ultimately, whether a miscarriage of justice has occurred will depend on whether there was a "real chance" (BRS at 306), "it was likely that" (Lyndon at [65]) or there was a "significant risk" (Toalepai at [49]) that "forbidden reasoning" would be or was employed (BRS at 306). The assessment of that risk will be undertaken by reference to, inter alia, an analysis of how the respective cases were conducted and the effect of other directions given by the trial judge such as the separate consideration direction referred to in the above passage from Lyndon (at [66]) and by Hayne J in KRM (at [133]) (Lyndon; Toalepai). Further, in making an assessment of the risk that the jury might engage in tendency reasoning in the absence of an anti-tendency direction, the failure of counsel for the applicant at the trial to seek such a direction can affect an assessment of the likelihood that the jury would reason impermissibly in the absence of an anti‑tendency direction (Lyndon at [66]; Erohin at [68]; and see generally ARS v R [2011] NSWCCA 266 at [148])."

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: "[113] It follows that, notwithstanding the statements of McHugh J in KRM, there is neither a requirement or even a presumption that in all cases in which multiple counts of sexual assault involving different victims are tried together then, unless the evidence in respect of the counts is admissible as tendency evidence on the other counts, an anti‑tendency direction must be given such that a failure to do so will amount 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. Instead, whether such a direction is required and whether a miscarriage of justice is occasioned by reason of the failure to give such a direction requires an assessment of the likelihood or risk of the jury having engaged in tendency reasoning (Toalepai; Jiang; Lyndon). Ultimately, whether a miscarriage of justice has occurred will depend on whether there was a 'real chance' (BRS at 306), 'it was likely that' (Lyndon at [65]) or there was a 'significant risk' (Toalepai at [49]) that 'forbidden reasoning' would be or was employed (BRS at 306). The assessment of that risk will be undertaken by reference to, inter alia, an analysis of how the respective cases were conducted and the effect of other directions given by the trial judge such as the separate consideration direction referred to in the above passage from Lyndon (at [66]) and by Hayne J in KRM (at [133]) (Lyndon; Toalepai). Further, in making an assessment of the risk that the jury might engage in tendency reasoning in the absence of an anti-tendency direction, the failure of counsel for the applicant at the trial to seek such a direction can affect an assessment of the likelihood that the jury would reason impermissibly in the absence of an anti‑tendency direction (Lyndon at [66]; Erohin at [68]; and see generally ARS v R [2011] NSWCCA 266 at [148])."